High Court allowed criminal appeal under Section 374 CrPC, acquitting appellant of murder and theft charges. Court held sniffer dog evidence inadmissible for conviction and prosecution failed to link recovered axe to crime, violating benefit of doubt principle.
Acquittal and release from jail forthwith
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CRA No. 1763 of 2019
2024:CGHC:45561-DB
Digitally ANKIT signed byANKITKUMAR KUMAR SINGH SINGH Date:2024.11.25 16:09:10 +0530
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1763 of 2019
(Arising out of judgment dated 21.10.2019 passed in Sessions Trial No.28/2019 by the Sessions Judge, Jashpur, District Jashpur, Chhattisgarh.)
... Appellant
versus
... Respondent
For Appellant :- Ms. Pushpa Dwivedi, Advocate / Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent-State :- Mr. Ashutosh Shukla, Panel Lawyer.
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal
Judgment On Board (21.11.2024)
Sanjay K. Agrawal, J
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is to the legality, validity and correctness of the judgment dated 21.10.2019 passed by the Sessions Judge, Jashpur, District Jashpur, Chhattisgarh, in Sessions Trial No. 28/2019 by which the sole appellant herein has been convicted for offence under Section 449 of the IPC and sentenced to undergo 5 years’ rigorous imprisonment with fine of 500/- and in default of payment of fine amount to₹ undergo additional rigorous imprisonment for 1 month & further he has also been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of 500/- and in default of₹ payment of fine amount to undergo additional rigorous imprisonment for 1 month, with a direction to run concurrently.
Prosecution story:-
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that Berna Kujur (PW-5) had given her information about the death of the deceased and thereafter, she along with other villagers went to the spot and saw the dead body of the deceased in the pool of blood, pursuant to which merg intimation (registration of unnatural death) and FIR were registered vide Exs.P/16 & P/1, respectively. Spot map was prepared vide Ex.P/13. Inquest proceedings (Ex.P/4) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/10) proved by Dr. Smt. P.C. Ekka (PW-7), cause of death was excessive haemorrhage due to multiple injuries and nature was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/5) weapon of offence i.e. axe and the clothes of the appellant were seized vide Exs.P/6 & P/7, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/25) on the clothes of the deceased (articles F 1 to F4); mat (article G) and on the half pant (चቂኋ�) of the appellant human blood was found and on the axe and t- shirt of the appellant human blood of group ‘B’ was found.
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with law. The appellant / accused abjured his guilt and entered into defence.
Submission of the Parties:-
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convicting the appellant for the offence in question. She also submits that the prosecution has failed to bring home the offence beyond reasonable doubt and only on the basis of alleged identification made by the sniffer dog of the police and further on the basis of alleged recovery of weapon of offence i.e. axe made pursuant to memorandum statement of the appellant on which in FSL report human blood of “B” group was found, appellant could not be convicted that too for offence under Section 302 of the IPC in absence of any corroborative piece of evidence to connect the weapon with the crime in question and the prosecution has failed to prove the same. She further submits that only on the basis of surmises and conjectures the appellant has been convicted for offences in question, therefore, the appeal deserves to be allowed and the appellant is liable to be acquitted of charges on the basis of benefit of doubt.
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:- Discussion & Analysis
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Birdhichand Sarda v. State of Maharashtra 1 in paragraph
153 which state as under:-
“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra2 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
the fact that the sniffer dog of the police had identified the
1 (1984) 4 SCC 116
2 (1973) 2 SCC 793
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appellant herein; pursuant to memorandum statement of the appellant the weapon of offence i.e. axe was found on which in FSL report human blood of “B” group was found and motive has also been found proved by the trial Court.
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Maharashtra 3 profitably herein in which their Lordships of the Supreme Court have noticed the objection which are usually advanced against the reception of dog tracking and it has been held that though the evidence of dog tracking, even if admissible, is not ordinarily of much weight and held in paragraph No. 11 as under:-
“11. It was lastly urged on behalf of the appellant that the lower courts ought not to have relied upon the evidence of dog tracking and such evidence was not admissible in order to prove the guilt of the appellant. The evidence of tracker dogs has been much discussed. In Canada and in Scotland it has been admitted. But in the United States there are conflicting decisions:
“There have been considerable uncertainty in the minds of the courts as to the reliability of dogs in identifying criminals and such conflict of opinion on the question of the admissibility of their actions in evidence. A survey of the cases, however, reveals that most courts in which the question of the admissibility of evidence of trailing by bloodhounds has been
3 1969 (2) SCC 234
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presented take the position that upon a proper foundation being laid by proof that the dogs were qualified to trail human beings, and that the circumstances surrounding the trailer were such as to make it probable that the persons trailed was the guilty party, such evidence is admissible and may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to connect the defendant with the Crime.”
There are three objections which are usually advanced against the reception of such evidence. First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and consequently submit himself to cross-examination, the dog's human companion must go into the box and report the dog's evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences. And, thirdly, it is suggested that even if such evidence is strictly admissible under the rules of evidence it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its true evidential value. In R . v. Montgomery [1866 NI 160] a police constable observed men stealing wire by the side of a railway line. They ran away when he approached them. Shortly afterwards the police got them on a nearby road. About an hour and half later the police tracker dog was taken to the base of the telegraph pole and when he had made a few preliminary sniffs he set off and tracked continuously until he stopped in evident perplexity at the spot where the accused had been put into the police car. At the trial it appeared that other evidence against the accused that they had been stealing the wire was inconclusive and that the evidence of the behaviour of the tracker dog was crucial to sustain the conviction. In these circumstances the court of criminal appeal ruled that the evidence of the constable who handled the dog on its tracking and reported the dog's reactions was properly admitted. The Court did not regard its evidence as a species of hearsay but instead the dog was described as “a
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tracking instrument” and the handler was regarded as reporting the movements of the instrument, in the same way that a constable in traffic case might have reported on the behaviour of his speedometer. It was argued in that case that the tracker dog's evidence could be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight. ”
Mangaraju @ Ramesh v. State of A.P. 4 , and the decision rendered by the Supreme Court in the matter of Surinder Pal Jain v. Delhi Admn. 5 has also been followed in the matter of Gade Lakshmi Mangaraju @ Ramesh (supra) in which it has been expressed that pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime and their Lordships have not considered it as a piece of evidence and held in paragraphs No.17 and 18 as under:-
4 (2001) 6 SCC 205
5 1993 Supp (3) SCC 681
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“17. We are of the view that criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals.
18. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.”
of Assam 6 it has been held that the conviction on the basis
of evidence of the sniffer dog held to be inadmissible and the conviction could not have been grounded on the evidence of the sniffer dog and further relying upon the decision in the matter of Abdul Rajak Murtaja Dafedar (supra) and Gade Lakshmi Mangaraju (supra) it has been held that the services of the sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused and held in paragraphs No.39 & 40 as under:-
“39. So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in Abdul Rajak Murtaja Dafedar (supra) v. State of Maharashtra stated the law, thus:
“11 . … There are three objections which are usually advanced against the reception of [the evidence of dog tracking.] First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and consequently
6 (2008) 5 SCC 697
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submit himself to cross-examination, the dog's human companion must go into the box and report the dog's evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences.”
40. Yet again in Gade Lakshmi Mangaraju (supra) this Court opined:
“There are inherent frailties in the evidence based on sniffer or tracker dogs. The possibility of an error on the part of the dog or its master is the first among them. … The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. Last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. … Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill-afford them.”
The law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.”
principles of law laid down by their Lordships of the Supreme Court in the decisions Abdul Rajak Murtaja Dafedar (supra), Gade Lakshmi Mangaraju @ Ramesh (supra), Surinder Pal Jain (supra) & Dinesh Borthakur (supra), it is quite vivid that the evidence of the sniffer dog cannot be taken into consideration for basing the conviction of the appellant which is the main ground for
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conviction in the instant appeal, as such, this incriminating circumstance is of no use to the prosecution and the conviction of the appellant could not be based upon this circumstance that too for offence under Section 302 of the IPC.
held in paragraphs No.25 to 27 which states as under:-
7 (2011) 11 SCC 724
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“25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.”
26. If the recovery memos were prepared at the police station itself then the same would lose their sanctity as held by this Court in Varun Chaudhary v. State of Rajasthan8 .
27. The scope and ambit of Section 27 were also illuminatingly stated in Pulukuri Kotayya v. King Emperor9 reproduced hereinbelow: (IA p. 77).
“… it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A ’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”
9 (1946-47) 74 IA 65 : AIR 1947 PC 67
8 (2011) 12 SCC 545
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The same were thereafter restated in another judgment of this Court in Anter Singh v. State of Rajasthan10 .”
10 (2004) 3 SCC 657
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matter of Sharad Birdhichand Sarda (supra) and, as such, the appellant is entitled for acquittal of the charges for offences under Sections 302 and 449 of the IPC on the basis of benefit of doubt. The appellant is reported to be in jail since 04.06.2019, we direct that he be released from the jail forthwith, if not required in any other matter.
any.
Sd/- Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge
Ankit
3 issues framed by the court
Whether conviction based solely on sniffer dog tracking evidence is sustainable?
Whether recovery of weapon pursuant to confessional statement establishes guilt without linking it to the crime?
Whether prosecution proved guilt beyond reasonable doubt under Section 302 IPC?
Colour shows how this judgement treated each authority
Sharad Birdhichand Sarda v. State of MaharashtraDistinguished¶47
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 · Who else cites this
Shivaji Sahabrao Bobade v. State of MaharashtraExplained¶54
Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 · Who else cites this
Abdul Rajak Murtaja Dafedar v. State of MaharashtraDistinguished¶71
Abdul Rajak Murtaja Dafedar v. State of Maharashtra 1969 (2) SCC 234 · Who else cites this
Gade Lakshmi Mangaraju @ Ramesh v. State of A.P.Distinguished¶83
Gade Lakshmi Mangaraju @ Ramesh v. State of A.P. (2001) 6 SCC 205 · Who else cites this
Surinder Pal Jain v. Delhi Admn.Distinguished¶83
Surinder Pal Jain v. Delhi Admn. 1993 Supp (3) SCC 681 · Who else cites this
Dinesh Borthakur v. State of AssamDistinguished¶91
Dinesh Borthakur v. State of Assam (2008) 5 SCC 697 · Who else cites this
Mustkeem alias Sirajudeen v State of RajasthanDistinguished¶108
Mustkeem alias Sirajudeen v State of Rajasthan (2011) 11 SCC 724 · Who else cites this
Varun Chaudhary v. State of RajasthanReferred¶114
Varun Chaudhary v. State of Rajasthan (2011) 12 SCC 545 · Who else cites this
Pulukuri Kotayya v. King EmperorExplained¶115
Pulukuri Kotayya v. King Emperor (1946-47) 74 IA 65
Anter Singh v. State of RajasthanApplied¶121
Anter Singh v. State of Rajasthan (2004) 3 SCC 657 · Who else cites this
Pradeep Xalxo
State of Chhattisgarh
Sanjay K. Agrawal
Radhakishan Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
