ABDUL RAJAK MURTAJA DAFEDAR v. STA],$ OF MAHARASHTRA May 2, 1969 [S. M. SIKRI, R. S. BACHAWAT AND V. RAMASWAMI, JJ.J c Criminal Procedure Code (5 of 1898), s. 164-Confession to Magis. Irate-Prolonged police custody-When confession can be held to b.e not voluntary.
Evidence Act ( 1 of 1872), s. 9-Identification of accused by means of tracker dogs-Admissibility and weight. The appellant was convicted for the offence of murder in that he had removed the fish plates, nuts aod bolts of a rail joint and thus know- ingly caused a derailment resulting in the death of ten passengers travelling in a passenger train. The evidence against him consisted of his confessional statement to the Magistrate, discovery of a spanner as a result of his state- ment to the police, and his identificatio!l by 'a police. tracker dog. In appeal to this Court it was contended that : ( 1) the confession was not voluntary because it was made after prolonged police custody of about a fortnight; and (2) evidence of identification by the tracker dog was not admissible in evidence.
HELD : ( 1) The appellant himself never said that he made the con- fession on account of any inducement or coercion on the part of the police. Further, immediately before he made the confession, he spent four days in judicial custody ·and was not under the influence of the investi· gating agency. Also, he had ~4 hours t<> think after he was told by the Magistrate that he was not bound to make any confession and that if be made one it would be uSed gainst him. Therefore, it could not be said ,the confession was not voluntary. [555 F-H; 556 C-D]
Nathu v. State of U:P. A.LR. 1956 S.C. 56 and Swaran Singh v. State of Punjab, A.LR. 1957 S.C. 637, distinguished. (2) In the present state of scientific knowledge evidence of dog track- ing even if admissible, is not ordinarily of much weight. But, even on the assumption that the identificat!on of the appellant by the tracker dog was not admissible, the rest of the prosecution evidence., natUely, the appellant's confession and the discov~ry of the spanner at the instance of the appellant, condusively established the guilt of the appellant. [556 G-H; 558 C, D-E] CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
245 of 1968. Appeal by special leave from the judgm~t and order dated November 17 1967 of' the Bombay High Court in Criminal Appeal No. 1166 of,1967 and confinnation case No. 15 of 1967 ..
B. D. Sharma, for the appellant. H. R. Khanna and S. P. Nayar, for the respondent. L14 Sup. C.I./69-;6 5 -o ,_ The Judgment of the Court was delivered by Ramaswami, J. The appellan! was convicted under ss. 302,
307, 325 and 427, I.P.C. and also under s. 126 of the Indian Railways Act by the Additional Sessions Judge of Sangli in Sessions Case No. 9 of 1967. The appellant was sentenced to
death under s. 302, I.P.C. No other sentence was awarded for the remaining offences. The appellant preferred an appeal to the Bombay High Court in Criminal Appeal No. 1116 of 1967 which was dismissed on the 17th November 1967 and the sentence of death imposed on the appellant was affirmed. This appeal is brought by special leave from the judgment of the Bombay High Court.
The prosecution case arises out of the derailment of Poona- Wasco Express train at about .4.40 in the early morning of Octo- ber 10, 1966. The derailment occurred on the Vaddi bridge
which is beyond Miraj station. As a result of this derailment, five bogies were capsized. Out of these five bogies, two we.o.t into the stream down below, 'two were on the slope and one on the track. In this incident ten persons died and a large number of other persons received grievous injuries.
The charge against the appellant was that he had removed fish plates, nuts, bolts .!tc., of the rail joint near Vaddi bridge No. 215 on Miraj Mhaisal Railway track at Km. No. 743/9 and 10 between 4.05 J.m. and 4.50 a.m. in the early morning of October 10, 1966 with intent or k.nowledge that he was likely to endanger the safety of the persons travelling in the said train and he caused the Poona-Wasco express train No. 206 Dn. to be capsized at Vaddi •II''. thereby committed murder knowingly causing deaths of 10 persons who were j!assengers in that train.
The appellant Abdul Rajak Murtaja Dafedar was working at Miraj railway station as gangman in gang No. 13 of which Laxman Madar was the Mukadam or Gangrnate and 'lapu Sopana was the Keyman.
The area under this gang was from Km. No. 741/3 to 747 /5 covering a railway track of 4 miles or 6 km. Vaddi bridge falls within this area. Vaddi bridge is at 2t miles from the rJi!way station of Miraj, towards Belgaum. Mhaisal gate is also towards Belgaum at 1 + miles from the railway station on the way to Vaddi bridge.
At Mhaisal gate is the quarter of Laxman Madar the gangrnate. Near the quarter of LaYman is the tool box where the tools of the gang are kept under Ioele and key. Vaddi bridge i~ the biggest bridge out of the seven bridges lying betwcn Km. No. 743/9 to 747 /5. The height of the bridge is about 30' to 40'.
There are six big arches and two small c r ABDUL RAJAK v. MAHARASHTRA (Ramaswami, J.) arches on each side of the bridge. The bridge is of masonry stone. The case of the prosecution is that the appellant quarrelled with Laxman who always found fault with him and did not spare him when he was absent from or late in attending duties. On two or three occasions Laxnum had ·altercation with the appellant and Laxman had reported against him and Dastgir, a friend of the appellant.
On October 9, 1966, an altercation took place between the appellant and Laxman. Lax.man found the work of levelling and packing done by other gangmen CACCpt the appellant satisfactory and so Lax.man asked the appellarit to correct the defect.
The appellant got. irritated and took ex~on to the remark of L8Xlllll(ll ·and: rushed towards him with a pick axe say- ing that he would ·break . his head. Laxman threatened to report the conduct of the appellant to the Permanent Way Inspector and went away towards the tool box.
Laxman got a report written by Maruti about the incident and handed over the report to the Assistant Station Master at about 7 or 7.30 p.m. Train No. 204 was due to arrive and the Station Master was in a hurry and so he despatched the complaint by free service way bill slip through his office boy to the under-guard of the incoming train, namely,. 204 Dn.
According to prosecution case Ramchand Sadre, P.W. 37, saw the appelJant going on the track at 3 or 3.15 a.m. P.W. 37 was serving as a Sainik of the Railway Protection Fon:e at Miraj Railway Station. He was on duty at 'G' point from 9 pl.m. on October 9, .1966 till 7 a.m. the next day. After the iwitlless saw the appellant going along the track goods train No. 239 arrived at Miraj Railway Station at 4.10 or 4.15 a.m. This goods train had passed the Vaddi bridge at 4.05 a.m. The appellant let th~ goods train pass and approached the railway bridge at Vaddi with a spanner and removed the fish plates and the keys and jaws of the sleepers of the 18" rail of right hand side of the rail line.
When the Poona-Wasco Express Train approached the bridg~. there was a "thud-thud" sound as if the train was collapsing. , The engine driver closed the steam and applied breaks as soon as the engine entered the bridge but before stopping, the engine h*d coverl'!l 3 I 4ths length of the bridge. The lights went off, there was screaming and wailing of the people. It was found by the engine driver, guard and others who alighted from the train that th~ basal wheel of the engine had derailed and the tender of the engin;e was tilted and to this tender was hanging the first bogie which had vertically fallen down iiD the stream. The second bogie had com#letely fallen in the stream. The third bogie had also telescoped like the first bogie resting its one end on the second bogie that ha~ fallen in the stream and the other end at the slope. The fourth bogie had derailed and slanted whereas the front wheels of the filth bogie had derailed. The engine driver, (1970] I S.CR.
guard and one police constable searched and found the affected joint near which had fallen the removed fish plates, nuts, bolts, .keys and jaws scattered in undamaged condition. There was also .another fish plitte and one nut fallen on embankment in un- damaged condition.
The engine driver made a complaint to the Police Sub- Inspector Bendigiri. Panchanama of the scene of offenee was prepared. The thing.5 lying at the spot were not touched but were guarded and an area of half a mile was cordoned off. On Octo- ber 10. 1966 at 7 a.m. all the gangmen including the appellant colrected at pole No. 744/4 for daily work but were asked by the police officers to be seated below the bridge as their state· ments were to be recorded.
Laxman and appellant were also detained for interrogation. On the same night at 8.30 p.m. near the spot of the accident the police dog Sheru of C.I.D., Poona, was brought. The appellant, Laxman and five other persons
were made to stand in a row facing the rail line in the presence of panchas. The police dog Sheru was made to smell the affected joint The leading strap was held by the controller of the dog. The dog after smelling the articles near the affcct~d joint went towards the embankment where one fish plate was lying, smelt it and then went to the row of persons and smelling two persons smelt the appellant also and pounced upon him with its forelei:s resting on the chest of the appel'ant.
On October 17, 1966 the appellant offered to produce the "Spanner from the place where he had hidden it near the railway track. A memorandum of his statement was drawn in the pre-
gnce of panchas. It is said that the appellant led the panchas and the police officers to the place between pole Nos. 744/6-7 and there dug out the earth and ·took out the spanner and pro- duced it On October 29, 1966 the appellant made a confession before the executive magistrate, Ex. 130.
The appellant pleaded not guilty to the charges. He alleged that there was no altercation between him and Laxman and that lte did not threaten Laxman with pick axe. As regards the con- fessional statement the appellant said that he did not understand Marathi properly and therefore did not know what was written in the statement
He also denied that he had gone to the spot to recover the spanner in the presence of panchas. As regards the police dog Sheru the appellant said that after smelling the articles on the spot the dog passed him without pouncing upon him.
The trial court based the conviction of the appellant 0n ( 1) movement of the appellant on the day of the incident as stated by Ramchand Sadare P.W. 37; (2) discovery of the spanner c
ABDUL RAJAK V. MAHARASHTRA (Ramaswami, J.) with which the nuts and bolts were removed, ( 3) the confession statement of the appellant made to the Executive Magistrate and ( 4) the identification ·of the appellant by the dog Sheru. The
High Court accepted the prosecution evidence on all these points and affirmed the conviction of the appellant. c It was contended on behalf of the appellant in the first place that the confession Ex. 130 recorded by Taluka Executive Magis- trate P.W. 54 was not voluntary.
It was pointed out that the appellant was arrested on October 10, 1966 at 11 p.m. and was kept in remand till October 18, 1966. On October 18 a remand applica;;.on was made and time was~granted for a week.
On October 25, 1966 the Magistrate directed that the accused should be detained in District Jail at Sangli. The appellant was pro- duced before the Magistrate on October 28, 1966 when there was preliminary questioning and warning given to the appellant. On the next day the appellant was produced before the Magistrate and the confession was made.
The argument was stressed on behalf of the appellant that he was in prolonged police custody for at least a fortnight before the confession was made and there. fore it must be held that the confession was not voluntary. Reli- ance was placed on the judgment of this Court.
In Nathu v. State of U.P. (1) in which the appellant was kept in the custody of C.I.D. Inspector Oil 7th August and the confession was recorded on 21st August. It was held that prolonged custody immediately preceding the making of the confession was sufficient, unless it was properly explained to stamp it as involuntary.
No attempt was made in that c.ase to explain the prolonged custody. In the absence of such explanation it was held by the Court that the con- fession was not a voluntary confession. In the present case the appellant was kept in jail custody for three days from October 25 to October 28, 1966 and on October 28,the Executive Magistrate made the preliminary questioning of the appellant, gave him a warning and sent him back to the District Jail at Sangli. On the next day the appellant was produced before the Magistrate and the confession was recorded.
It is clear that the appellant had spent four days in judicial custody and he was not under the i influence of the investigating agency for at least four days. Again he had 24 hours to think after he was told by the Magistrate that he was not bound to make any confession and if he made one it would be used against him. It is manifest that the material facts of the present case are not parallel to those of Swaran Singh v. Stale. of Punja~(
2 ) and the ratio of that case has no applica- tion to the present case. It was also argued that the wife of the appellant used to go to the police station with her child and it (I) A.I.R. 1956 S.C. 56.
(2) A.I.R.1957 S.C. 637. SUPREME COIJKT REPORTS [1970] l S.C.R. was at her persuasion that the appellant had agRed to make the confession. The suggestion was that the confession was not
voluntary but was made on account of some inducement. But no such suggestion was made to the police officers. The only question pu: to the Deputy Superintendent of Police Chavan was whether the wife of the accused used to go to the police station everyday and the witness denied it.
According to Chavan, she went to the police station only on October 13 and 18, that is, only on two occasionB. No further suggestion was made to Chavan. Apart from this, if any coercion or inducement was
u>ed the appellant was the person who should make such a com- plaint. The appellant, in answer to question No. 77 regarding the confession merely said that he did not make the confession. He did not say that the confession was made on account of any inducement or coercion on the part of the police. Both the trial Court and the High Court have upon an examination of all the circumstances reached the conclusion that the confession of the appellant was voluntary and we sec no reason to take a different view.
The next question is regarding the discovery of the spanner. The Deputy Superintendent of Police, Chavan, P. W. 86 was questioning the appellant from the 11th to the 16th October. It was on the 17th that the appellant was prepared to point out where he had kept the spanner.
Two panchas were called, one of whom is Narayandas Shedji, P.W. 46. In his presence the memorandum of what the appellant stated was made. Therein the appellant said "the same spanner while -coming back, l have kept hidden in the ~hrub on the corner of railway line between pole Nos. 744/6 and 744/7. I will produce the same personally. The appellant then led the panchas and the police to the spot where he had kept the spanner under the shrubs about 6 inches below the earth which he dug out for takiing out the spanner. The panchanama is Ex. 112. The spanner was found about
5 furlong.5 from the bridge towards the residence of the appellant. The evidence of the Deputy Superintendent of Police and the two panchas has been accepted ho.th by the trial court and the High Court.
The discovery of the spanner at the instance of the appellant is an important circumstance which corroborates the confession of the appellant that he had removed the fish plates, mus, bolts and the keys and jaws of the sleepers from the railway line on the alleged date.
It was lastly urged on behalf of the appellant that the lower courts ought not to have relied upon the evidence of dog tracking and such evidence was Rot admi,sible in order to prove the guilt of the 11ppellant.
The evidence of tracker dogs has been much c c JI ABDUL RAJ"AK v. MAHARASHTRA (Ramaswami, J.) discussed. In Canada and in Scotland it has been admitted. But in the United States(') there are conflicting decisions :
"There have .been considerable uncertainty in the minds of the courts as . to the reliability of dogs in inden- tifying criminals and much conflict of opinion on the question of the admissibility of their actions in evid-
ence. A survey of the cases, however, reveals that most courts in which the question of the admissibility of evidence of trailing by blood-hounds has been presented take the position that up<>n a proper foundation being
. laid by proof tha,t the dogs were qualified to trail human beings, and that the circumstances surrounding the trailer were such as to make it probable that the person trailed was the guilty party, such evidence is admissible
and may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to connect the defendan_t with the crime." There are three objections which are usually advanced against the reception of isuch 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 case$ 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 eviden~e it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value. In R. v. Momgomory(') a police COtDStable observed men steal- ing wire by the side of a railway line. , They ran away when he approached them.
Shortly afterwards the police got them on a nearby road. About an hour and half later tl1e police tracker dog was taken to the base of the telegraph pole ~ when he had made a few preliminary sllifl's he set off and tracked continuously until he stopped in evident perplexity at the spot where the accused had been put into, the police car. At the trial it appeared tllat other evidence against the accused that they had been stealing the wire was inconclusive and that the evidence of the behaviour of the tracker dog was crucial ·to sustain the conviction. In these circumstances the ·Court of Criminal Appeal ruled that the evid- ence pf the constable who handled the dog on its tracking · and re~ed the dog's reactions was properly admitted.
The Court did .1 not regard its evid,ence as a species of hearsay but instead the dog was described as "a tracking instrument" and the handler (!) Para 378, Am. Juris. 2nd edn. Vol; 29, p. 429.
(2) 1866 N.I.160. (19 70] l S.~.R. was regarded as reporting the movements of the instrument, in the same way that a constable in traffic case might have reponed on the behaviour of his speedometer. It was argued in that case that the tracker dog's evidenee could be likened to the type of evidence accepted from scientific experts describing chemical re- actions._ blood tests and the actions of barilli.
The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no clement of conscious volition or deliberate choice.
But dogs are intelligent animals with many thought processes similar to the thought pro- CCS.'iCS of human beings and wherever you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of the opinion that in the present state c of scientific knowledge evidence of dog tracking. even if admis- sible, is not ordinarily of much weight.
In the present case it is not, however, necessary for us to express any concluded opinion or lay down any general rule with regard to tracker dog evidence or its significance or its admis- sibility as against the appellant.
We shall assume in favour of the appellant that the evidence of P. W. 72 and of the panchas with regard to the identification of the appellant by the tracker dog is not admissible. Even on that assumption we are of opinion that the rest of the prosecution evidence namely the confession of the appellant Ex. I 30 and the discovery of the spanner con-. elusively proves the charges of which the appellant has been con- victed.
For these reasons we affirm the judgment of the High C0urt of Bombay dated 16/17, November, 1967 in Crl. A. No. 1116 of I 967 and dismiss this appeal. V.P.S. Appeal c/is11iis.\f:d.