Vikram Singh @Vicky Walia vs The State Of Punjab

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL M.P.NOS.16673-16674 OF 2016 & CRIMINAL M.P. NOS.16675-16676 OF 2016 IN REVIEW PETITION (CRL.) NOS.192-193 OF 2011 IN CRIMINAL APPEAL NOS.1396-1397 OF 2008

VIKRAM SINGH @ VICKY WALIA AND ANR. … APPLICANTS/ PETITIONERS VS.

STATE OF PUNJAB AND ANR. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Delay condoned. These criminal

miscellaneous petitions have been filed by the

applicants for reopening the Review Petition

Signature Not Verified (Crl.) Nos. 192-193 of 2016 in Criminal Appeal Digitally signed by CHETAN KUMAR

Nos.1396-1397 of 2008 on the basis of Date: 2018.04.07 12:51:09 IST Reason:

Constitution Bench judgment in Mohd. Arif 2

alias Ashfaq versus Registrar, Supreme Court

Of India And Others, 2014(9) SCC 737, by which

judgment liberty was granted to those

petitioners whose review applications seeking

review of judgment of this Court confirming

death sentence were rejected by circulation but

death sentences were not executed.

2. Both the applicants Vikram Singh @ Vicky

Walia and Jasvir Singh @ Jassa were tried for

offences under Section 302, 364A, 201 and 120B

IPC. The trial court vide its judgment dated

20th December, 2016/21st December, 2016

convicted both the applicants as well as one

Smt. Sonia wife of Jasvir Singh and awarded

death sentence to all the three accused under

Section 302 and 364A IPC. Criminal Appeal

No.105-DB of 2007 was filed before the High

Court by all the accused against the judgment

of Sessions Judge, Hoshiarpur. Murder Reference

No. 1 of 2007 was also made by the Sessions 3

Judge before the High Court seeking

confirmation of death sentence. Both Murder

Reference No.1 of 2007 as well as Criminal

Appeal No.105-DB of 2007 were heard and

disposed of by a common judgment of the High

Court dated 30.05.2008. The High Court accepted

the Murder Reference No.1 of 2007 and confirmed

the death sentence awarded by the trial court

resultantly Criminal Appeal No.105-DB/2007 was

dismissed. Aggrieved by the judgment of the

High court dated 30.05.2008 Criminal Appeal

Nos.1396-1397 of 2008 were filed by the

accused. This court heard the criminal appeals.

Two Judge Bench of this Court by its judgment

dated 25.01.2010 dismissed the criminal appeals

of Vikram Singh and Jasvir Singh whereas death

sentence awarded to Smt. Sonia, the third

accused was converted into life imprisonment.

Vikram Singh and Jasvir Singh filed Review

Petition (Crl.) Nos.192-193 of 2011 which 4

review petitions were dismissed by circulation

vide order dated 20.04.2011 by two-Judge Bench

which had heard the criminal appeals on the

ground of delay as well as on merits. As noted

above after the Constitution Bench judgment of

this Court in Mohd. Arif alias Ashfaq (supra)

Criminal M.P.Nos.16673-16674 of 2016 and 16675-

16676 of 2016 were filed by the applicants for

reopening the Review Petition (Crl.) Nos.192-

193 of 2011.

3. Learned counsel for the parties were

permitted to advance their oral submissions on

24.10.2016 in support of Review Petition (Crl.)

Nos.192-193 of 2011.

4. We have heard Shri K.T.S. Tulsi, learned

senior counsel appearing for Vikram Singh

whereas Shri Tripurari Ray has been heard for

applicant No.2. Shri V. Madhukar, learned

Additional Advocate General has been heard for 5

the State of Punjab and Haryana and Ms. Anvita

Cowshish, learned counsel for complainant.

5. The applicants by their review petitions

are seeking review of the judgment of this

Court dated 25.01.2010 by which judgment

criminal appeals filed by the applicants were

dismissed and death sentence awarded by the

trial court and affirmed by the High Court was

maintained by dismissing the appeals.

6. Before we proceed to examine the review

petitions, it is necessary to note the ambit,

scope and parameters of the review jurisdiction

of this Court.

7. Article 137 of the Constitution of India

provides for review of judgments or orders of

this Court in following words:

“137. Review of judgments or orders by the Supreme Court.— Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to 6

review any judgment pronounced or order made by it.”

8. Order 40 of Supreme Court Rules, 1966

deals with the review, Rule 1 of which

provides:

“1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order 47 Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.”

9. This Court has constitutional power to

review its judgment as granted by Article 137

of the Constitution which is subject to

provisions of any law made by Parliament or any

Rules made under Article 145. Under Article 145

the Supreme Court has framed Rules, 1966 as

noted above. As per Rule 1 of Order 40 an

application for review in a criminal proceeding

can be entertained on the ground of an error

apparent on the face of the record. 7

10. Granting power of review to this Court by

the Constitution is in recognition of the

universal principle that the power of review is

part of all judicial system. Rule 1 of Order 40

of Supreme Court Rules, 1966 provides for the

procedure and manner in which the power of

review can be exercised by this Court. The

ambit and scope of power of review of this

Court has come up for consideration time and

again before this Court. Justice Krishna Iyer

in Sow Chandra Kante and another vs. Sheikh

Hai, (1975) 1 SCC 674, held that to review of a

judgment of this Court are subject to the rules

of the game and cannot be lightly entertained.

Explaining the scope and ambit of the review

jurisdiction of this Court following was

stated:

“A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in 8

earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.”

11. As noticed above although Rule 1 of Order

40 prohibits filing of review application in a

criminal proceeding except on the ground of

error apparent on the face of the record. The

Constitution Bench of this Court has occasion

again to consider the ambit and scope of review

jurisdiction in P.N. Eswara Iyer and others

vs. Registrar, Supreme Court of India, (1980)

4 SCC 680. In the above case Order 40 Rule 3

as amended in 1978 was under challenge. In the

above context this Court had occasion to

consider contour of the review jurisdiction and

the Constitution Bench speaking through Justice

Krishna Iyer categorically held that although

Order 40 Rule 1 limits the ground viz-a-viz 9

criminal proceedings to errors apparent on the

face of the record but the power to review in

Article 137 is wide and framers of the rules

never intended a restrictive review over

criminal orders or judgments. In paragraphs 34

and 35 following was laid down:

“34. The rule, on its face, affords a wider set of grounds for review for orders in civil proceedings, but limits the ground vis-a-vis criminal proceedings to “errors apparent on the face of the record”. If at all, the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the “deceased” shows up in court and the court discovers the tragic treachery of the recorded testimony. Is the court helpless to review and set aside the sentence of hanging? We think not. The power to review is in Article 137 and it is equally wide 10

in all proceedings. The rule merely canalises the flow from the reservoir of power. The stream cannot stifle the source.

Moreover, the dynamics of interpretation depend on the

demand of the context and the lexical limits of the test. Here “record” means any material which is already on record or may, with the permission of the court, be brought on record. If justice summons the Judges to allow a vital material in, it becomes part of the record; and if apparent error is there, correction becomes necessitous.

35. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive.

The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule (Order 40 Rule 2) must, therefore, be read to encompass the same area and not to engraft an artificial divergence productive of anomaly. If the expression “record” is read to mean, in its semantic sweep, any material even later brought on record, with the leave of the court, it will embrace subsequent events, new light and other grounds which we find in Order 47 Rule 1, CPC. We see no insuperable difficulty in equating the area in 11

civil and criminal proceedings when review power is invoked from the same source.”

12. This Court in subsequent judgments has

also noticed that scope of review in criminal

proceedings has been considerably widened by

the Constitution Bench of this Court in P.N.

Eswara (supra). In Suthendraraja alias

Suthenthira Raja alias Santhan and others vs.

State through Superintendent of Police, CBI,

(1999) 9 SCC 323, Justice D.P Wadhwa made the

following observation:

“5. It would be seen that the scope of review in criminal proceedings has been considerably widened by the pronouncement in the aforesaid judgment. In any case review is not rehearing of the appeal all over again and to maintain a review petition it has to be shown that there has been a miscarriage of justice. Of course, the expression “miscarriage of justice” is all-embracing…”

13. Again a two-Judge Bench in Lily Thomas

and others vs. Union of India and others, 12

(2000) 6 SCC 224, had the occasion to consider

the scope of review jurisdiction of this Court.

In paragraph 52 following was laid down:

“52. The dictionary meaning of the word “review” is “the act of looking, offer something again with a view to correction or improvement”. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v.

Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844, held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise.

It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of 13

Karnataka, 1993 Supp (4) SCC 595, held: (SCC pp. 619-20, para 19)

“19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai, AIR 1941 FC 1, the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh, (1836) 1 Moo PC 117:2 MIA 181, that an 14

order made by the Court was final and could not be altered:

‘… nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same power which the courts of record and statute have of rectifying the mistakes which have crept in…. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority.

The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.’

Basis for exercise of the power was stated in the same decision as under:

‘It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being 15

done by a court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.’

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause

(c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order 16

passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court.

The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.” The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.”

14. It was further held that mere possibility

of two views on the same subject is not a

ground for review. In paragraph 56 following

was stated:

“56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in 17

disguise. The mere possibility of two views on the subject is not a ground for review…”

15. Further in Devender Pal Singh vs. State,

NCT of Delhi and another, (2003) 2 SCC 501,

Arijit Pasayat,J., elaborately examined the

scope and ambit of review jurisdiction of this

Court after referring to all earlier relevant

judgments of this Court. In paragraph 11

following was stated:

“11. Though the scope of review in criminal proceedings has been widened to a considerable extent, in view of the aforesaid exposition of law by the Constitutional Bench, in any case review is not rehearing of the appeal all over again, and as was observed in Suthendraraja in order to maintain the review petition, it has to be shown that there is a miscarriage of justice. Though the expression “miscarriage of justice” is of a wider amplitude, it has to be kept in mind that the scope of interference is very limited……” 18

16. It was further held that resort to review

is proper only where a omission or patent

mistake or like grave error has crept in

earlier judgment by judicial fallibility. In

paragraph 16 following has been stated:

“16. As was observed by this Court in Col. Avtar Singh Sekhon v. Union of India, 1980 Supp SCC 562, review is not a routine procedure. A review of an earlier order is not permissible unless the Court is satisfied that material error, manifest on the face of the order undermines its soundness or results in miscarriage of justice. A review of judgment in a case is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility…. The stage of review is not a virgin ground but review of an earlier order which has the normal feature of finality.”

17. As noted above under Order 40 Rule 1 no

application for review can be entertained

except on the ground of an error apparent on

the face of the record. Although, the power of 19

review given to this Court is wider as has been

held by the Constitution Bench in P.N. Eshwara

(supra), Justice Krishna Iyer has given an

illustration where the Court will not hesitate

in exercising its power to review in a case

where deceased himself walks in the Court on

whose murder accused were convicted. Justice

Krishna Iyer rightly observed that Court is not

powerless to do justice in such case. Thus,

although the power of review granted to this

Court is wider but normally and ordinarily the

review in a criminal case has to be on the

grounds as enumerated in Rule 1 of Order 40.

18. What is “an error apparent on the face of

the record” has also been a subject matter of

consideration by this Court in a large number

of cases. What are the grounds on which this

Court shall exercise its jurisdiction and what

is the error apparent on the face of the record

came to be considered by this Court in Kamlesh 20

Verma vs. Mayawati and others, (2013) 8 SCC

320 (in which case one of us Dipak Misra, J.

was also a party). This Court held that an

error which is not self-evident and has to be

detected by a process of reasoning is not an

error apparent on the face of the record. In

paragraphs 15 and 16 following was laid down:

“15. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. This Court in Parsion Devi v. Sumitri Devi, 1997 (8) SCC 715, held as under:

(SCC pp. 718-19, paras 7-9)

“7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372, this Court opined: (AIR p. 1377, para 11) 21

‘11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an “error apparent on the face of the record”. The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record”, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.’

8. Again, in Meera Bhanja v.

Nirmala Kumari Choudhury, 1995 (1) SCC 170, while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, 1979 (4) SCC 389, this Court once again held that review proceedings are not by way of an 22

appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.” (emphasis in original)

16. Error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review.” 23

19. Further elaborating on the parameters of

review jurisdiction following was laid down in

paragraphs 17 and 18:

“17. In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court in Kerala SEB v. Hitech Electrothermics & Hydropower Ltd., 2005 (6 )SCC 651, held as under:

(SCC p. 656, para 10)

“10. … In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. The learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court.

24 If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.”

18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications.

This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501, held as under:

(SCC pp. 504-505, paras 11-12)

“11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the 25

time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of ‘second innings’ which is impermissible and unwarranted and cannot be granted.””

20. Summarising the principles when review

will be maintainable and review will not be 26

maintainable following was held in paragraphs

20.1 and 20.2:

“20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence

which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki,AIR 1922 PC 112, and approved by this Court in Moran Mar Basselios Catholicos v.

Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526, to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.(2013)8 SCC 337.

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

27 (iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

21. In view of above, it is clear that scope,

ambit and parameters of review jurisdiction are

well defined. Normally in a criminal

proceeding, review applications cannot be

entertained except on the ground of error 28

apparent on the face of the record. Further,

the power given to this Court under Article 137

is wider and in an appropriate case can be

exercised to mitigate a manifest injustice. By

review application an applicant cannot be

allowed to re-argue the appeal on the grounds

which were urged at the time of the hearing of

the criminal appeal. Even if the applicant

succeeds in establishing that there may be

another view possible on the conviction or

sentence of the accused that is not a

sufficient ground for review. This Court shall

exercise its jurisdiction to review only when a

glaring omission or patent mistake has crept in

earlier decision due to judicial fallibility.

There has to be error apparent on the face of

the record leading miscarriage of justice to

exercise the review jurisdiction under Article

137 read with Order 40 Rule 1. There has to be

a material error manifest on the face of the 29

record with results in the miscarriage of the

justice.

22. In view of parameters of the review

jurisdiction as noticed above, we now proceed

to examine the review petition to find out as

to whether there are sufficient grounds as

enumerated above for reviewing the judgment of

the criminal appeal affirming the death

sentence awarded to the applicants.

23. Learned counsel contended that the tape-

recorded conversation has been relied on

without there being any certificate under

Section 65B of the Evidence Act, 1872. It was

contended that audio tapes are recorded on

magnetic media, the same could be established

through a certificate under Section 65B and in

the absence of the certificate, the document

which constitutes electronic record, cannot be

deemed to be a valid evidence and has to be

ignored from consideration. Reliance has been 30

placed by the learned counsel on the judgment

of this Court in Anvar P.V. vs. P.K. Basheer

and others, (2014) 10 SCC 473. The conversation

on the landline phone of the complainant

situate in a shop was recorded by the

complainant. The same cassette containing

conversation by which ransom call was made on

the landline phone was handed over by the

complainant in original to the Police. This

Court in its judgment dated 25.01.2010 has

referred to the aforesaid fact and has noted

the said fact to the following effect:

“The cassette on which the conversations had been recorded on the landline was handed over by Ravi Verma to S.I. Jiwan Kumar and on a replay of the tape, the conversation was clearly audible and was heard by the Police.”

24. The tape recorded conversation was not

secondary evidence which required certificate

under Section 65B, since it was the original

cassette by which ransom call was tape- 31

recorded, there cannot be any dispute that for

admission of secondary evidence of electronic

record a certificate as contemplated by Section

65B is a mandatory condition. In Anvar P.V.

(supra) this Court had laid down the above

proposition in paragraph 22. However, in the

same judgment this Court has observed that the

situation would have been different, had the

primary evidence was produced. The conversation

recorded by the complainant contains ransom

calls was relevant under Section 7 and was

primary evidence which was relied on by the

complainant. In paragraph 24 of the judgment of

this Court in Anvar P.V. it is categorically

held that if an electronic record is used as

primary evidence the same is admissible in

evidence, without compliance with the

conditions in Section 65B. Paragraph 24 is as

extracted below:

“24. The situation would have been different had the appellant 32

adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.”

25. He has further contended that on the plain

reading of the Chemical Examiner’s report, it 33

is clear that the death was caused due to

overdose of chloroform and pentazocine

poisoning. Hence, the conviction ought to have

been under Section 304A IPC and not under

Section 302 IPC. The conviction against the

applicants under Section 302 and 364A was

recorded after considering entire evidence on

record. This Court while dismissing the

criminal appeals and affirming the death

Reference No.1 has appreciated the entire

evidence and approved the decision of the trial

court and the High Court. The conviction of the

applicant was based on cogent, ocular and

medical evidence and in the review application

applicants have again asked this Court to re-

appraise the evidence and come to a different

conclusion. There is no apparent error on the

face of the record in recording conviction of

the applicants under Section 302 and 364A. 34

26. It is further contended that this Court

had relied on the disclosure statement of

Jasvir Singh, which led to the recovery of the

dead body which disclosure statement does not

connect Vikram Singh with the crime. The trial

court as well as the High Court marshaled the

ocular evidence by which evidence role of

Vikram Singh was duly proved in commission of

crime. Hence, this submission deserves to be

rejected.

27. Lastly, Shri K.T.S. Tulsi, learned senior

counsel submits that this Court in paragraph 18

has recorded its conclusion that the finger

prints of Vikram Singh were found on the Alto

and Chevrolet cars, therefore, connection of

Vikram Singh is established in the crime. It is

submitted that since this Court recorded at

para 18 that the said cars belong to Vikram

Singh, the existence of finger prints cannot by

itself be of any significance with regard to 35

his culpability in the crime. It is submitted

that by relying on finger prints, this Court

had committed an apparent error on the face of

the record. The above submission of learned

counsel is misconceived and incorrect. In para

18 of the judgment this Court never observed

that Alto and Chevrolet cars belonged to Vikram

Singh. The statement of facts made in para 18

was to the effect that the finger prints from

the Alto and Chevrolet cars belong to Vikram

Singh and Jasvir Singh respectively. It is

useful to extract below para 18 of the

judgment:

“18. We also find that the prosecution has been able to show that the finger prints lifted by the Police Officers from the Alto and Chevrolet cars belonged to Vikram Singh and Jasvir Singh respectively. It is significant that the Chloroform bottle recovered from Darshan Kaur’s residence was also examined and the thumb impression of Jasvir Singh was detected thereon.” 36

28. There is evidence of the owner of Alto

car, PW.3, Naresh Kumar Sharma who had stated

in his statement that the car was lent by him

to Vikram Singh in the morning of 14th

February, 2005 at about 7 a.m. to 7.30 a.m.

Thus, it was no one’s case that Alto car

belonged to Vikram Singh. The argument raised

by Shri K.T.S. Tulsi is misconceived and we

unhesitatingly repel the same.

29. Learned counsel has further contended that

present was not a case where death penalty

could have been awarded to the applicants. In

the review petition reliance has been placed by

the applicants on Constitution Bench judgment

in Bachan Singh vs. State of Punjab, (1980) 2

SCC 684, and judgment in Machhi Singh and

others vs. State of Punjab, (1983) 3 SCC 470.

This Court in its judgment dismissing the

appeals referred to Bachan Singh and Machhi

Singh and has categorically applied its mind to 37

various parameters laid down in the aforesaid

judgments and on the broad principle which

emerged from the judgments for evaluating the

category of the rarest of the rare case.

Various mitigating and aggravated factors which

have been noted in the judgment of the High

Court were referred to by this Court, and this

Court recorded its conclusion that balance-

sheet has been drawn by the High Court of

aggravating and mitigating circumstances which

was duly adopted by this Court. We do not find

any error apparent on the record in the above

consideration by this Court in affirming the

judgment of the High Court.

30. Learned counsel appearing for Jasvir Singh

adopted the submissions of Shri K.T.S. Tulsi on

legal issues and on the question of sentence.

Certain other submissions have been raised on

behalf of the second applicant which also do

not disclose any ground which can be said to be 38

a valid ground for exercising review

jurisdiction.

31. We, after carefully considering the

submissions of the applicants, are of the

considered opinion that submissions raised in

the review petitions do not raise any ground

for review of judgment of this Court dated

25.01.2010.

32. In the result, the review applications are

rejected.

……………………………………………J. ( DIPAK MISRA )

……………………………………………J. ( R. BANUMATHI )

……………………………………………J. ( ASHOK BHUSHAN )

New Delhi, July 07, 2017.