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These two appeals have been heard together as they are directed against one and the same
judgment rendered by the Rajasthan High Court.
By the impugned judgment the High Court upheld the convictions and sentences recorded
against Mohd. Aman (one of the appellants) under Sections 302 and 460 IPC and against Mohd.
Yusuf, Babu Khan and one Mohd. Iqbal (who has not filed any appeal) under Sections 302, 460
and 380 IPC.
Section 460 IPC- All persons jointly concerned in lurking house-trespass or house-breaking
by night punishable where death or grievous hurt caused by one of them
308- Attempt to commit culpable homicide.—Whoever does any act with such intention or
knowledge and under such circumstances that, if he by that act caused death, he would be guilty
of culpable homicide not amounting to murder, shall be punished with imprisonment
Sec 27 of the evidence act- any fact given in consequence of info received frm accused person in
police custody may be proved
Jafar Alam (the deceased), who was a widower was a resident of Mohalla Bas, in the
town of Nagaur. He had no arrangement of his own for cooking food and his close
relative, sabir hussain who lived nearby used to serve him daily.
On April 13, 1983 at or about 10 a.m. when her niece Mrs. Manohar went to his house
carrying his food she found the main door of the house open. She entered the house and
called Jafar Alam but did not get any response. She then went to the inner room and
found to her utter dismay that he was lying dead on the floor in a pool of blood. She
rushed out of the house and informed Sabir Hussain and others. All of them then came
back and noticed that there were a number of injuries on the person of the deceased, that
his mouth was gagged with his tehmat and that the house was ransacked.
Sabir Hussain then went to Nagaur police station and lodged a first information report
On that report a case under Section 302 IPC was registered and investigation was taken
up. In course of the investigation the site was inspected and a number of articles were
seized, some of which appeared to have finger prints on them. Besides, a foot print was
noticed there, photographs of which were taken.
The three appellants were arrested in connection with the case on April 20, 1983 (after 7
days) and pursuant to the statement of Babu Khan a pair of silver anklets belonging to the
wife of the deceased were recovered and his blood-stained clothes we
re seized. Statement made by Mohd. Yusuf resulted in recovery of a blood-stained knife
and four stolen silver rings.
Specimen finger prints and foot prints of the appellants were taken by the Investigating
Officers and they were sent to the Expert for comparison with the finger prints and foot
prints earlier found in the house. The seized knives and the wearing apparels of Babu
Khan were also sent for examination by the Forensic Science Laboratory. After receipt of
the report of the experts and on completion of investigation police submitted charge sheet
against the four accused persons including the three appellants.
In appeal the High Court From proof of the incriminating circumstances and other materials
brought on record relating to the murder of Jafar Alam, the High Court concurred with trail court
and drew the following conclusion that robbery was the motive for committing the murder of
Jafar Alam. The whole house was ransacked and various articles were found strewn all over the
house.
The articles stolen from the house of the deceased were also recovered in consequence of the
informations furnished by the accused under Section 27, Evidence Act.
The supreme court in this case sought instead of dilating on what caused the murder of victim,
proceeded to consider whether the findings of the Courts that the prosecution succeeded in
proving that each of the appellants had a role to play in the commission of the above crimes can
be sustained or not.
Issues
whether the findings of the Courts below that the prosecution succeeded in proving that each of
the appellants had a role to play in the commission of the above crimes can be sustained or not?
Upon careful perusal of evidence adduced in proof against the appellant, the court observed that
there was a “glaring missing link” that the prosecution failed to establish, in the circumstances of
that case, That missing link was that it had failed to establish that the seized articles were not-or
could not be-tampered with before it reached the Bureau for examination.
The seized article in this case is a brass jug, on which the accused’s fingerprints were found
(chance fingerprint), which was confirmed as such by the Forensic Bureau. an important
consideration, in the Court’s opinion, was that accused was in police custody at the time of
search and seizure thereby not ruling out the possibility of fabrication of evidence; “the
possibility of fabrication of evidence to implicate him cannot be ruled out”. Consequently, it held
that in such circumstances, the evidence relating to fingerprints (and footprints) cannot be safely
relied.
Furthur it was observed that when the police found the brass jug, they seized, packeted and
sealed it and forwarded it after 5 days to the fingerprint bureau. (april 14 th) As the prints were not
clear, the same were returned by the Bureau asking for better prints. Specimen finger prints were
thereafter again taken. (june 20th) These prints were also sent back and for the third time. And
finally on june 30th, prints of Mohd. Aman were taken and sent to the Bureau on which report is
given that finger prints found on the brass jug were similar to and identical with his specimen
finger prints.
Finally, the Supreme Court, while acknowledging that the Police is competent to take specimen
fingerprints of the accused under section 4 of identification of prisoners act, however held that,
“Even though the specimen finger prints of Mohd. Aman had to be taken on a number of
occasions at the behest of the Bureau, they were never taken before or under the order of a
Magistrate in accordance with Section 5 of the Identification of Prisoners Act.”
To eliminate the possibility of fabrication of evidence, they should have taken before or under
the order of a Magistrate.
Thus, the Supreme Court, while it could not rule out the possibility of tampering and post facto
addition of fingerprints established the above circumstance does not by itself establish his guilt
and set aside the convictions of the appellants.
Legal significance: with respect to Forensic Fingerprint and the opinion of a Fingerprint expert,
by law as laid down by the Supreme Court, trial courts must carefully scrutinise any fingerprint
evidence which is under their purview in a given case. Besides the considerations as put forth
above, doubtful recovery which was unexplained to the court, missing links between the identity
of the articles seized and articles examined by the Fingerprint Bureau, expert testimony being
doubtful, Failure and negligence of the investigating agencies to obtain evidence and resort to the
proper technique are important considerations for court to consider.
Dharam Deo Yadav vs State of UP (2014)
Decided on 2014
Facts
The case relates to the gruesome murder of a 22 year old girl by name Diana Clare
Routley (“Diana”), a New Zealander.
Diana came to India as a visitor in the year 1997. After visiting Agra, she reached
Varanasi. She left the guest house on 10 th august 1997 for Darjeeling by train frm
Varanasi. She was found missing from that day on and their family had no sign from her.
Her Father, Allan Jack Routley informed the authorities about the missing of Diana.
A team of police officials, on inquiries, revealed that one Dharam Deo Yadav, a tourist
guide, accused had some contacts with Diana. Allan Jack Routley later came to India and
lodged a written first information report under section 366 of ipc naming the accused
Dharam Deo Yadav as suspect on 28th july 1998.
The police official upon interrogation found out that he had committed the murder of
Diana through his confession. The dead body of Diana was buried in the house of the
accused after causing her death by way of strangulation. Subsequently, the Prosecution
was successfully able to show that the skeleton recovered from the house of the accused
was that of Diana and it was none other than the accused, who had strangulated Diana to
death and buried the dead body in his house.
The police filed the charge sheet against the accused under section 366, 201, 394 of IPC
and the appellant was found guilty of commission of murder. 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.
The appellant appealed to HC. The High Court dismissed both the appeals and confirmed
the death sentence awarded by the trial Court. Hence appeal was made to the Supreme
Court.
ISSUES
The next was question was whether the case falls under the category of rarest of the rare cases so
as to award death sentence?
Ratio Decidendi
It was contended that the accused had no previous criminal records 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 also said that it would
not be possible for the Court to come to the conclusion that the crime was committed in a
barbaric manner. The court finally held 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. Thus, the court commuted the death sentence to life and awarded 20 years of
rigorous imprisonment, over and above the period already undergone by the accused, without
any remission.
(whether the case falls under the category of rarest of the rare case so as to award death
sentence-- In Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 this Court 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 been satisfied as against the accused.)
Legal significance
At instance, the person suspected of a crime or accused or a witness were compelled to give
testimony under the fear of coercion, hurt, threat or intimidation, in such situation, the statement
confessed can untrue (most of the times) which will lead to miscarriage of justice.
The landmark judgment of Smt. Selvi and Ors v. state of Karnataka raises the important legal
issues with respect to the involuntary administration of the impugned techniques and also makes
a clear stand so as to what all should be done and taken care of while using these techniques.
Facts
Smt. Selvi and Ors v. State of Karnataka, is a criminal appeal in the supreme court of
India. The case talks about the legal questions related to the involuntary administration of
certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain
Electrical Activation Profile (BEAP) test for the purpose of improving investigation
efforts in criminal cases. The case gives emphasis on major legal issues including privacy
or personal liberty, self-incrimination and substantive due process.
The polygraph test measures the physiological responses including respiration, blood
pressure, pulse and galvanic skin resistance to measure lying or deception. The
narcoanalysis test involves the intravenous administration of the drug sodium pentothal,
which causes a hypnotic trance allowing a subject to become less inhibited. The BEAP
measures activity in the brain in response to selected stimuli, to determine if the subject is
familiar with certain information.
ISSUES
1. Whether the involuntary administration of the impugned techniques violated the ‘right
against self-incrimination’ enumerated in Article 20(3) of the Constitution;
2. Whether the involuntary administration of the impugned techniques was a reasonable
restriction on ‘personal liberty’ as understood in the context of Article 21 of the
Constitution.
3. Whether the investigative use of the impugned techniques is against basic human rights?
Law involved:
Observations of courts
Issue 1- Article 20(3) of the Indian constitution talks about the right against self-incrimination. It
says that the accused cannot be forced to be a victim against himself, now when we talk about
the administration of scientific techniques like NARCO, BEAP etc. on the accused, we mean that
the person would be under the influence of certain chemicals because of which he is supposed to
answer the relevant details and would not be able to lie. This can be considered good to fasten
the investigation process as it would save time and energy of the investigating authorities which
is being wasted in extracting true information from the accused. But considering the fact that
there is no consent involved in this procedure, we can deduce that the accused is being forced
and compelled to give testimony against himself.
The protective scope of Article 20(3) read with Section 161(2), CrPC guards against the
compulsory extraction of oral testimony, even at the stage of an investigation.
Issue 2
The impugned tests put a restraint on personal liberty in a number of ways. Firstly, by confining
a person against his will at the time of conducting the test. Secondly, it infringes a person’s
mental privacy by subjecting him to a drug which induces him to make revelations. This brings
us to one another aspect of privacy i.e. when we talk about personal liberty we are not always
concerned with physical barriers. Privacy also includes mental privacy, the right to choose, a
person’s right to remain silent and to choose what to speak and forcing a person to confess
something under the administration of certain drugs. Through this, we can create an interrelation
between article 20(3) and article 21 of the Indian Constitution i.e. right against self-incrimination
should be read as a part of the right to personal liberty.
Issue 3- Judgments such as D.K. Basu v. State of West Bengal,[xvi] have stressed upon the
importance of preventing the ‘cruel, inhuman or degrading treatment’ of any person who is
taken into custody.
In light of above reasoning,
Conclusion
That involuntary administration of the impugned techniques violates the ‘right against
self-incrimination’
Also, the court held that it violates the basic human right of an individual as the forcible
administration of these techniques amounts to cruelty and is an intrusion of mental
privacy. The bench ruled that involuntary administration of the impugned techniques
violates the standard of substantive due process as given under article 21(3).
The court also highlighted the guidelines that are laid down by the National Human
Rights Commission for the administration of the polygraph test on the accused. The court
held that these guidelines should be strictly adhered to for all kinds of such techniques.
The bench has covered all aspects including both positive and negative sides of the situation. We
all are aware that an accused is innocent unless proven guilty and subjecting an accused to such
treatments would, therefore is injustice on his part. The author strongly agrees with the decision
taken by the bench and believes that humanity and constitutional morality should be kept above
all.
INTRODUCTION
Rajiv Gandhi was an Indian politician of the Congress party and served as the 6th Prime Minister
of India from 1984-1989 and became youngest PM at the age of 40. He was assassinated on 21st
May 1991 at Sriperembudur in Tamil Nadu. An LTTE (Liberation Tigers of Tamil Eelam)
activist named Thenmozhi Raiaratnam detonated an RDX-laden suicide belt while pretending to
touch Rajiv Gandhi's feet at a function. For
understanding the reasons behind Rajiv Gandhi assassination we need to understand about three
events:
1. Sri Lanka civil war
2. 1987 Peace Accord
3. IPKF (Indian Peace Keeping Forces)
Sri Lanka had majority of Sinhalese and Tamil were in minority.
Sinhalese had amended the constitution one by one and snatched away each and every rights of
Tamilians. In 1976 LTTE understanding the reasons behind Rajiv Gandhi assassination we need
to understand about three events:
1. Sri Lanka civil war
2. 1987 Peace Accord
3. IPKF (Indian Peace Keeping Forces)
Sri Lanka had majority of Sinhalese and Tamil were in minority.
Sinhalese had amended the constitution one by one and snatched away each and every rights of
Tamilians. In 1976 LTTE (Liberation tigers of Tamil Eelam) was founded which was a very
dangerous organisation and was demanding for a separate nation or Eelam. Eventually
Vellupillai Prabhakaran who also stood up for the rights of Tamils when he was just a teenager,
became the leader of this organization. This man was very clever and he brainwashed thousands
of people under the name of reformation and rights. This organization had its own navy and
thousands of soldiers it was the most efficient, disciplined, dangerous and strong organization till
date. Many Indian Tamils supported LITE and under Rajiv Gandhi's tenure various operation
like Poomalai which dropped food and necessities in Jaffna in Sri Lanka. To improve the
relations between India and Sri Lanka on 29th July 1987 Peace Accord was signed between Sri
Lankan government and LITE brokered by India. 13th amendment was made in Sri Lankas
Constitution with a purpose to grant Tamilians right that were earliar denied and after this, the
various terrorist organizations were to surrender their weapons. To ensure peace and the
surrender of weapons by LITE and other organizations India sent IPKF to Sri Lanka.
After reaching Sri Lanka India soon ended up fighting LTTE due to some misunderstandings.
LTTE refused to surrender weapons and declared war against IPKF forces which lasted three
years and lot of Indian soldiers were killed. During this time there was change of government in
Sri Lanka in 1989 which favoured Prabhakarans ideas. IPKF was forced to evacuate from Sri
Lanka. Prabhakaran suspected that Rajiv Gandhi would return to power in 1991 as per the exit
polls which would intervene his demand for a separate nation which is why he decided to
assassinate Rajiv Gandhi once and for all.
PLOTTING OF THE ASSASSINATION
NOVEMBER (1990)
•Realizing that Rajiv as prime minister would be an out of the question target, it was decided that
they should strike while his security status was still that of an opposition leader and election
campaigning would leave him even more vulnerable.
•
• In Jaffna Prabhakaran summoned his four trusted soldiers or envoys (Baby
Subramaniyam, Murugan, Muthuraja and Shivarasan) and informed them that Rajiv Gandhi's
return as prime minister of India is inevitable and so he must be eliminated if they want a
separate nation.
• Baby Subramaniyam, who was operating from Madras running a printing press
publishing LITE literature. His task was to prepare a back-up team that would arrange shelter for
the assassins before and after the assassination.
• Muthuraja was asked to secure a base in Madras to guarantee proper
communication facilities, couriers for messages and the smooth distribution of money for the
assassins.
• Murugan, an explosive expert of the LTTE, was asked to take over the
assignments from Subramaniyam and Muthuraja after their departure for Jaffna.
• Shivarasan, the much wanted man today, who has been labeled "one-eyed-Jack"
was given the most important task the actual assassination.
JANUARY 1991
• By January 1991 baby Subramaniam had arranged a shelter for the assassins. By February the
second recruiter Muthuraja had recruited freelance photographers, Haribabu and Ravi Shankaran
for filming the actual assassination.
•
• The third member, Murugan had designed the bomb which was to be used for
the assassination, with the help of Arivu who was unknown to the fact that it was for Raiiv
Gandhi.
• In April, Shivrasan returns to Jaffna to brief Prabhakaran about the plan.
Prabhakaran orders a dry run before the actual assassination.
• Shivrasan returns to Tamil Nadu with two women Tigers of the shadow squad
(Shubha and Dhanu) who were to be actual human bombs. Arivu's design of bomb was approved
by Shivrasan.
• The first dry-run took place on 18th April at Marina Beach during AIADMK
leader Jayalalitha's rally Dhanu get closer to the dais then Shivrasan photographed by Shankaran
and Haribabu.
• On 12th May the second dry run took place at VP Singhs rally in Thiruvallur.
Dhanu was able to touch Singhs feet in the same manner she was supposed to touch Rajiv
Gandhis.
MAY 21st 1991
" Dhanu tried on the denim jacket with the bomb at nalini's house the bomb was undetectable
under her under her salwar kameez all of the members of LTTE reached Marina Beach around
8pm, where Rajiv Gandhi rally was to take place as Rajiv Gandhi reached the campaign rally at
10pm lot of crowd gathered to watch Rajiv Gandhi.
• He walked out of his ear and began walking towards the dais where he would
deliver the speech. Along the way he was garlanded by many well-wishers, congress party
workers and school children.
• Ansuya, a Sub-Inspector tried to prevent Dhanu from getting too close to Rajiv
Gandhi but was prevented by Rajiv himself who said let everybody get a chance. Dhanu garlands
Rajiv Gandhi and then bends down to touch his feet as he in turn bends to raise her up she
triggered the bomb and 14 people including Rajiv Gandhi in the radius of the bomb were blown
in to pieces
The DNA fingerprinting was used in establishing The identity of Thenmozhi Rajaratnam, the
suicide Bomber who killed former Prime Minister Rajiv Gandhi was another occasion when the
DNA fingerprinting was used.
Restriction Fragment Length Polymorphism(RFLP) was used to established that the DNA found
in the skull charred muscle pieces on the suicide bomber's belt showed identical patterns which
led to prove that Dhanu was the bomber. Equality important was comparing LTTE mastermind
Shivrasan's DNA to that of his parents who were flown in from Sri Lanka for the purpose of
establishing the identity of Shivrasan. It was the only evidence to link the murder of Rajiv to the
LTTE.
COURT VERDICT
Court convicted and sentenced to life imprisonment, the seven persons who facilitated the
assassination of Rajiv Gandhi. They are currently undergoing life imprisonment in prisons in
India.
Their respective names are given below.
• Santhan alias T. Suthenthiraraia - a Sri Lankan national.
• Nalini Sriharan - an Indian citizen. Nalini is the wife of Murugan (alias Sriharan).
• Murugan alias Sriharan - a Sri Lankan national.
• A.G. Perarivalan
• Robert Pious - a Sri Lankan national.
• Jayakumar - the brother in law of Robert Pious.
• Ravichandran - a Sri Lankan national.
The Supreme Court in its May 1999 order, had upheld the death sentence of four convicts --
Perarivalan, Murgan, Santham and Nalini in the assassination case.
In April 2000, the Tamil Nadu governor had commuted the death sentence of Nalini on the basis
of the state government's recommendation and an appeal by former Congress president and Rajiv
Gandhi's widow Sonia Gandhi
On February 18, 2014, the top court had commuted the death sentence of Perarivalan to life
imprisonment, along with that of two other prisoners - Santhan and Murugan - on grounds of a
delay of 11 years in deciding their mercy pleas by the Centre.
CONCLUSION
As per the Supreme Court of India judgment, by Judge K. T. Thomas, the killing was carried out
due to personal animosity of the LITE chief Prabhakaran towards Rajiv Gandhi.
DNA Fingerprinting helped SIT to link the assassination to LTTE. Through DNA fingerprinting
more accurately RFLP the identity of the assassin was established. DNA fingerprinting is a
technique which has helped in solving a lot of criminal cases. Due to its precision and accuracy
its results are astonishing. Even with trace evidences from the crime scene this technique can be
used.