DHARAM DEO YADAVversusSTATE OF U.P.

A
                       [2014] 8 S.C.R. 650

                      DHARAM DEO YADAV
                                                                    •
                                 v.
                          STATE OF U.P.
                (Criminal Appeal No. 369 of 2006)
                          APRIL 11, 2014
B
         [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; 661-
C-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 E
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, F
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
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.                                                         c
         Padala Veera Reddy vs. State of Andhra Pradesh and
    others 1989 Supp (2) SCC 706; Mustkeem alias Sirajudeen
    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
    654      SUPREME COURT REPORTS                [2014] 11 S.C.R.   •
A         (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
B
          (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

c         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
D       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.
E 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.
                 [K.S. RADHAKRISHNAN, J.]
                                                                655


         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.
                                                                        F
         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
         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 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~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
    Diana, which he did by spade and the body remains (Skeleton)
0
    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
    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
H
•         DHARAM DEO YADAV v. STATE OF U.P.
               [K.S. RADHAKRISHNAN, J.]
    Chauhan and the appellant was also further charged under
                                                              657


                                                                     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.
                                                                      D
         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
    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.
                [K.S. RADHAKRISHNAN, J.]
                                                                 659


    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 1b, 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
A
    660      SUPREME COURT REPORTS                [2014] 11 S.C.R.


  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.
               [K.S. RADHAKRISHNAN, J.]
                                                            661


        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        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.
F
        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
•          DHARAM DEO YADAV v. STATE OF U.P.
                [K.S. RADHAKRISHNAN, J.]
                                                               663


    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 1O 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, H
    664      SUPREME COURT REPORTS                 [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
         20. Section 27 of the Evidence Act explains how much of
  information received from the accused may be proved. Section
  27 reads as follows:

E               "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
F
          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
•         DHARAM DEO YADAV v. STATE OF U.P.
               [K.S. RADHAKRISHNAN, J.]
                                                            665


    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 H
    666         SUPREME COURT REPORTS              [2014] 11 S.C.R.     •
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.
          Hairs of scalp are golden brown in colour attached with the
          scalp.

           1.     Scalp bones with hairs.
E          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.
F
           5.     Lower part of the lumber vertebra and thoracic
                  vertebra and sacrum.

           6.     Both pelvic bones.'
G
           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,
•         DHARAM DEO YADAV v. STATE OF U.P.
               [K.S. RADHAKRISHNAN, J.]
                                                                 667


        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:
                                                                         B
         1.    Central Incisor-Two

         2.    Lateral Incisor-Two

         3.    Canine - Two
                                                                         c
        . 4.   Premolars - Four

         5.    Molar - Four

        There is a space for lllrd molar behind the llnd molar in both
        upper and lower jaws.                                            D

        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
                                                                         E
    Department of Forensic Medicines Department, Kashi Hindu
    Vishwavidhalaya, Varanasi, had again conducted the post-
    mortem 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:
                                                                         F
        "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          G
        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.         H
     668       SUPREME COURT REPORTS                   [2014] 11 S.C.R.
                                                                              •
A          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
B          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
c          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
D          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
E          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
F          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
G          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.
.H
•         DHARAM DEO YADAV v. STATE OF U.P.
               [K.S. RADHAKRISHNAN, J.]
         24. PW20 has stated that one femur and one humerus
                                                                  669


                                                                          A
    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:
                                                                          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.
                                                                          G
    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
                                                                          H
A
    670      SUPREME COURT REPORTS                 [2014] 11 S.C.R.


    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 post-
    mortem 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 cross-
H   roads, many a times, reliable, trustworthy, credible witnesses
•          DHARAM DEO YADAV v. STATE OF U.P.
                [K.S. RADHAKRISHNAN, J.]
    to the crime seldom come forward to depose before the court
                                                                   671


                                                                           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          B
    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.      c
    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.,
                                                                           D
    whereas forensic evidence is free from those infirmities.
    Judiciary should also be ~quipped 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
                                                                           E
    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 scientific
    evidence also to detect and prove crimes over and above the
    other evidence.
                                                                           F
          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,               G
    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 and
    technical evidence often plays a pivotal role. Sir Francis Bacon,
                                                                           H
A
    672      SUPREME COURT REPORTS                 [2014] 11 S.C.R.


   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.
B. Distancing themselves from the theory of Bacon, the US
   Supreme Court in Daubert v. Merrell 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
c         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
D   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
E   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
F   scientific knowledge, testability or falsifiability, peer review, a
    known or potential error rate and general acceptance within the
    scientific i::ommunity. Few additional factors were also
    subsequently noticed that if the relationship of the technique to
    methods that have been established to be reliable, the
G   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.

H
•         DHARAM DEO YADAV v. STATE OF U.P.
               [K.S. RADHAKRISHNAN, J.]
                                                                673

    DNA AND IDENTITY OF SKELETON                                       A

          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
                                                                       8
    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     C
    STR analysis and on perusal of STR profile of the source (A/Ian
    Jack Routley) with the sources of femur and humerus bones of
    Diana, it was concluded that the source of Allan Jack Routely
     is biologically related to the sources of femur and humerus
    ~n~.                                                               D
         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,        E
    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.                                F
         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              G
    examination of the body remains (skeleton) of Diana was
    conducted by Dr. C.B. Tripathi, Professor and Head of
    Department of Forensic Medical 1.M.S., B.H.U., Varanasi. For
    DNA analysis, one femur and one humerus bones were
                                                                       H
      674     SUPREME COURT REPORTS                  [2014] 11 S.C.R.       •
  A 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 and are resistant to
  B environmental assaults. 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),
  C Ministry of Science and Technology, Government of India,
    Hyderabad. PW21, as already indicated, conducted the DNA
    Isolation test on the basis of samples of blood of Routley and
    femur and humecus bones of skeleton and submitted his report
    dated 28.10.1998. DNA Fingerprinting analysis was carried out
  D by STR analysis and on comparison of STR profile of Routley.
    When DNA profile of sample found at the scene of crime
    matches with DNA profile of the father, It can be concluded !hat
    both the samples are biologically the same.

          34. The DNA stands for deoxyribonucleic acid, which is
  E 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
  F 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.
  G 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 circumstantial evidence. More ·
  H than half a century, samples of human DNA began to be used
•         DHARAM DEO YADAV v. STATE OF U.P.
               [K.S. RADHAKRISHNAN, J.]
                                                                675


    in the criminal justice system. Of course, debate lingers over A
    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 B
    in common than individuals and vario.us 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 fathe_r of the deceased and all the C
    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 D
    from the house of the accused was that of Diana daughter of
    Allen Jack Routley and it was none other than the accused, who
     had strangulated Diana to death and buried_ the dead body in
     his house.

         35. The accused, in his examinatipn under Section 313 ·E
    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
                                                                        F •
    chain of circumstances to complete the chain. See Anthony
    D'souza v. Sta_te of Karnataka (2003) 1 SCC 259. 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 evidencJ in this case and correctly recorded the
    conviction and we are now on sei ,..,11ce                           G

        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          H
    676      SUPREME COURT REPORTS                [2014J 11 S.C.R.         •
A  laid down three tests, namely, Crime Test, Criminal Test and
   RR Test. So far as the present case is concerned, both the
  ·Crime Test and Criminal Test have beeri satisfied as against
   the accused. Learned counsel appearing for the accused,
   however, submitted that he had no previous criminal records
B 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 tor: this Court to come
   to the conclusion that the crime was committed in a barbaric
c manner and, hence the instant case would not fall under the
   category of rarest of rare. We find some force in that contention.
   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
0
   incliried 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.

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

    Kalpana K. T[ipathy                           Appeal partly allowed.