AKSHAY KUMAR SINGH versus STATE (NCT OF DELHI)
[2019] 15 S.C.R. 342, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
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AKSHAY KUMAR SINGH
v.
STATE (NCT OF DELHI)
Review Petition (Criminal) D No. 44603 of 2019
In
(Criminal Appeal Nos. 609-610 of 2017)
DECEMBER 18, 2019
[R. BANUMATHI, ASHOK BHUSHAN AND
A. S. BOPANNA, JJ.]
Supreme Court Rules, 2013 – Or. XLVII, r.1 – Review in death
penalty cases – Nirbhaya Case – Criminal appeal filed by the
petitioner-accused (cleaner of the bus) was dismissed by the
Supreme Court vide judgment dated. 05.05.2017 in Mukesh and
another v. State (NCT of Delhi) and Others reported as [2017] 6 SCR
1 – Conviction and death penalty imposed upon the petitioner by
the trial court and the High Court was confirmed – Review petition
– Held: Scope of review is limited – Review in the criminal
proceedings is permissible only on the ground of error apparent
on the face of the record – Review petition is not a rehearing of
the appeal over again – Grounds raised by the petitioner in this
review petition are identical to those raised by the co-accused in
their review petitions which were considered and rejected by
Supreme Court – Further, general contentions put forth against the
capital punishment cannot be gone into in this review petition – A
party is not entitled to seek review of the judgment merely for the
purpose of rehearing of the appeal and a fresh decision –
Considering the manner in which the offence was committed,
Supreme Court in the judgment dated. 05.05.2017 held that the
case falls within “the rarest
of rare cases”– In light of the
aggravating circumstances and considering that the case falls
within the category of “rarest of rare cases”, the death penalty is
confirmed – No error apparent on the face of the record in the
appreciation of evidence or the findings of the judgment dated.
05.05.2017 calling for review – Constitution of India – Arts.137,
145 – Penal Code, 1860 – 120-B, 201, 302, 307, 365, 366,
376(2)(g), 377, 395, 397 and 412.
   [2019] 15 S.C.R. 342
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Constitution of India– Arts.137 and 145 – Power of Supreme
Court u/Art.137 – Held: Art.137 empowers the Supreme Court to
review any judgment pronounced or made, subject to the provisions
of any law made by the Parliament or any rule made u/Art.145.
Dismissing the review petition, the Court
HELD: 1.1 Scope of review is limited and review cannot
be entertained except in cases of error apparent on the face of
the record. Article 137 of the Constitution of India empowers
the Supreme Court to review any judgment pronounced or made,
subject, of course, to the provisions of any law made by the
Parliament or any rule made under Article 145 of the
Constitution of India. Order XLVII Rule 1 of Supreme Court
Rules, 2013 dealing with review. Review is a not a rehearing of
the appeal over again. In a review petition, it is not for the Court
to re-appreciate the evidence and reach a different conclusion.
A review of the judgment is permitted only when it is shown that
judgment suffers from error apparent on the face of the judgment.
The grounds raised by the petitioner-accused in this review
petition are identical to that of the grounds raised by the co-
accused in their review petitions. Those grounds urged by the
co-accused in their review petitions were considered and
rejected by this Court. [Paras 8, 10, 12 and 14] [348-F-G; 349-
D-E; 350-H; 351-C-D]
P.N. Iswara Iyer and Ors. v. Registrar, Supreme Court
of India (1980) 4 SCC 680 – followed.
Sow Chandra Kante and
Another v. Sheikh Habib
(1975) 1 SCC 674 ; Kamlesh Verma v. Mayawati and
Others (2013) 8 SCC 320 : [2013] 11 SCR 25 ; Vikram
Singh alias Vicky Walia and Another v. State of Punjab
and Another (2017) 8 SCC 518 : [2017] 8 SCR 177
– relied on.
Mukesh and another v. State (NCT of Delhi) and others
(2017) 6 SCC 1 : [2017] 6 SCR 1 – referred to.
1.2 Two grounds raised by the petitioner in this review
petition are (i) futility of awarding death sentence in Kalyug,
where a person is no better than a dead body; and (ii) that the
level of pollution in Delhi NCR is so great that life is short
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anyhow and everyone is aware of what is happening in Delhi
NCR in this regard and while so, there is no reason why death
penalty should be awarded. It is unfortunate that such grounds
have been raised in the matter as serious as the present case.
The grounds raised in the petition alleging improper
investigation and manipulation of evidence are too general and
not specific. Each and every point raised by the petitioner-
accused assailing the course of investigation was well considered
by the trial court which had been gone through at the time of
hearing of the criminal appeals. The same points cannot be urged
again and again. [Paras 15, 17] [351-E; 352-A-B]
2. Dying declaration – There were three dying declarations
recorded from the prosecutrix. This Court considered the three
dying declarations and found that the multiple dying declarations
inspire the confidence of the Court and are credible. The plea
of alibi taken by the petitioner-accused and the evidence
adduced by the petitioner was well-considered by this Court in
Paras (247) to (269). Upon appreciation of evidence, this Court
affirmed the findings of the trial court and the High Court
rejecting the plea of alibi and held that plea of alibi taken by the
petitioner is an afterthought. The appreciation of evidence in
rejecting the plea of alibi does not suffer from any error apparent
on the face of the record and this cannot be urged as a ground
for review.
Elaborate submissions were made on the alleged use
of iron rod and the same was rejected by well-considered
reasonings in Paras (193) to (209) and (413) to (422) and the
said findings thereon supported by the opinion of the medical
expert do not suffer from any error. The review petition is not
for re-hearing of the appeal on reappreciation of the evidence
over and over again. A party is not entitled to seek review of
the judgment merely for the purpose of rehearing of the appeal
and a fresh decision. [Paras 22, 25-27] [353-F; 354-D; 355-D-F;
356-B]
3. Dismissal of the review petitions filed by the co-
accused: The aggravating and mitigating circumstance and the
affidavit filed by the petitioner was considered in detail in Para
(324). The contention urged by the counsel for the parties and
learned amicus curiae were considered in paras (327) to (368)
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and (511) to (518) of the judgment and the court observed that
the background and family circumstances cannot be taken as the
mitigating circumstances. Considering the manner in which the
offence was committed, in the judgment dated 05.05.2017, this
Court held that the case is falling within “the rarest of rare
cases”. It is not found that these findings suffer from any error
apparent on the face of the record. The mitigating circumstances
elaborated upon by the defence by way of highlighting the
comparatively young age of the convicts, their socio-economic
background, their unblemished antecedents and their chances
of reformation, fade into insignificance. In light of the aggravating
circumstances and considering that the case falls within the
category of “rarest of rare cases”, the death penalty is
confirmed. No error apparent on the face of the record is found
in the appreciation of evidence or the findings of the judgment
dated 05.05.2017. None of the grounds raised in the review
petition call for review of the judgment dated 05.05.2017. The
review petition is dismissed. [Paras 28-31] [356-D-G; 357-D]
Mukesh v. State (NCT of Delhi) (2018) 8 SCC 149 :
[2018] 7 SCR 898 ; Vinay Sharma and another v. State
(NCT of Delhi) and others (2018) 8 SCC 186 : [2018]
7 SCR 919 – referred to.
Case Law Reference
[2017] 6 SCR 1
referred to
Para 4
(1975) 1 SCC 674
relied on
Para 9
[2013] 11 SCR 25
relied on
Para 10
[2017] 8 SCR 177
relied on
Para 11
(1980) 4 SCC 680
followed
Para 12
[2018] 7 SCR 898
referred to
Para 29
[2018] 7 SCR 919
referred to
Para 29
CRIMINAL APPELLATE JURISDICTION : Review Petition
(Criminal) Nos. 602-603 of 2019 In Criminal Appeal Nos. 609-610 of
2017.
From the Judgment and Order dated 05.05.2017 passed in
Criminal Appeal Nos. 609-610 of 2017.
AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)
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 A.P. Singh, V.P. Singh, Ms. Geeta Chauhan, Ms. Richa Singh,
Ms. Pratima Rani, Sadashiv, Advs. for the Appellant.
Tushar Mehta, SG, Kanu Agrawal, Ms. Swati Ghildiyal, Adit
Khorana, Manan Popli, Rajeev Ranjan, Varun Chugh, Bhuvan Kapoor,
B.V. Balram Das, Chirag M.Shroff,  Advs. for the Respondent.
The Judgment of the Court was delivered by
R. BANUMATHI, J.
1. This Review Petition has been preferred by the petitioner-
accused Akshay Kumar Singh who was the cleaner of the bus to review
the judgment dated 05.05.2017 passed by this Court in Criminal Appeal
Nos.609-610 of 2017 in and by which this Court confirmed the
conviction and death penalty imposed upon the petitioner by the trial
court as well as by the High Court.
2. In the evening of 16.12.2012, the prosecutrix (since deceased)
had gone for a movie with her friend, PW-1. At about 08:45 pm, both
the prosecutrix and PW-1 left the movie theatre and reached Munirka
bus stand and they boarded the bus bearing registration No. DL-1PC-
0149. This bus was being driven by accused Ram Singh (since
deceased) and the petitioner-Akshay Kumar Singh @ Thakur was the
helper thereof. The accused misbehaved with the prosecutrix and have
committed gang rape of the prosecutrix in the moving bus. They also
committed unnatural offence and inserted iron rod in the private parts
of the prosecutrix. The accused persons had beaten up PW-1 with iron
rods and his clothes were torn off. The
accused also took away all the
belongings of the prosecutrix and PW-1 and thereafter, threw the
prosecutrix and PW-1 in a naked/semi naked condition from the moving
bus. The prosecutrix was treated at Safdarjung Hospital, Delhi where
her three dying declarations were recorded. Since the condition of the
prosecutrix became critical, she was shifted for further treatment on
27.12.2012 to Mt. Elizabeth Hospital, Singapore where, she died on
29.12.2012.
3. The trial court held that the complicity and guilt of the accused
were proved and convicted the petitioner and other accused under
Sections 120-B IPC, 376 (2)(g) read with Section 120-B IPC, 377 read
with Section 120-B IPC, 365 and 366 read with Section 120-B IPC,
395 read with Section 120-B IPC, 397 read with Section 120-B IPC,
302 read with Section 120-B IPC, 307 read with Section 120-B IPC,
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412 and 201 read with Section 120-B IPC and inter alia imposed death
penalty upon them. Death penalty and other sentence of imprisonment
imposed upon them was confirmed by the High Court. The accused
had filed Criminal Appeal Nos.609-610 of 2017 before this Court.
4. Criminal appeal filed by the petitioner had earlier been
dismissed by this Court vide its judgment dated 05.05.2017 in Mukesh
and another v. State (NCT of Delhi) and others (2017) 6  SCC 1
on the basis of the following evidence which firmly established the
presence of the petitioner at the scene of the incident and his
involvement in the commission of rape on the prosecutrix :-
(i) evidence of PW-1/injured eye-witness who spoke about the
occurrence in the bus; PW-1 identified the petitioner in the
TIP conducted on 26.12.2012 as one of the persons who
came out of the driver’s cabin from the bus and started
abusing PW-1 and later, took the prosecutrix to the back
side of the bus and raped her;
(ii) three dying declarations of the prosecutrix of which, in the
second dying declaration (ExPW27/A), prosecutrix stated
the incident in detail and that the accused persons were
calling “Ram Singh, Thakur, Raju, Mukesh, Pawan and
Vinay and in the third dying declaration, the prosecutrix
wrote the names of the accused “Ram Singh, Mukesh,
Vinay, Akshay, Vipin, Raju” including petitioner-Akshay
Kumar Singh and other accused;
(iii) evidence of PW-81-Dinesh Yadav, owner of the bus in
which he has stated that
accused Ram Singh was the
driver and petitioner was the helper in the bus in which
the incident occurred;
(iv) Ex.PW71/C, report of PW-71-Dr. Ashith B. Acharaya who
opined that one bite mark found on the prosecutrix could
have been possibly caused by the petitioner; three other
bite marks were caused by accused Ram Singh;
(v) DNA evidence – DNA profile generated from the blood-
stained jeans and banian of the petitioner recovered at the
behest of petitioner matched with the DNA profile of the
prosecutrix; another set of DNA profile generated from
jeans pant of the petitioner matched with the DNA profile
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of PW-1 and DNA profile generated from breast swab of
the victim which was found consistent with the DNA
profile of the blood of the petitioner;
(vi) recovery of metro card and silver ring of PW-1 recovered
at the behest of the petitioner and identified by PW-1.
5. We have heard Mr. A.P. Singh, learned counsel appearing for
the petitioner-accused No.3. We have also heard Mr. Tushar Mehta,
learned Solicitor General appearing for NCT of Delhi assisted by Ms.
Supriya Juneja, learned counsel.
6. The learned counsel Mr. A.P. Singh had taken us through the
various grounds urged in the review petition and prayed for review of
the judgment. The learned Solicitor General Mr. Tushar Mehta submitted
that the evidence adduced by the prosecution and the defence plea has
been considered threadbare both by the trial court, High Court and also
by this Court. The learned Solicitor General submitted that upon
appreciation of evidence, the High Court and the Supreme Court upheld
the findings as to the guilt of the accused and also the sentence. The
learned Solicitor General also submitted that the very same grounds
were raised in the review petition by the co-accused and the same was
dismissed by this Court vide judgments in Mukesh v. State (NCT of
Delhi) (2018) 8 SCC 149 and Vinay Sharma and another v. State
(NCT of Delhi) and others (2018) 8 SCC 186.
7. In this review petition, the petitioner prays for review of the
judgment dated
05.05.2017. In the review petition before us, the
petitioner has again sought to assail the merits of the prosecution case
and the findings rendered thereon which cannot be permitted.
8. It is no longer res integra that scope of review is limited and
review cannot be entertained except in cases of error apparent on the
face of the record. Article 137 of the Constitution of India empowers
the Supreme Court to review any judgment pronounced or made,
subject, of course, to the provisions of any law made by the Parliament
or any rule made under Article 145 of the Constitution of India. Order
XLVII Rule 1 of Supreme Court Rules, 2013 dealing with review reads
as follows:-
 “1. The Court may review its judgment or order, but no
application for review will be entertained in a civil proceeding
except on the ground mentioned in Order 47 Rule 1 of the Code,
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and in a criminal proceeding except on the ground of an error
apparent on the face of the record.”
As per the Supreme Court Rules, review in the criminal
proceedings is permissible only on the ground of error apparent on the
face of the record.
9. The jurisdiction of this Court under Article 137 of the
Constitution of India has been clearly stated in Sow Chandra Kante
and Another v. Sheikh Habib (1975) 1 SCC 674, wherein this Court
held as under:-
“A review of a judgment is a serious step and reluctant resort to
it is proper only where a glaring omission or patent mistake or
like grave error has crept in earlier by judicial fallibility. A mere
repetition through different counsel of old and overruled
arguments, a second trip over ineffectually covered ground or
minor mistakes of inconsequential import are obviously
insufficient.”
10. Review is a not a rehearing of the appeal over again. In a
review petition, it is not for the Court to re-appreciate the evidence and
reach a different conclusion. The scope of review jurisdiction has been
elaborately considered by this Court in number of cases and the well
settled principles have been reiterated time and again. In Kamlesh Verma
v. Mayawati and Others (2013) 8 SCC 320, the Supreme Court held
as under:-
“17. In a review petition, it is not open to the Court to
reappreciate the evidence and reach a different conclusion, even
if that is possible. Conclusion arrived at on appreciation of
evidence cannot be
assailed in a review petition unless it is shown
that there is an error apparent on the face of the record or for
some reason akin thereto. This Court in Kerala SEB v. Hitech
Electrothermics & Hydropower Ltd. (2005) 6 SCC 654 held
as under: (SCC p. 656, para 10)
“10. … In a review petition it is not open to this Court to
reappreciate the evidence and reach a different conclusion, even
if that is possible. The learned counsel for the Board at best
sought to impress us that the correspondence exchanged between
the parties did not support the conclusion reached by this Court.
We are afraid such a submission cannot be permitted to be
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advanced in a review petition. The appreciation of evidence on
record is fully within the domain of the appellate court. If on
appreciation of the evidence produced, the court records a finding
of fact and reaches a conclusion, that conclusion cannot be
assailed in a review petition unless it is shown that there is an
error apparent on the face of the record or for some reason akin
thereto. It has not been contended before us that there is any
error apparent on the face of the record. To permit the review
petitioner to argue on a question of appreciation of evidence
would amount to converting a review petition into an appeal in
disguise.”
11. Considering the scope of review under Article 137 of the
Constitution of India and observing that normally in a criminal
proceeding, review applications cannot be entertained except on the
ground of error apparent on the face of the record, in Vikram Singh
alias Vicky Walia and Another v. State of Punjab and Another
(2017) 8 SCC 518, the Supreme Court held as under:-
“23. In view of the above, it is clear that scope, ambit and
parameters of review jurisdiction are well defined. Normally in
a criminal proceeding, review applications cannot be entertained
except on the ground of error apparent on the face of the record.
Further, the power given to this Court under Article 137 is wider
and in an appropriate case can be exercised to mitigate a manifest
injustice. By review
application an applicant cannot be allowed
to reargue the appeal on the grounds which were urged at the
time of the hearing of the criminal appeal. Even if the applicant
succeeds in establishing that there may be another view possible
on the conviction or sentence of the accused that is not a
sufficient ground for review. This Court shall exercise its
jurisdiction to review only when a glaring omission or patent
mistake has crept in the earlier decision due to judicial fallibility.
There has to be an error apparent on the face of the record
leading to miscarriage of justice to exercise the review jurisdiction
under Article 137 read with Order 40 Rule 1. There has to be a
material error manifest on the face of the record with results in
the miscarriage of justice.”
12. A review of the judgment is permitted only when it is shown
that judgment suffers from error apparent on the face of the judgment.
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In P.N Iswara Iyer and Others v. Registrar, Supreme Court of India
(1980) 4 SCC 680, while considering Order XL Rule 1 of the Supreme
Court Rules, 1996, the Constitution Bench of the Supreme Court
observed that Order XL Rule 1 affords the wider set of grounds for
review of orders in civil proceedings, but limits the grounds vis-à-vis
criminal proceedings to errors apparent on the face of the judgment.
13. Applying the above parameters of the review jurisdiction, it
is to be seen whether the petitioner has made out any ground indicating
error apparent on the face of the record warranting review of our
judgment dated 05.05.2017.
14. Even at the outset, it is to be pointed out that the grounds
raised by the petitioner-accused in this review petition are identical to
that of the grounds raised by the co-accused in their review petitions.
Those grounds urged by the co-accused in their review petitions were
considered and rejected by this Court in  Mukesh v. State (NCT of
Delhi) (2018) 8 SCC 149 and Vinay Sharma and another v. State
(NCT of Delhi) and others (2018) 8 SCC 186.
15. At this juncture, we would like to point out two grounds raised
by the petitioner in this review petition viz., (i) futility of awarding death
sentence in Kalyug, where a person is no better than a dead body;
and (ii) that the level of pollution in Delhi NCR is so great that life is
short anyhow and everyone is aware of what is happening in Delhi NCR
in this regard and while so, there
is no reason why death penalty should
be awarded. According to the petitioner, in view of the above, he should
be spared of the death sentence. We find it unfortunate that such
grounds have been raised in the matter as serious as the present case.
16. The petitioner has also raised the plea that death penalty is
the ultimate denial of human rights and that it violates the right to life;
it also goes against the principle of non-violence. In the review petition,
the petitioner has put forth the general case against the capital
punishment by stating that only the poor and downtrodden are more
likely to be sentenced with death sentence. Such general contentions
put forth against the capital punishment cannot be gone into in this
review petition.
17. The petitioner has raised the plea as to the lack of professional
skills of the investigating agency and the need for an unbiased
investigation.  In the petition, general allegations have been made
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against the investigating agency alleging extortion of confession and then
create evidence to falsely implicate the accused.  The grounds raised
in the petition alleging improper investigation and manipulation of
evidence are too general and not specific.  It is to be pointed out that
each and every point raised by the petitioner-accused assailing the
course of investigation was well considered by the trial court which
we have gone through at the time of hearing of the criminal appeals.
The same points cannot be urged again and again.
18. So far as the dying declaration is concerned, the
petitioner has raised the same contention which was raised earlier that
is, according to the petitioner, only the first dying declaration (Ex.PW49/
A) recorded by PW-49-Dr. Rashmi Ahuja where the prosecutrix has
neither named nor mentioned the name of any of the accused persons,
has to be relied upon.  Contention of the petitioner is that the second
dying declaration (Ex.PW27/A) recorded by PW-24-Dr. Usha
Chaturvedi, SDM on 21.12.2012 could not have been recorded as the
victim was under the life support and she could not have given four
pages of dying declaration. Further contention of the petitioner is that
the third dying declaration recorded by PW-30-Pawan Kumar,
Metropolitan Magistrate where the victim has named the petitioner and
other accused was a tutored version and cannot be relied upon.
19. Mr. A.P. Singh, learned counsel
appearing for the petitioner-
accused has contended that investigation in the present case is flawed
and unreliable.  It was submitted that insofar as the recording of the
statement of witnesses under Section 161 Cr.P.C., manner of arrest of
the accused, conduct of test identification parade are doubtful.  Various
contentions assailing the course of investigation have been raised both
before the trial court as well as before the High Court and this Court
which have been considered threadbare and were rejected.  We do
not find any merit in the contention of the learned counsel for the
petitioner assailing the investigation.
20. The learned counsel submitted that because of the media
pressure, the petitioner and other accused have been falsely implicated.
Taking us through the averments made in para 3(f) of the review
petition, the learned counsel submitted that PW-1-Awninder Pratap Singh
had taken heavy amount as bribe and this has been highlighted in some
of the news channels which affect the credibility of the evidence of
PW-1.  It was submitted that in this regard, Heera Lal Gupta, father
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of co-accused Pawan Gupta had filed a complaint vide Diary No.26A
on 02.11.2019 before SHO, PS R.K. Puram, Sector-12, New Delhi and
also before Deputy Commissioner of Police, Vasant Vihar.  The
averments made in para 3(f) of the review petition are subsequent
events unsupported by any material.  In a criminal case, culpability or
otherwise of the accused are based upon appreciation of evidence
adduced by the prosecution and also the evidence adduced by the
defence.  The materials or the news emerging in the media and press
as also the news channels cannot be taken note of in arriving at a
conclusion on the culpability of the accused or to test credibility of the
witness.  Such events cannot be urged as a ground for review.
21. The learned counsel appearing for the petitioner-accused has
taken us through the averments made in para 3(g) of the review petition
and also the clippings of book titled “Black Warrant” written by Sunil
Gupta, a former law officer of Central Jail, Tihar, Delhi who served
long time in Tihar jail.  The learned counsel submitted that in the book
written by the above officer, the officer has expressed his opinion that
Ram Singh, accused No.1 was murdered in Tihar jail on 11.03.2013.
Here again, the opinion of the said former law officer Sunil Gupta is
only his opinion which is not supported by any material.  If the former
law officer had any doubt regarding death of Ram Singh, the said officer
could have offered himself to appear as a
defence witness or he could
have filed an affidavit before any of the courts, either trial court or High
Court or before the Supreme Court.  The opinion of the said officer
Sunil Gupta which is not supported by any material, cannot be a ground
for reviewing our judgment.
22. As pointed out in the judgment, there were three dying
declarations recorded from the prosecutrix:-
(i) in the first dying declaration (Ex.PW-49/A) recorded by
Dr. Rashmi Ahuja (PW-49) on 16.12.2012 at 11.15 pm, the
prosecutrix has stated that more than two men committed
rape on her after which, she does not remember the sexual
intercourse; the prosecutrix also stated that she was
subjected to unnatural sex and she was bitten over her lips,
cheeks and breast;
(ii) in the second dying declaration (Ex.PW-27/A) recorded by
PW-27-Usha Chaturvedi, SDM on 21.12.2012 at 09.00 pm,
the prosecutrix has narrated the entire incident in great
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detail, specifying the role of each of the accused, rape
committed by number of persons, insertion of iron rod in
her private parts, description of the bus, robbery committed
and throwing of both the victims out of the moving bus in
naked condition. Prosecutrix also stated that the accused
were calling each other “Ram Singh, Thakur, Raju,
Mukesh, Pawan and Vinay”; and
(iii) in the third dying declaration (Ex.PW-30/D) recorded on
25.12.2012 at 1.00 p.m by PW-30-Pawan Kumar,
Metropolitan Magistrate by putting multiple choice
questions to the victim and getting answers by gestures and
writing. While giving third dying declaration, prosecutrix
revealed the names of the accused by writing in her own
handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin,
Raju”.
This Court considered the three dying declarations in the light of
the well-settled principles and found that the multiple dying declarations
inspire the confidence of the Court and are credible. The above
contentions were earlier raised and were considered by this Court in
paras (148) to (164), (186) to (192) and (395) to (417) of the judgment
and rejected.  While so, the petitioner cannot raise the same plea.
23. So far as the plea of alibi, contention of the petitioner is that
he was not present in Delhi on the night of 16.12.2012 and that he
accompanied his sister-in-law Sarita Devi (DW-15) along with her son
Kundan. He boarded Mahabodhi Express on
15.12.2012 and left for
Aurangabad, Bihar from Platform No.9, New Delhi Railway Station.
Contention of the petitioner that the evidence adduced by the petitioner
to prove his presence in the Karmalahang, P.S. Thandva, District-
Aurangabad, that is the evidence of DW-1, local auto driver, DW-12-
Sarju Singh who has spoken about the petitioner reaching his house in
his native village on 16.12.2012 and DW-13-Rajmohan, father-in-law
of petitioner and DW-14-Punita Devi, wife of petitioner who have
deposed that the petitioner came to their house in the native village
Karmalahang along with Sarita Devi (DW-15), would show that the
petitioner was not present in Delhi on the night of 16.12.2012. It was
submitted that though the defence has showed booked ticket details of
Mahabodhi Express from New Delhi to Aurangabad on 15.12.2012 to
prove the departure of the petitioner, this aspect was not appreciated
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by the court and the petitioner’s plea of alibi was erroneously turned
down.
24. To substantiate the plea of alibi, the petitioner has examined
DW-11-Chavinder, Auto Driver who has taken the petitioner and his
family members from Anugrah Narayan Railway Station, District-
Aurangabad, Bihar to his native village, Karmalahang.  DW-12-Sarju
Singh, DW-13-Rajmohan, father-in-law of petitioner and DW-14-wife
of the petitioner have spoken about the presence of petitioner in the
village. DW-15-Sister-in-law of petitioner whom the petitioner claims
had accompanied her on 15.12.2012. Considering the evidence of DWs
12, 14 and 15 in Para (256), this Court has observed that DWs 12, 14
and 15 are all relatives of accused Akshay Kumar Singh alias Thakur
and that as observed by both the courts, they tried to wriggle the
petitioner out of the messy situation as is the natural instinct of the
family members.
25. The plea of alibi taken by the petitioner-accused and the
evidence adduced by the petitioner has been well-considered by this
Court in Paras (247) to (269). Upon appreciation of evidence, this
Court affirmed the findings of the trial court and the High Court rejecting
the plea of alibi and held that plea of alibi taken by the petitioner is
an afterthought. We do not find any error apparent on the face of the
record in consideration of evidence and rejection of the plea of alibi.
The appreciation of evidence in rejecting the plea of alibi does not suffer
from any
error apparent on the face of the record and this cannot be
urged as a ground for review.
26. The next contention urged by the petitioner is the use of iron
rod and absence of injury to the uterus on the alleged insertion of the
iron rod in the private parts of the victim.  Elaborate submissions were
made on the alleged use of iron rod and the same was rejected by well-
considered reasonings in Paras (193) to (209) and (413) to (422) and
the said findings thereon supported by the opinion of the medical expert
do not suffer from any error.
27. The other contentions viz. (i) CCTV footage of Hotel Delhi
Airport was not properly examined; (ii) the bus bearing registration
No.DL-1PC-0149 was falsely implicated; (iii) PW-81-owner of the bus
was in judicial custody for six months before his examination in the court
and he was so detained in custody only to bring pressure upon him to
depose in favour of the prosecution; and (iv) the petitioner-accused was
AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)
[R. BANUMATHI, J.]
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SUPREME COURT REPORTS
[2019] 15 S.C.R.
photographed earlier and the same was shown to PW-1 to enable him
to identify the petitioner-accused in the test identification parade. These
contentions and other contentions assailing the case of the prosecution
were all raised earlier and upon consideration of evidence, the same
were rejected by this Court.  The review petition is not for re-hearing
of the appeal on reappreciation of the evidence over and over again.
A party is not entitled to seek review of the judgment merely for the
purpose of rehearing of the appeal and a fresh decision.
28. On the question of award of death sentence, the Court has
considered the aggravating and mitigating circumstances. In Paras (322)
to (368) and (511) to (518) of the judgment, while considering the
question of death sentence, opportunity was granted to the petitioner
accused and also other accused to file their affidavits as to their family
background, criminal antecedents, possibility of reformation and such
other relevant factors. The petitioner accused through his counsel, Mr.
A.P. Singh has filed an affidavit stating his family background and stating
that he has no criminal antecedent and that his case is not falling under
“the rarest of rare cases” to affirm the death sentence, which contention
was considered and rejected. The aggravating and mitigating
circumstance and the affidavit filed by the petitioner was considered
in detail in Para (324). The contention urged
by the counsel for the
parties and learned amicus curiae were considered in paras (327) to
(368) and (511) to (518) of the judgment and the court observed that
the background and family circumstances cannot be taken as the
mitigating circumstances. Considering the manner in which the offence
was committed, in the judgment dated 05.05.2017, this Court held that
the case is falling within “the rarest of rare cases”.  We do not find
that these findings suffer from any error apparent on the face of the
record. The mitigating circumstances elaborated upon by the defence
by way of highlighting the comparatively young age of the convicts,
their socio-economic background, their unblemished antecedents and
their chances of reformation, fade into insignificance.  In light of the
aggravating circumstances and considering that the case falls within
the category of “rarest of rare cases”, the death penalty is confirmed.
29. Insofar as the submission of learned counsel for the petitioner-
accused that the death penalty has been abolished in UK and several
other Latin American countries and Australian States, the same
contentions were raised by Mr. A.P. Singh in the earlier review petitions
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and the same were dismissed.  [vide Mukesh v. State (NCT of Delhi)
(2018) 8 SCC 149 and Vinay Sharma and another v. State (NCT
of Delhi) and others (2018) 8 SCC 186]
30. Dismissal of the review petitions filed by the co-
accused: The review petition filed by the co-accused were dismissed
as having no merit, on 09.07.2018 Mukesh v. State (NCT of Delhi)
(2018) 8 SCC 149. The court observed that the submissions urged
by the other accused were already considered while delivering the
judgment and were rejected. The same points were earlier raised in
the review petitions filed by other co-accused. The grounds raised in
the present review petition are almost repetition of the arguments raised
in the earlier review petitions which were rejected and in our view,
cannot be raised again and again.
31. We do not find any error apparent on the face of the record
in the appreciation of evidence or the findings of the judgment dated
05.05.2017. None of the grounds raised in the review petition call for
review of the judgment dated 05.05.2017. The review petition is
dismissed.
Divya Pandey
Review petition dismissed.
AKSHAY KUMAR SINGH v. STATE (NCT OF DELHI)
[R. BANUMATHI, J.]