Soni Devi vs The State Of Bihar
2021 Latest Caselaw 4642 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.1478 of 2018
      Arising Out of PS. Case No.-134 Year-2011 Thana- SOHSARAI District- Nalanda
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Soni Devi, wife of Lallan Prasad, resident of Village/Mohalla - Asha Nagar, P.S.- Soh Sarai, District- Nalanda

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== Appearance :

For the Appellant : Mr. Anirudh Kumar Sinha, Advocate Mr. Santosh Kumar, Advocate For the Respondent-State: Mr. Ajay Mishra, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ANIL KUMAR SINHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) Date: 15-09-2021

Heard Mr. Anirudh Kumar Sinha, learned counsel

for the appellant and Mr. Ajay Mishra, learned Additional Public

Prosecutor for the State.

2. This appeal is directed against the judgment of

conviction dated 1st December, 2018 and the consequent order

of sentence dated 5th December, 2018 passed by the learned

Presiding Officer, Fast Track Court-I, Nalanda at Bihar Sharif in

Sessions Trial Case No. 291 of 2012/ C.N.R. No. 0070 of 2012

arising out of Sohsarai P.S. Case No.134 of 2011 whereby and

whereunder the sole appellant has been convicted for the

offences punishable under Sections 302 and 201 of the Indian Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

Penal Code (for short 'IPC') and sentenced to undergo rigorous

imprisonment for life besides a fine of Rs.25,000/- for the

offence under Section 302 of the IPC and in default of payment

of fine to further undergo rigorous imprisonment for three years

and rigorous imprisonment for five years and a fine of

Rs.5,000/- for the offence under Section 201 of the IPC and in

default of payment of fine to further under rigorous

imprisonment for six months. However, both the sentences were

directed to run concurrently.

3. The First Information Report (for short 'FIR') of

Sohsarai P.S. Case No.134 of 2011 is based on the fardbeyan of

one Ram Pravesh Kumar (P.W.3), which was recorded by one

Shree Kant Sharma (P.W.9), a Sub-Inspector of Police of

Sohsarai Police Station on 13th December, 2011 at 6:55 PM in

the Mohalla- Habibpura.

4. In his fardbeyan, the informant stated that on 13 th

December, 2011 at about 2:45 PM, while he was going to his

field, his two years old son, namely, Prashant Kumar started

coming behind him. When he reached the Trimuhani of his lane

and saw his son Prashant Kumar following him, he persuaded

him to return to his home and went to his field. His wife came to

the field about fifteen minutes after he had reached his field. She Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

inquired about Prashant Kumar and said that he had not returned

to his home. On hearing this, he stopped working in his field

and began to inquire about his son's whereabouts near his house

and in an adjacent locality. He also arranged for an

announcement on the loudspeaker about his missing son in the

locality. At about 6:30 PM, when he reached near Mogalkuwan

Masjid, he came to know that a dead body of a child is thrown

at Habibpura Mohalla besides the shop of one Laddu Sao. On

coming to know about the recovery of a dead body of a child, he

immediately reached that place and found that a large number of

people had assembled there. He also found that the police party

had already arrived there. When he moved ahead, he saw that a

child rolled in a gendra (a locally made mattress of textile in

Bihar) and a plastic bag beside him was lying there. On seeing

the boy, he identified it to be his son. When he went closer, he

found that his son was dead. He started crying. He claimed that

some unknown miscreant had killed his son and thrown his

body to conceal the evidence.

5. Based on the said fardbeyan, Sohsarai P.S. Case

No. 134 of 2011 dated 13th December, 2011 was registered

under Sections 302 and 201/34 of the IPC against an unknown

accused person by the aforesaid Shree Kant Sharma and he took Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

up the investigation of the case himself. He inspected the place

of occurrence, recorded the statements of witnesses under

Section 161(3) of the Code of Criminal Procedure (for short

'CrPC'), prepared the inquest report and sent the body of the

deceased Prashant Kumar to the hospital for postmortem

examination.

6. On completion of the investigation, the police

submitted its report under Section 173(2) of the CrPC before the

court of Chief Judicial Magistrate, Nalanda on 2nd March, 2012.

7. After going through the police report and the

materials collected during the investigation, the learned Chief

Judicial Magistrate, Nalanda took cognizance of the offences on

2nd March, 2012 itself and summoned the appellant to face trial.

8. The learned Chief Judicial Magistrate, Nalanda,

after complying with the statutory requirements of Section 207

of the CrPC committed the case to the Court of Sessions for trial

vide order dated 24th May, 2012. The Sessions Court (hereinafter

referred to as 'Trial Court') framed charges under Sections 302

and 201 of the IPC against the appellant on 5 th July, 2012 to

which she pleaded not guilty and claimed to be tried.

9. During the trial, the prosecution examined

altogether nine witnesses. They are Sunil Kumar (P.W.1), fufa of Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

the deceased; Bibha Devi (P.W.2), mother of the deceased; Ram

Pravesh Kumar (P.W.3), father of the deceased; Nago Mahto

(P.W.4), Fudi Paswan (P.W.5), Jitendra Paswan (P.W.6), Anaik

Lal (P.W.7), a witness to the fardbeyan and the inquest report;

Dr. Pramod Kumar Singh (P.W.8), who had conducted the

postmortem examination and Shree Kant Sharma (P.W.9), the

investigating officer (for short 'I.O.') of the case.

10. Apart from the oral testimony of the witnesses, the

prosecution also proved certain documents during trial.

11. After the closure of the prosecution case, the

circumstances appearing against the appellant were explained to

her by the Trial Court and her statement was recorded under

Section 313 CrPC.

12. The defence did not examine any witnesses in

support of its case.

13. After the closure of the evidence on behalf of the

parties, arguments were heard and the Trial Court convicted and

sentenced the appellant in the manner stated hereinabove.

14. Being aggrieved and dissatisfied with the judgment

of the Trial Court, Mr. Anirudh Kumar Sinha, learned counsel

for the appellant submitted that as a matter of fact, it is a case of

no evidence. He contended that three independent witnesses, Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

namely, Nago Mahto (P.W.4), Fudi Paswan (P.W.5) and Jitendra

Paswan (P.W.6) did not support the case of the prosecution. He

contended that Anaik Lal (P.W.7) is also a formal witness, who

has simply proved his signature on the inquest report of the

deceased. He further contended that P.W.8 is the doctor, who

had conducted the postmortem examination on the body of the

deceased and P.W.9 is the I.O. of the case. According to him, the

remaining three witnesses are closely related to the deceased.

Even they are not witnesses to the actual murder of the victim.

He contended that the Trial Court did not appreciate the

evidence led before it in correct perspective. He urged that in

absence of any direct evidence to the homicide, the Court may

convict an accused upon circumstantial evidence, but the

circumstantial evidence must be that of the guilt of the accused

and incompatible with any other hypothesis. He submitted that

in the instant case, there are several missing links in the chain of

circumstances. He contended that the Trial Court has convicted

the appellant on the evidence of a sniffer dog, which is not

admissible in law. According to him, the reliance placed by the

Trial Court in this regard is completely erroneous. He also

contended that the incriminating circumstances, which have

been relied upon by the Trial Court for convicting the appellant Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

were not even explained to her while she was being examined

under Section 313 of the CrPC.

15. On the other hand, Mr. Ajay Mishra, learned

Additional Public Prosecutor for the State submitted that it is

true that there is no direct evidence in the case, but the

prosecution has been able to prove its case from the surrounding

and relevant circumstances. He contended that P.Ws.1, 2 and 3

had identified the gendra in which the body of the deceased

child was rolled and thrown at the place from where it was

recovered. They all stated before the Court that the gendra

belonged to the appellant. He further contended that the

witnesses examined during the trial have also stated that the

appellant was having animosity with the mother of the deceased.

They all have stated that the appellant always used to quarrel

with the mother of the deceased on the issue of throwing

garbage of her house in the locality. He further admitted that the

sniffer dog's evidence would also be relevant and would be

treated to be a link in the chain of circumstances proved against

the appellant.

16. We have heard learned counsel for the parties and

carefully perused the record.

17. From the evidence on record, it emerges that this Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

case is based upon circumstantial evidence. There is no witness

to the actual murder of the victim, two years old Prashant

Kumar, at the hands of the appellant, Soni Devi.

18. It is not in dispute that the absence of any eye

witness to the homicide cannot come in the way of the

conviction of the accused where the crime has to be inferred

from the surrounding and relevant circumstances.

19. However, the parameters and principles within

which circumstantial evidence is to be assessed by Courts to

conclude guilt or otherwise are well established. Precisely, to

sustain a conviction on circumstantial evidence, the factual

circumstances should be so established that the only inference to

the said circumstances must be that of the guilt of the accused,

incompatible with any other hypothesis. The circumstances on

record should form a complete and consistent chain of events,

which rule out every other hypothesis except the guilt of the

accused.

20. In Hanumant Govind Nargundkar & Anr. vs.

State of M.P., since reported in AIR 1952 SC 343, the Supreme

Court held:

"10. Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution in order to bring the guilt home Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Exhibit P-3-A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the jury in Reg v. Hodge [(1838) 2 Lew 227] where he said:

"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis 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 probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-

General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P-3-A or outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case."

21. In Bhagat Ram vs. State of Punjab, since reported

in AIR 1954 SC 621 it was held: "where the case depends upon

the conclusions drawn from circumstances, the cumulative effect

of the circumstances must be such as to negative the innocence

of the accused and to bring home the offences beyond any

reasonable doubt. It has been consistently held by this Court Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

that where a case rests squarely on circumstantial evidence, the

inference of guilt can be justified only when all the

incriminating facts and circumstances are found to be

incompatible with the innocence of the accused or the guilt of

any other person."

22. In Sharad Birdhichand Sarda vs. State of

Maharashtra, since reported in (1984) 4 SCC 116, the Supreme

Court in paras 153 and 154 held :

"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 Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

para 19, p. 807: SCC (Cri) p. 1047]

"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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

23. In Padala Veera Reddy vs. State of A.P., since reported

in 1989 Supp (2) SCC 706, the Supreme Court laid down that in case

of circumstantial evidence, the evidence must satisfy the following

tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

24. Keeping in mind the ratio laid down by the

Supreme Court in the aforementioned cases, we would now

analyze as to whether there exists a chain of evidence so

complete as not to leave any reasonable ground for a conclusion Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

consistent with the innocence of the appellant and the

circumstances show that within all human probabilities the

murder of the child must have been done by the appellant.

25. From the evidence on record, we find that Nago

Mahto (P.W.4), Fudi Paswan (P.W.5) and Jitendra Paswan

(P.W.6) have not supported the prosecution case at all. At the

request of the prosecution, the Trial Court declared them hostile.

Their evidence is of no help to the prosecution. We further find

that Anaik Lal (P.W.7) is a formal witness. He has proved his

signature and the signature of the informant Ram Pravesh

Kumar on the inquest report which have been marked as Exhibit

2 and 2/1 respectively. He has also proved his signature on the

seizure list, which has been marked as Exhibit 2/1. Shree Kant

Sharma (P.W.9), who had recorded the fardbeyan, had proved

his signature on the fardbeyan, which has been marked as

Exhibit 4. He proved his signature on the formal FIR, which has

been marked as Exhibit 5. He also proved his signature on the

inquest report and the seizure list, which have been marked as

Exhibit 6 and Exhibit 7.

26. Dr. Pramod Kumar Singh (P.W.8) had conducted

a postmortem examination on the body of the deceased on 14 th

December, 2011 at Sadar Hospital, Biharsharif at 6.30 AM. In Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

his deposition, he stated that the dead body was brought and

identified by two Havildars, namely, Rambaran Paswan and

Ram Gulam Paswan and the father of the deceased Ram Pravesh

Kumar. He described the cause of death of Prashant Kumar to

be asphyxia due to suffocation. According to him, the time

elapsed since death was 24 hours. He proved his signature on

the postmortem report, which was marked as Exhibit 3.

27. So far as the informant Ram Pravesh Kumar

(P.W.3) is concerned, in his testimony, he has corroborated his

statement made in the fardbeyan in examination-in-chief. He

added that he came to know that it was the appellant Soni Devi,

who had killed his son. He attributed the motive for killing his

son to be a previous dispute between his wife and the appellant

over throwing of garbage in the house at a nearby place. He

stated that the police brought the sniffer dog. The dog went to

the house of the appellant, Soni Devi. In cross-examination, he

admitted that neither he nor his wife had gone to the house of

the appellant Soni Devi while they were searching for their son.

He stated that the body of his son was kept only for about one

and a half hours to two hours after it was brought from the place

of occurrence as directed by the police and, thereafter, the police

took the body to the hospital for postmortem examination. He Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

admitted that the body of his son was kept in the hospital for the

whole night and, in the morning, at 8-9 AM after the

postmortem examination was conducted, the body was brought

to his house.

28. Bibha Devi (P.W.2), the mother of the deceased

and the wife of the informant Ram Pravesh Kumar (P.W.3) also

corroborated the prosecution case as narrated in the FIR by the

informant in her examination-in-chief. She added that she had

seen the gendra in which the body of her son was rolled at the

house of her neighbour Soni Devi (appellant). She stated that

Soni Devi had earlier quarrelled with her because of that she

had murdered her son. She further stated that after the initial

inquiry, the police seized the gendra and she identified the

same. According to her, the dead body of her son was kept in

her custody in the night and, in the morning, it was taken for

postmortem examination. Her statement in this regard is

contrary to the statement of her husband, who has stated in his

deposition that the dead body of his son was kept for one and a

half hours to two hours at his house and, thereafter, the police

took the dead body to the hospital for postmortem examination.

Bibha Devi (P.W.2) added that, in the morning, a sniffer dog

was called by the police. After taking smell of the place where Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

the body of her deceased son was thrown, the sniffer dog took

the police party to the room of the appellant Soni Devi. She also

followed the dog. She stated that as the dog entered the room of

the appellant, she came to know that the appellant had killed her

son in the same room.

29. In cross-examination, she admitted that when the

search began for her missing son, nobody had told her that her

son was seen going inside the house of the appellant. She further

admitted that while she was searching for her son, she had not

gone to the house of the appellant. She stated that the police

recorded her statement on 14th December, 2011 at the police

station. When her attention was drawn towards her previous

statement, she stated that she had informed the police that when

the dog was released from the place where the dead body of her

son was thrown, he entered the house of the appellant, Soni

Devi. She also followed the dog. She also stated that she had

given her statement before the police that the gendra and the

plastic bag were identified by her. She denied the defence

suggestion that because of the previous animosity, she had

falsely implicated the appellant Soni Devi.

30. The I.O. Shree Kant Sharma (P.W.9) contradicted

P.W.2 in a material particular. In cross-examination, he admitted Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

that Bibha Devi (P.W.2) had not stated before him in her

statement made under Section 161(3) of the CrPC that the

sniffer dog after taking smell of the place where the body of the

deceased was thrown entered in the house of Soni Devi. She had

also not stated that she had followed the dog. He further

admitted that she had not stated that as the dog entered in the

room of the appellant, she came to know that it was the

appellant, who had killed her son.

31. Sunil Kumar (P.W.1) stated in his examination-in-

chief that when the incident took place on 13th December, 2011

at about 6.30 PM, he was at his house. He came to know that the

son of the informant Prashant Kumar was missing. He went to

the house of Ram Pravesh Kumar. When he reached there, he

saw that his family members were crying because the missing

child was killed. He stated that the victim was killed by the

appellant Soni Devi because of a pre-existing dispute between

the mother of the victim and the appellant due to the throwing of

garbage of the house at a nearby place. He further stated that the

missing son of the informant was strangulated to death and his

body was thrown in the lane of Laddu Sao in the Mohalla-

Habibpura after being rolled in a gendra.

32. In cross-examination, he admitted that he married Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

the sister of the informant. He admitted that he came to know

about the incident of murder of Prashant Kumar after half an

hour. He could not disclose the name of the person, who had

informed him. He admitted that the mother of Prashant Kumar

did not disclose that it was the appellant Soni Devi, who had

killed her son. His attention was drawn towards his previous

statement. However, he insisted that he had stated before the

police that Prashant Kumar was strangulated to death due to the

dispute between his mother Bibha Devi and the appellant Soni

Devi relating to the throwing of garbage of the house in the

locality. He has been contradicted by the I.O. in a material

particular. The I.O. (P.W.9) admitted in his cross-examination

that Sunil Kumar (P.W.1) had not stated before him that

Prashant Kumar was strangulated to death. He further admitted

that he had not stated before him in his previous statement that

there was any dispute between the appellant Soni Devi and the

mother of the victim boy Bibha Devi relating to the throwing of

garbage of the house.

33. The I.O. (P.W.9) also admitted in his cross-

examination that there is no eye witness to the murder of the

deceased. He admitted that he did not seize any objectionable

article at the place of occurrence. He stated that he did not see Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

any sign of injury on the body of the deceased while preparing

the inquest report. He stated that in the fardbeyan, no suspicion

was raised against any accused person. He stated that the sniffer

dog was first taken to the place from where the body of the

deceased was recovered and, thereafter, the dog entered in the

house of the appellant and, at that time, it was the son of the

appellant Raushan Kumar, who alone was present in the house

and he had disclosed that his mother had killed the child. He

admitted that Raushan Kumar was arrested on 14th December,

2011 at 9 AM, but no paper of his arrest was prepared. He

further admitted that the gendra, which was seized by the police

was never put before the Magistrate for an identification parade.

34. Thus, from the evidence it emerges that save and

except the recovery of gendra, the disclosure made by the son of

the appellant and the evidence of sniffer dog, there is no other

material to connect the appellant with the killing of the son of

the informant.

35. So far as the seizure of gendra is concerned, the

same was never produced before the Trial Court. Admittedly, the

gendra was never put for identification before the Magistrate.

That apart, gendra is a common item which is found in every

house. There is no cogent evidence to suggest that the gendra in Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

which the body of the deceased was rolled belonged to the

appellant.

36. So far as the confession made by the son of the

appellant, namely, Raushan Kumar is concerned, the I.O.

admitted in his deposition that he had arrested him on 14 th

December, 2011 and he disclosed that it was his mother (the

appellant), who had killed the victim boy. Firstly, it is a settled

principle of law that the statement made by an accused before

the police which amounts to confession is barred under Section

25 of the Indian Evidence Act. Secondly, an extra-judicial

confession by itself is a very weak type of evidence. It is a rule

of caution that the Court would generally look for an

independent reliable corroboration before placing reliance upon

an extra-judicial confession. Thirdly, the confession is hit by

Section 24 of the Indian Evidence Act and fourthly, an

exculpatory confession is not admissible in evidence.

37. For all these reasons, the confessional statement, if

any, of Raushan Kumar, son of the appellant, who has not been

examined before the Court during the trial would be of no help

to the prosecution.

38. The only other material on which the Trial Court

has placed its reliance for concluding the guilt of the appellant is Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

that the police sniffer dog entered the house of the appellant

after smelling the place where the body of the deceased boy was

thrown.

39. The moot question would be that can a person be

convicted of a crime based on the evidence gathered by the

police sniffer dog?

40. In this context, it would be relevant to note that in

Abdul Rajak Murtaza Dafadar vs. State of Maharashtra, since

reported in AIR 1970 SC 283, a three-Judge Bench of the

Supreme Court declined to express any concluded opinion or to

lay down any general rule concerning tracker dog's evidence or

its admissibility against the accused. In the said case, the

Supreme Court observed :

"... 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 Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

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.

(emphasis supplied)

41. In Surinder Pal Jain vs. Delhi Admn., since

reported in 1993 Supp (3) SCC 681, the Supreme opined that

"the pointing out by the dogs could as well lead to a misguided

suspicion that the appellant had committed the crime, so save

their Lordships sidelined that item of evidence from

consideration".

42. In Gade Lakshmi Mangaraju vs. State of A.P.,

since reported in (2001) 6 SCC 205, the Supreme Court

observed:

"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."

Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

43. In Dinesh Borthakur vs. State of Assam, since

reported in (2008) 5 SCC 697, the Supreme Court held: "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".

44. In the instant case, the police may have used the

services of a sniffer dog for investigation, but merely because

the dog entered the house of the appellant in her absence, the

same cannot be treated to be evidence sufficient enough to

establish the guilt of the appellant. The appellant cannot be

convicted only on the basis of evidence gathered by the police

sniffer dog.

45. Moreover, the circumstance that the sniffer dog

entered the house of the appellant after smelling the place where

the body of the deceased was thrown was not brought to the

notice of the appellant while examining her by the Trial Court

under Section 313 of the CrPC. Hence, the said circumstance

could not have been taken into consideration by the Trial Court

for concluding the guilt of the appellant.

46. It is well settled that the object of Section 313 of

the CrPC is to enable the accused to explain the circumstances Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

against him/her in the evidence personally except where the

statute provides otherwise.

47. Section 313 of the CrPC provides the accused a fair

chance to explain his/her stand about the circumstances in the

evidence, which have been collected against him/her and has

come on the record during a trial. If the questions on

incriminating circumstances have been ignored by the trial

court, then it is an illegality and amounts to an abuse of the

process of Court.

48. Though the Supreme Court and this Court have

been repeatedly impressing upon the Trial Court that

questioning of an accused under Section 313 of the CrPC should

not be treated as an empty formality as it is an important facet of

the trial, unfortunately, the Trial Courts are recording the

statement of the accused in the most perfunctory manner. Since

no question was asked from the appellant that the sniffer dog

gathered any evidence during the investigation and that the

gendra in which the body of the deceased was rolled belonged to

her, she did not have any chance to explain those circumstances.

In our view, these circumstances, which were never put to the

appellant while examining her under Section 313 of the CrPC

could not have been used for convicting and sentencing her.

Patna High Court CR. APP (DB) No.1478 of 2018 dt.15-09-2021

49. Thus, on consideration of the entire evidence, we

are of the opinion that the prosecution has miserably failed to

prove each of the links in the chain of circumstances beyond

reasonable doubts against the appellant.

50. For the reasons discussed above, appeal is allowed.

The impugned judgment of conviction dated 1st December, 2018

and the consequent order of sentence dated 5th December, 2018

passed by the learned Presiding Officer, Fast Track Court-I,

Nalanda at Bihar Sharif in Sessions Trial Case No. 291 of 2012/

C.N.R. No. 0070 of 2012 arising out of Sohsarai P.S. Case

No.134 of 2011 are, accordingly, set aside.

51. The appellant, namely, Soni Devi is acquitted of

the charges levelled against her. She is directed to be released

from the jail forthwith unless required in any other case.

                                            (Ashwani Kumar Singh, J)


                                                (Anil Kumar Sinha, J)


kanchan
AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          20.09.2021
Transmission Date       20.09.2021