Sikander vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Sikander @ Arif @ Jiwanu was tried by the Court of Additional District and Sessions Judge (Fast Track) No. 3, Jaipur City, Jaipur for the offences under Sections 377, 302 and 201 IPC.

By the impugned judgment dated 17th December, 2004, the learned Judge found appellant guilty of above offences. Having convicted him for offences under Sections 302, 377 and 201 IPC, the learned Judge by a separate order of even date, for offence under Section 377 IPC, the appellant was sentenced to ten years rigorous imprisonment, and to pay a fine of Rs. 1000/- in default thereof, to further undergo one year of imprisonment. For offence under Section 302 IPC, the appellant was sentenced to undergo life imprisonment, and pay a fine of Rs. 5,000/-, in default thereof, to further undergo two years of imprisonment. For offence under Section 201 IPC, the appellant was sentenced to undergo five years rigorous imprisonment and pay a fine of Rs. 500/-, in default thereof, to undergo six months imprisonment.

All the above sentences were ordered to run concurrently.

In the present case, the dead body of Mahaveer, brother of wife of Sitaram (P.W.1) was recovered from a water tank.

Sitaram (P.W.1) on 17th January, 2004 at about 10.30 P.M. had submitted a written report (Ex. P/1) to the in-charge Police Station, Murlipura, Jaipur City (North). In the report, the complainant, Sitaram (P.W.1) stated that he alongwith his father-in-law, Kanaram was engaged in labour work at Jaipur. They were engaged for doing labour work for construction of new house adjoining plot No. 91 at Jamnapuri at Jaipur. On 17th January, 2004, his father-in-law Kanaram, mother-in-law Smt. Sosar and Mahaveer, brother of his wife aged 11 years had gone to Jamnapuri at Plot No. 91 for doing labour work for construction of the house over the plot. On that day, Mahaveer, brother-in-law of the complainant (brother of wife) had not gone to school, he was playing near the plot. In the evening at around 4.00 P.M. while playing, Mahaveer went away, and for a long time, he did not return. After their labour work was finished in the evening at 5.00 P.M., they searched for the child. Since, he could not be found, they went to the Police Station, Murlipura with a request to search for the child. After searching for the child everywhere, when they again reached at the place where they were engaged for doing labour work, the complainant saw that in the adjoining plot, mob had gathered. On inquiry, the mob informed the complainant that in the water tank of the plot, somebody had thrown a child. The complainant went towards the water tank and saw a child inside the tank. From the clothes of the child inside the tank, he identified him as his brother-in-law, Mahaveer. Abrasions were present on the neck of Mahaveer, burn injuries were also present on his abdomen, and from his anus blood was oozing out. Complainant stated that after doing a bad act with his brother-in-law, aged 11 years, someone had killed him, and thereafter, had thrown the dead body in the water tank. The complainant presented a written complaint (Ex. P/1) and sought legal action.

On the basis of the written complaint (Ex. P/1), a formal FIR (Ex. P/2) bearing FIR No. 17/2004 was registered at Police Station, Murlipura Distt. Jaipur City (North) for offences under Sections 302, 377 and 201 IPC. During investigation, the appellant was arrested; the police submitted report of investigation in the form of charge-sheet against the appellant after following due procedure. Report of investigation, and appellant were committed to the Court of Sessions; the trial was entrusted to Additional District and Sessions Judge (Fast Track) No. 3, Jaipur City, Jaipur.

The appellant was charged for the offences under Sections 377, 302 and 201 IPC. He denied the charges and claimed trial.

Prosecution in all examined 15 witnesses.

Complainant Sitaram appeared as P.W.1. He reiterated as to what was stated by him in the FIR. He proved presentation of written report (Ex. P/1), formal FIR (Ex. P/2) and the fact that from the hospital, police had taken pant of the deceased Mahaveer into possession vide memo (Ex. P/3). He also identified the dead body and attested panchnama/inquest (Ex. P/4) and had also received the dead body for cremation vide supardginama memo (Ex. P/5). This witness further stated that police had prepared site plan of the spot as (Ex. P/6) and have taken photographs of the dead body and place of occurrence (Ex. P/7 to Ex. P/25). This witness stated that he had not witnessed the occurrence. This witness further stated that police had removed dead body of Mahaveer from the water tank. Police had already reached at the spot before arrival of the witness, when the crowd had gathered there. It was further stated that pant which was taken into possession was stained with blood from the back side.

Dildar Singh (P.W.2) stated that he is a resident of House No. 92, Murlipura Scheme in Jamunapuri Colony. He is having plot No. 69. He had raised a tin-shed in the said plot and one room in the tin-shed was rented out by him at the rate of Rs. 350/- per month to the present appellant. He proved rent note (Ex. P/26). This witness stated that he learnt in the month of January that the present appellant had committed bad act with a boy, aged 11-12 years; thereafter, he had committed his murder and thrown the dead body in the water tank in the plot of one Deepak. This witness further stated that he learnt later that accused was having criminal antecedents. The witness stated that had he known this fact, he would not have been rented out the house to the appellant.

Baburam (P.W.3) stated that he knew Kanaram. Panchnama/inquest (Ex. P/4) of the dead body Mahaveer son of Kanaram was prepared at the hospital. He had attested the same and the dead body vide (Ex. P/5) was handed over to Sitaram (P.W.1). In cross-examination this witness stated that he had attested memo (Ex. P/4 and P/5) at Kanwatiya Hospital. He further stated that how the occurrence had taken place, he is not aware of any fact.

Dalip (P.W.4) stated that he is a resident of Plot No. 71, Jamnapuri. On 17th January, 2004, he learnt that in their colony, one boy was subjected to bad act and, thereafter was murdered. Police had arrived at the spot, prepared the site (Ex. P/6), and the same was attested by the witness. He further stated that police had taken into possession a blood stained, and simple soil from the spot (Ex. P/27). This witness further stated that from the house where the accused was residing as tenant, ash, burnt clothes (Ex. P/28), and blood stained earth (Ex. P/29) was also taken into possession. Police has also recovered a burnt two pieces candle from the room of accused vide memo (Ex. P/30). Police had also taken into possession one large and one small match stick (Ex. P/31). Wax had fallen on the match stick. Police also recovered few burnt/used sticks of a match box (Ex. P/31). This witness further stated as to who committed the murder, he is not aware as he had not seen the occurrence.

Deepak Kumar Sharma (P.W.5) stated that he was a resident of Plot No. 91 Jamunapuri, Murlipura Scheme. He was residing with his family. In the adjoining house No. 92, construction work was going on. He returned from the place of his in-laws at 4.00 P.M. At about 7.00 P.M. Kanaram and his wife came to his house and informed that their child is missing. At about 9.45 P.M., he had gone to ease himself. When he took up a bucket to take out water, he saw that one child is lying dead in the water tank. Meanwhile, Sitaram (P.W.1) arrived there. He identified the dead body and disclosed that name of the deceased was Mahaveer, brother of his wife. They examined the dead body. From the rectum of deceased, blood was coming out. The witness further stated that on the day of occurrence, accused Sikander was not coming out from his house. This witness further stated that the dogs squad was called at the spot. Dog was taken to the water tank. Thereafter, the dog took the police party to the house of accused. Dog had given a push to the door and thereafter, dog sniffed the present appellant as the accused. Police took articles into possession from the room where the accused was residing.

Kanaram (P.W.6) father of the child also reiterated as to what was stated by his son-in-law, Sitaram (P.W.1).

Doctor M.D. Quareshi (P.W.7) was a Member of the Medical Board which had conducted the autopsy on the dead body. As per opinion of the Medical Board, due to receipt of injuries, deceased had died.

Jagannath (P.W.8) stated that he was posted at Police Station, Ashok Nagar, Jaipur. This witness stated that he was informed that a child had been killed by an unknown person. Therefore, the request for a dog squad was received. He had taken the dog squad. Dog Amba after sniffing the place of occurrence, accompanied the policy party and tracked the present appellant as the one who has committed the crime.

Sosar Devi (P.W.9) has reiterated as to what was stated by her husband Kanaram (P.W.6) and Sitaram (P.W.1), her son-in-law.

Dr. Girish Kumar (P.W.11) stated that he was posted at Forensic Science Laboratory, Jaipur. He had received packets from the police station containing half burnt clothes stained with blood. As per report of FSL, blood stains were of blood group ''A''.

Padamsingh (P.W.12) stated that the appellant was arrested on 18th January, 2004.

Phoolchand (P.W.13) deposed regarding the recovery of pant (jeans) (Ex. P/34) and chappals from the accused.

Harisingh (P.W.14) being Investigating Officer proved various facets of the investigation.

Madholal (P.W.15) being photographer, proved photographs taken from the spot.

As per the Forensic Science Laboratory Report (Ex. P/32), semen was not detected on two pant belonging to accused and the deceased.

A perusal of the entire evidence led by the prosecution reveals that the case of prosecution rest upon two circumstances:--

"(i). That the service of dog squad was requisitioned. Dog was made to sniff the clothes of the deceased, and the dog, thereafter went to the room of the accused and identify him as the assailant.

(ii). Secondly, as per report of State Forensic Science Laboratory, Rajasthan Jaipur (Ex. P/37) pant of the deceased and pant of the accused were found to be stained with blood group ''A''. However, in the present case, the prosecution has failed to prove the blood group of deceased and the accused. In case of Ramesh v. State of Rajasthan D.B. Criminal Appeal No. 1028/2005 decided by us on 29th January, 2015 we had observed as under:--

"In catena of cases, the Hon''ble Supreme Court has opined that the prosecution must rule out the possibility that the blood group discovered by the FSL does not belong to the accused, but belongs to the deceased. In the case of Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765 : (1981) CriLJ 325 : (1981) 2 SCC 35 : (1981) SCC(Cri) 315 : (1981) 2 SCR 384 the Supreme Court observed as under:--

"28. The discovery of a blood stain of the B Group measuring 0.5 cm. In diameter on the appellant''s pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murdered Sunita. ''B'' Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group." In the present case, the prosecution has failed to prove that blood group ''A'' belonged only to the deceased, and not to the accused.

Hence, we cannot rule out that both deceased and the accused had blood group ''A''.

Counsel for the appellant has contended that mere fact that sniffer dog had pointed out towards the accused is not sufficient to uphold conviction. In support of this argument, the counsel for the appellant has relied upon Dinesh Borthakur Vs. State of Assam, AIR 2008 SC 2205 : (2008) 4 SCALE 487 : (2008) 5 SCC 697 : (2008) AIRSCW 3301 wherein it was held as under:--

"39. So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in Abdul Rajak Murtaja Dafedar Vs. State of Maharashtra, AIR 1970 SC 283 : (1970) CriLJ 373 : (1969) 2 SCC 234 : (1970) 1 SCR 551 stated the law, thus:

"11. ---There are three objections which are usually advanced against 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 the 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 inference....

Yet again in Gade Lakshmi Mangraju @ Ramesh Vs. State of Andhra Pradesh, AIR 2001 SC 2677 : (2001) CriLJ 3317 : (2001) 3 Crimes 208 : (2001) 5 JT 340 : (2001) 4 SCALE 265 : (2001) 6 SCC 205 : (2001) 3 SCR 830 : (2001) AIRSCW 2509 : (2001) 5 Supreme 38 , this Court opined:

"There are inherent frailties in the evidence based on sniffer or tracker dog. 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 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.... Investigation 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."

(emphasis supplied)

In the present case, we have already overruled presence of blood group ''A'' on the pant of the deceased and on the pant of the accused as an incriminating circumstance. Therefore, we are of the opinion that another circumstance that sniffer dog had pointed out towards the appellant as accused is not sufficient to sustain the conviction of the appellant. We ignore the evidence of tracking of the appellant as accused by the dog. Remaining circumstances are not sufficient to complete the chain of circumstance to arrive at the conclusion that nobody else, except the appellant has committed the offence.

Thus, we extend the benefit of doubt to the appellant and accept the present appeal and set aside the conviction and sentence awarded by the Additional District and Sessions Judge (Fast Track) No. 3, Jaipur City, Jaipur and acquit him of the charges.