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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.

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