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SUPREME COURT OF INDIA
K.S. Radhakrishnan, A.K. Sikri, JJ.
Dharam Deo Yadav – Appellant
Vs.
State of Uttar Pradesh – Respondent
[Criminal Appeal No.369 of 2006]
Decided On : 11-04-2014
(2012) 6 SCC 107; (1997) 1 SCC 272; (2005) 7 SCC 714; (2000) 1 SCC 471 – Relied upon
(1961) 1 SCR 14; (2005) 7 SCC 36 – Referred
(b) Criminal Trial – Identification of dead body – DNA test – DNA sample collected, sealed and transported to laboratory in proper way – DNA fingerprinting done by experts – Test confirming identity of the deceased as Diana – No reason to disbelieve. (Para 34)
509 U.S. 579 (1993) – Referred
(c) Criminal Trial – Circumstantial evidence – Accused tourist acting as tourist guide to deceased – Last seen with her – Body found in his house for which he had no explanation – DNA test establishing identity of the deceased – Accused giving false answers in his statement u/s 313 CrPC – Conviction u/s 302 correctly recorded. (Para 35)
AIR 1952 SC 343; (2003) 1 SCC 534 – Relied upon
1989 Supp (2) SCC 706; (2011) 11 SCC 724; 1980 Supp (1) SCC 716; AIR 1956 SC 316; (2012) 6 SCC 403; (2005) 3 SCC 114 – Referred
(d) Indian Penal Code, 1860 – Section 302 – Death sentence – Tests – Crime Test, Criminal Test and RR Test – Crime Test and Criminal Test satisfied – No evidence as to manner of crime – Case would not fall under rarest of rare cases – Sentence modified to 20 years of rigorous imprisonment, over and above the period already undergone by the accused, without any remission. (Para 36)
(2013) 5 SCC 546 – Relied upon
Facts of the case:
Trial Court found appellant guilty of offence u/s 302 r/w 34 and awarded death penalty for murder of Diana Clare Routley, a New Zealander of 25 years.
High Court affirmed the conviction and the sentence.
Finding of the Court:
Appellant has been rightly convicted. Sentence needs modification.
Result: Appeal disposed of.
JUDGMENT
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 Cha
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