authenticity of DNA test - Tenability - PW 20 took blood samples of complainant father as per set-up precept and
procedure for DNA isolation test - Femur and humerus bones of deceased were sent as samples - Bones and teeth are
important source of DNA and being natural barrier against exogenous DNA contamination and resistant to environmental
assaults - PW 21 conducting STR analysis for DNA test - Expertise of PWs 20 and 21 not being in question, their reports,
held, are acceptable,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.369 OF 2006
Dharam Deo Yadav
Versus
State of U.P.
K.S. Radhakrishnan, J.
Citation;(2014) 5 SCC 509
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,
Page 1
2
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. 7 th, 1997. She
was staying at Old Vishnu Guest House. She
last had contact with her family on Aug. 8 th,
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
Page 2
3
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
Page 3
4
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
Page 4
5
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
Page 5
6
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
Page 6
7
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
Page 7
8
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
Page 8
9
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
Page 9
10
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,
Page 10
11
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
Page 11
12
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
Page 12
13
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.
Page 13
14
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
Page 14
15
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
Page 15
16
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
Page 16
17
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
Page 17
18
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.
Page 18
19
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.
information
given
by
Consequently, so much of
the
accused
in
“custody”,
in
Page 19
20
consequence of which a fact is discovered, is admissible in
evidence,
whether
confession or not.
such
information
amounts
to
a
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
Page 20
21
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
Page 21
22
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,
examination
of
had
conducted
recovered
remains
the
of
post-mortem
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.
Page 22
23
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.
2.
3.
4.
5.
Central Incisor-Two
Lateral Incisor-Two
Canine – Two
Premolars – Four
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)
Page 23
24
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
Page 24
25
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.”
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26
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
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27
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.
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28
27. PW15, SHO, Ghazipur Police Station, started the
procedure
of
Panchnama
following
the
laid
down
procedure. Photograph of the skeleton was also taken.
Later, skeleton
the
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
committed
to
PW19.
by
the
No
procedural
above-mentioned
error
is
seen
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.
witnesses
for
the
prosecution
Even the reliable
turn
hostile
due
to
intimidation, fear and host of other reasons. Investigating
agency has, therefore, to look for other ways and means
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29
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
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30
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
evidence often plays a pivotal role.
and
technical
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
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31
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
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32
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
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33
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
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34
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
assaults.
and
are
resistant
to
environmental
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
Technology, Government of India, Hyderabad.
and
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
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35
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
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36
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,
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37
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
Karnataka (2003) 1 SCC 259.
v. State of
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
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38
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.
force in that contention.
We find some
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.
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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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