# MUKESH & ANR v. STATE FOR NCT OF DELHI & ORS

- **Citation:** [2017] 6 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Criminal Appeal Nos. 607-608 of 2017
- **Bench:** Dipak Misra, R. Banumathi, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mukesh-anr-v-state-for-nct-of-delhi-ors-32324
- **Pages:** 324

## Headnote

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
intercourse with the prosecutrix, one after the other by six persons
and insertion of iron rod in her private parts and thereafter throwing
A
B
c
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
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 -
G
H
2
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017] 6 S.C.R.
In the interest of security, a person may carry out his part of a
compiracy without even being informed of the identity of his coconspirators - 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
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
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
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
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
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:
Death sentence - Mitigating and aggravating circumstances
- Held: In the instant case, the mitigating factors highlighted by the
appellants pertain t

## Text

_Characters 0–39,821 of 747,394. This is a partial read: ask again with offset=39821 for what follows._

[2017] 6 S.C.R. l
MUKESH & ANR.
v.
STATE FOR NCT OF DELHI & ORS.
(Criminal Appeal Nos. 607-608 of 2017)
MAYOS,2017
[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
intercourse with the prosecutrix, one after the other by six persons
and insertion of iron rod in her private parts and thereafter throwing
A
B
c
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
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 -
G
H
2
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017] 6 S.C.R.
In the interest of security, a person may carry out his part of a
compiracy without even being informed of the identity of his coconspirators - 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
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
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
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
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
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:
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
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.
3
A
of affirmation of sentence, their conduct while they are in custody
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
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
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
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
D
E
G
H
•
4
A
B
c
D
E
F
SUPREME COURT REPORTS
(2017] 6 S.C.R.
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.)
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
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.
(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
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.
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
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
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
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
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.
B
c
D
E
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.
H
6
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017) 6 S.C.R.
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.
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
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
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
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,
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.
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
that the third dying declaration made through gestures lacks
MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS.
credibility and that the same ought to have been videographed is
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
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
light of various surrounding facts and circumstances.
(R. Banumathi, J.)
Evidence Act, 1872:
ss.25, 26, 27 -Admissibility of a confessional statement made
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
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.)
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
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,
7
A
B
c
D
E
F
G
H
8
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] 6 S.C.R.
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
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
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
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
- 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 of the articles recovered
completely place them in line with the chain of events described by
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
H
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
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
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,
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
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
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.)
B
c
D
E
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 ofHeld: 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
H
10
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017] 6 S.C.R.
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
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
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:
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
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
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 PWI, the informant, in the casualty ward. After PW-I and the
prosecutrix were taken to the hospital for treatment, the
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
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
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]
F
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
F
G
H
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
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
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)
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 PWB
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 PW1, 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-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
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
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]
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;
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
c
D
E
F
G
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.
B
c
4. Recovery of the bus and the CCTV footage:
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
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
F
G
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
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.
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][112G-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
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
E
of disclosure. The items that were seized and the places from
where they were seized were within the special knowledge of the
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
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
F
G
H
16
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] 6 S.C.R.
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)
[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
careful scrutiny of the evidence on record showed that it deserved
acceptance. Therefore, TIP was not dented. [Para 145)(130-CD]
Matru alias Girish Chandra v. State of Uttar Pradesh
[1971] 3 SCR 914 : (1971) 2 SCC 75; Santokh Singh
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
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:
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.
account of the occurrence, yet she was responding to verbal
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
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
the entire incident specifying the role of each accused. [Paras
167, 168)[140-D-G]
17
A
B
c
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
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
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
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
E
F
G
H
18
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] 6 S.C.R.
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
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
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.