CASE ANALYSIS OF

MUKESH AND OTHERS

V.

STATE (NCT OF DELHI) AND OTHERS

(AIR (2017) 6 SCC 1)

By: -

DEEPALI ASWAL

5TH Yr. BA.LL.B.

LLOYD LAW COLLEGE, GREATER NOIDA.

Mob: - +918192065234

E-mail: [email protected]

www.probono-india.in
 AUGUST 11, 2020

History of the Case

The horrific night of December 2012shook the whole nation, when a heinous crime took
place in the capital of India, New Delhi. Nirbhaya (the pseudonym used for the victim of the
case), the 23 years old paramedical student, went out to watch a movie with his friend in
December 2012. While returning on the bus, she was sexually violated by six males, one of
whom was a minor. The same perpetrators brutally beat her friend, who tried to protect her.
She was not just sexually violated, but also her body was mutilated beyond anyone’s
imagination.

There was a sudden social outrage on the roads after hearing about such a shocking incident.
The outrage did not stay up to India but the whole world was demanding justice for India’s
daughter. People started protesting by marching on the roads with candle lights not only in
the capital of the country but also in various parts of the nation and even in the countries like
Nepal, Bangladesh, Sri Lanka, etc. Police used tear gas and water cannons to stop the people
but her death increased the anger of the nation. India has previously experienced various rape
cases but this incident ignited the fire of the whole country. After the death of Nirbhaya, even
social media was filled with the outrage and demand of the people to hang the culprits. The
case although lead to the various changes in the legal system of India but failed to change the
situation of women in India. Finally, after seven years, Nirbhaya got justice when the accused
were hanged to death on March 20, 2020.

Facts of the case

On December 16,2012, Nirbhaya was gang-raped and sexually assaulted brutally by six men
in a private bus and was later thrown out of the moving vehicle along with her friend when
she was returning home after watching a film. The appellants snatched their belongings and
left them naked on the road thinking that they were not alive. However, a night patrolling
vehicle stopped and called the Delhi Police who took the victims to the Safdarjung Hospital.
On December 26, when her condition became worse, she was shifted to Mount Elizabeth
Hospital, Singapore for further treatment.

Later, she died of multiple organ failure, internal bleeding and cardiac arrest on December
29, 2012 at Mr. Elizabeth Hospital, Singapore.

Meanwhile, all the six accused, Akshay, Vinay, Mukesh, Pawan and Ram Singh were
arrested. On March 11, 2013, Ram Singh committed suicide in Tihar Jail. The four accused
were charged with murder (Section 300 of IPC), gang-rape (Section 376D of IPC), attempt to
murder(Section 307 of IPC), kidnapping (Section 364 of IPC), unnatural offences (Section
377 of IPC) and dacoity (Section 391 of IPC) and were given the death penalty by the fast
track court except for the minor who was awarded three-year term at a probation home.

On March 13, 2014, Delhi High court upheld the death penalty and the accused moved to the
apex court. Initially, SC stays execution of the convicts; however, later upholds the death
penalty and stated that the case falls under the category of rarest of rare and the offence
created a Tsunami of shock.1

Review petition filed by all the convicts in S.C., a request filed by Pawan in Delhi H.C.
claiming that he was a juvenile at the time of the offence and Curative Petition filed by Vinay
and Mukesh was all rejected by the respective Courts. Mercy Petition filed by Mukesh and
Akshay before President Ram Nath Kovind was also rejected.On March 20, 2020, at 5:30 am,
all four convicts were hanged in Tihar Jail.

Legal Remedies used by the convicts:

Review petition:

A number of recent Supreme Court decisions 2 have given an insight into the expression
“review petition”. The word “Review” denotes judicial re-examination of the case. A
provision for review has been given under Section 114 of the Code of Civil Procedure which
provides a substantive right of review and Order XLVII which provide the procedure.
Although it is very rare of the Supreme Court to review its orders. Recently, the S.C. agreed
to review its 2018 verdict in Sabarimala case and 2018 judgment related to Schedule Castes
and Scheduled Tribes Atrocities Act.

1
Indian Kanoon, ‘Mukesh and others v. State (NCT of Delhi) and others (AIR (2017) 6 SCC 1)’
<https://indiankanoon.org/doc/68696327/ > accessed 9 August 2020
2
Indian Young Lawyers Association vs The State Of Kerala [2018] Writ Petition Civil No 373 [2006]
The Court explained the scope of the power of review in a very old case, Northern India
Caterers (India) vs Lt. Governor of Delhi 3wherein the Court held that

“A party cannot be allowed to seek a review of the judgment delivered merely for a
fresh decision or a rehearing. According to the principle, the judgment pronounced
by the Court is final. A review can be filed if the circumstances are of strong and
reasonable character or if a wrong judgement has been passed and it is necessary to
pass an order to do full and effective justice.”

Article 137 of the Constitution of India, 1950 provides that subject to the provisions of any
law and rules made under Article 145; the Supreme Court has the power to review a
judgment delivered by it.4Under Supreme Court Rules, 2013 (XLVII.2)5such a petition is to
be filed within thirty days from the date of judgment or order before the same Bench of
judges who previously delivered the same.

The Power is to be exercised under the rules made by the Court on the grounds mentioned
under Order XLVII Rule 16. Therefore, the review will lie in the Supreme Court in the
following circumstances:

1. When a new and important matter or evidence is being discovered:

The evidence upon which the review is to be sought should be such as if it is brought
before the notice of the Court; it may alter the judgement.
2. Mistake or Error apparent on record:
An error which is self-evident i.e. which does require the establishment of a certain
argument or evidence is said to be a mistake or error apparent on the record.
3. Other Sufficient reasons:

3
[1979] SCR (1) 557
4
SSRN, Review Jurisdiction of Supreme Court of India: Article 137 <https://poseidon01.ssrn.com/delivery.php?
ID=338006067086065009014012108079103010056016063065052016092088100076070016014027006097026
052001024039049007019030124009072102005051040007073093004065031110002097100066046086071093
103082003015111086088095028090091103117005107078080003065072083009088071071&EXT=pdf>
accessed on 9 august 2020
5
Aaptaxlaw.com, ‘Order XLVII-Review: Supreme Court Rules 2013’ <http://www.aaptaxlaw.com/supreme-
court-rules/order-XLVII-supreme-court-rules-2013-review-order-xlvii-supreme-court-rules-
2013.html#:~:text=Order%20XLVII%20%2D%20Review%20%3A%20Supreme%20Court%20Rules
%202013&text=2.&text=The%20Court%20may%20either%20dismiss,4accessed> on 11 August 2020
6
Civil Procedure Code, 1908
 The Court has emphasized that no person should suffer because of the mistake of the
Court. Some of the situation where the Court may exercise such power is-
 Violation of the principles of natural justice
 Mistake of the Court
 The Court made the earlier order without jurisdiction

The Court has described its review power as follows in Lily Thomas case7:-“the power to
review can be exercised for correction of a mistake and to substitute a view. This power can
be exercised with the limit prescribed in the statue. Different views on the same subject
cannot be a reason to review any judgment or order.” In the present case, the review petition
was filed by one of the accused, and he tried to plead that he has no relation with the incident
as he was not present in the bus at the time when the crime was committed. Due to the
presence of necessary evidence against the petitioner, the said review petition was rejected.

Curative Petition:

A curative petition is the final and last resort to ask the Court to review and revise its own
decision when the review petition is dismissed or used. The objectives of this Petition are –
prevent exploitation of power and ensure delivery of justice. 8The concept of Curative Petition
originated from the landmark case of– Rupa Ashok Hurra vs. Ashok Hurra and Anr. 9Where
a question was raised that whether an aggrieved person is entitled to get any relief against the
final judgment or order of the Supreme Court after the review petition has been dismissed. A
Latin maxim -“actuscuriae neminem gravity”- was used by the Court which means that an
act of the Court shall prejudice no one. 10

The concept of the curative Petition is supported by Article 137 of the Indian Constitution.
This provides that the Supreme Court has the right to review any judgment rendered by it in
the matter of laws and rules made pursuant to Article 145. Such a petition must be filed
within 30 days of the date of the judgment or decision.

The requirements which are needed in order to accept the curative petitions are11:-
7
(2000) 6 SCC 224
8
Lexlife India, ‘Explained: Curative Petition’ (Lexlife India, 20 January
2020)<https://lexlife.in/2020/01/20/explained-curative-petition/> accessed on 10August 2020
9
2002 Writ Petition (civil) 509
10
Insights Editor, ‘What is Curative Petition?’(Insightsias, 2 March
2020)<https://www.insightsonindia.com/2020/02/29/what-is-curative-petition/> accessed on 6 August 2020
11
SSRN, ‘Review Jurisdiction of Supreme Court of India: Article 137’
<https://poseidon01.ssrn.com/delivery.php?
ID=338006067086065009014012108079103010056016063065052016092088100076070016014027006097026
 If the court finds out that the party is being restricted to challenge the order.

In cases of failure of justice it would be Court’s legal and moral obligation to revise the
error.

The petitioner will have to prove that there was a violation of principle of natural justice and
the fear of the biasedness of the judge and the judgment that affected him.

The curative Petition should also be accompanied by the certificated granted by a senior
advocate in relation to the fulfilment of the requirements.

The Petition is to be sent to the three judges of the bench who passed the judgement
affecting the Petition.

If the majority of the judges decides that the same bench should hear the matter as it can
pass appropriate order.

They could also impose “exemplary costs” of the petitioner if his pleas lacked merit.

Even though there is a thin line that differentiates between a curative and a review petition,
the apex court has set out specific grounds for filing both the petitions which makes it clear
that the two petitions are different.

In the present case, AP Singh, the lawyer of convict Vinay Sharma, had placed the argument
in the curative Petition that young age and the socio-economic background should be
considered as mitigating factors, which was later dismissed.12

Mercy petition

According to the constitution of India, Mercy Petition is filed before the President of India
under Article 72of the Indian constitution. It is the last constitutional resort to convict to
prove his innocence if he is.

052001024039049007019030124009072102005051040007073093004065031110002097100066046086071093
103082003015111086088095028090091103117005107078080003065072083009088071071&EXT=pdf>
accessed on 9 august 2020
12
DH Web Desk, ‘What is curative petition?’(Deccan Herald, 10 Jan
2020)<https://www.deccanherald.com/national/explained-what-is-curative-petition-793140.html> accessed on
11 August 2020
Under Article 72 of the Indian Constitution 13, the President has the power to grant -

 Pardons(i.e. completely sparing the offender from all the charges and punishments
committed by him),
 Reprieves (i.e.suspending the death sentence for a temporary period),
 Respite(i.e. giving a lesser sentence on specific or special grounds)
 OrRemissions of punishment or to suspend (i.e. to reduce the duration of sentence
without changing the character of the same.)
 Remit or commute(i.e. substitutes one form of punishment with another of lighter
nature) the conviction of any person convicted of any offence where punishment or
penalty is:

1. given by a court-martial;
2. under a law relating to a matter to which the executive power of the Union extends;
3. A death sentence.

In a similar manner, the power to grant pardon is also vested in the hands of Governor or
states under Article 161 of the Indian Constitution.14

A convict who is sentenced death penalty is allowed to file a mercy petition within seven
days after the date on which the Superintendent of Jail informs him about the dismissal of the
appeal by the Supreme Court. Ministry of Home Affairs then examines the appeal before
sending it for the recommendations to the President of India. The rejection or delay or
pardon of the Petition by the President can also undergo judicial review. However, if the
process performed by the President is not arbitrary, in such case judicial review remain
suspended.

In the present case, the convicts in the Nirbhaya Case applied for the mercy petition before
the President of India. However as the case was considered “rarest of the rare” in the eyes of
the law, the mercy petition was also rejected. Further in pursuance of it, the convicts of the
case again file a review of the mercy petition before the Supreme Court, it was again rejected.

13
The Wire Staff, ‘Can a Curative Petition keep the Nirbhaya Convicts from the Noose? (The Wire, 9 January
2020)<https://thewire.in/law/explainer-curative-petition-mercy-petition> accessed on 9August 2020

Aditya Aryan, ‘Mercy Petition’ (2020) ITJ <https://lawtimesjournal.in/mercy-petition/> accessed on 9 August

14

2020
Legal Reforms in India after Nirbhaya Case 2012

1. Formation of the Justice JS Verma Committee.

A week after the attack on Nirbhaya in 2012, a three-member committee was set up which is
known as the Justice Verma Committee to review criminal laws of the country and made
some amendment into them. The main objectives of the Verma Committee were to provide
speedy trial through fast track courts to avoid delay and to develop punishment and criminal
provisions in the laws related to sexual offences against women. The committee’s 644-page
reports formed the basis of the Criminal Law (Amendment Act). Although the committee
made many recommendations related to rape, sexual assault, acid attacks and even marital
rape, however, the recommendations were not also take into consideration and they remained
stuck inside those 644 pages of the report.

2. Amendment in the Rape Laws.

According to the old definition of Rape, the horrific act in the Nirbhaya case where an iron
rod was used to penetrate her which eventually damaged her intestines and caused her death,
have been classified as rape as until 2012, the definition was restricted just to sexual
intercourse.

However, the Criminal Act (Amendment) Act 2013 expanded the previous definition of rape,
given under Section 375 of the Indian Penal Code and gave broader meaning to the term rape.
Now Section 375 of IPC defines rape as any involuntary and forceful penetration without
the woman’s consent into the woman’s body parts like the vagina, urethra, mouth or
anus.15

3. Abolishment of Two-finger test

The two-finger test also known as P.V. (Per Vaginal) referred to a physical examination of a
woman’s vagina to test the laxity (loose ligaments) of vagina muscles 16 was banned by the
Supreme Court after the 2013 amendment. This test was considered as victim shaming and
had no relevance to the crime.
15
KLE Society’s Law College, ‘Legal Reforms in India Post Nirbhaya Rape’ (KLE Society’s Law College, 11
July 2018)<https://www.klelawcollege.org/blog/legal-reforms-in-india-post-nirbhaya-rape/>accessed on 7
August 2020
16
Vageshwari Deswal, ‘Virginity Test: Why the two finger test is unscientific, illogical and illegal’ (Times of
India, 9 May 2019)<https://timesofindia.indiatimes.com/blogs/legally-speaking/virginity-test-why-the-two-
finger-test-is-unscientific-illogical-and-illegal/>accessed on 9 August 2020
4. The Juvenile Justice Act, 2015.

An important flaw in the justice system was identified when one of the accused in the
Nirbhaya Case, who was a juvenile, was just given a three-year term at a probation period
and who is now free from any punishment. Therefore, the age of being tried as ab adult for a
violent and heinous crime like rape was changed from 18 to 16 years in the Juvenile Justice
Act, 2015.

5. Reforms in the Indian Penal Code, 1860.

Insertion of some crucial sections like section 166A (which covers the offence of
Disobedience of law by a public servant), section 354A (which deals with sexual harassment
and punishment for the same), section 354B (which covers the offence of compelling a
woman to remove clothes), section 376A (dealing with the rape resulting in death or
vegetative state), section 376D (dealing with the crime of Gang rape) etc. were made in the
statute.

Appellants stand

 Delay in the filing of the First Information Report (FIR).

According to the counsel of the appellant, there was a delay in filing of the FIR as the said
FIR should have been filed at 3:45 am, however as told by the Nirbhaya’s friend (who was
with her at the time of the incident), it was filed at 5:30 am. Therefore according to the
appellants, Delay in setting the law into motion by lodging of complaint in Court or FIR at
the police station is usually viewed by courts with suspicion because there is the possibility of
a concoction of evidence against an accused.17

 Absence of mentioning of use of iron rods, names of the accused and the description
of the bus.

The appellants alleged that the informant (Nirbhaya’s friend) did not mention the use of iron
rods, names of the accused and the description of the bus inside which the incident took
place.

 Vagueness in considering Nirbhaya’s friend as power witness.

17
Supra Note 1 para 49
The appellants alleged that he (Nirbhaya’s) friend cannot be considered as the main witness
because firstly he keeps on changing his version of statements, further the nature of injuries
suffered by him raises serious doubt about his presence at the time of the incident.18

 Irrelevant stance

The counsel for the convict made an irrelevant argument in relation to the death sentence. He
stated that the life of the convict was already of a short term due to the level of pollution in
the Capital City.

Defendant stands

1. In the present case, there was no delay in the registration of FIR as the sequence of the
incident should be kept in mind. The victim was in critical condition and as natural conduct,
providing medical treatment to her was of prime importance.

2. The contention of the appellants that use of iron rods, names of the accused and the
description of the bus was not mentioned by the informant cannot be accepted as it is not
necessary that FIR should contain all the details of the prosecution case; 19

3. Also as mentioned in the case of Rattan Singh v. the State of H.P that it cannot be expected
from first information report statement to give every detail about every aspect of the case.20

4. The Court has correctly relied upon the testimony of the main witness and that the version
of his statements is consistent.21

Judgement

After the rejection of different petitions filed by the accused, the Court delivered that-

1. In the present case, “after analysing the circumstances no hesitation and justification can be
found to convert the death sentence given to the perpetrators to the life imprisonment -
Justice Banumathi.22

18
Supra Note 1 para 67
19
Supra Note 1 para 55
20
Supra Note 1 para 56
21
Supra Note 1 para 93
22
Supra Note 1 para 146
2. The accused may not be hardened criminals, but the cruel manner in which the gang-rape
was committed shocks the collective conscience of the society and this case comes within the
category of “rarest of the rare case”.23

3. The audacity with which the acts were committed in the evening hours reflects the threat
that the society can be exposed to, in case the accused are not punished appropriately. There
is no scope of reform in the judgment.24

4. In the present case, there is ample evidence proving the acts, statements and circumstances,
establishing firm ground to hold that the accused who were present in the bus were in prior
concert to commit the offence of rape. The criminal acts done in furtherance of the
conspiracy, is established by the sequence of events and the conduct of the accused.
Existence of conspiracy and its objects could be inferred from the chain of events.25

5. This kind of horrific acts reflects the in-human extent to which the accused could go to
satisfy their lust and affects not only the norms of the society, but also the norms of
humanity. The acts committed shook the conscience of the society.26

6. The three-judge bench after rejecting review and curative Petition filed by the accused
upheld the Delhi High Court Judgement and Mukesh, Pawan, Vinay and Akshay were given
the death sentence.

Analysis

Justice Banumathi stated in her judgment that the accused not be hardened criminals, but the
cruel manner in which the gang-rape was committed shocks the collective conscience of the
society and this case clearly comes within the category of “rarest of the rare case” 27, then
what took our judiciary to repeatedly postpone the hanging of the rapists of the Nirbhaya
case? Initially, the concept of fast track court brought a pinch of hope amongst the people but
dragging the case for seven long years once again increased the outrage of the people, against
the judiciary, demanding justice for Nirbhaya.

23
Ibid
24
Supra Note 1 para 141
25
Supra Note 1 para 100
26
Supra Note 1 para 141
27
Supra Note 1 para 146
The pendency in the delivery of the judgment missed an opportunity from setting an
important precedent on such a rarest of the rare case. An important drawback in the judgment
was that though the incident shook the entire nation, however the outrage of the people did
not create any particular impact on our justice system and thus resulted in the late delivery of
justice to Nirbhaya. Though the Court shall be appreciated for the unbroken stand on the
death sentence as several renowned lawyers and researchers were pressurizing to convert the
death penalty into life imprisonment and also for the amendments made in the Criminal acts,
however it still is insufficient to protect women from such evil minds.

The accused exhausted all the remedies available to them. Each of them filed the petitions
separately on different dates and with the lapse of time, which eventually wasted a lot of
time. Law provides equal opportunity to both the parties of a case to prove themselves
innocent before the Court, however, in the matter of such heinous crime, a unique route or
stand should be taken by the Court in order to create a strong, positive and necessary impact
on society.

The most important criticism in the judgment is the repeated doubt on the dying declaration
by Nirbhaya. According to Section 32(1)28 a dying declaration means a statement is written or
verbal of relevant facts made by a person who is dead. The counsel of the accused have
constantly requested to keep, the relevant facts stated by Nirbhaya in her dying declaration in
relation to the disproportionality in the number of accused and time that the rape was
committed, out of the consideration and also stated that they were not voluntary but tutored.
Also, the Justice Hedge has contended that the three dying declarations did to inspire the
confidence of being included in the evidence due to the variations shown by Nirbhaya for the
same facts as stated by the counsel of the accused. This shows lack of humanity and kindness
for a person who has been so brutally violated that despite being not in a condition to speak
showed courage and narrated the whole incident and specified the role of each accused. It can
be quickly determined that the counsel was not leaving any opportunity unturned to delay the
time of the Court.

The Court in the present case listened to every vague contention produced from the side of
the accused whether starting from the irrelevant questioning upon the relevancy of the prime
witness, petitions filed by the accused with the lapse of time to the argument pertaining to the

28
Indian Evidence Act, 1872
death sentence of the accused that life term of the accused is already short term because of
the increase in Delhi Pollution.

However, it cannot be forgotten that at the end of the day, Nirbhaya got justice, though lately.
Still the billions in the country have trust in the judiciary that similar to Nirbhaya, every
woman in India who is a victim of same or any kind of incident will get justice one day.

References

1. Indian Kanoon

2. SSRN, Review Jurisdiction of Supreme Court of India: Article 137

3. Aaptaxlaw.com, ‘Order XLVII-Review: Supreme Court Rules 2013’

4. Civil Procedure Code, 1908

5. Lily Thomas case (2000) 6 SCC 224

6. Lexlife India, ‘Explained: Curative Petition’ (January 20,2020)
7. Insights Editor, ‘What is Curative Petition?’(March 2, 2020)
8. SSRN, Review Jurisdiction of Supreme Court of India: Article 137
9. DH Web Desk, What is curative Petition? (Jan 10,2020)
10. The Wire, ‘Can a Curative Petition keep the Nirbhaya Convicts from the Noose?
(January 9,2020)

11. Aditya Aryan, ‘Mercy Petition’ (2020) ITJ

12. KLE Society’s Law College, ‘Legal Reforms in India Post Nirbhaya Rape’ (July
11,2018)

13. Times of India, ‘Virginity Test: Why the two-finger test is unscientific, illogical and
illegal’ ( May 9, 2019)

14. Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) Writ Petition (civil) 509 of 1997

15. Mukesh and other vs State (Nct of Delhi) and others on May 5, 2017

16. Indian Evidence Act, 1872

 17. Northern India Caterers (India) vs Lt. Governor of Delhi 1979 SCR (1) 557

About the Author

Deepali Aswal is a 5th-year law student of B.A.LLB at Lloyd Law College, Greater Noida.
She has a keen interest in learning about socio-legal issues, therefore she is working under
Pro Bono India as a legal intern. Her interest in Refugee law encouraged her to apply for the
internships that specifically works in socio-legal matters. She is a founding member of
Migration and Refugee Law Centre at Lloyd Law College through which she engage the
students of the college to learn more about migration and refugee issues by organizing lecture
series, workshops and interactive sessions with the member from United Nations High
Commissioner for Refugees and International Organisation for Migration. Because of her
interest in refugee and migration laws, she has been involved in various Moot Court
Competitions, which in particular focused upon International law and Refugee Laws, at
national and international level. She is very thankful to Pro Bono India for giving her an
opportunity to intern which is pushing her one step towards her aim.