In the said case, this Court relying decision
in Abdul Rajak Murtaja Dafedar (supra) case held:
“17. 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.”
33.In Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697,
while the same question was considered, referring to Gade Lakshmi
Mangaraju (supra) case this Court held “the law in this behalf,
therefore, is settled that while the services of a sniffer dog may be
taken for the purpose of investigation, its faculties cannot be taken as
evidence for the purpose of establishing the guilt of an accused.”
34.In the present case, the services of a sniffer dog was taken for
investigation. The said dog traced the accused and he was formally
arrested in the evening of the next day.
The Investigating Officer,
Ashok Kumar Yadav (PW-10) corroborated the evidence of Abdul Lais
Khan (PW-4) to the effect that ‘Raja’ sniffer dog after picking up scent
from the place of occurrence tracked down the house of the accused.
What is relevant to note is that the accused has not been convicted on
the ground that the sniffer dog tracked down the house of the accused
and barked at him. The evidence of dog tracking only shows how the
accused was arrested.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1022 OF 2006
LALIT KUMAR YADAV @ KURI Vs STATE OF UTTAR PRADESH
Citation; 2014 CRLJ 2717 SC
Dated;APRIL 25, 2014.
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against the impugned common judgment
dated 11th August, 2006 passed by the High Court of Judicature at
Allahabad, Lucknow Bench in Capital Sentence Reference No.1 of 2005
with Criminal Appeal No.252 of 2005 from Jail and Criminal Appeal No.
384 of 2005.
By the impugned common judgment the High Court
while dismissed the appeal preferred by the appellant, answered the
reference affirming the death sentence imposed by the Trial Court for
the offence committed under Section 302 IPC for having committed
murder of Km. ‘x’ (victim: original name not disclosed).
The High
Court also affirmed the conviction and sentence passed against the
appellant under Section 376 read with Section 511 of Indian Penal
Code for having made an attempt to commit rape on Km. ‘x’ aged
about 18 years and sentenced him to undergo five years rigorous
imprisonment thereunder.
2. Initially the appeal was heard by the Division Bench of the
Allahabad High Court, Lucknow Bench and after conclusion of the
arguments the Hon’ble Judges pronounced their judgments but had a
divided opinion; one Hon’ble Judge affirmed the order of conviction
and sentence recorded by the Trial Court and the other Hon’ble Judge
reversed the whole judgment and the order of the Trial Court and out
rightly acquitted the accused-appellant on both the counts. Therefore,
the case was referred under Section 392 Cr.PC to a third Judge who
after hearing the parties and on appreciation of evidence by the
impugned judgment dated 11th August, 2006 dismissed the appeals
preferred by the appellant and another on his behalf. The judgment
rendered by the Trial Court has been upheld and the reference was
answered confirming the penalty of death sentence.
3. Learned counsel appearing for the appellant, inter alia, made
following submissions in assailing the judgment under appeal:
(i)
`The prosecution has failed to produce any witness
to prove the very factum of the registration of the FIR. Irrespective of
the same it is ante-timed.
(ii)
Ram Chandra Chauarasiya (PW-1) is a highly
interested witness and has entered into the witness box only for the
purpose of achieving the conviction of the appellant. The statement of
PW-1 is not
corroborated by any one even though witnesses were
available for the same.
(iii) Sriram(PW-9), who was produced to prove recovery memo
Page 2
is not an independent but an interested witness who is the son-in-law
of brother of PW-1.
(iv) The ‘polythene’ bag in which the ‘sickle’ was wrapped was
taken by the Investigating Officer without any seal from the site of
recovery.
(v) The alleged recovery of clothes ‘Baniyan and towel’ do not
satisfy the mandate of Section 27 of the Indian Evidence Act.
Therefore, the result of chemical examiner is of no value to prove the
charge.
(vi) Identification by sniffer dog cannot be taken as evidence
for the purpose of establishing guilt of the appellant.
4. Before we proceed to discuss the merits of the above contentions,
it is desirable to notice the case of the prosecution and evidence on
record as recapitulated below:
5. On 23.2.2004, Ram Chandra Chaurasiya (PW-1) and his wife
Vidyawati residents of village Gogulpur, Police Station Satrikh, District
Barabanki had gone to their agricultural field. When they returned to
their house at 2.30 p.m., they were informed by their daughter Guddi
that their another daughter Km.‘x’ had gone to beckon them at 1.30
p.m., as on that day, Govind, the son of Ram Chandra Chaurasiya’s
sala (brother-in-law) had come to their house, his two daughters
thought it proper to inform their parents and it was in this background
that Km. ‘x’ had gone to inform and summon her parents.
All the
family members had a long wait for Km.‘x’ to return but when she did
not come back up to 4.00p.m., Ram Chandra Chaurasiya (PW-1) and
Page 3
Vidyawati both being worried left in search of their daughter. When
they were going through the agricultural fields, they were shocked to
see their daughter Km.‘x’ lying dead in pool of blood in the plot of one
Vishwanath. Ram Chandra Chaurasiya (PW-1) lodged a written report
(Ext. Ka.1) at Satrikh Police Station where upon a case was registered
and the then Station House Officer Shri Ashok Kumar Yadav assumed
the charge of investigation and immediately swung into action. He
visited the site of occurrence and soon sent for the dog squad. An
Inspector of the Crime Investigation Department, who was In-charge of
a sniffer dog, named ‘Raja’ arrived at the place of occurrence late in
the evening. He instructed ‘Raja’ to pick up the smell of culprit from
the site of occurrence and then find out some clue of the crime and
the criminal.
‘Raja’ who was a very well trained dog of German
Shepherd species and who had earlier helped to uncover many crimes,
smelt all the important spots around the dead body at the site of
occurrence and chasing the trail of the same smell, it walked along
with police personnel and villagers behind, and straightaway reached
at the house of the accused-appellant. The appellant and his brother
wrapped with blankets were sleeping inside their house. ‘Raja’ barked
at the blanket of the accused-appellant, who was immediately grabbed
over by the police. On the next day i.e. on 24 th February, 2004, the
Investigating Officer recovered at the instance of accused-appellant
the bloodstained Baniyan (vest) and a Gamchha (towel) of the
accused-appellant and also Hansiya (scythe) used in the commission
of crime.
The chemical examiner on examination of the three
recovered articles noticed that there was blood on all the said
incriminating articles.
The inquest report was also prepared on 24 th
February, 2004 by the Investigating Officer.
As recited in the said
report, the throat of the victim of occurrence was found chopped off.
Her neck was barely connected with the trunk.
The dupatta of the
deceased was found embedded in the large wound and all the five
fingers of her left hand had cut wounds. Her dead body was packed
and sealed in a bundle and sent for post-mortem. Although the scene
at the site of occurrence revealed that the Salwar (trouser) of the girl
had been untied and taken off down and she was found in the naked
state and also there were the signs of violence all around which
indicated that a ferocious attempt to commit rape on her was made,
yet the Doctor found that the girl had not been ravished.
6.
The Investigating Officer prepared the site plan of the
occurrence. He collected ordinary and bloodstained earth from there
and packed them in separate boxes.
The trampled wheat plants
around the dead body revealed a tale of violence. Both the chappals
of the deceased were also lying at a distance. After interrogating all
the relevant witnesses, collecting the relevant reports including the
post-mortem, the Investigating Officer accomplished the investigation
and submitted a charge-sheet against the accused appellant.
7. Lalit Kumar Yadav pleaded not guilty before the Trial Court and
denied all the incriminating allegations levelled against him.
He,
however, admitted that he had been arrested by the police at 11.00
p.m. on 23rd February, 2004, i.e. the date of occurrence.
Page 5
8. The prosecution examined as many as ten witnesses in support of
the prosecution story. Ram Chandra Chaurasiya (PW-1) is the father of
the deceased.
He proved his report and also testified that the
accused-appellant had teased the deceased girl a few days before the
occurrence and when Km.‘x’ complained about the incident of teasing
to her cousin Ashok Kumar, the latter had scolded the appellant.
Unfortunately, Ashok Kumar died subsequent to the occurrence. He
also proved that the police called a dog who after smelling the site of
occurrence tracked down to the house of the accused and caught him.
9. Ram Prakash Yadav (PW-2) was the witness to whom the appellant
had allegedly confessed about the commission of crime.
He was,
however, declared hostile and it was suggested that he being a
‘Yadav’ had helped the accused by retracting his earlier statement.
He, however, confirmed the fact of a sniffer dog being brought to the
village by the police.
10.Similarly, Ram Prakash (PW-3), S/o Jagannath turned hostile by
rejecting the suggestion of the prosecution that the accused-appellant
conveyed and confessed to him that he had killed the girl as she was a
girl of easy virtue.
11.Abdul Lais Khan (PW-4) is the handler of the German Shepherd Dog
known as ‘Raja’. The said dog was taken to the village in the late
evening on the date of occurrence.
Shri Khan was then the Sub-
Inspector in the Crime Research Branch (Dog Squad), District Lucknow.
He testified that at about 8 p.m. on February 23, 2004, he was
directed by the Senior of Superintendent of Police, Lucknow to go to
the site of occurrence.
Accordingly, he arrived there at 8.30 p.m.
alongwith the German shepherd dog named as ‘Raja’. He started the
search work at 9 p.m., it being a night with dark all around, a
patromax lantern was lightened up near the dead body of the victim.
He asked for arrangement of more light which was provided by the
Investigating Officer and then he instructed the dog to smell the
footprints of the culprit around the dead body and then set the dog
scot-free and asked it to move. He alongwith the police personnel and
other villagers walked behind the dog. After walking about 1 k.m. the
dog reached in the village Gokulpur Aseni. It then traversed through
the Khadanja street.
After tracking the street in front of 10-12
houses, the dog entered into a thatched house, where two boys were
resting on a wooden cot. The dog barked at the accused Lalit Kumar
who was identified by Abdul Lais Khan in the Court as the same
person, who was smelled by the dog and whom it had attempted to
pounce and catch hold. However, in the meantime, the Station House
Officer of Police Station Satrikh apprehended Lalit Kumar. In nutshell,
according to the evidence of this witness, the accused was the
offender whose footprints were there around the dead body.
12.Head Constable Ram Prakash Shailesh (PW-5) had prepared the
chik report Ex.Ka.5 on the basis of Ram Chandra Chaurasiya’s written
report (Ext.Ka.1). He registered the case in the General Case Diary at
Sl.No.33 on 23rd February, 2004 and submitted its copy Ext.Ka.6.
13.Dr. Arun Chandra Dwivedi (PW-6) is the Doctor, who conducted the
post mortem of the victim’s corpse and prepared the autopsy report
Page 7
(Ext.Ka.7).
He proved the said report before the Trial Court and
testified that the neck of the deceased was almost severed from the
trunk with a namesake junction of the skin. He confirmed that it was
possible for the neck of the victim being severed by the sickle having
small teeth.
14.It is significant to note that Dr. Arun Chandra Dwivedi was
summoned by the High Court under Sections 367(1) and 391 of the
Code of Criminal Procedure with a view to ascertain as to whether the
major injury by which there was almost a severance of the neck from
the trunk could possibly be caused with the sickle (Mat.-Ex.8). High
Court while passing an order on July 13, 2005 expressed that
something lacking so far as the use of sickle was concerned.
The
doctor deposed in the Court that the major incised wound found on the
neck could have been caused by the sharp edged ‘hansia’ (sickle) but
it could not be asked in the Trial Court as to whether this kind of injury
could possibly be caused by the aforesaid ‘hansia’ Mat.-Ext.8, which
had teeth on its blade. In common parlance such a ‘hansia’ curved in
design is known as ‘Aaridar’ – means blade with teeth. Dr. Dwivedi
appeared before the High Court. The sealed bundle of the sickle was
opened in the Court and shown to Dr. Arun Chandra Dwivedi, who was
then posted as Medical Officer, District Hospital, Barabanki. He
testified before the High Court that the injuries shown in the post
mortem report Ext.Ka.7 could possibly be caused by the sickle Mat.-
Ext.8. It was also stated by him that the injuries in the fingers of the
deceased could have been sustained by the victim while defending
Page 8
herself.
15.Head-Constable Devtadeen (PW-7) took out on March 16, 2004 the
two sealed bundles of this case from ‘malkhana’ of the Police Station
Satrikh at 2.30 p.m. and after making an entry in the G.D. went to the
Court of Chief Judicial Magistrate, Barabanki and obtained a letter, a
copy addressed to the Chemical Examiner for examination of the
incriminating articles. Then on 17th March, 2004, he went to the
laboratory and deposited both bundles alognwith the letter in the
laboratory.
16.Constable Awadhesh Kumar (PW-8) proved that he carried the
dead body of the victim to the mortuary for autopsy.
17.Sriram (PW-9) is a relative of the informant Ram Chandra
Chaurasiya.
He came to participate in the cremation of the latter’s
daughter. In the evening, the Investigating Officer met him and asked
him to accompany him to the accused-appellant’s house.
He went
there along with other village men. The accused had taken all of them
including the Investigating Officer inside the house and took out the
sickle wrapped in a ‘polythene’ and his clothes namely Baniyan and
Gamchha. To depic this discovery, memo Ex.K.12 was prepared by the
Investigating Officer. This witness identified his signature on it.
18.Sub-Inspector Ashok Kumar Yadav (PW 10) is the Investigating
Officer of this case.
According to his evidence, this case was
registered in his presence at the Satrikh Police Station.
He then
reached at the site of occurrence at about 6.30 p.m., inspected the
site of occurrence, saw the dead body lying in the agricultural field of
Vishwanath, prepared the site-plan Ext.Ka.13 and then contacted his
higher authorities and asked for a Dog Squad. He sent his own police
jeep for bringing the dog. The Deputy Superintendent of Police Deena
Nath Dubey was also present at the site of occurrence.
Abdul Lais
Khan, Sub-Inspector, incharge of the Dog arrived at the site of
occurrence long after the sunset and examined the site in the light of
patromax.
Shri Khan instructed the dog to smell the entire site of
occurrence as also the dead body and then the said dog with the help
of the trail of the smell reached at the house of the accused, who was
lying on a ‘takhat’, i.e., the wooden cot. The dog barked at him. He
then interrogated the accused about his relationship with the
deceased. At 7 p.m. on the other day, he prepared the inquest report
(Ext.Ka.4) and interrogated other witnesses. The accused was then
formally arrested and he led to the recovery of the sickle (Mat.-Ext.8),
his Gamchha (Mat.-Ext.9) and Baniyan (Mat.-Ext.10). After completing
other formalities of interrogating the witnesses and collecting other
material exhibits, the Investigating Officer brought the accused and
the sealed bundles and boxes of the incriminating articles to the police
station. On having completed the task of investigation, this witness
submitted charge-sheet Ext.Ka.28 against the accused.
19.The defence of the appellant was that of denial. The appellant in
his statement under Section 313 Cr.P.C. stated the charges had been
wrongly framed and also denied all the incriminating allegations
levelled against him.
20.The prosecution relied upon four pieces of circumstantial evidence
first, Sniffer Dog- tracking evidence, the other is recovery of sickle i.e.
the weapon which was used by the appellant to cut the neck of the
girl, the third is the recovery of clothes of the appellant and past
conduct of the appellant pertaining to eve teasing of the deceased girl.
21.Relying upon the prosecution case and the evidence led in support
thereof, the learned trial court held the accused-appellant guilty under
Sections 302 and 376 read with Section 511 of the I.P.C. and then
sentenced him to death for the offence under Section 302 I.P.C. and 5
years rigorous imprisonment for the offence under Section 376 read
with Section 511 of the IPC. The High Court on reference affirmed the
death sentence.
22.There is a suspicion on the veracity of the First Information Report
(Ext. Ka-1) with reference to its entry in the G.D. Report (Ext.Ka-6).
According to recital of the G.D. report (Ex.Ka.6) Ram Chandra
Chaurasiya himself submitted his written report at the police station.
The reference was made it to the testimony of Ram Chandra
Chaurasiya (PW-1), father of the victim who testified that he dictated
the report and got it sent to the police station. He however, could not
recollect the name of the villager who carried the said report.
This
was the ground taken by the counsel for the appellant to raise
suspicion on the veracity of the first information report.
As a matter
of fact, there is nothing inconsistent between the testimony of the
PW-1 and G.D. Report. The FIR (Ext.Ka.1) takes few facts. Neither
any accused was named in it nor there is any infirmity. A perusal of
the
said report would
reveal that the informant (PW-1) mainly
disclosed in it that his daughter Km.‘x’ aged about 18 years had gone
in search of her parents, was found dead in the agricultural field of
Vishwanath on 23rd February, 2004.
It was also added that some
person incised her neck. A prayer for necessary action was pressed
into service.
The occurrence came to the notice of informant PW-1
after 4.00 p.m. and the written report was submitted at 6.10 p.m. on
the same day at Satrikh Police Station, about 7 kms. from the village.
Looking
to
the gravity of the offence and shock of the family
members of the deceased, it cannot be said that there is delay in
reporting the matter to the police.
We, therefore, find that there is no inconsistency on the point to
act.
23.The second submission of the appellant is that Ram Chandra
Chaursiya (PW-1) is highly interested witness and his statement is not
corroborated by any other witness though available.
Ram Chandra Chaursiya (PW-1) disclosed that a few days
before the date of occurrence, accused teased his daughter and also
threatened her. Her daughter Km.‘x’
explained
about the accused
misconduct to her cousin Ashok Kumar. Later, on having received the
complaint about the indecent behaviour of the accused, he scolded
him. Unfortunately, Ashok Kumar died subsequently but the evidence
of the victim’s father is quite convincing and worth to believe. In fact
in FIR he has not named the accused. Merely because PW-1 is the
father of the deceased victim girl, his evidence cannot be doubted on
that count in absence of any suspicion.
Page 12
24.The next argument assails the testimony of Sriram (PW-9) on the
ground that he is related to the deceased. He fairly stated that he is
son-in-law of Ram Chandra’s cousin. He has come from Ibrahimpur
village of district Barabanki. He was the person who accompanied the
police party to the house of the accused. He has fully corroborated the
testimony of the Investigating Officer and testified that the accused
leading the police party and a few citizens including himself opened
the door of his house and had taken out the sickle lying below the cot.
He rejected the defence suggestion that the Investigating Officer had
pointed out towards the sickle; rather asserted that it was the accused
himself who had picked up the sickle and handed over to the
Investigating Officer.
‘polythene’ sheet.
The accused unwrapped the sickle from the
The Investigating Officer retained the sickle
alongwith polythene. There is slight variance on the point of time of it
being prepared. Whereas it is recited in the recovery memo that the
police party being led by the accused arrived at the accused house at
6.00 p.m., Sriram (PW-9) disclosed that it was about 7.00-7.30 p.m.
when the memo was prepared. It is the common experience that the
daylight continues even after sunset upto 20-25 minutes.
The
villagers give approximate timing generally based on the position of
the sun. So, the possibility of the recovery memo being prepared in
the daylight at the time of the day meeting with night popularly called
as ‘Dusk’ is absolutely credible.
The variance besides being
insignificant is justified, as after recovery, it would have taken some
time for the Investigating Officer to finish the job after completing all
the relevant formalities including examination of the weapon.
The
whole recovery memo is found written in the handwriting of the
Investigating Officer. Therefore, in the time of its preparation has no
adverse bearing. Only because Sriram (PW-9) is being related to the
deceased there can be no reason to doubt the veracity of his
testimony as his presence in the village on 24.02.2004 is justified. On
having heard about Ram Chandra’s daughter death, in ordinary course
being a relative he came to express his condolence and participated in
the cremation of the girl. He cannot be stated to be chance witness.
In fact nothing could be extracted from his cross-examination, which
might be given indication of his being not a probable witness of the
recovery of sickle and recovery memo (Ext. Ka-12).
We, therefore,
find that his presence in the village being most natural and probable,
his evidence is full of credit and acceptable.
25.The next contention made on behalf of the appellant was that
polythene in the Sickle wrapped and taken by Investigating Officer was
without any seal at the time of recovery. This contention is untenable
on the face of recovery memo itself. In the latter part of this memo
(Ext.Ka-12), description of the Sickle is given and then it is recited in
clear terms that it was sealed then and there in a packet and recovery
memo prepared.
The Investigating Officer (PW-10) has also stated that on
the statement of the accused, the sickle was recovered from his house
in presence of witness Sriram (PW-9) and also got recovered Gamchha
(Towel) and Baniyan of the accused. The recovery of the sickle which
was kept in the clothes under the Cot was made from the house of the
accused. The Investigating Officer has also stated that the sickle was
having bloodstains and after taking the sickle and bloodstained
Gamchha and Baniyan in custody he sealed the same.
26.The validity of recovery proceeding has been questioned by the
learned counsel for the appellant and submitted that the confessional
statement is not admissible under Sections 25 and 26 of the Indian
Evidence Act.
However, Section 27 of the Indian Evidence Act,
provides as follows:
“27. How much of information received from accused
may be proved.- Provided that, when any fact is deposed to
as discovered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a
confession or not as it relates distinctly to the fact thereby
discovered, may be proved.”
Therefore, in the light of aforesaid provisions, the statement of
accused so far as it relates to giving of information regarding the
hiding of the sickle and recovery of the same can be taken into
account to prove the truth of the incident and to prove the statements
of other witnesses which corroborated the same.
27.In Anter Singh v. State of Rajasthan, (2004) 10 SCC 657, this
Court noticed the scope and ambit of Section 27 of the Indian Evidence
Act and observed:
“16. The various requirements of the section can be
summed up as follows:
(1) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the
Page 15
provision has nothing to do with the question of relevancy.
The relevancy of the fact discovered must be established
according to the prescriptions relating to relevancy of other
evidence connecting it with the crime in order to make the
fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some
information received from the accused and not by the
accused’s own act.
(4) The person giving the information must be accused of
any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which
relates distinctly or strictly to the fact discovered can be
proved. The rest is inadmissible.”
28.In Pandurang Kalu Patil v. State of Maharashtra, (2002) 2
SCC 490, this Court observed:
“5. Even the recent decision in State of Maharashtra v.
Damu (2000) 6 SCC 269 this Court followed Pulukuri Kottaya
AIR 1947 PC 67 with approval. The fallacy committed by the
Division Bench as per the impugned judgment is possibly on
account of truncating the word “fact” in Section 27 of the
Evidence Act from the adjoining word “discovered”. The
essence of Section 27 is that it was enacted as a proviso to
the two preceding sections (see Sections 25 and 26) which
imposed a complete ban on the admissibility of any
confession made by an accused either to the police or to
anyone while the accused is in police custody. The object of
making a provision in Section 27 was to permit a certain
portion of the statement made by an accused to a police
officer admissible in evidence whether or not such statement
is confessional or non-confessional. Nonetheless, the ban
against admissibility would stand lifted if the statement
distinctly related to a discovery of fact. A fact can be
discovered by the police (investigating officer) pursuant to
an information elicited from the accused if such disclosure
was followed by one or more of a variety of causes. Recovery
of an object is only one such cause. Recovery, or even
production of object by itself need not necessarily result in
discovery of a fact. That is why Sir John Beaumont said in
Pulukuri Kottaya AIR 1947 PC 67 (p. 70, para 10) that “it is
fallacious to treat the ‘fact discovered’ within the section as
equivalent to the object produced”. The following sentence
of the learned Law Lord in the said decision, though terse, is
eloquent in conveying the message highlighting the pith of
the ratio: (AIR p. 70, para 10)
“Information supplied by a person in custody that ‘I will
produce a knife concealed in the roof of my house’ does not
lead to the discovery of a knife; knives were discovered
many years ago. It leads to the discovery of the fact that a
knife is concealed in the house of the informant to his
knowledge, and if the knife is proved to have been used in
the commission of the offence, the fact discovered is very
relevant.”
29.In Bodh Raj alias Bodha and others v. State of Jammu and
Kashmir, AIR 2002 SC 3164, it was held that a statement even by
way of confession made in police custody which distinctly relates to
the facts discovered is admissible in evidence against the accused.
The statement which is admissible under Section 27 is the one which is
the information leading to discovery. Thus what is admissible being
the information, same has to be proved and not the opinion formed on
it by the police officer. The exact information given by the accused
while in custody which led to the recovery of the article has to be
proved; the exact information must be adduced through evidence.
30.In the present case the recovery of ‘Gamchha’ and ‘Baniyan’ at the
instance of the accused from the underneath the Takhat (Cot) is an
important factor that connects the accused with the crime.
According
to the report of the chemical examiner and serologist, blood was also
found on the said ‘Gamchha’ and ‘Baniyan’ belonging to the accused.
This leads to the conclusion that at the time of committing murder the
accused was wearing the ‘Gamchha’ and ‘Baniyan’ and thereafter he
concealed them underneath the Takhat.
Therefore, the aforesaid contention raised on behalf of the
appellant that the alleged recovery of clothes i.e. Gamchha and
Page 17
Baniyan do not satisfy the mandate of Section 27 of the Indian
Evidence Act cannot be sustained.
31.It was lastly urged on behalf of the appellant that identification of
accused by sniffer dog cannot be relied upon as it is not admissible in
order to prove the guilt of the appellant.
Similar contention was raised in Abdul Rajak Murtaja
Dafedar v. State of Maharashtra, (1969) 2 SCC 234, wherein this
Court opined “that in the present state of scientific knowledge
evidence of dog tracking, even if admissible, is not ordinarily of much
weight.”
32.In Gade Lakshmi Mangaraju alias Ramesh v. State of A.P.,
(2001) 6 SCC 205, this Court noticed the criticism advanced against
the reception of evidence pertaining to sniffer dog. The objection was
that the life and liberty of human being should not be made to depend
on animals sensibilities and that the possibility of a dog misjudging the
smell or mistaking the track cannot be ruled out, for many a time such
mistakes have happened.
In the said case, this Court relying decision
in Abdul Rajak Murtaja Dafedar (supra) case held:
“17. 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.”
33.In Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697,
while the same question was considered, referring to Gade Lakshmi
Mangaraju (supra) case this Court held “the law in this behalf,
therefore, is settled that while the services of a sniffer dog may be
taken for the purpose of investigation, its faculties cannot be taken as
evidence for the purpose of establishing the guilt of an accused.”
34.In the present case, the services of a sniffer dog was taken for
investigation. The said dog traced the accused and he was formally
arrested in the evening of the next day.
The Investigating Officer,
Ashok Kumar Yadav (PW-10) corroborated the evidence of Abdul Lais
Khan (PW-4) to the effect that ‘Raja’ sniffer dog after picking up scent
from the place of occurrence tracked down the house of the accused.
What is relevant to note is that the accused has not been convicted on
the ground that the sniffer dog tracked down the house of the accused
and barked at him. The evidence of dog tracking only shows how the
accused was arrested.
The Trial Court and the Appellate Court
noticed the motive of the accused. Ram Chandra Chaurasiya (PW-1)
disclosed in his evidence that a few days before the date of
occurrence, the accused has teased his daughter and also threatened
her.
Her daughter Km.‘x’ complained about the misconduct of the
accused to her cousin Ashok Kumar and the latter admonished the
accused for the same.
Ashok Kumar died subsequently but the
evidence of the girl’s father is quite convincing and worthy of credit.
The aforesaid incident clearly reflects upon the motive of the accused.
The prosecution has brought on record evidence as to string of her
trouser was found untied and the trouser had been taken down. She
was lying naked when found dead. The scene at the site of occurrence
indicates that the trouser of the deceased had been taken down with a
view to outrage her modesty.
A portion of her dupatta were found
thrust in her mouth so as to gag her. The other part of the dupatta
was found in the incised wound on the neck so as to soak blood. The
pair of the chappals of the deceased was lying at a distance.
The
wheat plants were noticed to be trampled which indicates violence and
a scuffle between the victim and the assailant.
The episode of eve
teasing of the girl indicates that the accused wanted sex with her and
it was in this background that he made a forcible attempt to rape her.
It appears that the girl was bold and brave and she resisted the
accused forceful attempt which enraged and provoked the accused to
eventually commit the heinous act.
Since there is no direct evidence to prove the guilt of the accused
the Trial Court and the Appellate Court considered the circumstances
which led towards the accused. Admittedly, nobody was named in the
FIR but referring to the incident that Km.‘x’ was murdered the FIR was
lodged. Since nobody was named in the FIR the Investigating Officer
took the help of the dog squad and the dog handler Abdul Lais Khan
(PW-4) came with the dog. Dog tracking proceeding was done and the
dog tracked the accused. The said fact is not disputed. The accused
who
was
then
taken
into
custody
gave
statement
regarding
commission of crime. Though the statement is not admissible, at his
instance the sickle as well as blood stained cloths were recovered.
The report proved that the sickle was blood stained. The Doctor has
given statement that the injury caused upon the victim could have
been caused by the weapon so recovered which establish that the said
weapon was used in committing the murder. Ram Chandra Chaurasiya
Page 20
(PW-1) father of the victim had given statement that earlier also the
accused eve-teased his daughter Km.‘x’ for which his nephew Ashok
Kumar scolded accused. Ram Prakash (PW-3) although turned hostile
had made statement that accused had confessed to him that since the
girl has refused sexual relationship with him he had murdered her.
Though such statement cannot be relied upon independently to hold
the accused guilty, other chain of evidence reaches to only one
conclusion i.e. against the accused.
Recovery of handkerchief from
the place of murder, with the mark of “Heart” and inscription of the
words “I Love You”, establishes that some person were closed to her.
The position of her cloth of the lower body “salwar” establish that the
person tried to have sex with the girl and the injuries on the fingers of
the girl also established that she protested somehow.
These
circumstances also lead to the conclusion that the person who could
not succeed in outrage the modesty of the girl, murdered her. There is
no other evidence contrary to it.
Further, there is no evidence to
suggest that the father of the deceased had any enmity or grudge with
anyone who may be suspected to have committed the murder.
All
these circumstances proved that it is nobody else but the accused who
attempted to commit rape and murdered the deceased Km.‘x’.
35.
On the point of awarding death sentence, a Constitution Bench of
this Court in Bachan Singh v. State of Punjab (1980), 2 SCC 684
observed:
“206. Dr Chitale has suggested these mitigating factors:
“Mitigating circumstances.—In the exercise of its discretion
in the above cases, the court shall take into account the
following circumstances:
(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old,
he shall not be sentenced to death.
(3) The probability that the accused w
ould not commit criminal acts of violence as would
constitute a continuing threat to society.
(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the
accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in
committing the offence.
(6) That the accused acted under the duress or domination
of another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.
207. We will do no more than to say that these are
undoubtedly relevant circumstances and must be given
great weight in the determination of sentence.........”
36.In Machhi Singh v. State of Punjab, (1983) 3 SCC 470, this
Court discussed the circumstances in which the death sentence can be
awarded
and
summarised
the
guidelines
indicated
in
Bachan
Singh(Supra) as under
“38. In this background the guidelines indicated in Bachan
Singh case will have to be culled out and applied to the
facts of each individual case where the question of
imposing of death sentence arises. The following
propositions emerge from Bachan Singh case:
“(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of
the ‘offender’ also require to be taken into consideration
along with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed
only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only
provided, the option to impose sentence of imprisonment
Page 22
for life cannot be conscientiously exercised having regard
to the nature and circumstances of the crime and all the
relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the
option is exercised.”
37.
The nature, motive, impact of a crime, culpability, quality of
evidence, socio-economic circumstances, impossibility of rehabilitation are
the factors which the court may take into consideration while dealing with
such cases as was spelt out in Santosh Kumar Satishbhushan Bariyar
v. State of Maharashtra, (2009) 6 SCC 498.
38.
In Dhananjoy Chatterjee v. State of West Bengal, (1994) 4
SCC 220, while affirming award of death sentence by the High Court, this
Court noticed the rising crime rate in recent years particularly violent crime
against women.
In the said case, this Court reiterated the principle that it
is not possible to lay down any cut and dry formula relating to imposition of
sentence but the object of sentencing should be to see that crime does not
go unpunished and the victim of the crime, as also the society, has the
satisfaction that justice has been done.
The said case concerned with the
rape and murder of an 18 year old girl by a security guard of the flat where
she lived.
The Court found it to be a fit case for imposition of capital
punishment.
39.
This Court in many cases such as Atbir v. Govt. of NCT of Delhi,
(2010) 9 SCC 1, case confirmed the death sentence awarded by the trial
Court as affirmed by the High Court for different reasons after applying the
principles enunciated in the judgments referred to above.
Page 23
40.
In Shankar Kisanrao Khade v. State of Maharashtra, (2013)
5 SCC 546, this Court noticed aggravating circumstances (crime test) –
mitigating circumstances- (criminal test) and rarest of rare case – (R-R test)
and observed:
“52. Aggravating circumstances as pointed out above, of
course, are not exhaustive so also the mitigating
circumstances. In my considered view, the tests that we
have to apply, while awarding death sentence are “crime
test”, “criminal test” and the “R-R test” and not the
“balancing test”. To award death sentence, the “crime test”
has to be fully satisfied, that is, 100% and “criminal test”
0%, that is, no mitigating circumstance favouring the
accused. If there is any circumstance favouring the accused,
like lack of intention to commit the crime, possibility of
reformation, young age of the accused, not a menace to the
society, no previous track record, etc. the “criminal test”
may favour the accused to avoid the capital punishment.
Even if both the tests are satisfied, that is, the aggravating
circumstances to the fullest extent and no mitigating
circumstances favouring the accused, still we have to apply
finally the rarest of the rare case test (R-R test). R-R test
depends upon the perception of the society that is “society-
centric” and not “Judge-centric”, that is, whether the society
will approve the awarding of death sentence to certain types
of crimes or not. While applying that test, the court has to
look into variety of factors like society’s abhorrence,
extreme indignation and antipathy to certain types of crimes
like sexual assault and murder of intellectually challenged
minor girls, suffering from physical disability, old and infirm
women with those disabilities, etc. Examples are only
illustrative and not exhaustive. The courts award death
sentence since situation demands so, due to constitutional
compulsion, reflected by the will of the people and not the
will of the Judges.”
41.
This Court in Ramnaresh and others v. State of Chhattisgarh,
(2012) 4 SCC 257, applying the various principles to the facts of the said
case and taking into consideration the age of the accused, possibility of
the death of the deceased occurring accidently and the possibility of the
accused reforming themselves held that the accused cannot be termed as
social menace and commuted the sentence of death to that of life
imprisonment (21 years).
42.
In the present case, on the question of quantum of sentence the
argument raised on behalf of the appellant is that the accused was young
at the time of commission of offence i.e. 21 years of age, that he had no
intention to kill the deceased and there is no past criminal antecedent.
43.
On the other hand, learned counsel for the state contended that it
was a heinous crime and the case of the appellant is similar like the case
of Dhananjoy Chatterjee (supra).
44.
We have noticed the case of Dhananjoy Chatterjee (supra). In
the said case accused was a security guard and was responsible for
providing security to the residents of the flats. Instead of that he used to
tease a young girl child of one of the lady residents. On the complaint of
the lady resident, he was transferred. To avenge the same he went up to
the flat of the lady and committed rape on her daughter and then
murdered her brutally. That was a case where the protector of residents
becomes the offender.
45.
The case of the appellant is not similar. The Trial Court and the
High Court wrongly held that the case of the appellant is similar to that of
Dhananjoy Chatterjee.
46.
In the present case, the circumstantial evidence comes to only one
conclusion that appellant attempted to commit rape and because of
resistance he committed the murder of the deceased. The appellant was
aged about 21 years at the time of offence. Initially when the matter for
confirmation of death sentence was heard by the two learned Judges of the
High Court there was a divided opinion, one Judge confirmed the death
Page 25
sentence while the other acquitted the appellant.
It is the other Bench
which affirmed the death sentence. It is not the case of the Prosecution
that the appellant cannot be reformed.
In fact the possibility of his
reformation cannot be ruled out. There is no criminal antecedent of the
appellant. The Court has to consider different parameters as laid down in
Bachan Singh (supra) followed by Machhi Singh (supra) and balance
the mitigating circumstances against the need for imposition of capital
punishment.
47.
While we apply the various principles to the facts of the present
case, we are of the opinion that considering the age of the accused, the
possibility of reforming him cannot be ruled out. He cannot be termed as
social menace. Further, the case does not fall under the “rarest of rare”
category. We, therefore, are unable to uphold the death sentence.
48.
For the reasons aforesaid we are commuting the death sentence of
accused-Lalit Kumar Yadav alias Kuri to that of life imprisonment but affirm
the rest part of the conviction and sentence. The appeal is partly allowed
only with regard to the quantum of sentence.
.......................................................J.
(A.K. PATNAIK )
NEW DELHI,
APRIL 25, 2014.
.......................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
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