Diana Murder Case : Supreme Court of India
Factual Matrix of the Case
- The gruesome murder of a 22 year old girl by name Diana Clare Routley (hereinafter referred to as “Diana”)shocked varanasi, a New Zealander, 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, 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,he was arrested basing circumstantial, for which the trial Court awarded death sentence to the appellant, which was affirmed by the High Court.
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 as 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 crossroads, 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. Fingerprintingand 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.
