CE III

CASE ANALYSIS

Mukesh and Ors.

Vs

State for NCT of Delhi & Ors.1

For the course on

LEGAL METHODS

2BL133

Under the guidance of

Dr. Bishwa K Dash

&

Ms. Neha Bhuraney

Submitted by

Srishti Verma

18BAL063

Semester I

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MANU/SC/0575/2017

1
 2018-19

ACKNOWLEDGEMENT

I extend my first and foremost gratitude to the Prof. Dr. Purvi Pokhariyal, Director & Dean, Institute of
Law Nirma University, for always being the guiding light of interactive pedagogy and learning.

I extend my sincere thanks to the Library of INLU for being the most trusted resource centre.

I extend my most warm gratitude to the Course Coordinator – Asst. Prof. Dr. Bishwa Kallyan Dash for
being extremely warm and helping to understand the nuances of the subject.

My most sincere thanks to course co-coordinator, Ms. Neha Bhuraney for being the non-stop support
for this project.

I also hereby affirm that this project is original bona-fide work of my own and any similarity on any
ground with any of the published work of any person on any platform is purely unintentional and
coincidental.

SRISHTI VERMA

18BAL063

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 TABLE OF CONTENTS

SNO. TITLE PAGE NO.

1 PARTIES TO THE CASE 4
2 THE BENCH 4
3 FACTS 4
4 ISSUES 5
5 WITNESS RECORDS 6
6 PROCEEDINGS IN THE TRIAL COURT 6
7 THE VIEW OF DELHI HIGH COURT 7
8 PROCEEDINGS IN THE SUPREME COURT OF INDIA 7
9 ISSUE I 7
10 ISSUE II 10
11 ISSUE III 10
12 ISSUE IV 12
13 CASE ANALYSIS 13

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 PARTIES

The 6 accused are as under –

• Akshay Thakur
• Ram Singh
• Pawan Gupta
• Vinay Sharma
• Mukesh Singh
• Juvenile in Conflict with Law – Separately presented in Special Juvenile Court

The Victims

• A 23 year old Para-Medical Student ( deceased )

• Avnindra Pratap Pandey ( Non-fatal Injury )

THE BENCH

Justice Dipak Misra, Justice R. Bhanumati, Justice Ashok Bhusan.

FACTS

1) The prosecutrix, pseudonymed to as ‘Nirbhaya’ had gone out of a movie with her male friend,
PW1, in the evening of 16th December 2012 to Select City Walk, Saket, Delhi.
2) After the show, at around 8:30 pm, both of them, the male friend and the prosecutrix (now
deceased), took an auto & reached Munirka Bus Stand. There after they boarded a bus – a white
coloured chartered bus with yellow and green lines with ‘Yadav’ written on it. After they entered
the bus, they saw 6 people, all males, already inside the bus. Both of them paid INR 20 as fare
and sat inside.
3) A few minutes later, all the men inside the bus ( 6 accused ) did not allow anyone to board the
bus, didn’t stop anywhere further and the lights inside the bus were also put off.
4) Subsequently, all the 6 accused including a juvenile ( treated as juvenile in conflict with law )
started abusing the male friend – PW1 amidst retaliations from both the sides. He sustained
injuries with an iron rod on his head, legs and other parts of body.

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 5) Thereafter, the prosecutrix was taken to the rear side of the bus when all the 6 accused including
the juvenile took turns to rape her. She was also subjected to unnatural sex. Her private parts
were seriously injured by inserting iron rod in rectal and vaginal region.
6) The iron rode also damaged the intestines of the young female victim, the brutal act also led to
vaginal wall tear of 7-8 cms, rectal tear of 4-5 cms and such wounds including bite marks and
bruises all over the body – hands, legs, inner thigh, breast.
7) After the act, both the victims were looted of all of their belongings – cash, mobile phones,
jewellery, debit cards, and were thrown naked on the road from the moving bus at NH-8, Hotel
Delhi 37 on Mahipalpur flyover. The 6 accused, after throwing them tried to run over them with
the bus but considering them dead, left the place in the same bus.
8) At about 10:24 pm, HC Ram Chander, PW73 received information about the victims lying in a
naked condition near the Mahipalpur flyover and reached the spot.
9) PW73 took the victims to Safdurjung Hospital, Delhi for immediate treatment where PW1 was
taken to casualty and the prosecutrix to the Gynae Ward.
10) An FIR was registered by recording the statement of PW1 at 5:40 am bearing FIR No. 413/2012
dated 17/12/12, PS Vasant Vihar Police Station. Meanwhile, the prosecutrix underwent multiple
surgeries for speedy recovery.
11) By 21/12/12, all the 6 accused including JCL were arrested amidst very critical condition of the
prosecutrix who underwent second and third surgery on 19/12/12 and 23/12/12 respectively.
Considering the very bleak health of the prosecutrix, her statements, treated as dying declaration
were recorded.
12) At the critical juncture of the prosecutrix on 26/12/12, the team of doctors examining the victim
asserted that she be shifted abroad for further treatment and hence, she was shifted to Mt.
Elizabeth Hospital, Singapore on 27/12/12.
13) The prosecutrix died on 29/12/12 due to sepsis with multiple organ failure.

ISSUES

I. Whether the circumstantial evidence is reliable and admissible or not?

II. Whether the accused are culpable of the crime or not?
III. Whether it is a “ Rarest of the rare case “ or not?
IV. Whether the death penalty is justifiable or not?

WITNESS RECORDS

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• PW 1 – Avninder Pratap Pandey, Friend of the deceased being the informant.
• PW 73 – HC Ram Chander, Incharge of PCR Van, Zebra 54
• PW 49 – Dr. Rashmi Ahuja – Prepared the MLC of the said case
• PW 74 – Subhash Chand – Investigating Officer
• PW 34 – Dr. Paul Chui, Forensic Pathologist, Singapore
• PW 46 – A.D. Shah, Senior Scientific Officer
• PW 81 – Dinesh Yadav, Owner of the Bus
• PW 27 – Smt. Usha Chaturvedi, SDM – 2nd Dying Declaration
• PW 30 – Pawan Kumar, Metropolitan Magistrate, 3rd Dying Declaration
• PW 82 – Ram Adhar, who was robbed by the accused before the said crime

PROCEEDINGS IN THE TRIAL COURT

1) After due identification of the accused persons, the charge sheet was filed on 03/01/13 and the
trial court charged the accused for the offences under the following sections –
• Section 120B of IPC
• Section 365/366/307/376 (2) (g) of IPC
• Section 377 read with Section 120B of IPC
• Section 396 read with Section 120B of IPC
• Section 302 read with Section 120B of IPC
• Section 395 read with Section 397 read with 120B of IPC
• Section 201 read with Section 120B of IPC
• Section 412
2) During the trial, one accused, Ram Singh committed suicide and proceedings qua him stood
abated thus.
3) The learned trial Judge convicted all the 4 accused vide judgment dated 10/09/13 & imposed
sentence through the following orders –
• Convicted under Section 302 for death sentence and accordingly to be hanged by neck
till death and a fine of Rs. 10,000 each
• Convicted under Section 120B with life imprisonment and a fine of Rs. 5000 each.
• Convicted under Section 365 with 7 year imprisonment and a fine of Rs. 5000 each.
• Convicted under Section 366 with 7 year imprisonment and a fine of Rs. 5000 each.
• Convicted under Section 376 (2) (g) with life imprisonment and a fine of Rs. 5000 each.
• Convicted under Section 377 with 10 year imprisonment and a fine of Rs. 5000 each.

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 • Convicted under Section 307 with 7 year imprisonment and a fine of Rs. 5000 each.
• Convicted under Section 201 with 7 year imprisonment and a fine of Rs. 5000 each.
• Convicted under Section 395 read with Section 397 with 10 year imprisonment and a
fine of Rs. 5000 each.
• Convicted under Section 412 with 10 year imprisonment and a fine of Rs. 5000 each.

The sentences were to run concurrently and benefit of Section 428 Code of Criminal Procedure
was to given wherever applicable.

The matter was further referred to the Delhi High Court for confirmation of Death Penalty under
Section 366 of Code of Criminal Procedure, 1973.

THE VIEW OF THE DELHI HIGH COURT

In the light of the facts and circumstances advanced in the case, the Delhi High Court affirmed the
conviction and the death penalty of the accused persons.

THE PROCEEDINGS IN THE SUPREME COURT

The 4 convicted accused appealed to the Supreme Court on the grounds framed as issues in the current
analysis.

ISSUE I

WHETHER THE CIRCUMSTANTIAL EVIDENCE IS RELIABLE AND

ADMISSIBLE OR NOT?

i. Whether the FIR was delayed ?

The Counsel for the appellant have argued that there was unnecessary delay in the registration
of the FIR and law to be set in motion. The counsel for appellants have raised serious objections
and doubts and have asserted to the prosecution to explain the delay. There might be a possibility
of concoction of evidence against the accused.

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 The prosecution has explained that there was no unnecessary delay in the registration of the FIR
as the entire sequence of events is purely natural and medical assistance to both the victims was
of supreme and primary importance at that juncture.

The Supreme Court has relied upon the authority in State of Himachal Pradesh V Rakesh Kumar2
Thus, the court held no delay in registration of the FIR on any ground whatsoever.

ii. Whether the non-mentioning of the accused in FIR is justifiable?

The counsel for appellant argued that the FIR in the said matter does not contain the names of
the accused, the description of the bus or the use of the iron rod, therefore it is renders it obsolete.

The prosecution asserts to this claim as invalid on the ground of authorities in the case of Rattan
Singh V State of Himachal Pradesh3 & State of UP v Naresh & Ors 4reiterating the principle that
the FIR may not be an encyclopaedia of the entire case and may not contain all the details.

The SC accepted the argument of the prosecution and did not render the non-mentioning of the
accused in the FIR as fatal to the case.

iii. Whether the evidence of PW1 is appreciable or not?

The counsel for the appellant as well as the learned amicus curie in the case submitted that the
repeated inconsistencies and omission in the testimony of the PW1 amounting to contradiction
at every juncture make him an unreliable and non-appreciable witness.

The counsel for the respondent- state refuted the claims of the counsel for the appellant on the
ground that since the PW1 himself was an injured person in the occurrence of the crime, the
testimony cannot be disregarded. Further, the discrepancies are not material enough to corrode
the credibility of the witness.

Reliance was laid in multiple authorities cited including the case of Mano Dutt & Anr V state of
Uttar Pradesh.5

2
MANU/SC/0901/2009
3
MANU/SC/0177/1997
4
MANU/SC/0228/2011
5
MANU/SC/0159/2012

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 The SC accepted the argument of the prosecution on the fact that the minute changes in testimony
of the witness in question has not be material to the investigation. The statement was same in
trial as well as the High Court. Further, the testimony of an injured witness cannot be disregarded
on bleak grounds.

iv. Whether the evidence of PW 81 is reliable or not?

The principal contention by the counsel for the appellants in regard of the credibility of the
statement of PW 81, Dinesh Yadav, the owner of the bus, was in judicial custody and, therefore,
his version in the court is under tremendous pressure as he was desirous of getting a bail order
to enjoy his liberty.

However in the light of Evidences shown and the CCTV footage, the SC refuted the claim of the
appellants to disregard the testimony of the said witness.

v. Whether DNA analysis of the victim as well as accused is admissible or not?

The counsel for the appellant submitted that in the instant case, the DNA test cannot be treated
to be accurate, for there was blood transfusion as the prosecutrix required blood and when there
is mixing of blood, the DNA profiling is likely to differ.

The DNA profile of the accused was obtained u/s 53A of the Indian Evidence Act, 1872 and the
victim u/s 164 of the same act.

The SC was compelled to refute the claims of the appellant counsel on the grounds of multiple
authorities referred to in the matter of DNA analysis as well as the accuracy confirmation by PW
45, Dr. B. K. Mohapatra, analysing scientist of the DNA profiles.

vi. Whether plea of ‘alibi’ is admissible or not?

Alibi means ‘elsewhere’ and the same can be pleaded on the grounds that the accused was not at
the crime scene and is innocent u/s 313 of The Code of Criminal Procedure, 1973.

The accused took pleas of alibi to assert on the fact that they were not present in the bus on the
night and hence are in no relation with the crime. Accused Pawan Gupta pleaded he was in the
DDA District Park, Hauz Khas, Opposite IIT Gate attending a musical event along with accused
Vinay Sharma. Accused Akshay Singh stated he was not in Delhi on the night of the crime as he
had left for his village.

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 The SC closely examined the scientific evidences of DNA Analysis, finger print analysis and
bite mark analysis & stated that considering the inconsistent and contradictory nature of the
evidence of 'alibi' led by the accused against the evidence of the prosecution, including the
scientific one, we hold that the accused have miserably failed to discharge their burden of
absolute certainty with respect to their plea of 'alibi'. The plea taken by them appears to be an
afterthought and rather may be read as an additional circumstance against them.

ISSUE II

WHETHER THE ACCUSED ARE CULPABLE OF THE CRIME OR NOT?

The SC delved into various aspects of investigation, argued upon the plea of alibi put forward by the
accused, pondered upon the admissibility of the evidences, the contentions of the parties and the
complete analysis and hearing of both the parties established the following conclusions –

• The evidence of PW 1 is absolutely reliable

• The accused person were present in the bus on the fateful night.
• The CCTV footage of the moving bus is admissible as evidence and cannot be disregarded.
• The recoveries made from the accused and the arrests are completely justified & establish the
relation between the parties.
• The dying declarations are consistent.
• The scientific evidence relating to DNA profiling and Odontology is reliable and there is no
reason to disbelieve.
• The evidence brought on record confirm to criminal conspiracy.

The SC stated that the prosecution successfully established the guilt on the accused persons beyond
reasonable doubt and hence, the accused were held guilty.

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 ISSUE III

WHETHER IT IS A “ RAREST OF THE RARE CASE “ OR NOT?

The learned amicus curiae criticized the sentence by the trial court & the HC submitting that they have
committed the error of not conforming with the doctrine of equality which prescribes similar treatment
to similar persons & laid authority in the case of Bacchan Singh V State of Punjab6 and submitted that
due regard must be paid to the circumstances of the offender also. He also stated that a balance should
be drawn between aggravating & mitigating circumstances as in the case of Macchi Singh V State of
Punjab.7 He also urged that the trial court completely ignored all the possibilities of rehabilitation &
reform and only asserted on the grave and heinous nature of the crime. He further argued that sentencing
& not considering mitigating circumstances are violative of article 14 & 21 of the Constitution of India.

The counsel for appellants also asserted on the fact that all the accused are showing reformation amd
engaged in educating themselves.

To analyse the death penalty, doctrine of ‘rarest of the rare case’ must be well stated. In the case of
Macchi Singh (Supra) court propounded the said principle –

“The rarest of the rare case" comes when a convict would be a menace and threat to the
harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may
not be in the category of "the rarest of the rare case". There must be no reason to believe that the
accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of
violence as would constitute a continuing threat to the society. The accused may be a menace to
the society and would continue to be so, threatening its peaceful and harmonious coexistence.
The manner in which the crime is committed must be such that it may result in intense and
extreme indignation of the community and shock the collective conscience of the society.”

The counsel for the respondent state asserts on the extremely inhumane nature of the crime, its barbaric
commission that definitely makes this case a ‘rarest of the rare’ case which shakes the roots of the
humanity in the society.

The SC further propounded that the crime, its commission and its assertion in the society has shaken the
existence of humanity in society. The brutal, barbaric and diabolic nature of the crime leaves no room
to not consider this a crime against humanity. The insertion of iron rods and hands in the vaginal and
rectal region of the prosecutrix and the injuries further are beyond human imagination and most savage

6
MANU/SC/0111/1980
7
MANU/SC/0211/1983

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and annihilating to society. The pain the woman has gone through was beyond any thoughts of dignified
human life and the trauma she was subjected to was irreparable. The attempt of the accused trying to
crush the victims under the bus shows the grotesque side of crime, lust and venom prevailing in the
society. And thus the court upheld the death sentence.

ISSUE IV

WHETHER THE DEATH PENALTY IS JUSTIFIABLE?

The counsel for the appellants in furtherance of the ‘rarest of the rare case doctrine’ asserted that the
accused be given chance for reformation. The aim of Indian criminal laws is to eradicate crime and not
the criminal. The counsels argued that the accused have been through national humiliation and now are
on the path of reformation. They are now focussing on educating themselves and a death penalty would
leave all their reformation shattered with nearing death.

The counsel for respondent-state elucidated on the barbaric nature of crime and how such sex-crimes
are growing with the fatal fulfilment of lust in society. The agony of the victim and the nation in entirety
cannot be compromised with and such death penalty would set an example of deterrence to the society.

The court upheld the death penalty imposed by the trial court and hence the high court. The Supreme
Court further emphasised on how the nature of crime has shook humanity from the core and how
disastrous male lust court turn. The treating of the woman as an object of sex and lust is to crime the
dignified society as a whole and thus the nation’s indignation cannot be compromised with at this
juncture.

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 CASE ANALYSIS

The young woman ‘Nirbhaya’ became the light of the nation. The judgement of this nature and the need
of capital punishment in itself exposes the deteriorating society that is prevailing. The brutal, beyond
human imagination gang rape of the young lady itself is a big question mark on the existence if the
society. This supreme court judgement will forever be propounded as landmark. The barbaric lust the
woman was subjected to is venomously brutal and anti-social. The 6 accused were examples of a society
which exists and is a challenge to the public policy makers, to the judiciary and the people of the country.
4 out of the 6 were awarded death penalty which is completely justified owing the fact that such
unimaginable crime was committed. The crime broke barriers of the criminal history and left a blot on
how society and laws corroborate. The 5th accused, Ram Singh, committed suicide during the trial
proceedings and the nation has no sympathy for such. The 6th accused – a minor, amidst furore, was sent
to rehabilitation for 3 years.

The Supreme Court has well asserted on the principle of ‘rarest of the rare’ cases. The said case indeed
is a rare case of human brutality of the most grave nature and any kind of reforms of the convicts cannot
be compensatory to the crime. The judicial killing of such convict is justified. The supreme purpose of
law is justice – to the victim, to the society. And the crime in the case of ‘Nirbhaya’ – was indeed a
crime against society which cannot be justified by any amount of reformation. The capital punishment
as they say may be the deprivation of a person’s right to life but it is completely justified when such
convict is a threat to the society. The young woman full of life an dreams was butchered to feed the lust
of the convicts and the nature and commission of the entire act leaves no room for any consideration to
the contrary. The demonic form of human criminal mindset was ruthlessly thrown at show.

The supreme court has well upheld the principles of justice, equity and good conscience to award the
most deserving punishment to the accused.

The debate around the juvenile being treated as an adult also surfaced. Petitions were filed to treat the
juvenile as an adult considering his equal participance in the barbaric nature of the crime. The trial court
as well as high court refused to entertain such petitions. To understand the logic behind such decision ,
it is important to assert the ‘procedure established by law’ clause in Article 21 of the Constitution of
India. The deprivation of a person’s right to life can only be through procedure established by law in
contrast to the American concept of due process of law. The juvenile, however barbaric may be, could
not be subjected to the trial court because of non-existing clauses.

The reforms the judgment led to should be loud declaration to sexual perpetrators and the supremacy of
law in the country. The investigation carried on by the police was also remarkable and speedy. The
decisions of the trial court, the high court and the supreme court are of the nature which are land mark

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in nature. The ratios laid down by the courts in the case are a proof that the law is the supreme governor
of the society and any perpetrator of such law will not be spared.

‘Nirbhaya’, as a woman was also wronged by the society. The fact that such a heinous crime was
committed to her leaving her in the lap of death is a failure of the civilised society which has people like
the convicted men who objectify woman for sexual competence and are leeches to the society. The fact
that how young boys in the society have normalised sexual crimes and how victims are blamed for all
that happens is the crime that society commits against women.

Nirbhaya Judgement led to a lot of thoughts in the society, exposed the ruthless society in which people
like the convicts live, and united the solidarity of the country in a movement of justice for Nirbhaya and
commitment to not let any more nirbhayas be created.

The judgement is landmark. It the mirror of our failure as a safe, liveable society.

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