This week, the Patna High Court overturned the death penalty handed down to a man convicted of the murder and rape of a 12-year-old girl. The court reached this decision upon discovering that the prosecution's entire case relied solely on the presence of a sniffer dog entering the accused man's house.

The division bench of Justices Ashutosh Kumar and Alok Kumar Pandey observed, “We fail to understand as to how the Trial Court proceeded in the same manner as the investigation had proceeded, on the presumption that the dog would never have faulted in entering the house of the appellant. There is evidence of the dog having entered another person's house also. We, for the present, do not say that help of a snifer dog cannot be taken by the police.”

“Animal science tells us that the dogs can be very proficient if they are trained properly. The advantage with them as compared to the humans is of their possessing a very sharp olfactory sense which could help trace the offender. But this cannot be an evidence, much less strong evidence unless the Court examines the reliability of the dog skills, its past patterns of performance or its handler's capabilities. It cannot ever be taken as a reliable pointer towards the commission of an offense at the hands of an offender,” the bench added.

However, the Court held that while a sniffer dog's assistance could serve as an initial lead for a police investigation, it should not be considered as conclusive evidence to the extent that the trial court does not require any corroborative evidence.

The above observation came in a Death Reference whereby the appellant was convicted under Sections 302/34, 201/34 and 376DB/34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012, vide judgment passed by the Special Judge (POCSO)-cum- Additional District & Sessions Judge-VI, Araria, in Spl. POCSO Act Case. On the same day, he was sentenced to be hanged by neck till he died.

As per the factual matrix of the case, a 12-year-old girl was said to have been gang-raped and then killed and thrown on a road near a temple, where she along with her grandmother had gone to witness a fair organized on the occasion of the Nagpanchami festival.

Allegedly, the occurrence took place in August 2019 but the FIR was registered a day after the dead body was recovered and was sent for postmortem examination on the same day.

The police after investigation submitted a charge sheet against the appellant, who was charged for the offences under Sections 302, 376D, 201/34 of the IPC and Section 4 of the POCSO Act, 2012 and was tried by the Special POCSO Court. The Trial Court, after having examined 13 witnesses on behalf of the prosecution and none on behalf of the defence, convicted and sentenced the appellant as aforesaid.

The Court initially conveyed its discontent with the Special Court's handling of the case, expressing dissatisfaction over the appellant's conviction and death sentence without adherence to fundamental legal principles.

Continuing, the Court observed that at the location where the girl's body was discovered, a tracker sniffer dog was deployed. Initially, the dog detected the scent of the deceased body and then proceeded to enter a villager's residence. The Court further highlighted that, as no incriminating evidence was discovered there, the tracking dog subsequently entered the appellant's house, leading to his arrest.

The Court pointed out, “Though the Trial Court has listed the evidence of the appellant having closed himself inside a room, which was locked from outside as one of the circumstances against him, but there is no evidence whatsoever of the door having been broken open for arresting the appellant. Thus, for all practical purposes, the only girdle on which the prosecution has rested its case is the snifer dogs tracking trajectory.”

The Court further pointed out that there was nothing on record to get any idea about the skills of the dog used for tracking or of the handler who had trained the canine.

"This is what is troubling us that without assessing the probative value of the materials, death sentence has been awarded by the Trial Court," the Court said.

The Court pointed out that the appellant was said to have confessed his guilt, and this story of confession also did not appear to be true for the reason that the appellant was arrested from his house and his confession was recorded before a B.D.O., whose name was disclosed in the investigation, but there was no emblem of the authority of the B.D.O. was present on the record.

“Who would believe such story of the prosecution that he had confessed his guilt? Perhaps the Trial Court did and also relied upon the materials which were narrated in the so-called confession,” the Court remarked.

The Court pointed out that the Trial Court may have overlooked the crucial fact that an investigative agency utilized a tracker dog and depended on the canine's abilities to ascertain whether it had entered the appellant's house.

However, the Court emphasized that relying solely on this exercise should not serve as the cornerstone for judicial dispensation.

Additionally, the Court remarked that judicial dispensation should not heavily depend on the expertise of a tracker dog, especially when there is no information available about its skills, and there is a lack of evidence regarding its appropriate training.

The court observed that at the location where the deceased body was discovered, four pairs of slippers, a purse, and a chain were found. However, the court pointed out that there was no evidence on record establishing a connection between the slippers found near the deceased body and the accused. There was no proof that the accused had worn those slippers on the date of the incident.

The court also highlighted the absence of any documentation regarding the appellant undergoing a medical test under Section 53A of the Code of Criminal Procedure. It speculated that perhaps this contributed to the appellant being granted bail during the investigation by the High Court.

Criticizing the trial court's decision to convict the accused based on such evidence, the court expressed the view that the circumstances presented by the trial court were either legally irrelevant or factually inaccurate.

Regarding the blood droplets supposedly observed on the deceased body, the court took note that there was no mention of this detail in the inquest report prepared at the scene.

The Court scrutinized the trial court's reliance on the recovery of jeans and questioned its validity, suggesting that the trial court may have overlooked the absence of identification or confirmation that the dress allegedly worn by the accused was connected to the fair.

The Court highlighted a specific witness to the seizure list who stated that only the appellant was apprehended at his residence after a sniffer dog search, with nothing else recovered. The witnesses uniformly asserted that they had signed on a plain piece of paper during the seizure.

Upon reviewing the post-mortem report, the Court cast doubt on whether the examined body corresponded to the victim, pointing out the report's omission of any examination of the victim's genitalia. The Court expressed skepticism, noting that in cases of suspected rape, a doctor typically prioritizes examining the genitals, yet no injuries were found on the entire body of the deceased, as explained by the High Court.

The Court also rejected the prosecution's arguments on the guilt of the accused based on him being found locked inside a room at the time of arrest.

The Court asserted, “Even if the appellant were found inside the room, it would be absolutely naive to give any hard and fast rule having any universal application, with regard to reaction of a person in a given circumstance.”

“With this evidence, we find the conviction of the appellant under any one of the Sections of the IPC or of the POCSO Act, 2012 to be highly unjustified in law.

For this reason, we have not delved into the aggravating and mitigating circumstances noted down by the Trial Court, for affording the appellant, death sentence,” the High Court said while setting aside the judgment and order of conviction and sentence of the appellants and acquit the appellant of the charges levelled against him.

Appearance:

(In DEATH REFERENCE No. 9 of 2021) For the Petitioner/s : Mr. Krishna Chandra, Advocate. For the Respondent/s : Mr. Abhimanyu Sharma, APP.

(In CRIMINAL APPEAL (DB) No. 728 of 2021) For the Appellant/s : Mr. Krishna Chandra, Advocate. For the Respondent/s : Mr. Abhimanyu Sharma, APP.

Case Title: The State of Bihar vs. Amar Kumar

LL Citation: 2023 LiveLaw (Pat) 147

Case No.: Death Reference No.9 Of 2021

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