advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, April 11, 2014

Death sentence commuted to life imprisonment - due to lack of any evidence with regard to the manner in which the crime was committed, the case will not fall under the category of rarest of rare case. Consequently, we are inclined to commute the death sentence to life and award 20 years of rigorous imprisonment, over and above the period already undergone by the accused, without any remission, which, in our view, would meet the ends of justice. = Dharam Deo Yadav …. Appellant Versus State of U.P. …. Respondent=2014 (April.Part) judis.nic.in/supremecourt/filename=41403

 Death sentence commuted to life imprisonment -   due to lack of any evidence with  regard  to  the  manner  in which the crime was committed, the case will not fall under the category  of
rarest of rare case.  Consequently, we are inclined  to  commute  the  death
sentence to life and award 20  years  of  rigorous  imprisonment,  over  and
above the period already undergone by the accused,  without  any  remission,
which, in our view, would meet the ends of justice. =

 gruesome murder of a 22  year
old girl by name Diana Clare Routley (hereinafter referred to  as  “Diana”),
a New Zealander, for which the trial Court awarded  death  sentence  to  the
appellant, which was affirmed by the High Court.=

 The trial Court acquitted Kali Charan Yadav, Sindhu  Harijan  and  Ram
Karan Chauhan, but the appellant was found guilty for the commission of  the
offences punishable under Section 302 read with Section 34 IPC  and  Section
201 IPC, but was acquitted of the charges for the  offences  under  Sections
364 and 394 IPC.  The trial Court also found that the case falls  under  the
category of rarest of rare case, since the accused had strangulated a  young
girl of a foreign country who  had  visited  India  and  awarded  him  death
sentence. =   

whether the  case  falls  under  the  category  of
rarest of the rare case so as to award death sentence for which, as  already
held, in Shankar Kisanrao Khade v. State of Maharashtra  (2013)  5  SCC  546
this Court laid down three tests, namely, Crime Test, Criminal Test  and  RR
Test.   So far as the present case is concerned, both  the  Crime  Test  and
Criminal Test have been satisfied as against the accused.   Learned  counsel
appearing for the accused,  however,  submitted  that  he  had  no  previous
criminal records and that apart from the circumstantial evidence,  there  is
no eye-witness in the above case, and hence, the manner in which  the  crime
was committed is not in evidence.   Consequently, it was  pointed  out  that
it would not be possible for this Court to come to the conclusion  that  the
crime was committed in a barbaric manner and, hence the instant  case  would
not fall under the category of rarest of rare.   We find some force in  that
contention.  Taking in consideration all aspects of the matter,  we  are  of
the view that, due to lack of any evidence with  regard  to  the  manner  in
which the crime was committed, the case will not fall under the category  of
rarest of rare case.  Consequently, we are inclined  to  commute  the  death
sentence to life and award 20  years  of  rigorous  imprisonment,  over  and
above the period already undergone by the accused,  without  any  remission,
which, in our view, would meet the ends of justice.

37.   The Appeal is disposed of as above, altering  the  death  sentence  to
that of life for the term mentioned above. 
2014 (April.Part) judis.nic.in/supremecourt/filename=41403

K.S. RADHAKRISHNAN, A.K. SIKRI
                                                          REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.369 OF 2006


Dharam Deo Yadav                        …. Appellant

                                   Versus

State of U.P.                                …. Respondent



                               J U D G M E N T


K.S. Radhakrishnan, J.


1.    We are, in this case, concerned with the gruesome murder of a 22  year
old girl by name Diana Clare Routley (hereinafter referred to  as  “Diana”),
a New Zealander, for which the trial Court awarded  death  sentence  to  the
appellant, which was affirmed by the High Court.

2.    Diana came to India as a visitor in the  year  1997.   After  visiting
Agra, she reached Varanasi on 7.8.1997 and stayed in room  no.  103  of  the
Old Vishnu Guest House, Varanasi.  She left the guest house on 10.8.1997  at
about 7.00 a.m.  for  Darjeeling  by  train  from  Varanasi  Cantt.  Railway
Station.  Later, she was found missing and her father  Allan  Jack  Routley,
having got no information  about  his  daughter,  informed  the  authorities
about the missing of Diana.  Raghvendra Singh, SHO, Police  Station,  Laksa,
along with a team of police officials, made inquiries, but she could not  be
traced.  Later, it was revealed that one Dharam Deo Yadav, a tourist  guide,
accused herein, had some contacts  with  Diana  and  the  police  team  then
submitted its report to the Superintendant of  Police  (City),  Varanasi  on
24.4.1998, which reads as follows:
      “Dear Sir,


            Re:  Re Diana Clare Routley, aged 25 years


      I write in connection with the disappearance  of  my  daughter,  Diana
      Clare Routley last seen in Varanasi  on  Aug.  10th,  1997.   She  had
      arrived in Varanasi on the morning of Aug. 7th, 1997.  She was staying
      at Old Vishnu Guest House.  She last had contact with  her  family  on
      Aug. 8th, 1997 when I rang her at Old Vishnu Guest House and she wrote
      a letter to me.  Since  then  her  family  and  friends  have  had  no
      contact.


      The person we suspect that could be involved in her  disappearance  is
      Dharam Dev Yadav who is a local guide in Varanasi  and  work  for  Old
      Vishnu Guest House. If he is not  involved  in  her  disappearance  he
      certainly  knows  something  of  her  movements   on   the   day   she
      disappeared.”

3.    Allan Jack Routley later came to India  and  lodged  a  written  first
information report (Exh. Ka-34) naming  the  accused  Dharam  Deo  Yadav  as
suspect on 28.07.1998 at about 4.45 pm at P.S. Bhelupur, District  Varanasi.
  Crime No. 254/98 was then registered under Section 366 IPC.    PW14,  Anil
Kumar Rai,  SHO,  P.S.  Shivapur,  Varanasi  got  an  information  that  the
accused, on 19.8.1998, would reach  Shivpur  railway  station  at  Varanasi.
PW14 found out the accused at the  railway  station  and  interrogated  him.
Accused confessed that he had committed the murder of Diana and  also  named
the co-associates Kali Charan Yadav, Sindhu Harijan and Ram  Karan  Chauhan.
  The accused, accompanied by PWs14 and 15, PS Bahariyabad, Ghazipur  (Indra
Kumar  Mandal,  Sub-Inspector),  went  to  his  house  situated  at  Village
Brindaban, District Ghazipur and he, with his key, opened the  lock  of  his
house and pointed out the place where the dead  body  of  Diana  was  buried
after causing her death by way of strangulation.   Accused was asked to  dig
the spot and excavate the dead body of Diana, which he did by spade and  the
body remains (Skeleton) was found.  PW14 then  arrested  him  on  19.08.1998
and, on his disclosure, other three persons, said to have been  involved  in
the incident, were also arrested by PW14 on  19.08.1998.    Inquest  on  the
skeleton was prepared by PW15  on  the  direction  given  by  PW16  Rajendra
Pratap Singh, SDM, Tehsil Jakhaniya,  District  Ghazipur.  After  completing
the investigation, police arrested Kali Charan Yadav,  Sindhu  Harijan,  Ram
Karan Chauhan, Kesar Yadav and  Mahesh  Chandra  Mishra  on  19.08.1998  and
submitted charge-sheets Ex. Ka40 and Ka41 for the  offences  under  Sections
366, 302, 201, 394  of the Indian Penal Code.   Post-mortem  examination  of
the skeleton was done by a team of Doctors, consisting of  Dr.  R.B.  Singh,
Dr. S.K. Tripathi and Dr.V.K. Gupta on 20.08.1998, the report  of  which  is
Exh. Ka-18.

4.    After committal of the case,  the  Court  of  Sessions  framed  charge
under Section 411 IPC against Kali Charan, Kesar Yadav  and  Mahesh  Chandra
Mishra.  Charges under Sections 302/34, 201 and 394 IPC were framed  against
the appellant, Kali Charan Yadav, Sindhu Harijan and Ram Karan  Chauhan  and
the appellant was also further charged under Section 364 IPC.


5.    The prosecution, in order to  bring  home  the  charges,  examined  27
witnesses.  No person was examined as a witness on the said of the defence.


6.    The trial Court acquitted Kali Charan Yadav, Sindhu  Harijan  and  Ram
Karan Chauhan, but the appellant was found guilty for the commission of  the
offences punishable under Section 302 read with Section 34 IPC  and  Section
201 IPC, but was acquitted of the charges for the  offences  under  Sections
364 and 394 IPC.  The trial Court also found that the case falls  under  the
category of rarest of rare case, since the accused had strangulated a  young
girl of a foreign country who  had  visited  India  and  awarded  him  death
sentence.


7.    Aggrieved by the same, the accused filed Criminal Appeal No.  1000  of
2003 before the High Court of Judicature at Allahabad and  the  State  filed
Government Appeal No. 2726 of 2003 against the  order  of  acquittal  passed
against rest of the accused persons.  Both  the  appeals  were  heard  along
with Criminal Reference no. 21 of 2003.  The High Court dismissed  both  the
appeals and confirmed  the  death  sentence  awarded  by  the  trial  Court,
holding that the case in question falls under the rarest of  rare  category,
against which this appeal has been preferred.


8.    Shri Sunil Kr. Singh, learned  counsel  appearing  on  behalf  of  the
appellant, submitted that in a case which squarely rests  on  circumstantial
evidence, the circumstances  taken  cumulatively  should  form  a  chain  so
complete that there is no escape from the conclusion that, within all  human
probability,  the  crime  was  committed  by  the  accused  and  none  else.
Circumstances pointed out by the prosecution, in  this  case,  according  to
the counsel, are inconclusive and inconsistent  and  no  reliance  could  be
placed on those circumstances so as to draw a conclusion  that  the  accused
had committed the crime.   In support of his  submissions,  learned  counsel
placed reliance on various judgments of this Court, including  Padala  Veera
Reddy v. State of Andhra Pradesh and others   1989  Supp  (2)  SCC  706  and
Mustkeem alias Sirajudeen v. State of Rajasthan (2011) 11 SCC  724.  Learned
counsel also pointed out that oral evidence of PWs 1, 2, 3, 5, 9 and 10  are
totally unreliable to hold that the deceased was last seen with the  accused
on  10.08.1997.    Learned  counsel  pointed  out  that  the  witnesses  had
identified Diana only on the basis  of  the  photograph  (Exh.1),  sans  the
negative.   Learned counsel pointed out that, in any  view,  the  mere  fact
that the appellant was seen  with  the  deceased,  would  not  lead  to  the
irresistible conclusion that the appellant had  committed  the  crime.    In
support of his contention, reliance was  placed  on  the  judgment  of  this
Court in Lakhanpal v. State of Madhya Pradesh 1980 Supp (1) SCC  716,  Eradu
v. State of Hyderabad  AIR 1956 SC 316, Sahadevan v.  State  of  Tamil  Nadu
(2012) 6 SCC 403, State of U.P. v. Satish (2005) 3 SCC 114.


9.    Learned  counsel  also  submitted  that  the  alleged  confession  and
recovery made at the instance  of  the  accused  under  Section  27  of  the
Evidence Act, 1872 could not be  taken  as  evidence,  since  the  same  was
stated to  have  been  made  while  in  custody.    Learned  counsel  placed
reliance on the  judgments  of  this  Court  in  State  of  U.P.  v.  Deoman
Upadhyaya (1961) 1 SCR 14 and State of Rajasthan v. Daulat Ram (2005) 7  SCC
36 in support of his contention.  Learned counsel also  submitted  that  the
police had conducted  the  search  and  seizure  qua  the  recovery  without
following the provisions of Sections 100(4) and (5) of the Code.    Further,
it was also pointed out that  no  independent  witness  was  present  during
search and  seizure.   Learned  counsel  pointed  out  that,  going  by  the
evidence of PW16 itself, the theory that the skeleton was recovered  in  the
house of the accused, is highly doubtful and  possibility  of  planting  the
skeleton in the house of the accused cannot be ruled  out.  Learned  counsel
also submitted that the evidence of PW19, who conducted the post-mortem,  as
such, cannot be accepted in evidence since he  had  not  followed  the  well
accepted procedures.  Referring  to  the  oral  evidence  of  PW21,  learned
counsel pointed out that not much  reliance  could  be  placed  on  the  DNA
report,  since  the  acceptance  of  DNA   Profile   evidence   has   raised
considerable controversy and  concerns  even  in  countries  from  where  it
originated.


10.   Learned counsel also submitted that, in any view, this is not  one  of
the rarest of  rare  case  warranting  award  of  death  sentence.   Learned
counsel pointed out that the cases rested purely on circumstantial  evidence
and, at the time of the commission of the offence, he was only 34  years  of
age and he later married, having wife, children  and  father.   Further,  it
was also pointed out that he was originally a rickshaw puller,  coming  from
very poor circumstances and hence could be reformed and rehabilitated.

11.   Shri Ratnakar Dash, learned senior counsel appearing  for  the  State,
submitted that the case rests upon  circumstantial  evidence  and  that  the
trial Court as  well  as  the  High  Court  are  justified  in  drawing  the
inference of guilt, since all incriminating circumstances are  found  to  be
incompatible with the innocence of the  accused.   Learned  senior  counsel,
placing reliance on the oral  evidence  of  PWs  1,  2,  3,  5,  9  and  10,
submitted that their evidence would categorically  show  that  the  deceased
was last seen with the accused.   PW3 has  categorically  stated  that  both
the accused and Diana  were  last  seen  together  at  the  Varanasi  Cantt.
Railway Station.  Learned counsel pointed out that  the  evidence  of  those
eye-witnesses would clearly indicate that the accused,  while  acting  as  a
guide to Diana, took her to his native village, lived  there  for  few  days
and committed the murder and later buried the dead body in  his  own  house.
Learned senior counsel extensively referred to the evidence of  PWs  14  and
15 read with the statement of admission of the appellant (Annexure P-5).

12.   Learned senior counsel, referring to Section 27 of the  Evidence  Act,
submitted that so much of information given by the accused in “custody”,  in
consequence of which any fact is  discovered,  is  admissible  in  evidence,
whether such information amounts to a confession  or  not.   Learned  senior
counsel submitted, assuming that the recovery was not in  terms  of  Section
27 of the Evidence Act and was not in custody of  the  police  by  the  time
statement was made, still it would as well be admissible as “conduct”  under
Section 8 of the Evidence Act.    In support  of  his  contention,  reliance
was placed on the judgment of this  Court  in  Sandeep  v.  State  of  Uttar
Pradesh (2012) 6 SCC 107.


13.   Learned senior counsel also referred to the evidence of PWs 19 and  20
and also explained the procedure followed by PW19, who conducted  the  post-
mortem examination on the skeleton of Diana.  PW20 examined the  body  parts
of Diana and preserved one femur bone and one humerus  bone  for  DNA  test,
which was conducted by PW21 adopting the test – Short Tandem  Space  Repeats
(STR) analysis.  Learned senior counsel pointed out  that,  on  reading  the
evidence of PWs 13, 19, 20 and 21, it is proved beyond  a  shadow  of  doubt
that the skeleton recovered from the  house  of  the  accused  was  that  of
Diana.

14.   We have no eye-witness version in the  instant  case  and  the  entire
case rests upon the circumstantial  evidence.   Circumstantial  evidence  is
evidence of relevant facts from which, one can,  by  process  of  reasoning,
infer about the existence  of  facts  in  issue  or  factum  probandum.   In
Hanumant, son of Govind Nargundkar v. State of Madhya Pradesh  AIR  1952  SC
343, this Court held as follows:
    “It is well to remember that in  cases  where  the  evidence  is  of  a
    circumstantial nature, the circumstances from which the  conclusion  of
    guilt is to be drawn should in the first instance, be fully established
    and all the facts so established should be  consistent  only  with  the
    hypotheses of the guilt of the accused.  Again, the circumstances would
    be of a conclusive nature and tendency and they should be  such  as  to
    exclude but the one proposed to be proved.  In other words, there  must
    be a chain of evidence so far complete as not to leave  any  reasonable
    ground for a conclusion consistent with the innocence  of  the  accused
    and it must be such as to show that within all  human  probability  the
    act must have been done by the accused.”


Each and every incriminating circumstance must  be  clearly  established  by
reliable and clinching evidence and the circumstances so proved must form  a
chain of events from which the only irresistible conclusion about the  guilt
of the accused can be safely drawn  and  no  other  hypothesis  against  the
guilt is possible.   Even when  there  is  no  eye-witness  to  support  the
criminal charge, but prosecution has been able to  establish  the  chain  of
circumstances which is complete leading to inference  of  guilt  of  accused
and circumstances taken collectively are incapable  of  explanation  on  any
reasonable hypothesis save of guilt sought to  be  proved,  accused  may  be
convicted on the basis of such circumstantial evidence.

15.   Diana, the deceased, was a young girl  of  the  age  of  22-24  years,
hailing from New Zealand, visited India in the year  1997.   On  07.08.1997,
she arrived Varanasi and stayed at  the  Old  Vishnu  Guest  House  and,  on
10.08.1997 at 7.00 am, she left the guest  house  and  since  then  she  was
found missing.  PW4, the Manager of Old Vishnu Guest House, at the  relevant
point of time, deposed that from 07.08.1997 to 10.08.1997, Diana had  stayed
in room no.103 of the guest house.  Two other girls who had come with  Diana
left the hotel on 08.08.1997 at about 11.45  am.   Further,  it  was  stated
that the accused and one Naseem were  engaged  as  guides  for  the  persons
staying in the guest house and  that  from  08.08.1997  to  10.08.1997,  the
appellant was acting as the guide of Diana.



LAST SEEN:

16.   PW2 was working in Old Vishnu Guest House at  the  relevant  point  of
time and, from 07.08.1997 to 10.8.1997, he was on duty at the  guest  house.
PW2 deposed that the accused used to come as a guide in the guest house  and
he  had  seen  Diana  roaming  around  with  the  accused.   PW1  has   also
corroborated the evidence of PW2.  PW1, who used to ply  cycle  rickshaw  in
the Varanasi  city,  stated  that  the  accused  himself  was  plying  cycle
rickshaw from 1993 to 1996, after that he left that job and started to  work
as a guide.  PW1 deposed that he had seen the accused along with  a  foreign
lady in a rickshaw and, looking at the photograph,  he  recognized  that  it
was the deceased who was with the accused at the  relevant  point  of  time.
PW3 also used to hire rickshaw for plying  and  the  accused  used  to  take
rickshaw for plying from him.   PW3 deposed that he had met the  accused  on
10.08.1997 at platform no.1  at  Varanasi  Cantt.  Railway  Station  with  a
foreign lady and he had recognized the photograph of Diana,  as  that  lady.
PW3 also stated that he had also boarded the train in which the  accused  as
well as Diana had boarded.  PW3 further stated that he had seen the  accused
and the  lady  alighting  at  Hurmujpur  station,  while  he  continued  his
journey.

17.   PW9 is an independent witness, who also deposed that he had  seen  the
accused with Diana when they came  to  their  village  and  that  Diana  had
stayed in the house of the accused.  PW9 identified the photograph of  Diana
and stated that it was the same lady who had stayed with the accused.

18.   It is trite law that a  conviction  cannot  be  recorded  against  the
accused merely on the ground  that  the  accused  was  last  seen  with  the
deceased. In  other  words,  a  conviction  cannot  be  based  on  the  only
circumstance of last seen together.   The conduct of  the  accused  and  the
fact of last seen together plus other circumstances have to be looked  into.
 Normally, last seen theory comes into play when the time gap,  between  the
point of time when the accused and the deceased were  seen  last  alive  and
when the deceased is found dead, is so small that possibility of any  person
other  than  the  accused  being  the  perpetrator  of  the  crime   becomes
impossible.  It will be difficult in  some  cases  to  positively  establish
that the deceased was last seen with the accused when there is  a  long  gap
and possibility of other persons coming in between exists.  However, if  the
prosecution, on  the  basis  of  reliable  evidence,  establishes  that  the
missing person was seen in the company of the accused  and  was  never  seen
thereafter, it is obligatory on the part  of  the  accused  to  explain  the
circumstances in which the missing person and the  accused  parted  company.
Reference may be made to the judgment  of  this  Court  in  Sahadevan  Alias
Sagadeven v. State represented by Inspector of Police, Chennai (2003) 1  SCC
534.  In such a situation, the proximity of time between the event  of  last
seen together and the recovery of the dead body  or  the  skeleton,  as  the
case may be, may not be of much consequence.    PWs 1, 2, 3,  5,  9  and  10
have all deposed that the  accused  was  last  seen  with  Diana.   But,  as
already indicated,  to  record  a  conviction,  that  itself  would  not  be
sufficient and the prosecution has to complete the  chain  of  circumstances
to bring home the guilt of the accused.

RECOVERY OF SKELETON

19.   PW14 has categorically stated that he had  got  information  that  the
appellant would reach the Shivpur railway station and, hence, he  rushed  to
the railway station with the informant and found  out  the  accused  at  the
platform.  PW14 interrogated him and he disclosed his name and address.   He
admitted that he was the guide of Diana and since Diana wished to go to  his
village, he went along  with  her  on  10.08.1997.   The  accused  had  also
confessed to have committed the murder of Diana and buried her dead body  in
his house.  PW14 then, accompanied by PW15, took the accused to his  village
and the accused with the key in his  possession,  opened  the  lock  of  his
house and pointed out the place where  the  dead  body  of  Diana  had  been
buried.   Accused himself dug the place with a spade and  the  skeleton  was
recovered.   PW14 then arrested the accused and,  on  his  disclosure  about
the involvement of the other  accused  persons,  they  were  also  arrested.
Inquest on the skeleton was made in the presence of  SDM,  PW16.  Contention
was raised that the statement/admission of the accused (annexure  Exh.  P-5)
was inadmissible under Section 27 of the Evidence  Act,  since  the  accused
was not in the custody of PW14.   The  evidence  of  PWs  14  and  15  would
indicate that they could recover the skeleton of Diana only on the basis  of
the disclosure statement made by the accused that he  had  buried  the  dead
body in his house.  Recovery of a dead body or incriminating  material  from
the place pointed out by the accused, points out to  three  possibilities  -
(i) that the accused himself would have concealed; (ii) that he  would  have
seen somebody else concealing it and  (iii)  he  would  have  been  told  by
another person that it was concealed there.  Since the dead body  was  found
in the house of the accused, it is for him to explain as  to  how  the  same
was found concealed in his house.
20.   Section 27 of the  Evidence  Act  explains  how  much  of  information
received from the accused may be proved.  Section 27 reads as follows:


           “27. How much  of  information  received  from  accused  may  be
      proved.- Provided that, when any fact is deposed to as  discovered  in
      consequence of information received  from  a  person  accused  of  any
      offence,  in  the  custody  of  a  police-officer,  so  much  of  such
      information, whether it amounts to a confession  or  not,  as  relates
      distinctly to the fact thereby discovered, may be proved.

The expression “custody” which appears in Section 27  did  not  mean  formal
custody, which includes any kind of surveillance, restriction  or  restraint
by the police.  Even if the accused was not formally arrested  at  the  time
when the accused gave the information, the accused was,  for  all  practical
purposes, in the custody of the police.   This  Court  in  State  of  Andhra
Pradesh v. Gangula Satya Murthy (1997) 1 SCC 272 held that  if  the  accused
is within the ken of surveillance of the police during which  his  movements
are  restricted,  then  it  can  be  regarded  as  custodial   surveillance.
Consequently, so much of information given by the accused in  “custody”,  in
consequence of which a  fact  is  discovered,  is  admissible  in  evidence,
whether such information amounts to a confession  or  not.    Reference  may
also be made to the Judgment of this Court in A.N.  Venkatesh  v.  State  of
Karnataka (2005) 7 SCC 714.  In Sandeep v. State of Uttar Pradesh  (2012)  6
SCC 107, this Court held that it is quite common that  based  on  admissible
portion of the statement of the accused, whenever  and  wherever  recoveries
are made, the same are admissible in evidence and it is for the  accused  in
those situations to explain to the satisfaction of the Court  as  to  nature
of recoveries and as to how they came into the possession  or  for  planting
the same at the place from where they were recovered.   Reference  can  also
be made to the Judgment of this Court in  State  of  Maharashtra  v.  Suresh
(2000) 1 SCC 471, in support of the principle.  Assuming that  the  recovery
of skeleton was not in terms of Section 27  of  the  Evidence  Act,  on  the
premise that the accused was not in the custody of the police  by  the  time
he made the statement, the statement so made by him would be  admissible  as
“conduct” under Section 8 of the Evidence Act.   In the instant case,  there
is absolutely no explanation by the accused as to how the skeleton of  Diana
was concealed in his house, especially when the statement  made  by  him  to
PW14 is admissible in evidence.

21.   PW16, SDM, Tehsil Jakhaniya, District Ghazipur received  an  order  on
19.8.1998 of the District Magistrate through Police Station  Bahariyabad  to
prepare the inquest memo of  the  recovered  dead  body  (skeleton)  in  the
village Vrindaban.  PW16, consequently, reached  Vrindaban  at  3.30  pm  on
19.8.1998 and noticed the skeleton lying in a pit  in  the  eastern-northern
corner  of  the  room  in  the  house  of  accused.   PW16  started  inquest
proceedings at 4.00 pm and, on his  direction,  PW15  prepared  the  inquest
memo and the skeleton was taken out  from  the  pit  and  kept  outside  the
house.  PW16 kept the skeleton in a wooden  box  and  sealed.   PW17  stated
that he had delivered  the  skeleton  kept  in  a  wooden  box  to  Ghazipur
headquarter mortuary. PW17 stated that the skeleton remained in the  custody
of Sunil Kumar Rai, bundled and sealed and nothing had cropped up, so as  to
dislodge creditworthiness of his testimony.

22.   PW19, Dr. G. D. Tripathi,  stated  that  on  20.8.1998  while  he  was
posted as Senior Heart Specialist at District Hospital, Ghazipur, he,  along
with Dr. Ram Murti Singh and Dr. D.K. Gupta, had conducted  the  post-mortem
examination of recovered remains of dead body (skeleton). PW19  stated  that
it was PW17, who had brought the skeleton sealed in  a  wooden  box.    PW19
noticed the following features in the external examination:
    “On opening the sealed box by appearance it  is  a  body  (remains)  of
    young human female body of average built.  Hairs of  scalp  are  golden
    brown in colour attached with the scalp.


    1. Scalp bones with hairs.
    2. Bones of the face, upper jaw and lower jaw.
    3. Bones of the upper and lower extremities attached with  muscles  and
       soils.
    4. Few ribs of the chest wall.
    5. Lower part of the lumber vertebra and thoracic vertebra and sacrum.
    6. Both pelvic bones.
    7. Both scapula.

    Bones are not decomposed, bones of  upper  and  lower  extremities  are
    attached with following and muscles.


    Membranes, head, spinal cord, pleura, both lungs,  pericardium,  heart,
    blood vessels were found absent.


    All the bones of skeleton are prepared for chemical analysis.


    Position of lower jaw was found as under:


    1. Central Incisor-Two
    2. Lateral Incisor-Two
    3. Canine – Two
    4. Premolars – Four
    5. Molar – Four


    There is a space for IIIrd molar behind the IInd molar  in  both  upper
    and lower jaws.


    Cause of death could not be ascertained, hence bones with  scalp,  hair
    and soil were preserved for analysis.”


23.   PW20, Dr. C. B. Tripathi, Professor and Head  of  the  Department  of
Forensic Medicines Department, Kashi Hindu Vishwavidhalaya,  Varanasi,  had
again conducted the post-mortem on the body remains (skeleton) on 10.8.1998
at 12.30 pm and prepared Exh. Ka-28 result.  The operative portion  of  the
report reads as follows:
    “Personal Identification or Uniqueness of Individual:-  Superimposition
    Technique:- for personal identification sumporim position technique was
    done in this case, for which photograph of face of  alleged  individual
    Diana Clare Routley obtained from S.S.P. Varanasi (Ex.1) from  which  a
    black and white photograph (Ex.2) was made the skull and  mandible  was
    fixed in best position anatomical  position  and  photograph  of  skull
    along with Mandible was taken (Ex.3) by minutely adjusting  same  angle
    and distance from which photograph  of  face  (Ex.2)  was  taken.   The
    negative  of  photograph  (Ex.2)  and  negative  of  skull  (Ex.3)  was
    precisely adjusted in stand in dark room for  registration  marks  then
    sumporim posed photograph was taken first partially  exposing  negative
    of photograph on photograph paper then exposing negative  of  skull  on
    the  same  photograph  thus  the  superimposed  photograph  (Ex.4)  was
    obtained and registration marks and lines were compared and  was  found
    that they matched and coincided exactly  establishing  that  the  skull
    belonged to the photograph of the individual.  (Annexure Ex.1 to Ex.  4
    for perusal).  Personal Identification by comparison of Dental  Records
    of alleged individual from Dental findings of bones;


    Dental records of Diana Clare Routley (Ex.5) the alleged individual was
    made available by S.S.P. Varanasi with the help  of  Interpol  services
    (a) in the lower jaw there was evidence  eruption  of  III  Molar  both
    sides, but the teeth were missing.  The dental record shows  that  both
    the lower III Molar were extracted on 8.3.1993 (b) the upper III  Molar
    both sides teeth was not present and no sign of eruption was seen.  The
    X-ray (Dental) (Ex.6) of Diana Clare Routely shows that both upper  III
    Molar were not erupted/impacted. (c) The examination of teeth and  hair
    X-ray   (taken in S.S.P.G. Hospital) (Report Ex.6) shows that there are
    cavities and filling in the upper left II Molar, upper right 1st Molar,
    lower left Molar and lower right II Molar, also small cavity in the Ist
    Molar lower both sides.  The  dental  chart  (Ex.5)  and  Dental  X-ray
    (Ex.7) of Diana also show presence of  cavity  and  fillings  in  these
    teeth.  Thus comparison of teeth and their X-ray with  the  dental  and
    their X-ray records from New Zealand of  Diana  completely  establishes
    the identity of skull and mandible of being Diana  Clare  Routley.  (d)
    Blood group was detected from bones and  was  found  Group-A.   Medical
    report shows Blood Group-A.




24.   PW20 has stated that one femur and one humerus  bone  were  preserved
for DNA analysis and composition with Diana’s  father  blood  sample.   The
examination report Exh. Ka-28 of PW20 also refers to the  cause  of  death,
which reads as follows:
    “Cause of death:- (1) There is a hole nearly circular 1.2cm x  0.9  cm.
    in the sternum bone of  lower  part  (from  the  chest)  photograph  of
    sternum taken Ex.8 enclosed.


    (2)    There were two holes on the T-shirt (one front and on back)  and
    one on the Gamchha.  These were sent for gun  powder  residue  testing.
    The reports have been obtained (Ex.9) which is negative for present  of
    gun powder residue.  The negative report may be either due to the  fact
    that the clothes were highly contaminated and soiled or due  to  beyond
    the range of gun powder affects.


    (3)    Head hairs, bones and soil samples  were  preserved  and  handed
    over to the Constable for chemical analysis of prisons.  The report  is
    still awaited.  Hence opinion as to cause of  death  is  deferred  till
    report of chemical analyst.”


PW20  then  took  out  femur  and  humerus  bones  of  skeleton   for   DNA
fingerprinting test to establish the relations between the deceased and the
blood donor, that is the sample of blood of Allan Jack Routley,  which  was
taken in accordance with the setup precept and procedure for DNA  isolation
test and the same was sent along with taken out femur and humerus bones  of
recovered skeleton to the Centre for  DNA  Fingerprinting  and  Diagnostics
(CDFD), Ministry of Science and  Technology,  Government  of  India,  Uppal
Road, Hyderabad.

CRIME SCENE MANAGEMENT


25.   Crime scene has to be scientifically dealt with without any error.  In
criminal  cases,  especially  based  on  circumstantial  evidence,  forensic
science plays a pivotal role, which may assist in establishing  the  element
of crime, identifying the suspect, ascertaining the guilt  or  innocence  of
the accused.  One of the major activities of the  Investigating  officer  at
the crime scene is to make thorough search for potential evidence that  have
probative value in the crime.  Investigating Officer may be guarded  against
potential contamination of physical evidence which can  grow  at  the  crime
scene during collection, packing and forwarding.  Proper precaution  has  to
be taken to preserve evidence and also against any attempt  to  tamper  with
the material or causing any contamination or damage.

26.   PW14 has stated that the accused led him and others to a room  stating
that he buried the dead body  of  Diana  in  that  room.    PW14  asked  the
accused to dig the spot he had pointed out and the accused  started  digging
the floor of the room.  After digging 6 feet wide, 3 feet long  and  2  feet
deep, a human skeleton was seen.  The mud  around  the  beach  was  cleared.
The skeleton had teeth in mouth and hair at head.  PW14  took  the  skeleton
in his possession and, while doing  so,  he  noticed  that  the  bones  were
intact.  There was no skin found on the skeleton and  some  tea  red  cloths
were stuck on the skeleton and those cloths were sealed.

27.    PW15,  SHO,  Ghazipur  Police  Station,  started  the  procedure   of
Panchnama following the laid down procedure.   Photograph  of  the  skeleton
was also taken.    Later,  the  skeleton  was  sealed  after  following  all
procedures, which is reflected in Exts. A-14 and A-15, the skeleton  of  the
dead body was then given to the custody of PW17,  who  had  brought  it  for
post-mortem and  was  entrusted  to  PW19.   No  procedural  error  is  seen
committed by the  above-mentioned  witnesses  in  recovering  the  skeleton,
packing it and forwarding the same to PW19.

EXPERT SCIENTIFIC EVIDENCE
28.   Criminal Judicial System is this country is  at  cross-roads,  many  a
times, reliable, trustworthy, credible witnesses to the  crime  seldom  come
forward to depose before the court and even the hardened criminals get  away
from the clutches of law.  Even the reliable witnesses for  the  prosecution
turn  hostile  due  to  intimidation,  fear  and  host  of  other   reasons.
Investigating agency has, therefore, to look for other  ways  and  means  to
improve the  quality  of  investigation,  which  can  only  be  through  the
collection of scientific evidence.  In this  age  of  science,  we  have  to
build legal foundations that are  sound  in  science  as  well  as  in  law.
Practices and principles that served in the past,  now  people  think,  must
give way to innovative  and  creative  methods,  if  we  want  to  save  our
criminal justice system.   Emerging new types of crimes and their  level  of
sophistication, the traditional methods  and  tools  have  become  outdated,
hence the necessity to strengthen the forensic science for crime  detection.
 Oral  evidence  depends  on  several  facts,  like  power  of  observation,
humiliation,  external  influence,  forgetfulness  etc.,  whereas   forensic
evidence  is  free  from  those  infirmities.    Judiciary  should  also  be
equipped to understand and deal with  such  scientific  materials.  Constant
interaction of Judges with scientists, engineers  would  promote  and  widen
their knowledge to deal with such scientific  evidence  and  to  effectively
deal  with  criminal  cases  based  on  scientific  evidence.   We  are  not
advocating that, in all cases, the scientific evidence  is  the  sure  test,
but only emphasizing the necessity of promoting scientific evidence also  to
detect and prove crimes over and above the other evidence.

29.   Scientific evidence encompasses the so-called hard  science,  such  as
physics,  chemistry,  mathematics,  biology  and  soft  science,   such   as
economics, psychology and sociology.   Opinions are  gathered  from  persons
with scientific, technical or  other  specialized  knowledge,  whose  skill,
experience, training or education may assist the  Court  to  understand  the
evidence or determine the fact in issue.  Many a times,  the  Court  has  to
deal with circumstantial evidence  and  scientific  and  technical  evidence
often plays  a  pivotal  role.    Sir  Francis  Bacon,  Lord  Chancellor  of
England, in his Magnum  Opus  put  forth  the  first  theory  of  scientific
method.  Bacon’s view was that a scientist should be disinterested  observer
of  nature,  collecting  observations  with  a  mind  cleansed  of   harmful
preconceptions, that might cause error to creep into the scientific  record.
  Distancing themselves from the theory of Bacon, the US  Supreme  Court  in
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S.  579  (1993)  held  as
follows:-
      “Science is not an encyclopedic body of knowledge about the  universe.
      Instead,  it  represents  a  process  for   proposing   and   refining
      theoretical explanations about the world that are subject  to  further
      testing and refinement.”


30.    Daubert  gives  much  emphasis  on  Sir  Karl  Popper  (an   Austrian
philosopher), who unlike Bacon believed  that  all  science  begins  with  a
prejudice, theory or hypothesis and formulating the theory is  the  creative
part of science, which cannot be analyzed within the  realm  of  philosophy.
Later, Thomas  Kunh,  a  Physicist,  who  popularized  the  word  ‘paradigm’
expressed the view that scientific work comprises  an  agreed  upon  set  of
assumptions, methods, language, etc.  Neither Bacon, Popper nor Kunh, it  is
generally believed, gave a prefect description of what science  is  and  how
it works,  but  the  US  Supreme  Court  in  Daubert  identified  four  non-
definitive factors that were thought to be illustrative  of  characteristics
of scientific knowledge,  testability  or  falsifiability,  peer  review,  a
known or potential error rate and general acceptance within  the  scientific
community.   Few additional factors were also subsequently noticed  that  if
the relationship of the technique to methods that have been  established  to
be reliable, the qualifications of the expert witness  testifying  based  on
the methodology, the non-judicial uses of the method,  logical  or  internal
consistency of the hypothesis, consistency of the hypothesis  with  accepted
authorities and presumption of the hypothesis or theory.
DNA AND IDENTITY OF SKELETON
31.   We have already referred to the evidence of PW20, who  conducted  the
post-mortem  examination.    PW  21,  Dr.  G.V.  Rao,  Chief  of  the   DNA
Fingerprinting Laboratory, conducted the DNA  isolation  on  the  basis  of
samples of blood of Allan Jack Routley  and  femur  and  humerus  bones  of
skeleton. PW21 deposed that he was satisfied regarding authenticity of  the
seal and its intactness.  PW21 adopted the test known as Short Tandem Space
Repeats (S.T.R.) analysis,  which  is  stated  to  be  a  conclusive  test,
produces results  even  on  degraded  biological  samples.   Fingerprinting
analysis was carried out by STR analysis and on perusal of STR  profile  of
the source (Allan Jack Routley) with the sources of femur and humerus bones
of Diana, it was concluded  that  the  source  of  Allan  Jack  Routely  is
biologically related to the sources of femur and humerus bones.

32.   Counsel appearing for the appellant, as already indicated, questioned
the  reliability  of  DNA  report  and  its   admissibility   in   criminal
investigation.  It was pointed out that DNA is known for being  susceptible
to damage from moisture, heat, infrared radiation etc. and that may degrade
the sample of DNA.  Further, it  was  pointed  out  that  during  carriage,
during its storage at police stations  or  laboratories,  it  is  prone  to
contamination and, therefore, the  extent  of  absoluteness  can  never  be
attributed to DNA results.

33.   We are in this case  concerned  with  the  acceptability  of  the  DNA
report, the author of which (PW21) was the Chief of DNA Printing Lab,  CDFD,
Hyderabad.  The qualifications or expertise of  PW21  was  never  in  doubt.
The method he  adopted  for  DNA  testing  was  STR  analysis.   Post-mortem
examination of the body remains (skeleton) of Diana  was  conducted  by  Dr.
C.B. Tripathi, Professor and Head of Department of Forensic Medical  I.M.S.,
B.H.U., Varanasi.   For DNA analysis, one femur and one humerus  bones  were
preserved so as to compare with blood samples of  Allen  Jack  Routley.   In
cases where skeleton is left, the bones and  teeth  make  a  very  important
source of DNA.  Teeth, as often noticed is an excellent source  of  DNA,  as
it  forms a natural barrier against  exogenous  DNA  contamination  and  are
resistant to environmental assaults.  The blood  sample  of  the  father  of
Diana was taken in accordance with the set up precept and procedure for  DNA
isolation test and the same was sent along with taken out femur and  humerus
bones of recovered skeleton to the  Centre  for  D.N.A.  Fingerprinting  and
Diagnostics (CDFD),  Ministry  of  Science  and  Technology,  Government  of
India, Hyderabad.   PW21, as already indicated, conducted the DNA  Isolation
test on the basis of samples of blood  of  Routley  and  femur  and  humerus
bones  of  skeleton  and  submitted  his  report  dated   28.10.1998.    DNA
Fingerprinting analysis was carried out by STR analysis  and  on  comparison
of STR profile of Routley.   When DNA profile of sample found at  the  scene
of crime matches with DNA profile of the father, it can  be  concluded  that
both the samples are biologically the same.

34.   The DNA stands for deoxyribonucleic  acid,  which  is  the  biological
blueprint of every life.  DNA is made-up  of  a  double  standard  structure
consisting of a deoxyribose sugar and phosphate backbone, cross-linked  with
two types of nucleic acids referred to as adenine and guanine,  purines  and
thymine and cytosine pyrimidines.  The most important role  of  DNA  profile
is in the identification, such as an  individual  and  his  blood  relations
such as mother, father, brother, and so on.   Successful  identification  of
skeleton remains can also be performed by DNA profiling.   DNA  usually  can
be obtained from any biological  material  such  as  blood,  semen,  saliva,
hair, skin, bones, etc.  The question as to whether DNA tests are  virtually
infallible may be a moot question, but the fact remains that such  test  has
come to stay and is being used extensively in the  investigation  of  crimes
and the Court often accepts the views of the experts, especially when  cases
rest on circumstantial evidence.  More  than  half  a  century,  samples  of
human DNA began to be used in the  criminal  justice  system.    Of  course,
debate lingers over the  safeguards  that  should  be  required  in  testing
samples and in presenting the evidence in Court. DNA  profile,  however,  is
consistently held to be valid and reliable, but of  course,  it  depends  on
the quality control and quality  assurance  procedures  in  the  laboratory.
Close relatives have more genes  in  common  than  individuals  and  various
procedures have been proposed for  dealing  with  a  possibility  that  true
source of forensic DNA is of  close  relative.   So  far  as  this  case  is
concerned, the DNA sample got from  the  skeleton  matched  with  the  blood
sample of the father of the deceased and all the sampling and  testing  have
been done by experts whose scientific  knowledge  and  experience  have  not
been doubted in  these  proceedings.   We  have,  therefore,  no  reason  to
discard the evidence of PW19, PW20 and PW21.   Prosecution  has,  therefore,
succeeded in showing that the skeleton  recovered  from  the  house  of  the
accused was that of Diana daughter of Allen Jack Routley  and  it  was  none
other than the accused, who had strangulated Diana to death and  buried  the
dead body in his house.

35.   The accused, in his examination under Section 313 Cr.P.C., had  denied
the prosecution case  completely,  but  the  prosecution  has  succeeded  in
proving the guilt beyond reasonable doubt.  Often, false  answers  given  by
the accused in the 313 Cr.P.C. statement may offer  an  additional  link  in
the chain of circumstances to complete the chain.  See  Anthony  D’souza  v.
State of Karnataka (2003) 1 SCC 259.   We are, therefore, of the  considered
view that both the trial Court as well as  the  High  Court  have  correctly
appreciated the oral and documentary evidence in  this  case  and  correctly
recorded the conviction and we are now on sentence.

36.   We may now consider whether the  case  falls  under  the  category  of
rarest of the rare case so as to award death sentence for which, as  already
held, in Shankar Kisanrao Khade v. State of Maharashtra  (2013)  5  SCC  546
this Court laid down three tests, namely, Crime Test, Criminal Test  and  RR
Test.   So far as the present case is concerned, both  the  Crime  Test  and
Criminal Test have been satisfied as against the accused.   Learned  counsel
appearing for the accused,  however,  submitted  that  he  had  no  previous
criminal records and that apart from the circumstantial evidence,  there  is
no eye-witness in the above case, and hence, the manner in which  the  crime
was committed is not in evidence.   Consequently, it was  pointed  out  that
it would not be possible for this Court to come to the conclusion  that  the
crime was committed in a barbaric manner and, hence the instant  case  would
not fall under the category of rarest of rare.   We find some force in  that
contention.  Taking in consideration all aspects of the matter,  we  are  of
the view that, due to lack of any evidence with  regard  to  the  manner  in
which the crime was committed, the case will not fall under the category  of
rarest of rare case.  Consequently, we are inclined  to  commute  the  death
sentence to life and award 20  years  of  rigorous  imprisonment,  over  and
above the period already undergone by the accused,  without  any  remission,
which, in our view, would meet the ends of justice.

37.   The Appeal is disposed of as above, altering  the  death  sentence  to
that of life for the term mentioned above.


                                        ……..……………………J.
                                        (K.S. Radhakrishnan)

                                        ……..……………………J.
                                        (A.K. Sikri)
New Delhi,
April 11, 2014.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.