MUKESH & Anr. v. STATE FOR NCT OF DELHI & Ors.

Judgment

(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 PW I, 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] 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: A 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 : (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 : G H 12 A SUPREME COURT REPORTS [2017] 6 S.C.R. (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 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; F G H MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS. 13 Mahendra Pratap Singh v. State of Uttar Pradesh [2009) 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. A

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. 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 A SUPREME COURT REPORTS [2017] 6 S.C.R. 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 c 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 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] E F G 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][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 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 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) E F 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 G H 16 A B c D E 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-C D] 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: 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 informant. Even though the prosecutrix has given only a brief H MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS. 17 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] 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] E

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 F G H 18 A B 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] D c E

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. 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 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 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 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 F 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 [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) 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) 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 c D E F

8.5 Yet another objection raised for the appellants concerning the medical fitness of the prosecutrix, while recording 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 SUPREME COURT REPORTS [2017] 6 S.C.R. 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, 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; 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 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 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 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 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 20 A B c D E F G 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 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] B

#9. Insertion of the iron rod:

9.1 The defence countered the prosecution case on the 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 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 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 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 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 c D E F G H SUPREME COURT REPORTS [20 l 7] 6 S.C.R. 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)

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 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 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 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 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 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 22 A B c D E F G 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 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. 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.

#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 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 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 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 B c D E F G H SUPREME COURT REPORTS [2017] 6 S.C.R. 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] 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 - 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 In order to establish· a clear link between the accused assurance. 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, 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 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 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 24 A B c D E F G 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 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; 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 Badwaik and another [2014] 1 SCR 120 : (2014) 2 sec 576 - relied on. 12. The evidence relating to finger print analysis: c D E 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)

#13. The Odontology report: G

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 SUPREME COURT REPORTS [2017] 6 S.C.R. 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 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 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 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 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 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 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: 26 A B c D E F G 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 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.

#15. Criminal conspiracy: D E

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 A B c D SUPREME COURT REPORTS [2017] 6 S.C.R. 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 : (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 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) - referred to. F E

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 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 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 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, G 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 (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.

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 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 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]

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 c D E F G H SUPREME COURT REPORTS [2017] 6 S.C.R. 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 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 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 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 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 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 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 30 A B c D E F G H MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS. 31 furtherance of the conspiracy is evident from the acts and also 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 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 : (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 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 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, 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 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 A B c D E F G H 32 SUPREME COURT REPORTS [2017] 6 S.C.R. D A B c 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, 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 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 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. 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 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] E F H MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS. 33 Bachan Singh V. State of Punjab (1980) 2 sec 684; 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 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; 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 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 l 0 SCC 322; Rameshbhai Maharashtra (2005) 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 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 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 A B c D E F G H 34 A B c D E F G H SUPREME COURT REPORTS [2017] 6 S.C.R.

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 (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; 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 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 Jharkhand[2014] 10 SCR 812: (2015) 1SCC67; 14 Deepak Rai 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 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 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. State of Bihar [2013] v. MUKESH & ANR. v. STATE FOR NCT OF DELHI & ORS. 35 Furman v. Georgia 33 L Ed 2d 346 : 408 US 238 (1972) - referred to. A 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 of H.P. v. lekh Raj and Another [199914 Suppl. SCR 286 : (2000) 1 SCC 247; State of H.P. v. Asha 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. F

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. . B 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 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 F G 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 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. 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 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 : (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: A B c

2.1 Rape deeply affects the entire psychology of the woman 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 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, 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 F E'

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] B c 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 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. 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 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 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, E F 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 In the second dying declaration, though there are and Vinay". 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 SCR 705 : (2010) 8 SCC 514 - relied on. E

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. 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] F