JUDGMENT
M. Karpagavinayagam, J.
1. The gist of the accusation is that on 26.03.2000 at about 12.00 midnight the accused Arunachalam/appellant came to the house of the deceased Palani for collecting the loan amount, which was given to him earlier, and, since the deceased was not available, the accused went away and, on seeing the deceased near a pond in the village, he attacked the deceased, caused his death and threw the dead body in the pond. On the basis of the evidence adduced by the prosecution, the trial Court convicted the accused for the offence under Section 302 IPC. Challenging the same, this appeal has been filed.
2. The short facts, which are relevant for the purpose of disposing of this appeal, are as follows :
(i) On 26.03.2000, P.W.1, V.A.O, received the information that the dead body was found in the pond in the village. He reached the spot, removed the dead body and found that the dead body was that of one Palani, a local villager. He also found some injuries on the neck and face of the dead body. Therefore, he lodged a report Ex.P-1 with P.W.10, Inspector of Police.
(ii) P.W.10, Inspector of Police, received the said report and registered a case for the offence under Section 302 IPC. He went to the scene and prepared observation mahazar and rough sketch. He conducted inquest and examined P.Ws.2 and 3.
(iii) P.W.2, Salammal, is the sister-in-law of the deceased and P.W.3, Pappathi, is a neighbourer. Both of them stated that in the night on the earlier day the accused came and asked the whereabouts of the deceased and, as the deceased was not available, the accused threatened the witnesses that he would murder the deceased in case the loan amount paid to him was not paid back.
(iv) P.W.10 arranged for a sniffer dog to be brought into action. P.W.8, Head Constable concerned, brought the sniffer dog and the dog, after taking smell from the dead body and the blood stained earth, ran through many streets and, ultimately, sat opposite to the house of the accused. P.W.10, then, searched for the accused, who was not available, and arrested him on 28.03.2000.
(v) On confession of the accused, M.O.1, blood stained stone, was recovered. Material objects were sent for chemical examination. After retirement of P.W.10, P.W.13 took up further investigation; thereafter, P.W.14, took charge of the investigation and, after completion of investigation, filed charge sheet against the accused for the offence under Section 302 IPC.
3. During the course of trial, P.Ws.1 to 14 were examined; Exs.P-1 to P-23 were filed and M.Os.1 to 6 were marked.
4. When the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating materials, he simply denied his complicity in the crime in question.
5. The trial Court, placing reliance on the materials produced by the prosecution, convicted the accused for the offence under Section 302 IPC.
6. Mr.A.Sirajudeen, learned Counsel for the appellant, took us through the entire evidence and would contend that the circumstances placed by the prosecution as against the appellant/accused cannot be accepted and, even otherwise, those circumstances are not sufficient to fasten the liability of murder on the appellant and, as such, the appellant is liable to be acquitted.
7. We have heard the learned Additional Public Prosecutor.
8. It is a settled law that in the case of circumstantial evidence, prosecution has to establish each circumstance and the circumstances should point to the guilt of the accused, without any missing link.
9. In this case, the prosecution has placed three pieces of circumstances, namely, (i) evidence of P.Ws.2 and 3, who speak about the appellant having come to their house on the earlier day night and threatened both of them that he would kill the deceased if the loan paid to him was not repaid immediately; (ii) the sniffer dog, after taking smell of the dead body, went rounds outside the house of the appellant and sat in front of his house and (iii) recovery of stone from the appellant, in pursuance of the confession.
10. With regard to the first circumstance, it has to be stated that the deposition given by P.Ws.2 and 3 with regard to the threat made by the appellant as against the deceased, in our view, is a clear improvement. P.W.10, Inspector of Police, admitted that such a statement has not been made by P.Ws.2 and 3, while they were examined under Section 161 Cr.P.C.
11. It is true that P.Ws.2 and 3 simply stated that earlier day night the appellant came to their house and enquired the whereabouts of the deceased and, when the deceased was not available, the appellant told them to collect the loan amount given by him from the deceased so that he would come the next day and collect the said amount from them. Therefore, the allegation against the appellant with regard to the threat, in our view, cannot be said to be true, as it is a clear improvement.
12. In regard to the second circumstance, it is to be stated that the conduct of a sniffer dog going rounds and sitting in front of the house of the appellant cannot be taken as a conclusive evidence as against the accused. As a matter of fact, the Supreme Court, in Gade Lakshmi Mangaraju alias Ramesh v. State of A.P. 2001 SCC (CRI) 1082, while dealing with the evidence regarding the conduct of sniffer dogs, would make the following observation in paras 13 and 17 :
13.The weakness of the evidence based on tracker dogs has been dealt with in an article “Police and Security Dogs”. The possibility of an error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close to its heels. 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. Police dogs engage in these actions by virtue of instincts and also by the training imparted to them.
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.
13. Further, it is seen that P.Ws.2 and 3 have been examined during the course of inquest, which was held at 12.30 p.m. itself. So, during the course of inquest, P.W.10, the police officer, entertained a suspicion on the appellant on the basis of the statement.
14. So, in the light of the observation made by the Supreme Court in the above decision and also in view of the above factual situation, we cannot give much importance to the conduct of sniffer dog, which went around and sat in front of the house of the appellant.
15. The third circumstance is, the recovery of stone, M.O.1. P.W.10 would say that in pursuance of confession recorded from the accused, M.O.1, blood stained stone, was recovered. It is said that the stone was concealed in a bush near the pond. This statement is not correct for the reason that P.W.1 would specifically state in the cross-examination that blood stained stones were already there near the pond. In the light of the evidence given by P.W.1 relating to the availability of stone in the open space near the pond, we cannot rely upon the evidence of P.W.10, with reference to the recovery of stone from the appellant.
16. Thus, it is clear that the above circumstances would not be sufficient to hold that the appellant is guilty of murder. Therefore, giving benefit of doubt, we acquit the accused.
17. Appeal is allowed. Consequently, the conviction and sentence imposed on the appellant/accused are set aside. Bail bonds, executed by the appellant, shall stand cancelled. Fine, if any paid, shall be refunded.
