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CASE NO.:

Appeal (crl.) 58 of 2000

PETITIONER:

GADE LAKSHMI MANGRAJU @ RAMESH

Vs.

RESPONDENT:

STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 10/07/2001

BENCH:

K.T.Thomas, R.P.Sethi

JUDGMENT:

THOMAS, J.

A trust betrayed in a hideous manner, is the nub of

the prosecution story. When the son of an old housewife

proceeded on a pilgrimage he entrusted his best friend with

the care of his old mother. But that turned out to be like

engaging a wolf to guard the chicken. When the son returned

home from the pilgrimage he was welcomed by the dreadful

news that his mother was butchered, her jewelleries

plundered and the one to whom her care was entrusted had

decamped. Prosecution indicted that friend to be one of

the marauders of the ensanguined episode.

Both the indicted persons were convicted by the

sessions court under Section 302 read with Section 34 of

the IPC and were sentenced to imprisonment for life. They

were also convicted under Section 404 IPC for which a

sentence of RI for two years was awarded to each of them.

They filed separate appeals before the High Court and a

Division Bench of the High Court of Andhra Pradesh

confirmed the conviction and sentence and dismissed the

appeals. One of them (Ramesh) has filed this appeal by

special leave. He is described by the prosecution as one

of the friends of the son of the deceased.

Kamalavathi, the victim of the episode, was around 65

when she was murdered. She was the widow of one Ramagopala

Subramanyam who died about 15 years before the incident in

this case. She and her children were in a fairly affluent

condition. Her two sons PW-2 Ramesh and PW-1 Gopalakrishna

were staying with their mother on the first floor of the

house at Palakol (West Godawari District). Her only

daughter was given in marriage to a businessman at

Rajamundry. PW-1 Gopalakrishna had gone to his sister's

house at Rajamundry during the relevant period.

On 11.4.1993, PW-2 Ramesh boarded a train for

Sabarimalai on a pilgrimage. It was the appellant Mangaraju

who escorted PW-2 up to the railway station, being a close

friend. PW-2 then told Mangaraju to stay in his house for

giving company to his mother who otherwise would have been

all alone. The murder of Kamalavathi took place on the

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night of 14th April, 1993, at some time after 8 P.M. On the

next morning the milkman (PW-4) Bramajirao went to the

house of Kamalavathi for supplying milk as usual. When

there was no response to his call from inside the house PW-

4 entered into the house and found to his consternation the

dead body of Kamalavathi lying on the floor in a puddle of

blood. PW-4 screamed and ran out. He informed

Kamalavathi's step son (PW-3 Narasimharao) who was living

with his family on the ground floor of the same building.

On hearing the news PW-3 and his wife rushed to the first

floor and saw the dead body. He further noticed that the

dead body of Kamalavathi did not have the ornaments which

she was usually wearing. All persons concerned were

informed about it.

It was Dr. C. Raghavelu (PW-13) who conducted autopsy

on the dead body and found that the neck was severely cut,

separating the platysma, sternomastoid, jugular vein and

carotid artery on the right side, the thyroid cartilage up

to the subcutaneous tissues. The investigating officer

deployed a sniffer dog to track down the hideout of the

culprits. The track dog went up to the house of the

appellant, but he was not there then. A number of days

later, police got information that appellant and his co-

accused (Golla Bujji) were in a train destined to Palakol.

On 22.5.1993 they were arrested by the police and recovered

a number of ornaments from them.

The case against the accused was sought to be proved

by the prosecution with the help of circumstantial

evidence. A large number of circumstances were projected

by the prosecution. The trial court and the High Court

enumerated those circumstances collected from the evidence.

Both the courts found that those circumstances were well

established by the prosecution and they were sufficient to

form a complete chain pointing unerringly to the guilt of

both of them. Accordingly the trial court as well as the

High Court found them guilty under Sections 302 and 404

read with Section 34 of the IPC and convicted them and

sentenced them as aforesaid.

Shri Mohit Mathur, learned counsel who argued for the

appellant Mangaraju, made a serious endeavour to dig out

holes on the edifice of the prosecution case and for that

purpose he made an appeal for reappraisal of the evidence.

We allowed him to do so inspite of informing ourselves that

this is an appeal under Article 136 of the Constitution.

Ms. T. Anamika, learned counsel for the State of Andhra

Pradesh stoutly defended the conviction and sentence passed

on the appellant. It is useful to recast the circumstances

which the prosecution presented through the evidence. They

are the following:

(1) Death of Kamalavathi was doubtlessly a case of

murder for gain. It happened sometime between 8

P.M. on the night of 14.4.1993 and 7 A.M. on the

next morning.

(2) PW-2, son of the deceased, entrusted the

appellant with the duty to be with his mother in

the house during the absence of all the children

of the deceased. But when he returned appellant

was nowhere to the scene.

(3) PW-5 Rammohan Rao saw the appellant in the house

at 8 P.M. on 14.4.1993 watching the TV programme

and the deceased was present inside. PW-5 sought

permission for making a call.

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(4) At about 9 P.M. PW-6 Rambabu saw A-1 Mangaraju

and A-2 Golla Bujji in a restaurant at Palokal.

Thereafter he saw both the accused riding on a

motorcycle leaving the restaurant.

(5) On 15.4.1993, the police dog under the command of

PW-8, after smelling the handkerchief and some

other articles of the deceased scampered up to

the house of the appellant. But he was not

present there.

(6) On the next day (16.4.1993) appellant would have

left the place. He and the co-accused

requisitioned the services of PW-9 who had

earlier acquaintance with the appellant, to sell

some gold ornaments at Tirupati.

(7) Gold ornaments were sold by two persons to PW-10

(a gold dealer at Tirupati) on 17.10.1993. Those

two persons were introduced to the dealer by PW-9

Sankara Prakash.

(8) The finger impression of A-2 Golla Bujji was

found sticking on the almirah of the deceased's

house.

(9) Appellant and the co-accused were together

arrested on the same day. A number of gold

ornaments were found in their possession. All

those ornaments were identified to be the

belongings of the deceased.

The appellant denied all the circumstances including

the fact that PW-2 entrusted to him the care of his mother

when he went on a pilgrimage to Sabarimalai. The

circumstances enumerated above, if established, are

sufficient to prove the guilt of the appellant without

leaving any manner of doubt regarding his involvement in

the murder of the deceased. Hence the learned counsel for

the appellant undertook the endeavour to show that the

evidence relating to those circumstances is not reliable.

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, bloodstained 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?

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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 in 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.

We will now refer to two decisions of this Court in

which the evidence relating to sniffer dogs movement have

been tested.

In Abdul Razak Murtaza Dafadar vs. State of

Maharashtra {AIR 1970 SC 283} a three Judge Bench of this

Court declined to express any concluded opinion or to lay

down any general rule with regard to tracker dog's evidence

or its admissibility against the accused, as it was not

necessary to do so on the fact situation. However, their

Lordships made the following observations on the usefulness

or otherwise of such evidence:

"It was argued 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 process similar to the thought

processes of human beings and wherever you

have you have thought processes there is

always the risk of error, deception and even

self-deception. For these reasons we are of

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the opinion that in the present state of

scientific knowledge evidence of dog

tracking, even if admissible, is not

ordinarily of much weight."

In Surinder Pal Jain vs. Delhi Administration {1993

Supple.(3) SCC 681} a two Judge Bench expressed the opinion

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.".

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, that prosecution did not

prove that the fingerprint used by PW-7 to compare the

finger impression from the almirah was that of A-2 Golla

Bujji. In our view the appellant cannot dispute that fact

as A-2 Golla Bujji himself did not challenge it when a

formal evidence was tendered by the prosecution on that

score.

Learned counsel alternatively contended that even if

the involvement of A-2 is treated as proved that is not

sufficient to inveigle the appellant into the dragnet. He

said that the very fact that no fingerprint of the

appellant was collected from the scene is enough to exclude

his presence from the scene at the time of occurrence.

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.

Learned counsel contended next that the inability of

the prosecution to indicate the time of murder can go to

the benefit of the appellant because the appellant alone

was once found in the house whereas he was found only at

the restaurant in the company of A-2. According to the

counsel if A-2's finger impressions on the almirah is of

any use the possibility of A-2 committing the murder all

alone cannot be ruled out.

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

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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 meaning to it.

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.

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.