2001 Supreme(SC) 917

2001(5) Supreme 38
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
K.T. Thomas & R.P. Sethi, JJ.
Gade Lakshmi Mangraju @ Ramesh -Appellant
versus
State of Andhra Pradesh -Respondent
Criminal Appeal No. 58 of 2000
Decided on 10-7-2001
Counsel for the Parties :
For the Appellant : Mr. Mohit Mathur, Mr. K.L. Rathee and Mr. Subramonium Prasad, Advocates.
For the Respondent : Ms. T. Anamika and Mr. G. Prabhakar, Advocates.

VERY IMPORTANT POINTS
1. Criminal Courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties, although Court cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals. However, exclusion of that circumstance in this case does not affect conviction duly supported by other evidence.
2. Presence of fingerprint at the scene of occurrence is a positive evidence. But the absence of a fingerprint is not enough to foreclose the presence of the appellant concerned at the scene.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 404 r/w 34-Offences under-Appellant and his companion convicted under-Conviction based on circumstantial evidence of last seen, recovery of ornaments of deceased, identification by police dog-Contention that evidence of identification by Police sniffer dog is too weak to be relied upon-Whether correct? (Yes)-Whether excluding that evidence conviction is still sustainable? (Yes)-Case law discussed.

       Held : One of the main contentions advanced by the learned counsel is that the evidence pertaining to the sniffer dog is so fragile that no adverse inference could be drawn against the appellant on the strength of the said evidence. PW 8 is the police constable who deployed the police dog "Raja" for the purpose of tracking down the culprits of this murder. PW 8 said that the police dog was brought to the place of occurrence on 15.4.1993 and that dog after smelling the blood, bloodstrained handkerchief, a knife and a belt which were strewn on the floor near the dead body, began its pursuit in search of the hideout of the culprits or where the body was stashed away. The track which the terrier followed thereafter has been narrated by PW 8 in his evidence. The termini of the track was the house of the appellant. The uncanny smelling power of canine species has been profitably tapped by investigating agencies to track the culprits. Trained dogs can pick up scent from the scene of any object and trace out the routes through which the culprits would have gone to reach their hideouts. Developing countries have utilized such sniffer dogs in a large measure. In India also the utilization of such tracker dogs is on the increase. Though such dogs may be useful to the investigating officers, can their movements be of any help to the court in evaluating the evidence in criminal cases? A four-fold criticism is advanced against the reception of such evidence. First is, it is not possible to test the correctness of the canine movements through the normal method available in criminal cases, i.e. in cross-examination. Second is that the life and liberty of human beings should not be made to depend on animal sensibilities. Third is that the possibility of a dog misjudging the smell or mistaking the track cannot be ruled out, or many a times such mistakes have happened. Fourth is that even today the science has not finally pronounced about the accuracy of canine tracking. There are basically three kinds of police dogs - the tracker dogs, the patrol dogs and the sniffer dogs. Recent trends show that hounds belonging to certain special breeds sheltered in specialised kennels and imparted with special training are capable of leading investigating agency to very useful clue in crime detection and thereby help detectives to make a breakthrough in investigation. English courts have already started treating such evidence as admissible. In Canada and in Scotland such evidence has become, of late, admissible though in United States the position is not uniform in different States. The weakness of the evidence based on tracker dogs has been dealt with an article "Police and Security Dogs". 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 engage in these actions by virtue of instincts and also by the training imparted to them. (Paras 9 to 13)

       Held after referring to case law, 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. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them. Exclusion of that circumstance would not affect strength or sturdiness of the chain found through the other circumstances which have been established by the prosecution. Dealing with the fingerprints collected from the almirah at the place of occurrence, learned counsel for the appellant contended, first, the prosecution did not prove that the fingerprint used by PW 7 to compare the finger impression from the almirah was that of A2 Golla Bujji. In our view the appellant cannot dispute that fact as A2 Golla Bujji himself did not challenge it when a formal evidence was tendered by the prosecution on that score. (Paras 17, 18 and 19)

       (ii) Indian Penal Code, 1860-Sections 302, 404 r/w 34-Offences under-Appellant and his companion convicted on the basis of circumstantial evidence-Appellant s companion s fingerprint found on Almirah at place of incident-No fingerprint of appellant found at scene of incident-Whether enough to exclude his presence from the scene of occurrence? (No, in view of other circumstantial evidence).

       Held Presence of a fingerprint at the scene of occurrence is a positive evidence. But the absence of a fingerprint is not enough to foreclose the presence of the persons concerned at the scene. If during perpetration of the crime the fingerprint of the culprit could possibly be remitted at the scene it is equally a possibility that such a remnant would not be remitted at all. Hence absence of finger impression is not guarantee of absence of the person concerned at the scene. (Para 21)

       (iii) Indian Penal Code, 1860--Sections 302, 404 r/w 34-Offence under-Committed by Appellant and A2-Circumstantial evidence as to time of murder whether exonerates Appellant? (No) (Evidence Act, 1872)-Appreciation of circumstantial evidence).

       Held : We cannot approve of the said contention as a safe method for appreciating a case based on circumstantial evidence. One circumstance by itself may not unerringly point to the guilt of the accused. It is the cumulative result of all circumstances which could matter. Hence, we are not inclined to cull out one circumstance from the rest for the purpose of giving a different meantime to it. (Para 23)

       (iv) Indian Penal Code, 1860-Sections 302, 404 r/w 34-Offences under-One of the circumstantial evidences is identification of recovered ornaments from Appellant and his companion-Whether a weak evidence? (No)-Appeal dismissed.

       Held : Learned counsel lastly contended that identification of ornaments as those of the deceased is a very fragile evidence. The witnesses who identified the ornaments as those belonging to the deceased were PW 1 and PW 2 who are the sons of the deceased. We agree with the contention of the learned counsel that a female kin of the deceased female would have been in a better position than a male kin to identify the jewellery or ornaments worn by a woman. But we make a note of the fact that when a Test Identification Parade was conducted to identify the ornaments the daughter of the deceased was also called in. There is no case for the prosecution or the defence that she would have failed to identify such ornaments as those of her mother. It is difficult for us to believe that PW 1 and PW 2 the sons would have contradicted their sister while identifying the ornaments during the Test Identification Parade. Hence non-examination of the daughter of the deceased need not be taken as a serious flaw which could vitally affect the prosecution evidence regarding the identification of the ornaments. (Para 24)

       Held finally : We do not find any infirmity as to the appreciation of evidence as done by the trial Court and the High Court. We hold the view that the circumstances enumerated above, even barring the evidence pertaining to the sniffer dogs, are quite enough to form the completed chain pointing unerringly to the active involvement of the appellant in the murder of the deceased. Accordingly, we dismiss this appeal. (Para 25)