Dharam Deo Yadav vs State Of U.P

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:

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 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.

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.

21. PW16, SDM, Tehsil Jakhaniya, District Ghazipur received an order on 19.8.1998 of the District Magistrate through Police Station Bahariyabad to prepare the inquest memo of the recovered dead body (skeleton) in the village Vrindaban. PW16, consequently, reached Vrindaban at 3.30 pm on 19.8.1998 and noticed the skeleton lying in a pit in the eastern-northern corner of the room in the house of accused. PW16 started inquest proceedings at 4.00 pm and, on his direction, PW15 prepared the inquest memo and the skeleton was taken out from the pit and kept outside the house. PW16 kept the skeleton in a wooden box and sealed. PW17 stated that he had delivered the skeleton kept in a wooden box to Ghazipur headquarter mortuary. PW17 stated that the skeleton remained in the custody of Sunil Kumar Rai, bundled and sealed and nothing had cropped up, so as to dislodge creditworthiness of his testimony.

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.

All the bones of skeleton are prepared for chemical analysis.

Cause of death could not be ascertained, hence bones with scalp, hair and soil were preserved for analysis.”

(3) Head hairs, bones and soil samples were preserved and handed over to the Constable for chemical analysis of prisons. The report is still awaited. Hence opinion as to cause of death is deferred till report of chemical analyst.” PW20 then took out femur and humerus bones of skeleton for DNA fingerprinting test to establish the relations between the deceased and the blood donor, that is the sample of blood of Allan Jack Routley, which was taken in accordance with the setup precept and procedure for DNA isolation test and the same was sent along with taken out femur and humerus bones of recovered skeleton to the Centre for DNA Fingerprinting and Diagnostics (CDFD), Ministry of Science and Technology, Government of India, Uppal Road, Hyderabad.

CRIME SCENE MANAGEMENT

EXPERT SCIENTIFIC EVIDENCE

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.

37. The Appeal is disposed of as above, altering the death sentence to that of life for the term mentioned above.