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PETITIONER: ABDUL RAJAK MURTAJA DAFEDAR

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 02/05/1969

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1970 AIR  283            1970 SCR  (1) 551  1969 SCC  (2) 234  CITATOR INFO :  R          1978 SC1248  (44)  R          1988 SC1833  (118)

ACT: Criminal  Procedure Code (5 of 1898), s.  164-Confession  to Magistrate-Prolonged  police custody-When confession can  be held to be no: Voluntary. Evidence Act (1 of 1872), s. 9--Identification of accused by means of tracker dogs--Admissibility and weight.

HEADNOTE: The,  appellant was convicted for the offence of  murder  in that  he  had removed the fish plates, nuts and bolts  of  a rail joint and thus knowingly 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 statement to the police, and  his identification 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 confession  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 investigating agency.   Also, he had 24 hours to think after he was told by the Magistrate that he was not bound to make any confession and that if lie made one it would be used against 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.I.R. 1956 S.C. 56 and Swaran  Singh v. State of Punjab, A.I.R. 1957 S.C. 637, distinguished. (2)In  the present state of scientific knowledge  evidence of  dog  tracking even if admissible, is not  ordinarily  of much   weight.   But,  even  on  the  assumption  that   the identification  of the appellant by the tracker dog was  not

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admissible,  the rest of the prosecution  evidence,  namely, the appellant’s confession and the discovery of the  spanner at  the instance of the appellant, conclusively  established the guilt of the appellant. [556 G-H; 558 C, D-E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 245 of 1968. Appeal  by special leave from the Judgment and  order  dated November  17,  1967  of the Bombay High  Court  in  Criminal Appeal  No.  1166 of 1967 and confirmation case  No.  15  of 1967. B.   D. Sharma, for the appellant. H.   R.  Khanna and S. P. Nayar, for the respondent. 14 Sup.  C.1.169-6 552 The Judgment of the Court was delivered by Ramaswami,  J.  The appellant 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. 11  16  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 October  10,  1966.  The derailment occurred  on  the  Vaddi bridge  which is beyond Mraj station.  As a result  of  this derailment,  five bogies were capsized.  Out of  these  five bogies, two went 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 etc., of the  rail  joint near Vaddi bridge No. 215 on Miraj Mhaisal Railway track  at Km.  No. 743/9 and 10 between 4.05 a.m. and 4.50 a.m. in the early  morning of October 10, 1966 with intent or  knowledge 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  and thereby  committed  murder knowingly causing  deaths  of  10 persons who were passengers 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 Gangmate and Bapu 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  2  1/2 miles  from the railway station of Miraj,  towards  Belgaum. Mhaisal gate is also towards Belgaum at 1 1/2 miles from the railway station on the way to Vaddi bridge.  At Mhaisal gate is  the  quarter  of Laxman Madar the  gangmate.   Near  the quarter  of  Laxman is the tool box where the tools  of  the gang are kept under lock and key. Vaddi bridge is the biggest bridge out of the seven  bridges lying  between 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 553

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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  hi-in when he was absent from  or  late  in attending  duties.   On two or three  occasions  Laxman  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.  Laxman found the work of leveling and packing   done  by  other  gangmen  except   the   appellant satisfactory  and so Laxman asked the appellant  to  correct the defect.  The appellant got irritated and took  exception to  the remark of Laxman and rushed towards him with a  pick axe saying 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 dispatched 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  appellant going on the track at 3 or 3.15 a.m. P.W.  37 was  serving as a Sainik of the Railway Protection Force  at Miraj  Railway Station.  He was on duty at ’G’ point from  9 p.m. on October 9, 1966 till 7 a.m. the next day.  After the witness 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 the 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 bridge 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 had  covered 3/4ths 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 the basal wheel  of  the  engine  had derailed and the tender of the engine was tilted and to this tender  was  hanging the first bogie  which  had  vertically fallen down in the stream. - The second bogie had completely fallen  in the stream.  The third bogie had also  telescoped like the first bogie resting its one end on the second bogie that  had  fallen  in the stream and the other  end  at  the slope.   The fourth bogie had derailed and  slanted  whereas the  front  wheels  of the fifth bogie  had  derailed.   The engine driver, 554 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 plate and  one  nut fallen on embankment in undamaged condition. The  engine  driver  made a complaint  to  the  Police  Sub- Inspector Bendigiri.  Panchanama of the scene of offence was prepared.  The things lying at the spot were not touched but were  guarded and an area of half a mile was  cordoned  off. On October 10, 1966 at 7 a.m. all the gangmen including  the appellant  ,collected at pole No. 744/4 for daily  work  but were  asked  by the police officers to be seated  below  the bridge as their statements were to be recorded.  Laxman  and

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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 affected 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 forelegs resting on the chest of the appellant. 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 presence 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  produced 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  he did not threaten Laxman with pick axe.  As  regards the  confessional 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 on (1) movement  of  the appellant on the day of  the  incident  as stated  by  Ramchand Sadare P.W. 37; (2)  discovery  of  the spanner 555 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. It  was  contended on behalf of the appellant in  the  first place  that  the  confession  Ex.  130  recorded  by  Taluka Executive  Magistrate  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 application 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  produced  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.  Reliance 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 on  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

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in  that  case to explain the, prolonged  custody.   In  the absence  of such explanation it was held by the  Court  that the  confession  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.  Oil 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 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. State of Punjab (2) and the  ratio  of that case has no application 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 (1) A.I.R. 1956 S.C. 56. (2) A.T.R. 1957 S.C. 637. 556 was at her persuasion that the appellant had agreed to  make the confession.  The suggestion was that the confession  was riot  voluntary but was made on account of some  inducement. But no such suggestion was made to the police officers.  The only  question  put 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  occasions.   No further suggestion was made to Chavan.  Apart from this,  if any  coercion or inducement was used the appellant  was  the person who should make such a complaint.  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 see 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 pointout  where  he had kept the spanner.  Two  panchas were  called,one of whom is Narayandas Shedji, P.W.  46.  In his presencethe  memorandum of what the appellant  stated was,  made.   Therein the appellant said "the  same  spanner while  coming back, I have kept hidden in the shrub  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 taking out the spanner.  The panchanama is Ex. 112.  The spanner was found about 5 furlongs from the bridge towards the residence of the appellant.  The evidence of  the Deputy Superintendent of Police and the two  panchas has  been  accepted ’both 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,  nuts, bolts and the keys and jaws of  the  sleepers

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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 not admissible in  order to  prove  the  guilt of the  appellant.   The  evidence  of tracker dogs has been much 557 discussed.  In Canada and in Scotland it has been  admitted. But in the United States(1) there are conflicting  decisions :               "There  have been considerable uncertainty  in               the minds of the courts as to the  reliability               of  dogs  in identifying  criminals  and  much               conflict  of  opinion on the question  of  the               admissibility of their actions in evidence.  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 upon a proper foundation  being               laid by proof that 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 defendant with the crime." There  are  three  objections  which  are  usually  advanced against the reception of such 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 dogs human companion must go into the  box and  report the dogs 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.  And, thirdly, it is suggested that  even if  such evidence is strictly admissible under the rules  of evidence it should be excluded because it is Rely to have  a dramatic impact on the jury out of proportion to its  value. In  R.  v.  Montgomery(2) a police  constable  observed  men stealing 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  the police  tracker dog -was taken to the base of the  telegraph pole  and when he had made a few preliminary sniffs  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  that  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 evidence of the constable who  handled the dog on its tracking and reported the dog’s reactions was properly  admitted.  The Court did not regard  its  evidence as,  a species of hearsay but instead the dog was  described as "a tracking instrument" and the handler (1) Para 378, Am.  Juris. 2nd edn.  Vol. 29, p. 429. (2) 1866 N.T. 160. 558 was  regarded as reporting the movements of the  instrument, in the same way that a constable in traffic case might  have reported on the behaviour of his speedometer.  It was argued in  that  case  that the tracker  dog’s  evidence  could  be

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likened  to  the type of evidence accepted  from  scientific experts  describing chemical reactions, blood tests and  the actions  of  bacilli.   The comparison  does  not,  however, appear to be sound because the behaviour of chemicals, blood corpuscles  and  bacilli contains no  element  of  conscious volition  or  deliberate choice.  But dogs  are  intelligent animals  with many thought processes similar to the  thought processes  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 of  scientific  knowledge evidence  of  dog  tracking,  even  if  admissible,  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 admissibility 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. 130 and the discovery of the spanner conclusively proves the charges of which the appellant has been convicted. For  these reasons we affirm the judgment of the High  Court of  Bombay dated 16/17, November, 1967 in Crl.  A. No.  1116 of 1967 and dismiss this appeal. V.P.S.                         Appeal dismissed. 559