Shail Kumar @ Munna Bhaina vs State Of Chhattisgarh

Arvind Singh Chandel, J

This appeal has been preferred by the accused/appellant under Section 374(2) of Cr.P.C. being aggrieved by the judgment dated 11.01.2013 passed by the First Additional Sessions Judge, Bilaspur, District Bilaspur in Sessions Trial No.145/2011, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 186,0 ( in short ‘the IPC’) and sentenced to undergo life imprisonment and to pay of fine of Rs.1,000/-, in default of the payment, to undergo additional rigorous imprisonment for one month.

In this case, name of the deceased is Puniram. On 10.07.2011, dead body of Puniram was found lying down in the field of Karikhar, Village Loharbot which was seen by Purushottam Lal (PW-4), who was the Village Kotwar and Sarjuram (PW-1). Morgue intimation (Ex.P-1) was lodged by Sarjuram (PW-1). Inquest proceeding (Ex.P-4) regarding the incident of death was conducted. Postmortem of the dead body was conducted by Dr. J.P. Arya (PW-9) and his report is Ex.P-12 in which he found total 9 injuries out of which one injury was caused on a vital part of the body which is grievous in nature. It was opined by him that cause of death was shock due to injuries over neck and face and nature of death was homicidal. Further case of the prosecution is that allegedly, the appellant has committed the said homicidal death of the deceased and the incident was witnessed by Kejauram (PW-2). After recovery of the dead body, when the police party reached at the spot with a sniffer dog, the said dog identified the appellant in the mob. In this regard, panchnama (Ex.P-21) was prepared. During the course of investigation, on the basis of memorandum statement (Ex.P-9) of the appellant, one bamboo stick was seized from the spot at his instance. The seized bamboo stick and other articles were sent to the F.S.L. for chemical examination. F.S.L. report is Ex.P-24. Statements of witnesses were recorded under Section 16,1 of Cr.P.C. After completion of the investigation, a charge-sheet was filed against the appellant before the concerned Magistrate. After committal of the case, the trial Court framed a charge under Section 302 of the IPC. The prosecution examined as many as 15 witnesses and brought 26, documents on record. In examination under Section 313 of the Cr.P.C., the appellant denied the guilt and pleaded innocence. However, no witness was examined by him in defence. After completion of the trial, the trial Court convicted and sentenced him as mentioned in paragraph 1 of this judgment. Hence, this appeal.

Shri MPS Bhatia, learned Counsel appearing for the appellant submits that without there being any sufcient and clinching evidence on record, the trial Court has wrongly convicted the appellant. He further submits that conviction of the appellant is only based upon the statement of sole eyewitness Kejauram (PW-2), but his statement is not trustworthy and reliable. He further submits that this witness was initially the prime suspect of the alleged murder of the deceased and to save himself, he has falsely implicated the appellant in this case. Thus, his statement is suspicious and, therefore, conviction of the appellant is not sustainable. It is further argued that another circumstance which has been found by the prosecution is that the sniffer dog identified the appellant in the mob. Only on this basis, conviction is not sustainable and it has no evidentiary value. Reliance has been placed on (2008) 5 SCC 697 (Dinesh Borthakur v. State of Assam).

Learned State counsel supporting the impugned judgment submits that finding of the trial Court is based upon the evidence available on record and, therefore, it does not warrant any interference by this Court.

We have heard both the counsel for the parties, perused the record and the evidence adduced before the Court below minutely.

The first question for consideration is whether the death of deceased Puniram was homicidal in nature? The finding of the trial Court in this regard is based upon the Postmortem Report (Ex. P-12) prepared by Dr. J.P. Arya (PW-9), which, in our considered opinion, is correct based on evidence available on record. It is neither perverse nor contrary to the record. Even otherwise, the finding of death to be homicidal in nature recorded by the trial Court has not been seriously questioned on behalf of the appellant. Accordingly, we hereby afrm the said finding.

Now, the next question is whether the appellant is the person who committed the homicidal death of Puniram? The trial Court has convicted the appellant on the basis of testimony of Kejauram (PW-2), who is the eyewitness of the incident and also on the fact that during the course of investigation, the sniffer dog had identified the appellant.

The sole eyewitness of the incident Kejauram (PW-2) in his Court statement has deposed that on the date of incident, he along with the deceased had gone to Bilha liquor shop from where the deceased had purchased one bottle of liquor and they both had consumed the liquor. He further deposed that after consuming liquor, they returned. While returning, they met with the appellant on the way and all of them were returning together. On the way, suddenly, the appellant snatched the club (lathi) from the deceased and assaulted him 2-3 times. Having seen this, this witness (Kejauram) fed from the spot. He further deposed that due to fear, he did not tell about the incident to anyone. Next day, dead body of the deceased was found. Thereafter, police party reached at the spot with the sniffer dog and during the investigation, the sniffer dog identified the appellant in the mob. In paragraph 10 of his cross-examination, this witness admitted the fact that he witnessed the incident, but, he did not tell it to anyone. Next morning, he alone went towards the field to see the dead body of the appellant. Thereafter, he informed one Panch, namely, Shailendra about the incident. He further admitted that he had not gone to the police station to lodge a report. Thereafter, police came to the spot for investigation where around 100-150 people had gathered and at that time also, he had not informed anybody that he had seen the incident. Further, when the sniffer dog identified the appellant, at that time also, he did not inform to anybody. He further admitted in paragraph 11 that police had taken him to the police station for inquiry and kept him in the night and said that police were leveling allegation against him. In paragraph 13, he has again admitted that had the police not kept him in police station for the whole night, he would not have revealed anything about the incident/murder to anybody.

A minute examination of the statement of Kejauram (PW-2) makes it clear that though he is claiming that he is the sole eyewitness, his statement is suspicious. First, on various occasions, he had ample time to disclose the incident to people that he had witnessed the incident, but, he did not do so. Rather, considering Kejauram (PW-2) as the prime suspect, when the police took him to the police station at night, then he claimed himself to be the eyewitness of the incident. Secondly, according to this witness, the appellant assaulted the deceased with a bamboo stick (lathi) 2-3 times. But, as per the postmortem report (Ex.P-12), in serial No.1, there is one cut injury which is alleged to have been caused with an axe. Kejauram (PW-2) has also not stated anything regarding the said cut injury. If the entire statement of Kejauram (PW-2) is taken as it is, then it is established that the appellant had assaulted the deceased with the bamboo stick (lathi) 2-3 times and thereafter, this witness had returned. Therefore, the possibility that some other person would have killed the deceased cannot be ruled out. Thus, only on the basis of statement of Kejauram (PW-2), we are unable to hold the appellant guilty.

Further, the trial Court has relied on the evidence that during the investigation, the sniffer dog had identified the appellant. Dealing with the issue, the Supreme Court, in Dinesh Borthakur (supra) observed that 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. The Supreme Court in paragraphs 39 and 40 observed as under:

“39. So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in Abdul Rajak Murtaja Dafedar v. State of Maharashtra (196,9) 2 SCC 234 stated the law, thus: (SCC p.239, para 11)

“11...There are three objections which are usually advanced against the reception of [the evidence of dog tracking.] 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.”

Yet again in Gade Lakshmi Mangaraju v. State of A.P. (2001) 6 SCC 205 : 2001 SCC (cri) 1082 this Court opined; (SCC p. 206,a-c)

“There are inherent frailties in the evidence based on sniffer or tracker dogs. The possibility of an error on the part of the dog or its master is the first among them. … The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. 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. … Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill-afford them.”

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.

Keeping in view the above settled principle of law and considering that only on the ground that the sniffer dog had identified the appellant, the conviction of the appellant is not sustainable. Thus, the prosecution has failed to prove its case beyond reasonable doubt. The appellant is certainly entitled to get benefit of doubt.

Consequently, giving benefit of doubt to the appellant, we set aside the impugned judgment of conviction and sentence. The appeal is allowed and the appellant is acquitted of the charge framed against him. He be set at liberty at once if his detention is not required in any other case.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for information and necessary action, if any.