Advocates:
['SHRI D A PATIL', 'SHRI MILIND PARAB', '', 'SHRI ABHAYKUMAR APTE ADV APPOINTED', ORIG ACCD NO & AS PER CT'S ORDER DT, 'THE P P']

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IN THE HIGH COURT OFJUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.182 OF 1994

Nana Murlidhar Kale & ors.. Appellants

vs

The State of Maharashtra ... Respondent

Mr.Milind Parab for Appellant no.1

Mr.A.K.Apte for Appellant nos. 2 & 3

Ms.G.P.Mulekar, A.P.P. for Respondent

CORAM : D.G.DESHPANDE AND 

SMT ROSHAN .S.DALVI, JJ  

 

DATE:      24th November, 2006   

JUDGMENT (Per Smt R.S.Dalvi,J)

1. The appellants in this appeal are three of the five

accused in Sessions Case No.107 of 1993 who have

been convicted for offences under sections 395,396

and 397 of IPC. The appellant no. 2 having died, his

appeal has abated against him.

2.

Upon a telephonic message having been

received on 25 ^th December, 1992 reporting upon an

incident of the death of a person in Mandlecha

shopping complex, at Geur, the inquest panchanama

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was prepared and the clothes of the deceased came

to be collected and sent for chemical analysis. The

panchanama of the scene of the offence was also

prepared. The investigation inter alia consisted of

certain finger prints being collected and dog squad

having been called. The dog trekking evidence is

stated to have led to the hut of the accused where a

wooden stick containing the blood of the victim came

to be recovered at the instance of accused no. 2 since

deceased. The accused nos. 1,2 and 3 came to be

arrested. Their clothes were recovered and C.A.'s

report was obtained. The C.A.'s report showed blood

of the injured taken from his clothes matching the

blood on the clothes of the accused and the sticks

found in their hut.

3.

The prosecution relied much upon the dog

trekking evidence. We have been shown the

judgments of the Supreme Court consistently

holding that the dog trekking evidence per se is not

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reliable though it may give the police a lead and can

be relied only as one of the circumstances alongwith

other circumstances which would point to the

identity of the culprits. In the cases of Pritam Singh

& anr vs State of Punjab reported in AIR 1956 SC

415, Abdul Razak Murtaza Dafadar vs State of

Maharashtra reported in AIR 1970 SC 283 and

Gade Lakshmi Mangaraju alias Ramesh vs State

of A.P. reported in (2001) 6 Supreme Court cases

205 have shown the frailities in the evidence based

upon tracker dogs. It has been held in the case of

Gade Lakshmi (supra) that the possibility of error,

misunderstanding,

misrepresentation,

wrong

inference, and uncertainty cannot be ruled out in

such evidence.

4.

In this case, two of the five accused who were

charged for the offence of dacoity have been

acquitted. The State has not filed an appeal against

their acquittal. It is contended on behalf of the

learned Advocate for the appellants Mr. A.K.Apte

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that in those circumstances, the charge against the

appellants herein can only be for lesser offence of

robbery under section 392 IPC. This has been held

in the case of Om Prakash & anr vs State of

Rajasthan reported in AIR 1998 SC 1220 . In that

case, the appellants were convicted under section

395 IPC. Case against three of the five accused was

established beyond reasonable doubt as held by the

trial Court as well as the High Court. It was held

that as the charge of dacoity was against five

persons, out of whom two were acquitted by the trial

Court, the three remaining accused could not be

properly convicted under section 395 IPC. It was

therefore, held that their conviction would have to

be altered to the one under section 392 IPC. The

sentence was accordingly reduc