Gade Lakshmi
Mangraju @ Ramesh Vs. State of Andhra Pradesh [2001] Insc 312 (10 July 2001)
K.T.Thomas,
R.P.Sethi Thomas, J.
A
trust betrayed in a hideous manner, is the nub of the prosecution story. When
the son of an old housewife proceeded on a pilgrimage he entrusted his best
friend with the care of his old mother. But that turned out to be like engaging
a wolf to guard the chicken. When the son returned home from the pilgrimage he
was welcomed by the dreadful news that his mother was butchered, her jewelleries
plundered and the one to whom her care was entrusted had decamped. Prosecution
indicted that friend to be one of the marauders of the ensanguined episode.
Both
the indicted persons were convicted by the sessions court under Section 302
read with Section 34 of the IPC and were sentenced to imprisonment for life.
They were also convicted under Section 404 IPC for which a sentence of RI for
two years was awarded to each of them.
They
filed separate appeals before the High Court and a Division Bench of the High
Court of Andhra Pradesh confirmed the conviction and sentence and dismissed the
appeals. One of them (Ramesh) has filed this appeal by special leave. He is
described by the prosecution as one of the friends of the son of the deceased.
Kamalavathi,
the victim of the episode, was around 65 when she was murdered. She was the
widow of one Ramagopala Subramanyam who died about 15 years before the incident
in this case. She and her children were in a fairly affluent condition. Her two
sons PW-2 Ramesh and PW-1 Gopalakrishna were staying with their mother on the
first floor of the house at Palakol (West Godawari District). Her only daughter
was given in marriage to a businessman at Rajamundry. PW-1 Gopalakrishna had
gone to his sister's house at Rajamundry during the relevant period.
On
11.4.1993, PW-2 Ramesh boarded a train for Sabarimalai on a pilgrimage. It was
the appellant Mangaraju who escorted PW-2 up to the railway station, being a
close friend. PW-2 then told Mangaraju to stay in his house for giving company
to his mother who otherwise would have been all alone. The murder of Kamalavathi
took place on the night of 14th April, 1993,
at some time after 8
P.M. On the next
morning the milkman (PW-4) Bramajirao went to the house of Kamalavathi for
supplying milk as usual. When there was no response to his call from inside the
house PW- 4 entered into the house and found to his consternation the dead body
of Kamalavathi lying on the floor in a puddle of blood. PW-4 screamed and ran
out. He informed Kamalavathi's step son (PW-3 Narasimharao) who was living with
his family on the ground floor of the same building.
On
hearing the news PW-3 and his wife rushed to the first floor and saw the dead
body. He further noticed that the dead body of Kamalavathi did not have the
ornaments which she was usually wearing. All persons concerned were informed
about it.
It was
Dr. C. Raghavelu (PW-13) who conducted autopsy on the dead body and found that
the neck was severely cut, separating the platysma, sternomastoid, jugular vein
and carotid artery on the right side, the thyroid cartilage up to the
subcutaneous tissues. The investigating officer deployed a sniffer dog to track
down the hideout of the culprits. The track dog went up to the house of the
appellant, but he was not there then. A number of days later, police got
information that appellant and his co- accused (Golla Bujji) were in a train
destined to Palakol.
On
22.5.1993 they were arrested by the police and recovered a number of ornaments
from them.
The
case against the accused was sought to be proved by the prosecution with the
help of circumstantial evidence. A large number of circumstances were projected
by the prosecution. The trial court and the High Court enumerated those
circumstances collected from the evidence.
Both
the courts found that those circumstances were well established by the
prosecution and they were sufficient to form a complete chain pointing
unerringly to the guilt of both of them. Accordingly the trial court as well as
the High Court found them guilty under Sections 302 and 404 read with Section
34 of the IPC and convicted them and sentenced them as aforesaid.
Shri Mohit
Mathur, learned counsel who argued for the appellant Mangaraju, made a serious endeavour
to dig out holes on the edifice of the prosecution case and for that purpose he
made an appeal for reappraisal of the evidence.
We
allowed him to do so inspite of informing ourselves that this is an appeal
under Article 136 of the Constitution.
Ms. T.
Anamika, learned counsel for the State of Andhra Pradesh stoutly defended the conviction and sentence passed on the
appellant. It is useful to recast the circumstances which the prosecution
presented through the evidence. They are the following:
(1)
Death of Kamalavathi was doubtlessly a case of murder for gain. It happened
sometime between 8 P.M. on the night of 14.4.1993 and 7 A.M. on the next morning.
(2)
PW-2, son of the deceased, entrusted the appellant with the duty to be with his
mother in the house during the absence of all the children of the deceased. But
when he returned appellant was nowhere to the scene.
(3)
PW-5 Rammohan Rao saw the appellant in the house at 8 P.M. on 14.4.1993 watching the TV programme and the deceased was
present inside. PW-5 sought permission for making a call.
(4) At
about 9 P.M. PW-6 Rambabu saw A-1 Mangaraju and A-2 Golla Bujji in a restaurant
at Palokal.
Thereafter
he saw both the accused riding on a motorcycle leaving the restaurant.
(5) On
15.4.1993, the police dog under the command of PW-8, after smelling the
handkerchief and some other articles of the deceased scampered up to the house
of the appellant. But he was not present there.
(6) On
the next day (16.4.1993) appellant would have left the place. He and the
co-accused requisitioned the services of PW-9 who had earlier acquaintance with
the appellant, to sell some gold ornaments at Tirupati.
(7)
Gold ornaments were sold by two persons to PW-10 (a gold dealer at Tirupati) on
17.10.1993. Those two persons were introduced to the dealer by PW-9 Sankara Prakash.
(8)
The finger impression of A-2 Golla Bujji was found sticking on the almirah of
the deceased's house.
(9)
Appellant and the co-accused were together arrested on the same day. A number
of gold ornaments were found in their possession. All those ornaments were
identified to be the belongings of the deceased.
The
appellant denied all the circumstances including the fact that PW-2 entrusted
to him the care of his mother when he went on a pilgrimage to Sabarimalai. The
circumstances enumerated above, if established, are sufficient to prove the
guilt of the appellant without leaving any manner of doubt regarding his
involvement in the murder of the deceased. Hence the learned counsel for the
appellant undertook the endeavour to show that the evidence relating to those
circumstances is not reliable.
One of
the main contentions advanced by the learned counsel is that the evidence
pertaining to the sniffer dog is so fragile that no adverse inference could be
drawn against the appellant on the strength of the said evidence.
PW-8
is the police constable who deployed the police dog "Raja" for the
purpose of tracking down the culprits of this murder. PW-8 said that the police
dog was brought to the place of occurrence on 15.4.1993 and that dog after
smelling the blood, bloodstained handkerchief, a knife and a belt which were
strewn on the floor near the dead body, began its pursuit in search of the
hideout of the culprits or where the body was stashed away. The track which the
terrier followed thereafter has been narrated by PW-8 in his evidence. The termini
of the track was the house of the appellant.
The
uncanny smelling power of canine species has been profitably tapped by
investigating agencies to track the culprits. Trained dogs can pick up scent
from the scene of any object and trace out the routes through which the
culprits would have gone to reach their hideouts.
Developing
countries have utilized such sniffer dogs in a large measure. In India also the utilization of such
tracker dogs is on the increase. Though such dogs may be useful to the
investigating officers, can their movements be of any help to the court in
evaluating the evidence in criminal cases? A four-fold criticism is advanced
against the reception of such evidence. First is, it is not possible to test
the correctness of the canine movements through the normal method available in
criminal cases, i.e. in cross- examination. Second is that the life and liberty
of human beings should not be made to depend on animal sensibilities. Third is
that the possibility of a dog misjudging the smell or mistaking the track
cannot be ruled out, or many a times such mistakes have happened. Fourth is
that even today the science has not finally pronounced about the accuracy of
canine tracking.
There
are basically three kinds of police dogs - the tracker dogs, the patrol dogs
and the sniffer dogs. Recent trends show that hounds belonging to certain
special breeds sheltered in specialised kennels and imparted with special
training are capable of leading investigating agency to very useful clue in
crime detection and thereby help detectives to make a breakthrough in
investigation.
English
courts have already started treating such evidence as admissible. In Canada and in Scotland such evidence has become, of late,
admissible though in United
States the position
is not uniform in different States.
The
weakness of the evidence based on tracker dogs has been dealt with in an
article "Police and Security Dogs".
The
possibility of 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. The 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.
We
will now refer to two decisions of this Court in which the evidence relating to
sniffer dogs movement have been tested.
In
Abdul Razak Murtaza Dafadar vs. State of Maharashtra {AIR 1970 SC 283} a three
Judge Bench of this Court declined to express any concluded opinion or to lay
down any general rule with regard to tracker dog's evidence or its
admissibility against the accused, as it was not necessary to do so on the fact
situation. However, their Lordships made the following observations on the
usefulness or otherwise of such evidence:
"It
was argued 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 process similar to the thought processes
of human beings and wherever you have 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 Surinder Pal Jain vs. Delhi Administration {1993 Supple.(3)
SCC 681} a two Judge Bench expressed the opinion that "the pointing out by
the dogs could as well lead to a misguided suspicion that the appellant had
committed the crime, so save their Lordships sidelined that item of evidence
from consideration.".
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.
Investigating
exercises can afford to make attempts or forays with the help of canine
faculties but judicial exercise can ill afford them.
Exclusion
of that circumstance would not affect strength or sturdiness of the chain found
through the other circumstances which have been established by the prosecution.
Dealing with the fingerprints collected from the almirah at the place of
occurrence, learned counsel for the appellant contended, first, that
prosecution did not prove that the fingerprint used by PW-7 to compare the
finger impression from the almirah was that of A-2 Golla Bujji. In our view the
appellant cannot dispute that fact as A-2 Golla Bujji himself did not challenge
it when a formal evidence was tendered by the prosecution on that score.
Learned
counsel alternatively contended that even if the involvement of A-2 is treated
as proved that is not sufficient to inveigle the appellant into the dragnet. He
said that the very fact that no fingerprint of the appellant was collected from
the scene is enough to exclude his presence from the scene at the time of
occurrence.
Presence
of a fingerprint at the scene of occurrence is a positive evidence. But the
absence of a fingerprint is not enough to foreclose the presence of the persons
concerned at the scene. If during perpetration of the crime the fingerprint of
the culprit could possibly be remitted at the scene it is equally a possibility
that such a remnant would not be remitted at all. Hence absence of finger
impression is not guarantee of absence of the person concerned at the scene.
Learned
counsel contended next that the inability of the prosecution to indicate the
time of murder can go to the benefit of the appellant because the appellant
alone was once found in the house whereas he was found only at the restaurant
in the company of A-2. According to the counsel if A-2's finger impressions on
the almirah is of any use the possibility of A-2 committing the murder all
alone cannot be ruled out.
We
cannot approve of the said contention as a safe method for appreciating a case
based on circumstantial evidence. One circumstance by itself may not unerringly
point to the guilt of the accused. It is the cumulative result of all
circumstances which could matter. Hence, we are not inclined to cull out one
circumstance from the rest for the purpose of giving a different meaning to it.
Learned
counsel lastly contended that identification of ornaments as those of the
deceased is a very fragile evidence. The witnesses who identified the ornaments
as those belonging to the deceased were PW-1 and PW-2 who are the sons of the
deceased. We agree with the contention of the learned counsel that a female kin
of the deceased female would have been in a better position than a male kin to
identify the jewellery or ornaments worn by a woman. But we make a note of the
fact that when a Test Identification Parade was conducted to identify the
ornaments the daughter of the deceased was also called in. There is no case for
the prosecution or the defence that she would have failed to identify such
ornaments as those of her mother. It is difficult for us to believe that PW-1
and PW-2 the sons would have contradicted their sister while identifying the
ornaments during the Test Identification Parade. Hence non-examination of the
daughter of the deceased need not be taken as a serious flaw which could
vitally affect the prosecution evidence regarding the identification of the
ornaments.
We do
not find any infirmity as to the appreciation of evidence as done by the trial
court and the High Court. We hold the view that the circumstances enumerated
above, even barring the evidence pertaining to the sniffer dogs, are quite
enough to form the completed chain pointing unerringly to the active
involvement of the appellant in the murder of the deceased. Accordingly, we
dismiss this appeal.
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