Trial Court Relied Solely On Sniffer Dog Evidence: Patna HC Sets Aside Conviction & Death Sentence Of Man In Gang Rape & Murder Case
The Patna High Court set aside the death sentence of a man who was convicted in gang rape and murder case. It said that the Trial Court relied solely upon the evidence of sniffer dog.
The Court was dealing with a death reference and criminal appeal together and disposed of the same by a common judgment.
A Division Bench comprising Justice Ashutosh Kumar and Justice Alok Kumar Pandey said, “There were no injuries over the external body of the deceased nor was there any sign of rape which he could notice. He found rigor-mortis which would have been 24 hours old. He, as noted above, did not find the exact reason of death. … Who had then identified the dead body before the Doctor for it to be subjected to post-mortem examination? … That P.W. 1 and others saw the dead body and identified it to be of the deceased, is the assertion of the police for closing the investigation by relying solely on the evidence of the sniffer dog. … The Trial Court appears to have gone along side and believed the story to be true.”
The Bench further said that the circumstances listed by the Trial Court are either no circumstance in the eyes of law or are factually incorrect.
Advocate Krishna Chandra appeared for the appellant/convict while APP Abhimanyu Sharma appeared for the respondent/State.
In this case, the sole appellant was convicted under Sections 302, 201, 376DB, and 34 of the Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act by the Trial Court. He was also sentenced to be hanged by neck till he died and some other directions were issued by the Trial Court for granting compensation of Rs. 10,00,000/- to the family of the victim, etc. A 12-year-old girl was gang-raped and then killed and thrown on a road near a temple, where she along with her grand-mother had went to witness a fair organized on the occasion of Nagpanchami festival.
The occurrence took place in 2019, but the FIR was registered after the dead body was recovered the next day. The dead body was buck naked and that some unknown persons had molested and killed her. There were blood drops below her waist and the local mukhiya informed about the occurrence to the local administration when the police arrived and started the investigation. The dead body was seized and was sent for post-mortem examination. The Trial Court, after having examined 13 witnesses on behalf of the prosecution and none on behalf of the defence, convicted and sentenced the convict as aforesaid.
The High Court in the above regard observed, “We must, at the outset, express our dissatisfaction with the manner in which the Special Court has handled the case and has convicted and sentenced the appellant to death without caring for the basic principles of the law. … All this began when the sniffer dog entered the house of the appellant. … How and under what circumstances then the Trial Court has listed the afore-noted circumstances as forging links in coming to the finding of the guilt of the appellant completely eludes us. The materials on which the Trial Court has based his judgment, appear to be factually incorrect.”
The Court noted that the story of the appellant’s confession does not appear to be true as he was arrested from the house and his confession was recorded before a B.D.O. whose name though has been disclosed in the investigation but there is no emblem of its authority.
“Who would believe such story of the prosecution that he had confessed his guilt? Perhaps the Trial Court did and also relied upon the materials which were narrated in the so-called confession. … We again remind ourselves, while dealing with a judgment of this kind, that dead body had already been recovered and the services of the sniffer dog was employed thereafter. Perhaps the Trial Court completely lost sight of the fact that an investigating agency could undertake the service of a sniffer tracker dog and rely upon the canine faculties for the dog having forayed into the house of the appellant. But this exercise cannot be the anchorage point for judicial dispensation”, said the Court.
The Court added that the judicial dispensation can ill-afford such heavy reliance on the expertise of a sniffer dog, about whose skill, nothing is known; nor is there any evidence of it having been trained appropriately.
“Did the Trial Court take it as an expert evidence even in the absence of the handler of such dog having been brought to the witness-stand for his statement to qualify under Section 45 of the Indian Evidence Act, 1872? … We fail to understand as to how the Trial Court proceeded in the same manner as the investigation had proceeded, on the presumption that the dog would never have faulted in entering the house of the appellant. There is evidence of the dog having entered another person’s house also. We, for the present, do not say that help of a sniffer dog cannot be taken by the police”, it also said.
The Court further observed that the animal science tells us that the dogs can be very proficient if they are trained properly and that the advantage with them as compared to the humans is of their possessing a very sharp olfactory sense which could help trace the offender but this cannot be evidence, much less strong evidence unless the court examines the reliability of the dog skills, its past patterns of performance or its handler’s capabilities.
“It cannot ever be taken as a reliable pointer towards the commission of an offence at the hands of an offender. … This takes us to the statement of the appellant recorded under Section 313 of the Cr.P.C. It need not again be reiterated that in every inquiry or trial, for the purposes of enabling the accused personally to explain away the circumstance appearing in evidence against him, the Trial Court could, at any stage, without previously warning the accused, put such questions to him as it would consider necessary; and shall after the witnesses for the prosecution have been examined and before the accused is called on for his defence, question him generally on the case”, emphasised the Court.
It remarked that a Trial Court cannot ignore or avoid putting all the incriminating circumstances to an accused for knowing his response and all the circumstances which were relied upon by the Trial Court for holding the appellant guilty, were not put to him and the answers given by him to some of the circumstances, have not at all been taken into consideration.
“The mandate of Section 53A of the Cr.P.C. has been completely flouted. … Is it that the charge of rape was not in existence when the appellant was arrested? What could, then, be the reason for the Doctor not examining the genitals of the deceased who was only a 12 year old girl and was alleged to have been gang-raped by many persons. … The possibility of an error on the part of the dog or its master is the first amongst them. The possibility of a mis-representation or a wrong inference from the behaviour of the dog also cannot be ruled out. From a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable the police dogs to track and identify criminals”, concluded the Court.
Accordingly, the High Court dismissed the reference, allowed the appeal, and set aside the judgment of conviction.
Cause Title- The State of Bihar v. Amar Kumar
