State Of Madhya Pradesh vs Raju Alias Rajkumar
2007 Latest Caselaw 957 Bom

JUDGMENT

S. Samvatsar, J.

1. This Death Reference is submitted by the First Additional Sessions Judge, Vidisha for confirmation of death sentence imposed by him in S.T. No. 191/2005, whereby the accused Raju alias Rajkumar is found guilty for commission of offence under Sections 376(2)(f) and 302 of I.P.C. and sentenced him death sentence. Criminal Appeal No. 451/2007 is filed by accused Raju alias Rajkumar challenging the death sentence and conviction. Hence, this judgment shall govern the disposal of Death Reference No. 2/2007 and Criminal Appeal No. 451/2007.

2. As per prosecution case, one Ku. Sitabai aged about 11 years was school going girl. She had gone to school on 12-9-2005 and after closing of her school, she used to return at about 4.00 p.m., but on that date she did not return to her home. Hence, her father Harprasad (PW5) went to the school for searching his daughter, where he was told that his daughter had already left the school for home. When Harprasad (PW-5) was returning, he found her dead body lying in the bushes on the way with her school bag, books and dress. He lodged a report of the said incident with Outpost Khamkhera, where report was recorded as Ex. P-13 and Ex. P. 12 is the 'Marg'. On the basis of this FIR and 'Marg', another FIR was lodged at main Police Station Satpada as Ex. P-20 and 'Marg' as Ex. P-21. The spot map was prepared as Ex. P-5. The police during investigation arrested the accused in pursuance of proceeding of Sniffer Dog and filed challan against him. The matter was committed to the Sessions Court and the Sessions Court after recording the evidence and apperciating the same held the accused guilty of the said offence and imposed death sentence.

3. Shri Padam Singh, learned Counsel appearing on behalf of the accused has submitted that the Sessions Court has committed grave error in holding that the accused is guilty of the offence. He submitted that there is no eye-witness to the said incident and the case totally depends upon the circumstantial evidence. He further submitted that the chain of circumstances in the present case is not complete, hence the accused cannot be convicted. He further submitted that the proceeding of Sniffer Dog/Tracking Dog itself is doubtful in light of evidence of Investigating Officer. He submitted that the evidence of Sniffer Dog is always a weak type of evidence, on the basis of which the accused cannot be convicted. He further submitted that the prosecution has changed the entire genesis of the crime. According to him, death has occurred much prior to the time put forth by the prosecution, and the medical evidence and the scientific report do not support the prosecution story. He further submitted that death sentence should be awarded only in rare of rarest cases. The present case is not covered in a rare of the rarest cases and, therefore, for this reason also the death sentence should not be confirmed by this Court.

4. To appreciate the evidence, the prosecution has examined as many as 17 witnesses, while two witnesses Dhoop Singh (CW-1) and Anar Singh Yadav (CW-2) are examined by the Court as Court witnesses. It is true that there is no eye-witness to the said incident and the prosecution story totally depends upon circumstantial evidence, which can be classified in two categories. First medical and scientific evidence and second the proceeding of Sniffer Dog and investigation made by the police.

5. First of all, we would like to deal with the medical evidence on record. The deceased had gone to school on 12-9-2005 and was found dead between 4-5 p.m. as per allegations made in the FIR (Ex. P-13). The post-mortem of the deceased was conducted by Dr. C.K. Chaurasiya (PW-9). As per his statement, the dead body of the deceased was brought before him on 13-9-2005 by the Police Station, Satpada. He had performed the post-mortem (Ex. P-18) at about 3.00 p.m. At the time of post-mortem, he found that flying insects were coming out of right nostril, there was foul smell and rigor mortis was absent. In the post-mortem report, the cause of death of Ku. Sitabai was due to coma as a consequence of head injury and duration of death was between 48-72 hours. There was no evidence of rape. In the post-mortem report, the doctor has mentioned that the body had already started decomposing.

6. Learned Counsel for the accused has submitted that thus the post-mortem report shows that death of deceased had not taken place on 12-9-2005, but actually had taken place on 11-9-2005, and thus the entire prosecution case fails in view of this evidence.

7. The doctor (PW-9) in his statement before the Court has stated that the deceased died due to grievous head injuries and decomposition started by that time. Flying insects were coming out of right nostril. There was foul smell and rigor mortis was absent. In para 9 of his statement, he stated that death had occurred within 12-48 hours prior to the post-mortem (Ex. P-18), wherein the doctor has mentioned the duration 48-72 hours.

8. Learned Counsel for the accused has submitted that the rigor mortis was absent and decomposition of dead body itself shows that death was prior to 48 hours of the incident. He invited attention of this Court to page 229 of Modi's Medical Jurisprudence (twenty-second edition), wherein it is mentioned that in temperate rigions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor mortis is twenty-four to forty-eigth hours in winter and eighteen to thirty-six hours in summer. Thus, as per Modi's Medical Jurisprudence (twenty-second edition), normally rigor mortis is absent only after approximately 48 hours. The dead body started decomposing which itself shows that death was around 48 hours prior to the postmortem. Thus, as per medical analysis, the period of death comes to be 11-9-2005 and not 12-9-2005. As per the medical evidence, the evidence of rape was not found.

9. The Panchanama (Ex. P-15) of dead body shows that bunch of hair was found stuck in the hands of the deceased. The hair from the head of the accused were uprooted and were sent to the chemical analysis. The report of the chemical analysis shows that the hair uprooted from the head of the accused did not match with the hairs seized, from the hands of deceased Ku. Sitabai. Thus, the report Ex. P-24 also does not SUR-port the case of the prosecution.

10. Now the other evidence remains is about the arrest of the accused in pursuance of proceeding of Sniffer Dog. The arrest memo (Ex. P-11) shows that accused was arrested on 13-9-2005 at about 14.00 hours i.e. 2.00 p.m.

11. The statement of Dog Handler (Ramesh Kumar) is recorded by the prosecution as PW-14. This witness states that he is working as Dog Squad since 1984. In the year 2005 he was posted as Constable in the Police Station Police Line, Vidisha and a dog 'Lata', who was Doberman by breed was in his charge. The said dog had 10 years' experience of searching the criminals. On 13-9-2005 he got an information about the crime and he reached Khamkhera Police Station with the said dog in pursuance of the information-Marg No. 0-04/05 and from there he went to Village Amoda with dog, where the dead body of the deceased was lying. The girl was wearing school dress and dog was ordered to smell the clothes of the deceased. After smelling the clothes of the deceased, the dog went towards the house of Dhoop Singh, where bundles of fire wood were lying. When Dhoop Singh was asked about the bundles of fire wood, he told that the same was kept by his servant accused Raju. Raju had gone to jungle for grazing the cattle. The accused was called and the dog caught hold of accused Raju. A report was prepared by this witness, which is Ex. P-39. In para 4 of his cross-examination, he states that he got the information at about 7-8 in the morning and reached Khamkhera Chowki at about 12.00. He further states that for reaching Amoda from Khamkhera, it took one and half hours. Thus, he has reached the spot after 12.30 p.m. He admits in para 5 that when he reached the spot, there was crowd and dead body was lying in bushes, which was 10-12 feet from the crowd. In the report, he has mentioned that the dog was ordered to smell and clothes of the deceased and the dog reached the bundles of wood. In para 6, he states that he does not know who called the accused Raju from the forest. In para 7, he admits that after getting smell, the dog first went to the house of Dhoop Singh Yadav and was moving there. Second time again, dog went to the house of Dhoop Singh and caught hold of wood. He states that when he left dog for searching the accused, at that time Head Constable, other police officers and villagers were present there. He does not know whether T.I. Patil was present on the spot or not during tracking. He states that Patil had gone with Additional Supdt. of Police. In para 9, he again states that Raju was called by Dhoop Singh Yadav and other persons were present on the spot. He states that tracking proceeding was started at about 1.30 to 2.00 p.m. and at that time it was raining. He states that he did not have a watch with him. He states that before raining, the proceeding was over. He further states that it took about an hour for completion of proceeding. He denied the suggestion that the proceedings were prepared in the police station.

12. Thus, from his statement, it is clear that dog was not ordered to smell any article of the accused and dog reached the bundles of wood only after smelling the dead body of the deceased. As per his statement, the proceedings were initiated at about 1.30 p.m. and were completed within one hour. He also states that the accused was called on the spot by Dhoop Singh Yadav and then caught hold by the dog.

13. To appreciate the evidence properly, it is necessary for this Court to examine the same in light of other witnesses on record. Ajit Patil is PW-12, who was the Investigating Officer. In his statement, he states that in March 2005 he was posted as Station Officer at Satpada and started investigating into the matter on 13-9-2005 after going on the spot and preparing the spot map (Ex. P-5). He, therefore, issued letters to the witnesses and recorded statements. He sent the dead body of Ku. Sitabai for post-mortem along with the letter (Ex. P-18).

14. From perusal of page of Ex. P-18, it is clear that time mentioned for sending the dead body for post-mortem is 12.30 p.m. As per the statement of Dog Handler Ramesh Kumar (PW 14), he started proceeding at about 1.30 p.m. and reached the Police Station Khamkhera at about 12.00 in the noon with the dog and thereafter he reached the village Amoda after half an hour. Thus, as per his statement, he reached the spot only after 12.30 p.m. when the dead body was already sent for post-mortem. Thus, the statement of Dog Handler (PW 14) that he ordered the dog to take smell of the dead body become doubtful.

15. Ajit Patil (PW-12) in his examination-in-chief has nowhere stated that the accused was arrested in pursuance of tracking proceeding conducted with the help of dog. He states that he has recovered a towel of the deceased. In para 5 of his statement, he states that the accused had already washed the underwear and towel by that time. He seized the same and prepared seizure memo Ex. P-7, Ex. P-8 and Ex. P-17. In para 14 of his statement, he states that he has arrested Raju near the house of Dhoop Singh between 12 to 12.30 p.m. This is again in contradiction with the statement of Dog Handler (PW-14) that he started proceeding after 2.00 p.m. and arrested the accused within one hour thereafter, while the Investigating Officer himself is saying that he has arrested the accused at about 12.00 p.m. This again creates doubt about the proceeding of Sniffer Dog. This witness was cross-examined on the question of Sniffer Dog. He states in para 17 that the police had arrested the accused on the basis of the bundles of wood from the house of Dhoop Singh Yadav. He does not know who has called the accused on the spot. In para 18 he states that when he reached the house of Dhoop Singh Yadav, proceeding of Sniffer Dog was already over. Thus, the statement of Dog Handler Ramesh Kumar (PW-14) is not corroborated by the statement of Ajit Patil, Investigating Officer (PW-12). From the statement of Investigating Officer, it appears that the accused was arrested much before proceeding of Sniffer Dog was initiated. Thus the statement of PW-14 Ramesh Kumar does not corroborate by the statement of Ajit Patil (PW-12).

16. Ex. P-5 is the crime details form prepared by the Investigating Officer and spot map prepared by the Investigating Officer. The time of preparation of this document is 11.30 a.m. on 13-9-2005. From careful perusal of this document, we find that there is reference to the Sniffer Dog proceeding in column H and I. The said document, which was prepared at 11.30 a.m. again creates doubt about timing of arrest and Sniffer Dog proceeding conducted by Dog Handler Ramesh Kumar (PW-14). Ex. P-6 is the seizure memo. We find that some articles of the deceased were seized by the Investigating Officer. Ex. P-7 is the seizure memo of 'Juti' of the deceased. This document was prepared at about 12 O'clock. From perusal of Ex. P-7, we find that shoes of the deceased were recovered at the instance of the accused and the time mentioned in the said document is 13 : 10 i.e. 1:10 p.m. Similarly Ex. P-8 is the seizure memo of underwear and time mentioned in the said document is 13 :30 i.e. 1 : 30 p.m. Ex. P-9 is the seizure memo of towel and time of this document mentioned as 13 : 45 i.e. 1 : 45 p.m. Thus, from these documents, it is amply clear that the accused was in custody of the police authority much before 2.00 p.m., which is the time mentioned by the Dog Handler Ramesh Kumar for starting tracking proceeding.

17. Apart from this evidence, the Court has examined Dhoop Singh as CW-1. This witness states that dead body was found in the jungle. T.I. reached the spot and the dog was left near the dead body and the dog went smelling in his garage, where dog found bundles of wood, thereafter dog went to the field and caught hold of Raju, where he was grazing cattle. This statement is contradictory statement to the statement of Dog Handler Ramesh Kumar (PW-14) and the statement of Investigating Officer (PW-12), who state that Raju was arrested at the house of Dhoop Singh Yadav after reaching the dog near the bundles of wood. In para 5 he states that when dog reached near the bundles of wood. 10-12 persons of his family were present. He further states in para 9 that accused Raju is his servant for last 10 years and he was arrested by the police.

18. Other Court witness is Anar Singh Yadav (CW-2). He states that dog was brought to the dead body at about 8.00 in the morning and reached smelling bundles of wood. At that time accused was grazing cattle 100 feet away from the dead body. Dog went near Raju and started barking. This statement is also contradictory statement to the statements of Dog Handler and Investigating Officer.

19. From perusal of the document Ex. P-5, which was prepared at 11.30 a.m. on 13-9-2005, we find that there is a reference to the Sniffer Dog proceeding. The Investigating Officer himself says that he had arrested the accused at about 12.00: p.m., when as per statement of Dog Handler Ramesh Kumar (PW-14), he had not reached the spot by 12.30 p.m. and initiated proceeding only after 2 p.m. This clearly falsifies story of Sniffer Dog and arrest of the accused in pursuance of tracking proceeding.

20. The Sessions Court has believed; these proceedings for holding the accused guilty of offence by saying that the Dog Handler has made a statement that he did not had a watch at the time of proceeding. This approach of the Sessions Court is not proper. The Dog Handler is not an illiterate person. He is a Constable and has experience of 10 years in the field and searching the accused in tracking proceeding. Even assuming that he did not have a watch at the time of proceeding still there can be margin of half an hour. As per his statement, he started proceeding at about 1.00 or 2 p.m., while documents show that the accused was in custody at 11.30 a.m. and therefore, the evidence that the accused was arrested by Sniffer Dog cannot be believed. Even if the statement of the Dog Handler is believed as per this statement, the accused was called from jungle by some one to the house of Dhoop Singh, where he was arrested on being caught by the dog, which means that the accused was not searched by the dog. The dog merely searched the bundle wood and there is no evidence on record that the bundle was kept by the accused in the house of Dhoop Singh.

21. Apart from this, this Court will have to consider weight of evidence about dog tracker. The Apex Court has occasion to consider this aspect. The Apex Court in the case of Abdul Razak Murtaza v. State of Maharashtra has considered admissibility of such evidence and held that the tracker dog's evidence cannot be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli, because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. Dogs are intelligent animals with many thought processes similar to the thought process of human beings and wherever there are thought processes there is always the risk of error, deception and even self-deception. For these reasons, the Apex Court is of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight.

22. In the case of Surinder Pal Jain v. Delhi Administration AIR 1993 SC 1723 : 1993 Cri LJ 1871, the Apex Court had held that picking up of the smell by the dogs of police and pointing towards the accused could not be said to be circumstances which could exclude the possibility of guilt of any person other than that of the accused or be compatible only with hypothesis of guilt of the accused. The pointing out by the dogs could as well lead to a misguided suspicion that the accused had committed the crime.

23. In the case of Gade Lakshmi Mangraju alias Ramesh v. State of Andhra Pradesh 2001 Cri LJ 3317, the Apex Court again considered weight of evidence and has held that the evidence based on Sniffer Dogs has inherent frailties. The possibility of error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close to its heels. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. The 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. Police dogs engaged in these actions by virtue of instincts and also by the training imparted to them. Criminal courts need not therefore bother much about the evidence based on sniffer dogs. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill-afford them.

24. Thus, from these judgments, it is not possible for the Courts to hold a person guilty of the offence merely on the basis of identification of Sniffer Dogs. In the present case, we find that there is doubt about the date of the incident. As per prosecution case, the incident had taken place, when deceased was returning from school at about 4.00 p.m. on 12-9-2005. The post-mortem of the deceased was conducted by the doctor at about 3.10 p.m. on 13-9-2005. As per medical evidence, the death had occurred nearly 48 hours prior to the post-mortem, which shows that the incident has not taken place on 12-9-2005. The teacher of the school is examined by the prosecution as PW-2 (Amar Singh Yadav). He states that on 12-9-2005 there was a programme of distributing of dress to the students. Sita and her sister Geeta were studying in Class-5. On the date of incident Sita alone come to the school and Geeta was ailing. He states that he handed over the new dress of Geeta to Sita, but no such new dress was seized by the police from the spot or from the accused, which also creates doubt about the statement of this witness.

25. Kamar Singh is PW-4, who is a witness to Ex. P-5. He states that the same was prepared between 11-12 a.m. This witness states that Raju was already arrested by the police before preparation of this document. Thus, from his statement, it appears that the accused was in the custody of the police at about 11.00 a.m. This witness further states that tracking proceedings were initiated at about 9.00 in the morning, when as per the statements of Investigating Officer and Dog Handler the said proceedings were initiated only after 12.30 in the noon. This also creates doubt about the genuineness of the proceeding.

26. The statement of. Dog Handler Ramesh Kumar (PW-14) is not corroborated by the statement of Investigating Officer Ajit Patil (PW-12). The medical evidence does not corroborate with the date of the incident put forth by the prosecution. The bunch of hair found stuck in the hands of the deceased does not match with the hair uprooted from the head of the accused. Moreover, the statements of witnesses show that the dog has actually searched the bundles of wood and not the accused, who was arrested after he was called. He was called from the jungle, where he was grazing the cattle. The new dress, which was supplied to the deceased is not seized by the police. Thus, the chain of circumstances is not complete and only evidence about identification is by the Sniffer Dog.

27. In such circumstances, we are unable to confirm the death sentence awarded by the Sessions Court in absence of any reliable evidence for connecting the accused Raju with the said offence, therefore. We have no opinion, but to acquit him from the charges levelled against him.

28. In the result, CRRE (Death Reference) No. 2/2007 referred by the Sessions Court stands dismissed and Criminal Appeal No. 451/2007 filed by the accused is allowed. The accused is in jail, he be released forthwith, if not required in any other case.