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Vinay Sharma and Ors. Vs. State of NCT of Delhi and Ors. - (Supreme Court) (09 Jul 2018)

Review in a criminal proceeding is permissible only on ground of error apparent on face of record



Present review petitions have been filed by two applicants Vinay Sharma-Accused No. 1 and Pawan Kumar Gupta-Accused No. 2 to review the judgment of present Court by which judgment present Court had dismissed the criminal appeals filed by the Petitioners challenging the order of the High Court confirming the death reference and dismissing the criminal appeals filed by the Petitioners against the order of conviction and award of death sentence. Both the Petitioners were tried for rape and murder of a 23 years' age lady-Nirbhaya. The trial Court convicted the Petitioners along with three others and awarded death sentence to all the four Accused. Death reference was sent by the trial court to the High Court. Separate criminal appeals were also filed by the Petitioners challenging the judgment of the trial court. Delhi High Court vide its judgment confirmed the death penalty to all the four convicts including Petitioners.

The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, Rule 1 of Supreme Court Rules, 2013, and in a criminal proceeding except on the ground of an error apparent on the face of the record. 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 of Constitution 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. Present 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 of Constitution 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.

The Constitution Bench of this Court in Bachan Singh examined the constitutional validity of death penalty as provided under Section 302 of Indian Penal Code, 1860 (IPC). After elaborately considering the existence of death penalty in the Penal Code, constitutional provisions of Articles 19 and 21 of Constitution , and international covenant on civil and criminal rights, this Court held that, death penalty as contained in Penal Code is constitutionally valid. The death penalty remains in the Penal Code, the Courts cannot be held to commit any illegality in awarding death penalty in appropriate cases.

In the review petitions, Petitioners cannot ask the Court to re-hear the appeals on merits which submissions had already been noted, considered and rejected. To show the involvement of the bus, present Court has also elaborately considered the evidence of PW-81, owner of the bus and PW-16, Manager (Admn.) of Birla Vidya Niketan School, Pushp Vihar who have stated that, the bus was routinely driven by Ram Singh (deceased Accused) and he was the driver of the bus.

Involvement of the bus was also held to be substantiated by matching of DNA profile of the material objects lifted from the bus which were found consistent with that of the victim and the complainant. Matching of DNA profile developed from the articles seized from the bus like 'hair' recovered from the third left row of the bus and the blood-stained seat cover of the bus and the bunch of hair recovered from the floor of the bus with the DNA profile of the victim was held to be unimpeachable evidence establishing the involvement of the bus in the commission of the offence. The oral and scientific evidence has been elaborately considered by this Court in upholding the findings of the High Court as to the involvement of the bus. The Petitioner/Accused cannot re-agitate the same point again.

All the contentions raised regarding the three dying declarations have been considered in detail. Considering all the three dying declarations, in the light of well-settled principles, this Court held that, all the three dying declarations are true, voluntary and consistent. Insofar as third dying declaration, this Court, held that the dying declaration made through signs, gestures or by nods are admissible as evidence and that proper care was taken by PW-30, Pawan Kumar, Metropolitan Magistrate and the third dying declaration recorded by in response to the multiple-choice questions by signs, gestures made by the victim are admissible as evidence.

The Petitioners cannot be allowed to re-agitate the same issue again and again. The issue of juvenile was considered by the trial court and trial court on the basis of the materials on record held that, Petitioner No. 1 was not a juvenile. Regarding the submission of the learned Counsel for Petitioner No. 2 that he was juvenile at the time of occurrence, The trial court had rightly concluded that, Petitioner No. 2 was not a juvenile.

Criminal appeals filed by the Appellants (Petitioners herein) against the judgment of the High Court were heard by present Court giving them sufficient time for raising all possible submissions. The hearing in criminal appeals continued about 38 days. In review petitions, no ground has been made out which may furnish any ground to review the judgment. Review petitions dismissed.


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