Abdul Rajak Murtaja Dafedar Vs. State of
Maharashtra  INSC 139 (2 May 1969)
02/05/1969 RAMASWAMI, V.
CITATION: 1970 AIR 283 1970 SCR (1) 551 1969
SCC (2) 234
R 1978 SC1248 (44) R 1988 SC1833 (118)
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
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
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,
(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 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]
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
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
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 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 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 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
presence the 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 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
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 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.