2005 Supreme(All) 1895

ALLAHABAD HIGH COURT
Imtiyaz Murtaza and Amar Saran, JJ.
DHARAM DEO YADAV RAMBADAN YADAV
Versus
STATE OF UTTAR PRADESH
Decided On : 30 September 2005
Criminal Appeal 1000 Of 2003, Govt. Appeal No. 2726 of 2003 and Criminal Reference No.

Headnote:

The court convicted the appellant under Section 302/34 I. P. C. and sentenced him to death, under Section 201 I. P. C. he was sentenced to seven years rigorous imprisonment and the respondents in Govt. Appeal No. 2726 of 03 Kali Charan Yadav, Sindhu Harijan, Ram Karan Chauhan, Kesar Prasad vaclav and Mahesh Chandra Misra arc acquitted of all the charges.

Fact of the Case:

Diana Clare Routley (hereinafter referred to as "diana"), a New Zealander, visited India in the year 1997. On 7. 8. 97 she arrived in Varanasi from Agra and stayed in Old Vishnu Guest House in room No. 103. She left the Vishnu Guest House on 10. 8. 97 at 7. 00 a. m for going to Darjeeling. Thereafter, she was missing and her father Allen Jack Routley informed the authorities about the missing of his daughter. A team of police officers was constituted headed by Raghvendra Singh, station House officer P. S. Laksa. The team searched Diana but she could not be traced and it was revealed that one Dharam Deo Yadav came in contact with Diana and she was last seen along with him. The police team submitted charge-sheets (Ex Ka. 40 and Ka. 41).

Finding of the Court:

The court found that the circumstances from which an inference of guilt is sought to be drawn are unerringly pointing towards the guilt of the accused and the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none else; and the circumstantial evidence is complete and incapable of explanation of any other hypothesis than that of the guilt of the appellant.

Issues: 1. Whether the identity of the skeleton is fixed, 2. Whether the recovery of skeleton on the pointing out of the appellant under Section 27 of the Evidence Act is admissible, 3. Whether the prosecution failed to prove homicidal death in this case, 4. Whether the investigation of the case is illegal, 5. Whether the motive for the crime was robbery and the session judge had already acquitted him of the charge under Section 394 I. P. C. and the State had also not preferred any appeal against his acquittal.

Ratio Decidendi: 1. The identity of the skeleton is established by the evidence of P. W. 20 Dr. C. B. Tripathi and p. W. 21 Dr. G. V. Rao. 2. The recovery of skeleton under Section 27 of the Evidence Act on the pointing out of appellant from his house is admissible because the evidence of P. W. 14 Anil kumar Rai shows that he was not taken into custodyat the time of making confession. After the recovery of skeleton he was arrested. Section 27 of the Evidence Act applies when a statement is given by an accused of an offence while in custody and persuant to his statement something is recovered. 3. The prosecution failed to prove homicidal death in this case. The counsel for the appellant also placed reliance on a decision of the Apex Court state of Punjab v. Bhajan Singh reported in AIR1975 SC 258, 1975 crilj282, (1975)4 SCC472, [1975]1 SCR747, 1974 (6)UJ597 (SC) wherein it is observed "the evidence of Dr Saluja is clear on the point that the features of the persons on whose dead bodies the doctor performed post-mortem were unrecognizable. Question then arises as to whether the death of the two persons whose dead bodies were recovered was homicidal. So far as this aspect is concerned, we find that Dr Saluja had deposed that he found no marks of ligature on either of the two dead bodies. According further to the doctor, he could not find the cause of death because the two dead bodies were in a decomposed state. In the face of the above evidence of the doctor, it is not possible to hold that the death of the two persons, whose bodies were recovered was homicidal". The facts of this case are distinguishable as the Apex Court had also observed " We, however, find that the evidence which has been adduced in this case is far from satisfactory and that it suffers from a number of infirmities. In the first instance, there is no evidence on record to show that the two dead bodies which are alleged to have been recovered in pursuance of the disclosure statement of Bhajan Singh were those of Bachan Singh and Harbans singh, deceased". In the instant case there is sufficient evidence to show that the skeleton, which was recovered, buried in the room of the appellant was that of Diana. 4. The investigation of the case is not illegal. P. W. 14 Anil Kumar Rai was not an investigating officer of the case, therefore, he was not authorised to investigate the case and any act done by hin in furtherance of the investigation, including recovery of skeleton is illegal. This submission has no substance because report was already registered against the appellant and he was not traceable. As soon as information was received by him he had interrogated him and brought him to P. S. Bahariyabad and also informed higher authorities at the time of recovery of skeleton. Other senior police officers arrived there including a Magistrate. The testimony of P. W. 26 S. I. Raghvendra Singh shows that on 18. 8. 1998 he had received information that Dharm Dev Yadav will arrive next day from bombay. He had also instructed the informer to contact S. O. Shivpur and he had also contacted p. W. 14 Anil Kumar Rai and also planned his arrest. He was fully authorised to effect arrest and recovery under Section 27 of Evidence Act and the same cannot be said to be illegal. Even if he was not authorised and any evidence is collected by him that cannot be ignored. 5. It is further contended on behalf of counsel for the appellant that according to the prosecution the motive for the crime was robbery and the session judge had already acquitted him of the charge under Section 394 I. P. C. and the State had also not preferred any appeal against his acquittal.

Final Decision: The court convicted the appellant under Section 302/34 I. P. C. and sentenced him to death, under Section 201 I. P. C. he was sentenced to seven years rigorous imprisonment and the respondents in Govt. Appeal No. 2726 of 03 Kali Charan Yadav, Sindhu Harijan, Ram Karan Chauhan, Kesar Prasad vaclav and Mahesh Chandra Misra arc acquitted of all the charges.