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Dec 16 verdict: How SC rejected every argument of defence

Scientific and forensic evidence like DNA, finger prints and bite marks analysis, sealed the fate of the four convicts in the December 16, 2012 gang rape and murder case as the Supreme Court termed them accurate.

IMAGE: IMAGE: Delhi gang rape convicts Akshay Thakur, left, and Mukesh Singh. All photographs: PTI Photo

The top court said while DNA report ‘cogently linked’ each of these accused with the victim and the crime scene, the finger print analysis ‘incontrovertibly proves’ that one of the convicts, Vinay Sharma, was present in the bus at the time of the barbaric incident.

Regarding Odontology, a branch of forensic science on bite mark analysis, a bench headed by Justice Dipak Misra said the report placed on record was ‘wholly credible’ because of the matching of bite marks with the tooth structure of the convicts and there was no reason to view them with any suspicion.

The bench, also comprising Justices R Banumathi and Ashok Bhushan, said DNA technology not only provided guidance to investigation, but also supplied the court accrued information about the ‘tending features’ of identification of criminals, and such evidence was increasingly relied upon by the courts.

The apex court, which upheld the death sentence awarded to the four convicts, Pawan Kumar Gupta, Vinay Sharma, Mukesh and Akshay Kumar Singh, said the recent advancements in modern biological research has regularised forensic science resulting in radical help in administration of justice.

“The DNA profiling, which has been done after taking due care for quality, proves to the hilt the presence of the accused persons in the bus and their involvement in the crime. The submission that certain samples were later taken from the accused and planted on the deceased to prove the DNA aspect is noted only to be rejected because it has no legs to stand upon,” it said.

The bench noted that there were various ‘white bite marks’ on the victim’s body and such analysis report plays an important role in the criminal justice system.

The apex court said ‘there is no reason to declare the DNA report as inaccurate, especially when it clearly links the accused persons with the incident’.

The bench also said that in India, like other countries, DNA evidence was increasingly being relied upon by the courts and, after 2005 amendment in the Code of Criminal Procedure, DNA profiling has now become a part of the statutory scheme.

Referring to various apex court verdicts, the bench said ‘it is quite clear that 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 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,” it said.

In its judgment, the apex court said that to establish a clear link between the convicts and the incident, the police has adduced scientific evidence like DNA, fingerprint and bite mark analysis.

The court noted that various samples from clothes, iron rods, ashes of partly burnt clothes and the bus were lifted from the victim and the convicts during the investigation.

“After establishing the identities of each of the accused persons, the informant (victim’s friend) and the prosecutrix (victim) 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,” it noted.

“Such an analysis cogently linked each of the accused with the victims as also with the crime scene,” it said.

The bench referred to the statement of Dr B K Mohapatra, one of the prosecution witnesses in the case, and said he has testified that once a DNA profile was generated, its accuracy is 100 per cent.

The apex court observed that the defence counsel had not raised substantial grounds to challenge the DNA report during the cross-examination of Mohapatra before the trial court and there was ‘no reason to declare the DNA report as inaccurate’ especially when it clearly links the convicts with the crime.

It also dealt with the contentions of defence counsel who had argued that DNA test cannot be treated as accurate as the victim had undergone blood transfusion during the treatment and when there was mixing of blood, DNA profiling was likely to differ.

The apex court referred to its previous verdicts and said if quality control was maintained, DNA profiling was treated to be quite accurate.

It also referred to the apex court’s verdict in the case of 26/11 attack convict, Mohammed Ajmal Amir Kasab, and said in that case too, DNA test had matched with stains of sweat, saliva and other bodily secretions on the articles recovered from the accused.

Dealing with the bite mark analysis report, the bench said it linked Ram Singh (since deceased) and convict Akshay Kumar Singh with the crime.

“The photographs depicted the bite marks on the body of the prosecutrix. 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 accused Ram Singh, whereas one bite mark has been identified to have been most likely caused by accused Akshay,” the bench noted in its order.

The court also referred to the technological advancement, like laser scanning, scanning electron microscopy or cone beam computed tomography in forensic odontology, which are utilised to identify more details in bite marks.

“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,” it said.

The bench also rejected the contentions of the defence counsel that the bite marks were stage-managed.

Regarding finger print analysis, the bench said it had clearly established that Vinay was present in the bus at the time of the incident while ‘other chance prints were found to be unfit for comparison or different from specimen print’.

IMAGE: Convicts Vinay and Pawan Gupta.

‘Dying declarations of the victim consistent’

Dying declarations made through signs, gestures and nods are admissible as evidence, the Supreme Court said, putting its stamp of approval to three such consistent statements made by the 23-year-old victim.

The three-judge bench said proper care has to be taken at the time of recording the statement and the court ought to be cautious that the person recording the dying declaration is able to correctly notice as to what the victim means by replying through gestures or nods.

It said all the three dying declarations of the victim are ‘consistent with each other’ and well corroborated with other evidence and the trial court and Delhi high court has ‘correctly’ placed reliance upon her dying declarations to record the conviction.

“Appreciating the third dying declaration recorded on the basis of gestures, nods and writings…, we have no hesitation in holding that 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,” it said.

The bench said that in this case, caution was aptly taken as the dying declaration was recorded by a magistrate who was satisfied regarding the mental alertness and fitness of the victim, a paramedical student, and recorded her statement by noticing her gestures and by her own writings.

Consistent dying declarations of the woman were one of the reasons which the apex court gave while upholding the death penalty of the four convicts.

The apex court rejected the argument of defence counsel that the victim could not have given any dying declaration because of her health condition.

It said the witnesses who have stated about the dying declarations have stood embedded to their version and there was nothing to discredit them.

It said the woman’s dying declarations were corroborated with the oral and documentary evidence and also enormously with medical evidence.

The first dying declaration was made by the victim before the treating doctor Rashmi Ahuja, the second one before Sub-Divisional Magistrate Usha Chaturvedi and the third before Metropolitan Magistrate Pawan Kumar.

The victim had gave the entire description of the gory incident in her statements and also took the names of all the six men who had ravished her as she had heard them calling each other with their names.

After going through the three statements, the court came to the conclusion that they were consistent with each other.

The counsel for Delhi Police had contended that all the three dying declarations recorded at the instance of the victim were consistent and corroborated by medical and scientific evidence, as well as by the testimony of the woman’s friend who was with her at the time of incident.

The defence counsel and amicus curiae were critical of the dying declarations, saying they should not be considered as they do not inspire confidence because of inconsistencies and improvements in them.

The court rejected the defence counsel’s argument that the woman’s versions, where she had taken names of accused, were tutored and cannot form the basis of conviction.

“This argument, however, is completely unjustified in the light of the medical condition of the prosecutrix when she was brought to the hospital,” the bench said.

It said 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’ (sanity, mentally sound) from a doctor as well as the absence of any kind of tutoring,” it said.

The bench said a mere omission on the victim’s part to state the entire factual details of the incident in her very first statement ‘does not make her subsequent statements unworthy’.

It said the defence counsel’s contention that the third dying declaration made through gestures lacks credibility and it should have been video-graphed, lacks substance.

The court said 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.

It said the third dying declaration recorded by the magistrate by nods and gestures and writings, inspired confidence and has been rightly relied upon by the trial court and 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,” it said.

‘Plea of alibi by convicts an afterthought’

The Supreme Court rejected the plea of alibi raised by three of the four convicts, saying it was an ‘afterthought’ and could be read as an additional circumstance against them.

The court said the evidence produced by them in support of their plea of alibi was ‘inconsistent and contradictory’ in nature and prosecution evidence overweighted their version.

Convicts Pawan Kumar Gupta and Vinay Sharma had claimed that on the evening of December 16, 2012, they were in the DDADistrictPark in Hauz Khas area of South Delhi watching a musical event organised in connection with Christmas celebration and they were not in the bus and had not committed any offence with the woman or her friend.

Third convict Akshay Kumar Singh alias Thakur had claimed that he was not in Delhi on the night of the incident and left for his village in a train a day before on the ticket of his brother Abhay, along with his sister-in-law and nephew.

The bench said their plea ‘appears to be an afterthought and rather may be read as an additional circumstance against them’.

It said when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus regarding his presence on the spot is established by the prosecution.

“While weighing the plea of alibi, the same has to be weighed against the positive evidence led by the prosecution, i.e. not only the substantive evidence of prosecution witness 1 (eye witness and the woman’s friend) and dying declarations, but also against the scientific evidence, viz., the DNA, finger print and bite marks analysis, the accuracy of which is scientifically acclaimed,” the bench said.

Considering the ‘inconsistent and contradictory’ nature of the evidence of alibi led by the convicts against the positive evidence of the prosecution, including scientific, the bench held that they have miserably failed to discharge their burden of absolute certainty regarding their plea.

The apex court, however, said the plea of alibi raised by Pawan and Vinay was rightly rejected by the trial court which has been given the stamp of approval by the Delhi high court.

It also said that the video clip brought in by Vinay, showing that he was present in the park on the evening of the incident, appeared to have been tampered.

Regarding Akshay, the bench said the defence witnesses brought by him were his relatives including his wife and, as observed by the trial court and high court, they tried to wriggle him out of the messy situation, as is the natural instinct of the family members.

‘Use of iron rods proved by dying declaration, DNA evidence’

The injuries caused to thevictim by ‘horrendous’ use of two ironrods by the convicts were so grave that death was an‘inevitable consequence’, the Supreme Court said.

The apex court, which rejected the convicts’ contentionof false implication, said that insertion of iron rods in theprivate parts of the 23-year-old victim was also fortified bythe scientific evidence and her dying declaration.

The bench observed that the DNA profile developed from the blood stains obtained from the iron rods was consistent with the DNA of the victim.

“The present case is one where there can be no denial that the narrative is long, the investigation has been cautious and to bring home the charge, modern and progressive scientific methods have been adopted,” it said.

According to the police, two blood-stained iron rods of 59 cm and 70 cm respectively were recovered at the instance of prime accused Ram Singh, who had allegedly committed suicide in Tihar jail in March 2013, from the bus in which the crime was committed.

The police had said that in a most ‘inhumane’ manner, the iron rods were inserted in the private parts of the victim and the men had also taken out her internal organs.

Meanwhile, the defence counsel had claimed that the police had fabricated the story about use of iron rods, as neither the victim nor her friend, who was also assaulted inside the bus, had mentioned about it in their first statements.

In its verdict, the bench said, “A victim who has just suffered a ghastly and extremely frightening incident cannot be expected to immediately come out of the state of shock and state the finest details of the incident.

“The subsequent dying declarations of the prosecutrix (victim) corroborated by the medical evidence cannot be disregarded merely on the ground that the use of iron rods is not substantiated by the prosecutrix’s first statement,” it said.

The apex court said that ‘gravity and hideousness’ of the injuries caused to her clearly show the use of iron rods by the men.

“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,” it said.

The bench also noted that merely because finger prints of the men were not obtained from the iron rods, it could be said that they were not linked with them.

“Furthermore, the dying declaration of the prosecutrix, which is highly reliable, clearly establishes the horrendous use of iron rods…,” the bench said.

Referring to the testimony of the victim’s friend, the bench said he had deposed that the attackers had severely assaulted him with iron rods.

Dealing with the contentions of the defence counsel that use of iron rods was not mentioned in the FIR, the apex court said that purpose of an FIR was mainly to set the criminal law in motion and not to lay down every minute detail.

“When the subsequent statements of the prosecutrix well corroborated by the medical evidence are available, it is completely immaterial that the statement of PW-1 (her friend) does not mention the use of iron rods,” the court said.

‘Convicts committed rape, murder in concert with each other

The Supreme Court relied on the dying declaration of the victim besides the testimony of a carpenter to bring home the charge of criminal conspiracy against four convicts.

The bench said that ‘the chain of events described by the prosecutrix in her dying declarations, coupled with the testimonies of the other witnesses (carpenter and owner of bus) clearly establish that as soon as the informant (victim’s male friend) and the victim boarded the bus, the accused persons formed an agreement to commit heinous offences against the victim’.

The carpenter, who was robbed by the four convicts ahead of committing gang rape and murder of the victim, was produced by the police to prove their presence in the bus.

The bench, also comprising Justices R Banumathi and Ashok Bhushan, said the acts of ‘forcefully having sexual intercourse with the victim, one after the other, inserting iron rod in her private parts, dragging her by her hair and then throwing her out of the bus all establish the common intent of the accused to rape and murder the victim’.

The apex court said the woman has also maintained in her dying declaration that the accused persons were shouting that she had died and her body should be thrown out of the bus.

“Ultimately, both the prosecutrix as well as informant were thrown out of the moving bus through the front door by the accused after having failed to throw them through the rear door.

“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 her friend unequivocally bring home the charge under Section 120B (criminal conspiracy) in case of each of them,” it said.

The court said the criminal acts done in furtherance of the conspiracy is evident from the acts and also the words uttered during the commission of the offence.

“Therefore, we do not have the slightest hesitation in holding that the trial court and the high court have correctly considered the entire case on the touchstone of well- recognised principles for arriving at the conclusion of criminal conspiracy,” it said.

The apex court further said the prosecution has been able to ‘unfurl the case’ relating to criminal conspiracy by materials on record and connecting the chain of circumstances.

“The relevant evidence on record lead to a singular conclusion that the accused persons are liable for criminal conspiracy and their confessions to counter the same deserve to be repelled,” it said.

‘FIR not an encyclopaedia’

A first information report is not an ‘encyclopaedia’ carrying all the details of an incident, the Supreme Court said while rejecting the contention of the convicts that their names were not initially mentioned in the FIR.

The apex court also refused to agree with the argument of the convicts that there was a delay in lodging the FIR, saying initially everyone’s intention is to save the victim by giving her proper treatment.

The bench said the FIR is not an ‘encyclopaedia’ which is expected to contain all the details of the prosecution case and it must have broad facts of the case.

“It has to be kept in mind that it is settled law that FIR is not an encyclopaedia 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,” the bench said.

It also said there was no delay in registration of FIR and added that ‘even assuming for the sake of argument that there is delay, the same is in consonance with natural human conduct’.

“In the initial stages, the intention of all concerned must have been to save the victim by giving her proper medical treatment,” the bench said.

Source: Rediff