# DHARAM DEO YADAV v. STATE OF U.P

- **Citation:** [2014] 11 S.C.R. 650
- **Court:** Supreme Court of India
- **Decided:** 2014-04-11
- **Case number:** Criminal Appeal No. 369 of 2006
- **Bench:** K.S. Radhakrishnan, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dharam-deo-yadav-v-state-of-u-p-29460
- **Pages:** 27

## Headnote

Penal Code, 1860 - ss.302, 201, 364 and 394 -
Prosecution under - Circumstantial evidence - Deceased last
C seen in the company of accused - Recovery of skeleton of
the deceased u/s. 27 of Evidence Act .:... DNA test proved. her
identity - Conviction and death sentence by courts below -
Held: Prosecution proved the guilt of the accused beyond
reasonable doubt - However, death sentence reduced to life
o imprisonment without any remission as there is no evidence
as to manner of commission of offence.
Code of Criminal Procedure, 1973 - s.313 - Evidentiary
value - False answers by accused may offer an additional
E link in the chain of circumstances to complete the chain in
the case of circumstantial evidence. · '
Evidence - Circumstantial evidence - Last seen theory
- Applicability of - Discussed.
F
Partly allowing the appeal, the Court
HELD:1.1. The trial Court as well as the High Court
have correctly appreciated the oral and documentary
evidence and correctly recorded the conviction. Even
when there is no eye-witness to support the criminal
G 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
H
650
•
•
DHARAM DEO YADAV v. STATE OF U.P.
-
651
reasonable hypothesis save of guilt sought to·be proved,
A
accused may be convicted on the basis of such
circumstantial evidence. [Paras 35 and 14) [675-F-G; 661C-D]
1.2 A conviction cannot be based on the only
8
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 C
so small that possibility of any person other than the
accused being the perpetrator of the crime becomes
impossible. In the present case, though PWs 1, 2, 3, 5, 9
and 10 have all deposed that the accused was last seen
with the deceased,. but to record a conviction, that itself D
would not be sufficient and the prosecution has to
complete the chain of circumstances to bring home the
guilt of the accused. [Para 18) [662-G-H; 663-A, DJ
1.3 The expression "custody" which api;ears in
Section 27 of Evidence Act 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. Assuming that the recovery
of skeleton was not in terms of Section 27 on the premise
that the accused was not in the custody of the police by
E
F
the time he made the statement, the statement so made by
him would be admissible as "conduct" under Section 8 of G
the Evidence Act. In the instant case, there is absolutely
no explanation by the accused as to how the skeleton of
the deceased was concealed in his house, especially
when the statement made by him to PW14 is admissible
in evidence. No procedural error is seen committed in
H
G
652
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A recovering the skeleton, packing it and forwarding the
same.[Paras 20 and 27] [665·0-F; 664-G, H]
'
State of Andhra Pradesh vs: Gangula Satya Murthy
(1997) 1 sec 272: 1996 (8) Suppl. SCR 808; A.N.
B Venkatesh vs. State of Karnataka (2005) 7 SCC 714;
Sandeep VS. State of Uttar Pradesh (2012) 6 sec 107:2012
(5) SCR 952 - relied on.
1.4 In the. present case, the DNA sample got from the
skeleton matched with the blood sample of the father of
C 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.
Prosecution has, therefore, succeeded in showing that
the skeleton recovered from the house of the accused
D was that of the deceased and it was none other

## Text

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A
B
[2014] 8 S.C.R. 650
DHARAM DEO YADAV
v.
STATE OF U.P.
(Criminal Appeal No. 369 of 2006)
APRIL 11, 2014
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Penal Code, 1860 - ss.302, 201, 364 and 394 -
Prosecution under - Circumstantial evidence - Deceased last
C seen in the company of accused - Recovery of skeleton of
the deceased u/s. 27 of Evidence Act .:... DNA test proved. her
identity - Conviction and death sentence by courts below -
Held: Prosecution proved the guilt of the accused beyond
reasonable doubt - However, death sentence reduced to life
o imprisonment without any remission as there is no evidence
as to manner of commission of offence.
Code of Criminal Procedure, 1973 - s.313 - Evidentiary
value - False answers by accused may offer an additional
E link in the chain of circumstances to complete the chain in
the case of circumstantial evidence. · '
Evidence - Circumstantial evidence - Last seen theory
- Applicability of - Discussed.
F
Partly allowing the appeal, the Court
HELD:1.1. The trial Court as well as the High Court
have correctly appreciated the oral and documentary
evidence and correctly recorded the conviction. Even
when there is no eye-witness to support the criminal
G 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
H
650
•
•
DHARAM DEO YADAV v. STATE OF U.P.
-
651
reasonable hypothesis save of guilt sought to·be proved,
A
accused may be convicted on the basis of such
circumstantial evidence. [Paras 35 and 14) [675-F-G; 661C-D]
1.2 A conviction cannot be based on the only
8
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 C
so small that possibility of any person other than the
accused being the perpetrator of the crime becomes
impossible. In the present case, though PWs 1, 2, 3, 5, 9
and 10 have all deposed that the accused was last seen
with the deceased,. but to record a conviction, that itself D
would not be sufficient and the prosecution has to
complete the chain of circumstances to bring home the
guilt of the accused. [Para 18) [662-G-H; 663-A, DJ
1.3 The expression "custody" which api;ears in
Section 27 of Evidence Act 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. Assuming that the recovery
of skeleton was not in terms of Section 27 on the premise
that the accused was not in the custody of the police by
E
F
the time he made the statement, the statement so made by
him would be admissible as "conduct" under Section 8 of G
the Evidence Act. In the instant case, there is absolutely
no explanation by the accused as to how the skeleton of
the deceased was concealed in his house, especially
when the statement made by him to PW14 is admissible
in evidence. No procedural error is seen committed in
H
G
652
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A recovering the skeleton, packing it and forwarding the
same.[Paras 20 and 27] [665·0-F; 664-G, H]
'
State of Andhra Pradesh vs: Gangula Satya Murthy
(1997) 1 sec 272: 1996 (8) Suppl. SCR 808; A.N.
B Venkatesh vs. State of Karnataka (2005) 7 SCC 714;
Sandeep VS. State of Uttar Pradesh (2012) 6 sec 107:2012
(5) SCR 952 - relied on.
1.4 In the. present case, the DNA sample got from the
skeleton matched with the blood sample of the father of
C 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.
Prosecution has, therefore, succeeded in showing that
the skeleton recovered from the house of the accused
D was that of the deceased and it was none other than the
accused, who had strangulated h~r to death and buried
the dead body in his house. [Para 34] [675-D, E]
Daubert vs. Merrell Dow Pharma.ceuticals, Inc. 509 U.S.
E 579 (1993) - referred to.
1.5 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
F the accused in the 313 Cr.P.C. statement may offer an
additional link in the chain of circumstances to complete
the chain. [Para 35] [675-E-F]
Anthony D'souza vs. State of Kamataka (2003) 1 SCC
G 259: 2002 (3) Suppl. SCR 572 - relied on.
2. Both the Crime Test and Criminal Test have been
satisfied as against the accused. The appellant had no
previous criminal records and that apart from the
circumstantial evidence, there is no eye-witness and
H hence, the manner ·in which the crime was committed is
•
•
DHARAM DEO YADAV v. STATE OF U.P. .
653
not in evidence. Consequently, the Court cannot come
A
to the conclusion that the crime was committed in a
barbaric manner and, hence the case would not fall under
the category of rarest of rare. Consequently, the death
sentence is commuted to life and 20 years of rigorous
imprisonment is awarded, over and above the period
B
already undergone by the accused, without any
remission. [Para 36] [676-A-D]
Shankar
Kisanrao
Khade
vs.
State
of
Maharashtra (2013) 5 SCC 546:2013 (6) SCR 949 - relied
on.
Padala Veera Reddy vs. State of Andhra Pradesh and
others 1989 Supp (2) SCC 706; Mustkeem alias Sirajudeen
c
vs. State of Rajasthan (2011) 11 SCC 724: 2011 (9) SCR
101; Lakhanpal vs. State of Madhya Pradesh 1980 Supp (1)
0
SCC 716; Eradu vs. State of Hyderabad AIR 1956 SC 316;
$ahadevan vs. State of Tamil Nadu (2012) 6 SCC 403: 2012
(4) SCR 366; State of U.P. vs. Satish (2005) 3 SCC 114: 2005
(2) SCR 1132; State of U.P. vs. Deoman Upadhyaya (1961)
1 SCR 14; State of Rajasthan vs. Dau/at Ram (2005) 7 SCC
36: 2005 (2) Suppl. SCR 880; Sandeep vs. State of Uttar
E
Pradesh (2012) 6 SCC 107:2012 (5) SCR 952; Hanumant,
son of Govind Nargundkar vs. State of Madhya Pradesh AIR
1952 SC 343: 1952 SCR 1091; Sahadevan Alias
Sagadeven vs. State represented by Inspector of Police,
Chennai (2003) 1 SCC 534 - referred to.
F
Case Law Reference:
1989 Supp (2) sec 706
referred to
Para 8
2011 (9) SCR 101
referred to
Para 8
G
1980 Supp (1) sec 716
referred to
Para 8
AIR 1956 SC 316
referred to
Para 8
2012 (4) SCR 366
referred to
Para 8
SCR 2005 (2) SCR 1132 referred to
Para 8
H
A
B
c
D
E
654
SUPREME COURT REPORTS
[2014] 11 S.C.R.
(1961) 1 SCR 14
referred to
Para 9
2005 (2) Suppl. SCR 880 referred to
Para 9
2012 (5) SCR 952
referred to
Para 12
1952 SCR 1091
referred to
Para 14
(2003) 1 sec 534
referred to
Para 18
1996 (8) Suppl. SCR 808 relied on
Para 20
(2005) 1 sec 114
relied on
Para 20
1999 (5) Suppl. SCR 215 relied on
Para 20
2002 (3) Suppl. SCR 572 relied on
Para 35
2013 (6) SCR 949
relied on -
Para 36
509 U.S. 579 (1993)
referred to
Para 29
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
369 of 2006.
From the Judgment and Order dated 30.09.2005 of the
High Cou1t of Judicature at Allahabad in Criminal Appeal No.
1000 of 2003.
Sunil Kr. Singh, Mukti Singh, Dr. Kailash Chand for the
Appellant.
Ratnakar Dash, M. R. Shamshad, Vikrant Yadav,
F Shashank Singh for the Respondent.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. We are, in this case,
G 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 ..
H
•
••
DHARAM DEO YADAV v. STATE OF U.P.
655
[K.S. RADHAKRISHNAN, J.]
2. Diana came to India as a visitor in the year 1997. After A
· 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, · B
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, c
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,
D
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
E
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 ii local guide
in Varanasi and work for Old Vishnu Guest House. If he is
F
not involved in her disappearance he certainly knows
something of her movements on the day she G
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 H
656
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A
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
B
and interrogated him. Accused confessed that he had
committed the murder of Diana and also named the coassociates Kali Charan Yadav, Sindhu Harijan and Ram Karan
Chauhan. The accused, accompanied by PWs14 and 15, PS
Bahariyabad, Ghazipur (Indra Kumar Mandal, Sub~lnspector),
c 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
0
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, SOM, Tehsil Jakhaniya,
E
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
F
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.
G
4. After committal of the case, the Court of Sessions
H
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
••
•
DHARAM DEO YADAV v. STATE OF U.P.
657
[K.S. RADHAKRISHNAN, J.]
Chauhan and the appellant was also further charged under A
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.
B
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 acquiited of the charges for the offences under C
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. 1QOO of 2003 before the High Court of Judicature
at Allahabad and the State filed Government Appeal No. 2726
D
of 2003 against the order of acquittal passed against rest of
the accused persons. Both the appeals were heard along with
E
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.
F
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,
G
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.
H
658
SUPREME COURT REPORTS
(2014] 11 S.C.R.
A 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
B 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 10.08.1,997. Learned counsel pointed out that the
witnesses had identified Diana only on the basis of the
photograph (Exh.1 ), sans the negative. Learned counsel
c 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
D Supp (1) sec 716, Eradu v. State of Hyderabad AIR 1956 I
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
E 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.
F Dau/at 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
G 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
H submitted that the evidence of PW19, who conducted the post-
•
•
DHARAM DEO YADAV v. STATE OF U.P.
659
[K.S. RADHAKRISHNAN, J.]
mortem, as such, cannot be accepted in evidence since he had A
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 B
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 C
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.
D
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 E
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 1 b, submitted that their
evidence would categorically show that the deceased was last
seen with the accused. PW3 has categorically stated that both
F
the accused and Diana were last seen together at the Varanasi
Gantt. 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 G
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 H
660
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A 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
B 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
c (2012) 6 sec 101.
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
D 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
E 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.
F 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:
·
G
"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
H
of the guilt of the accused. Again, the circumstances would
•
•
DHARAM DEO YADAV v. STATE OF U.P.
661
[K.S. RADHAKRISHNAN, J.]
be of a conclusive nature and tendency and they should A
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 B
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 chair: of events from
which the only irresistible conclusion about the guilt of the C
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
toAnference of guilt of accused and circumstances taken D
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 E
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 F
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 Naseein were engaged as guides for the persons staying G
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> ..
662
SUPREME COURT REPORTS
[2014] 11 S.C.R.
A 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
B 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
c 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 Gantt. Railway Station with a foreign
D 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.
E
F
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
G 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
H
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DHARAM DEO YADAV v. STATE OF U.P.
663
[K.S. RADHAKRISHNAN, J.]
perpetrator of the crime becomes impossible. It will be difficult A
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 8
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, C
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 1 O have all
deposed that the accused was last seen with Diana. But, as
already indicated, to record a conviction, that itself would not D
be sufficient and the prosecution has to complete the chain of
circumstances to bring home the guilt of the accused.
RECOVERY OF SKELETON
E
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
F
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 G
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,
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[2014] 11 S.C.R.
A they were also arrested. Inquest on the skeleton was made in
the presence of SDM, PW16. Contention was raised that the
statemenVadmission 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
B 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
C 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.
D
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F
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,
G 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. Gangu/a Satya Murthy (1997) 1 SCC 272 held that if the
H accused is within the ken of surveillance of the police during
•
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DHARAM DEO YADAV v. STATE OF U.P.
665
[K.S. RADHAKRISHNAN, J.]
which his movements are restricted, then it can be regarded A
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.
B
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 c
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 0
(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"
E
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. PVV16, SOM, Tehsil Jakhaniya, District Ghazipur F.
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 G
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
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A
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.
B
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
C
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
D
(remains) of young human female body of average built.
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F
G
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.
H
Membranes, head, spinal cord, pleura, both lungs,
•
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DHARAM DEO YADAV v. STATE OF U.P.
667
[K.S. RADHAKRISHNAN, J.]
pericardium, heart, blood vessels were found absent.
A
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
B
c
There is a space for lllrd molar behind the llnd molar in both
D
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 postmortem on the body remains (skeleton) on 10.8.1998at12.30
pm and prepared Exh. Ka-28 result. The operative portion of
the report reads as follows:
"Personal Identification or Uniqueness of lndividual:-
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.
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F
G
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A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2014] 11 S.C.R.
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 Ill Molar both sides, but the teeth were
missing. The dental record shows that both the lower Ill
Molar were extracted on 8.3.1993 (b) the upper Ill 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 Ill 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 11 Molar, upper right 1st
Molar, lower left Molar and lower right II Molar, also small
cavity in the 1st 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.
•
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DHARAM DEO YADAV v. STATE OF U.P.
669
[K.S. RADHAKRISHNAN, J.]
24. PW20 has stated that one femur and one humerus
A
bone were preserved for DNA analysis and composition with
Diana's father blood sample. The examination report Exh. Ka28 of PW20 also refers to the cause of death, which reads as
follows:
B
"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
C
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.
D
(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."
E
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
F
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
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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
B
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.
c
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
D 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 arid some tea red cloths were stuck on the skeleton
E
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
F
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 postmortem and was entrusted to PW19. No procedural error is
seen committed by the above-mentioned witnesses in
G recovering the skeleton, packing it and forwarding the same to
PW19.
EXPERT SCIENTIFIC EVIDENCE
28. Criminal Judicial System is this country is at crossH roads, many a times, reliable, trustworthy, credible witnesses
•
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DHARAM DEO YADAV v. STATE OF U.P.
671
[K.S. RADHAKRISHNAN, J.]
to the crime seldom come forward to depose before the court
A
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.