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2007 Supreme(MP) 967
2008(1) JLJ 151
Subhash Samvatsar and Sanjay Yadav, JJ.
State of M.P. v. Raju alias Rajkumar
Criminal Death Reference No.2 of 2007 with Criminal Appeal No.451 of 2007 (Gwalior): against the judgment of I Additional Sessions Judge, Vidisha, passed in Sessions Trial No.191 of 2005;
Decided on 26.9.2007.
C.S. Dixit, Public Prosecutor, for State;
Padam Singh for respondent-accused;
Ravindra Dixit for complainant.
Headnote:(1) Penal Code, 1860 -- S.302 -- Evidence Act, 1872 -- S.9 -- person cannot be held responsible only on basis of identification by sniffer dog -- more so when there is also doubt about date of incident.
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 (PW5) 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 in 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-2l. 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 appreciating the same held the accused guilty of the said offence and imposed death sentence. [Para 2
Held: 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 3:00 p.m. on 13.9.2005. As per medical evidence, the death had occurred nearly 48 hours prior to the postmortem, which shows that the incident had not taken place on 12.9.2005. The teacher of the school is examined by the prosecution as PW2 (Amar Singh Yadav). He states that on 12.9.2005 there was a programmer of distributing of dress to the students. Sita and her sister Geeta were studying in Class 5. On the date of incident Sita alone came 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. [Para 24
(2) Evidence Act, 1872 -- Ss.45 and 3 -- normally in nor-them India rigor mortis lasts upto 48 hours -- rigor mortis absent, decomposition started -- shows death was around 48 hours before post-mortem. Medical Jurisprudence by Modi relied on. [Para 8
(3) Evidence Act, 1872 -- S.3 -- hair of accused did not match with the uprooted hair -- story of prosecution not supported. [Para 9
(4) Evidence Act, 1872 -- S.3 -- proceeding of sniffer dog fu II of doubt -- not matching with other proceedings in case -- not reliable. [Paras 14 & 15
(5) Evidence Act, 1872 -- Ss.3 and 45 -- tracker dog‘s evidence -cannot be likened to the type of evidence accepted from scientific experts -- such evidence cannot exclude possibility of guilt of some other person -- there is possibility of error and misunderstanding. AIR 1970 SC 283, AIR 1993 SC 1723 and 2001 CrLJ 3317 (SC) followed. [Paras 21 to 23
¼1½ naM lafgrk] 1860 && /kkjk 302 && lk{; vf/kfu;e] 1872 && /kkjk 9 && O;fDr] dsoy lw¡?kus okys dqÙks dh ‘kuk[r ds vk/kkj ij mÙkjnk;h vfHkfu/kkZfjr ugha fd;k tk ldrk && rc vkSj Hkh tc ?kVuk dh rkjh[k ds ckjs es lansg gksA
vfHk;kstu i{kdFku ds vuqlkj] yxHkx 11 o"kZ dh vk;q dh dq- lhrkckbZ fo|kFkhZ FkhA 12-9-2005 dks og fo|ky; can gksus ij og vijkg~u yxHkx 4%00 cts okil vk tkrh Fkh fdarq ml fnu og vius ?kj ugha ykSVhA vr% mld firk gjizlkn ¼v lk 5½ viuh iq=h <w¡<us fo|ky; x;k tgk¡ mls crk;k x;k fd mldh iq=h igys&gh ?kj tkus ds fy, fo|ky; ls pyh xbZ gSA tc gjizlkn ¼v lk 5½ ykSV jgk Fkk] mlus jkLrs dh >kfM+;ksa esa mlds fo|ky; ds FkSys] iqLrdksa vkSj oL=ksa ds lkFk mldk ¼viuh iq=h dk½ ‘ko iM+k ns[kkA mlus mDr ?kVuk dh fjiksVZ pkSdh [kke[ksM+k esa nkf[ky dh tgk¡ fjiksVZ izn‘kZ ih&13 rFkk exZ esa ih&12 dh Hkk¡fr vfHkfyf[kr dh xbZA bl izFke bfÙkyk fjiksVZ vkSj exZ ds vk/kkj ij eq[; Fkkuk lrikM+k esa ,d vU; izFke bfÙkyk fjiksVZ izn‘kZ ih&20 rFkk exZ izn‘kZ ih&21 dh Hkk¡fr nkf[ky dh xbZA LFky ekufp= izn‘kZ ih&5 rS;kj fd;k x;kA iqfyl us vUos"k.k ds nkSjku lw¡?kus okys dqÙks dh dk;Zokgh ds vuqlj.k esa vfHk;qDr dks fxj¶rkj fd;k vkSj mlds fo:) pkyku Qkby fd;kA ekeyk ls‘ku U;k;ky; ds lqiqnZ fd;k x;k vkSj ls‘ku U;k;ky; us lk{; vfHkfyf[kr djus vkSj mldk ewY;kadu djus ds i‘pkr~ vfHk;qDr dks mDr vijk/k dk nks"kh vfHkfu/kkZfjr fd;k rFkk e`R;q naM vf/kjksfir fd;kA ¼iSjk 2
vfHkfu/kkZfjr % ek= lw¡?kus okys dqÙkksa dh ‘kuk[r ds vk/kkj ij U;k;ky;ksa }kjk fdlh O;fDr dks vijk/k dk nks"kh vfHkfu/kkZfjr fd;k tkuk laHko ugha gSA izLrqr ekeys esa geus ik;k gS fd ?kVuk dh rkjh[k ds ckjs esa lansg gSA vfHk;kstu i{kdFku ds vuqlkj ?kVuk 12-9-2005 dks vijkg~u yxHkx 4%00 cts gqbZ tc e`rd fo|ky; ls ykSV jgh FkhA e`rd dk ‘ko&ijh{k.k MkDVj }kjk 13-9-2005 dks vijkg~u yxHkx 3%00 cts fd;k x;kA fpfdRld lk{; ds vuqlkj] e`R;q ‘ko&ijh{k.k ds yxHkx 48 ?kaVs iwoZ gqbZ Fkh ftlls nf‘kZr gksrk gS fd ?kVuk 12-9-2005 dks ugha gqbZA fo|ky; ds v/;kid ¼vej flag ;kno½ dh ijh{kk vfHk;kstu i{k us v lk 2 dh Hkk¡fr dh gSA mldk dFku gS fd 12-9-2005 dks fo|kfFkZ;ksa dks oL= forfjr fd, tkus dk dk;ZØe FkkA lhrk vkSj mldh cgu xhrk d{kk 5 dh fo|kFkhZ FkhaA ?kVuk ds fnu lhrk vdsyh fo|ky; vkbZ] xhrk chekj FkhA mldk dFku gS fd xhrk ds u, oL= mlus lhrk dks fn,] fdarq ,sls dksbZ oL= iqfyl }kjk LFky ls vFkok vfHk;qDr ls vfHkx`ghr ugha fd, x,( blls Hkh bl lk{kh ds dFku ds ckjs esa lansg l`‘V gksrk gSA ¼iSjk 24
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 45 rFkk 3 && lkekU;r% mÙkj Hkkjr esa e`R;qt dkfBU; 48 ?kaVs rd jgrk gS && e`R;qt dkfBU; lekIr] lM+u izkjaHk && ‘ko&ijh{k.k ds yxHkx 48 ?kaVs iwoZ e`R;q gksuk nf‘kZr gksrk gSA eksnh e`r esfMdy twfjLizwMsUl voyafcrA ¼iSjk 8
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 3 && vfHk;qDr ds ckyksa dk m[kM+s gq, ckyksa ls esy ugha && vfHk;kstu i{kdFku ls lefFkZr ughaA ¼iSjk 9
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 3 && lw¡?kus okys dqÙks dh dk;Zokgh lansgiw.kZ && ekeys dh vU; dk;Zokgh ls esy ugha && voyacuh; ughaA ¼iSjk 14 ,oa 15
¼5½ lk{; vf/kfu;e] 1872 && /kkjk 3 rFkk 45 && [kksth dqÙks dk lk{; && oSKkfud fo‘ks"kKksa ls Lohdkj fd, x, lk{; ds leku ugha ekuk tk ldrk && ,sls lk{; ls fdlh vU; O;fDr ds nks‘k dk viotZu ugha gks ldrk && xyrh vkSj Hkze dh laHkkouk jgrh gSA , vkb vkj 1970 ,l lh 283] , vkb vkj 1993 ,l lh 1723 rFkk 2001 lhvkj ,y ts 3317 ¼,l lh½ vuqlfjrA ¼iSjk 21 ls 23
Samvatsar, J. -- 1. This Death Reference is submitted by the First Additional Sessions Judge, Vidisha, for confirmation of death sentence imposed by him in ST N 0.191/2005, whereby the accused Raj u alias Rajkumar is found guilty for commission of offence under sections 376(2)(f) and 302 of IPC 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 (PW5) 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 in 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 appreciating 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 (CW2) 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 (PW9). 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 3:00p.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
