The following guidelines must, however, be borne in mind :
(a) That there must be a reliable and complete record of the exact manner in which the tracking was done and to this extent, therefore, in this country, a panchnama in respect of the dog tracking evidence will have to be clear and complete. It will have to be properly proved and will have to be supported by the evidence of the handler.
(b) It will be essential that there are no discrepancies between the version as recorded in the panchnama and the evidence of the handler as deposed to before the Court.
(c) The evidence of the handler will have to independently pass the test of cross-examination.
(d) Material will have to be placed before the Court by the handler, such as the type of training imparted to the dog, its past performance, achievements, reliability, etc., supported, if possible and available, by documents.
9. It is scientifically accepted that dogs are rated as extremely intelligent animals and that some of their sensibilities are very highly developed and are extremely reliable. It is also to be noted that there are some breeds of dogs and some strains which are specially utilised for hunting and tracking because of their abnormally high talents. If the dog belongs to one of these categories and if it is shown to the Court that it has been specially trained for purposes of detection, not only would the dog-tracking evidence will be admissible, but it will have to be relied upon as being evidence of a very high calibre.
Bombay High Court
Babu Magbul Shaikh vs State Of Maharashtra on 7 October, 1992
Equivalent citations: 1993 (3) BomCR 309, 1993 CriLJ 2808, 1993 (2) MhLj 1118
JUDGMENT1. A very unusual situation has arisen in this appeal. During the investigation, assistance of tracker-dog Kumar was made use of by the police and the bag and clothes of the accused were recovered with the assistance of this tracker dog, who also led the police to the house of the accused. The admissibility of this evidence and, more importantly, the evidentiary value of dog-tracking evidence has been seriously questioned and, therefore, requires to be examined and the issues decided. Investigating agencies often use the services of tracker-dogs and the question, therefore, arises as to how reliable is this class of evidence. The orthodox view was that though it is admissible, it is not of much utility and consequently, that it did not ordinarily have such weight. There has been considerable development of research and thinking on the subject and the modern trend is that such evidence is of an extremely high calibre.
2. Undoubtedly, evidence in criminal cases, and in particular ones where the charges are serious, must pass the dual tests of absolute reliability and infallibility. That a tracker dog cannot be influenced is something strongly in its favour and what lends this class of evidence a special blend of acceptability. On the question of margin of error, experience has shown that the special skills of a tracker dog outclass all other forms of detection, even sophisticated gadgetry. It is now universally acknowledged that in detecting drugs, where every other form of human ingenuity and gadgets are capable of being eluded, that it is virtually impossible to avoid detection when a trained tracker-dog is used, explaining why this mode is found to be the most reliable and fool-proof. Similar has been the experience in cases of robbery, murder and the like where the scent is fresh and the area not too crowded. Statistics have shown that in many cases dogs have been unsuccessful in detection due to limiting factors, but that wherever they have tracked down an object or a culprit that the dog was never wrong. Such evidence will, therefore, have to be categorised as being of the highest order and reliability.
3. The present appeal presents a set of very unusual facts. The appellant, original accused No. 1, stands convicted of an offence punishable under S. 324 of the Indian Penal Code. It is alleged that on the evening of 29-1-1985, he along with original accused No. 2 had assaulted police Head Constable Babulal Sonavane at Village Indore. In this assault, the P.H.C. had sustained a number of injuries and he was required to be taken to hospital for treatment. The police commenced the investigation and arrested the appellant along with accused No. 2 on the next morning. According to the prosecution, certain items of clothing which consist of a muffler and a khaki coat which the present appellant is alleged to have been wearing, as also his bag, were recovered by the police with the assistance of a tracker dog. It is also alleged that at the time of the assault on Sonavane, the accused had come riding a brownish-red coloured horse and that in the course of the investigation, witnesses have admitted that the accused had borrowed the horse in question from them on that evening. Furthermore, the accused is sought to be connected with the offence on the strength of a muffler which he had borrowed from P.W. 14 Gautam and on which a blood stain of 'O' group was found. The learned trial Judge convicted the appellant for the offence punishable under S. 324, IPC and sentenced him to suffer R.1 for two years and to pay a fine of Rs. 300/- in default R.I. for three months. The present appeal is directed against this conviction and sentence.
4. Mr. Vaidya, learned Counsel appearing on behalf of the appellant, has contended that even though this is a case in which as many as 22 witnesses have been examined, that the evidence against the appellant-accused is not conclusive. To start with, he has assailed the veracity of the complainant P.H.C. Sonavane by pointing out that Sonavane had been directed by the P.S.I. at the Dindori Police Station to look into a complaint that had been lodged against one Munna who is the younger brother of the present accused. That complaint was of a trivial nature and Sonavane had been sent there to find out as to whether there was a build-up of tension between the two communities. In characteristic fashion, Sonavane admits having gone to the village and partaken of a hearty meal at the house of the brother-in-law of the accused after which he was duly escorted up to a certain point from where according to him, he proceeded on his bicycle. It is his case that some person who had covered his face with a muffler suddenly attacked him and that in the course of this assault, he sustained a number of injuries including one stab injury. He also mentions that he was relieved of his watch and of a bag containing government papers. Mr. Vaidya points out that all this evidence is of no assistance to the prosecution because Sonavane himself admits the position that he had never seen the assailant. He has tried to contend before the Court that he has rightly identified the person accused as his assailant but this part of the evidence does not appear to be very trustworthy. However, the fact remains that Sonavane had gone there in search of the younger brother, that he had also asked this accused to come with him to the police station at which time, this accused had run away from that place. We have on record the evidence of P.W. 11 Ganpat and P.W. 12 his wife Anusuyabai. The horse on which the accused is alleged to have been riding belonged to this couple and it is their case that the accused had asked for and taken away their horse on the evening of that day. It is this circumstance that has been used by the learned trial Judge to link up the present accused with the incident in question because Sonavane is quite clear about the fact that the assailant was in fact riding a brown coloured horse. Apart from this, the evidence of P.W. 14 Gautam has been relied upon by the learned trial Judge because it is this witness who deposes that the muffler with which the assailant had covered his face belonged to him. He states that on the evening of that day, the accused had met him, asked for the muffler and had taken it away. Not only does Sonavane refer to this muffler, but this is the muffler recovered from the accused on which a blood stain was found and the C.A. report does indicate that the blood was human blood of 'O' group. It is the blood group of the victim Sonavane. The blood of the accused was also analysed and was found to be of 'B' group. This circumstance has been relied upon by the trial Court for purposes of linking the accused with the incident itself.
5. Mr. Vaidya has strongly attacked this evidence in so far as it is his submission, that the police have obviously fabricated all this material for purposes of linking the present accused with the incident. It is the submission that Sonavane had obviously overstayed his visit to the village and that in characteristic fashion, he must have partaken not only of food but also of other beverages which is why a specific case was put to him, that he was dead drunk and that because of his misbehaviour, the villagers had assaulted him and in order to get out of his predicament, that he had falsely involved the present accused. Even though the record does not indicate as to what the activities of Sonavane were at the village, it would not be possible to uphold the charges levelled by the defence against him without there being anything in support thereof. The fact of the matter is that he had in fact sustained injuries for which he was treated and under these circumstances, if his deposition does fit in with the order circumstantial evidence, it would be difficult to reject this material. There is another weak piece of evidence in the form of P.W. 13 Annesaheb Yeshwant Wadje, who states that from the voices that he heard, he was able to identify that it was the present accused. This evidence also cannot be discarded straightway because, it is a small village and it is quite possible that one of the other villagers would be able to identify the voice of the other.
6. This is of the new cases in which the services of a tracker dog had been utilised. The police brought one of the dogs by the name of Kumar to the scene of offence and it is alleged that the dagger was found at that spot stained with blood. It is further alleged that on the basis of the scent which the dog picked up at that place, that the dog went to the field of the accused and pointed out to the police the bag and the Khaki coat belonging to the present accused, both of which were recovered from that spot. It is also alleged that the dog led the police to the house of accused No. 1. This evidence is acceptable in view of the position in law that such evidence is in fact admissible.
7. Mr. Vaidya has attacked both the admissibility and the evidentiary value of the dog-tracking evidence. It is seldom that this issue has been raised before the Courts and the only reported decision on the point, wherein the Supreme Court had occasion to refer, only in passing to such evidence, is in the case of Abdul Razak v. State of Maharashtra, . While dealing with this question, their Lordships had occasion to observe as follows :
"The tracker dog's evidence cannot be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli, because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. Dogs are intelligent animals with many thought processes similar to the thought process of human beings and wherever there are thought processes there is always the risk of error, deception and even self-deception."
8. Considerable research has been done on the subject. It is necessary to point out that in Canada and Scotland, evidence of dog tracking is admitted and relied upon by the Courts. As far as the United States is concerned, the position is conflicting in so far as the Courts have placed reliance on such evidence in some cases, but have rejected it in others. Dog-tracking evidence is admissible in England and in criminal trials, it is often used by the prosecution. There are certain safeguards which need to be borne in mind in such cases. The position as it obtained formerly is illustrated in the following passage from the case of R. v. Montgomery, 1866 NI 100 :
"there are three objections which are usually advanced against the reception of such evidence. First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and consequently submit himself to cross-examination, the dog's human companion must go into the box and report the dog's evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences. And, thirdly, it is suggested that even if such evidence is strictly admissible under the rules of evidence, it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value."
Subsequently, however, the position has been quite unambiguous and has changed drastically. What the Courts have insisted upon is that the evidence must pass the test of scrutiny and reliability as in the case of any other evidence. The following guidelines must, however, be borne in mind :
(a) That there must be a reliable and complete record of the exact manner in which the tracking was done and to this extent, therefore, in this country, a panchnama in respect of the dog tracking evidence will have to be clear and complete. It will have to be properly proved and will have to be supported by the evidence of the handler.
(b) It will be essential that there are no discrepancies between the version as recorded in the panchnama and the evidence of the handler as deposed to before the Court.
(c) The evidence of the handler will have to independently pass the test of cross-examination.
(d) Material will have to be placed before the Court by the handler, such as the type of training imparted to the dog, its past performance, achievements, reliability, etc., supported, if possible and available, by documents.
9. It is scientifically accepted that dogs are rated as extremely intelligent animals and that some of their sensibilities are very highly developed and are extremely reliable. It is also to be noted that there are some breeds of dogs and some strains which are specially utilised for hunting and tracking because of their abnormally high talents. If the dog belongs to one of these categories and if it is shown to the Court that it has been specially trained for purposes of detection, not only would the dog-tracking evidence will be admissible, but it will have to be relied upon as being evidence of a very high calibre.
10. The learned A.P.P. has submitted that this is a case of some seriousness in so far as it is an assault on a member of the police force. He further submits that the learned trial Judge has rightly exercised his discretion and that no interference is warranted at this stage.
11. As against this, Mr. Vaidya points out that the accused is a poor agriculturist living in a small village, that he is a man of limited means, and he further points out that even assuming the accused were held to be involved in the incident, that this Court must take judicial notice of two factors, the first of them is that the injuries on the person of the accused have not been explained and secondly, that unless there was very gross misbehaviour on the part of the police constable Sonavane, that no villager would have dared to get involved in an assault on him. He submits that these are extenuating circumstances on the basis of which even if the conviction were to be confirmed, the Court ought not to direct that the accused should be sent back to jail. The conviction itself is 7 years old and the incident is even older than that. Having regard to the overall complexion of the matter, to my mind, though the conviction in this case stands confirmed, the sentence awarded by the trial Court is liable to be modified.
12. The conviction of the appellant-accused under S. 324, IPC. is confirmed. It is directed that he be sentenced to R.I. for the period already undergone and to pay a fine in the sum of Rs. 1,000/- in default to suffer R.I. for three months. Subject to this modification, the appeal to stand dismissed. The appellant is granted a period of 12 weeks to deposit the fine, if he so desires, in the trial Court on the expiry of which period, the bail bond to stand cancelled.
13. Order accordingly.
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