P.K. Goswami, C.J.
1. This appeal is against conviction of accused Jamir Ali alias Bapu and Medu Sekh under Section 302/34 Indian Penal Code and sentence on each of them to imprisonment for life. Here is a case where a doe has responded to the command of man, but man has not to the command of law.
2. The Prosecution case opens with the first information report by Rai-mil Sheikh (P. W. 5) the father of Faizu-ddin aged about 18 years, his murdered son, lodged at the Palasbari police station on 8th November 1965 at 3.30 p. m. It is stated therein that his son had left the previous evening after meal and was found lying dead at Sarpara paddy field that morning. It is further stated therein that 'some unknown miscreant has murdered my son....'. The Assistant Sub-Inspector of Police (P. W. 15), who. in the absence of the officer-in-charse. registered the case went to Sarpara field and held inquest over the dead body of Faizuddin (Ext. 10) the same afternoon and the dead body was sent for cost mortem examination which was done next day at 11 a. m. It is revealed in the evidence of Dr. A. Mahmud (P. W. 2) that the following injuries were found:
(1) Lacerated wound on the right parietal area of skull 2'x 1/2' x bone
(2) Abrasion 1' x 2' on the right axilla
(3) Abrasion 1/2' x 1/2' on the right elbow
(4) Seven abrasions on the neck on both sides five on the right and two on the left measuring respectively 3' x 1', 2' x 1/2', 1/2' x 1/2', 1/2'1/2' and 2 1/2' x 1' & 1/2'x 1/2'. According to the doctor, the deceased was aged about 18 years. He also found 'face clotted, tongue protruded eves closed, mouth open, marks of bleeding in the ear and nostrils, body covered with mud in front, the scalp congested, fractured base of skull at the middle fossa, vertebrae healthy, subdural clot on the right parietal area 4'x4'. brain congested'. Death, according to the opinion of the doctor, 'is due to shock and haemorrhage as a result of injuries (sic) to the skull which was ante mortem.
P. W. 15 drew up a sketch map of the place (Ex. 11) with index and he seized some cut hair (Ext. 111) as per Ext. 12 dated 8th November, 1965 as well as a leather sheath of a small size dagger about 6' long and a pair of socks lying at the place of occurrence. He also seized other articles being wearing garments of the deceased on 9th November, 1965 after post mortem. He found marks of struggle on the grass at a distance of about 20 feet to the south of the place where the dead body was lying and found a trial extending from that place to the place where the dead body was. There was standing sugarcane at about a distance of furlong from the place of struggle and there was a tank nearby and to the north of the tank there were standing rice crops.
The Sub-Inspector Gopalakrishna Roy (P. W. J6) took over the investigation from P. W. 15 and visited the place of occurrence. On 9th November. 1965. on suspicion, he arrested five persons, accused Jamir, accused Medu, Asar, Hanif and Nazer; the last three ultimately were not charge-sheeted. He seized on 10th November. 1965 at 8 p. m. an endi chadar produced by accused Medu from his wearing at the police station (Seizure list Ext. 8). He also seized from the wearing of accused Jamir a shirt with blood like stains on 10th November. 1965, at 8.15 p. m. at the police station (seizure list Ext. 9). He seized on 12th November at 10 a. m. a dagger (M. 1) under seizure list Ext. 6 on beinfi produced by accused Jamir searching out from the nearby tank (Gambir Pukhuri). He also seized (seizure list Ext. 7) the same day at 10.30 a. m,. that is to say half an hour after seizure list Ext. 6, a Bharat brand shaving blade one side broken, on being produced by accused Jamir searching out from 2' of water from Gambir Pukhuri. He sent the endi chadar and some other articles to the Director of Central Forensic Science Laboratory, Calcutta, but his report (Ext. 15) is not at all helpful to the prosecution.
2-A. After the arrest of the accused, the police took the help of the Dog Squad and the evidence of Aditya Chandra Barman (P. W. 15) Keeper in Chief of the Dog Sauad, Railway Protection Force (R. P. F.), may be emoted:
I have undergone training on this subject. I have had the dog named Juliana after thirteen months' training at Gorakhpur training centre. The dog knows some codes and can detect a guilty person or find out stolen goods. The doe Juliana was taken to the place of occurrence at the request of the police of the Palasbari Police station. The police took the dog to the place where the dead body of the boy had been found. Marks' of blood and human foot prints were found there. The dog smelt there and then it was given the track command. And then the doff came to the house of the deceased boy at a distance of about half a mile. It entered the room of the boy and again smelt. Having come out from there it came to the house of Jamir. He was absent. Then it jumped up his bed. Thereafter it entered the house of some Asar Ali. After having come out of it. it entered the house of Medu. It would be three hundred to four hundred yards from the house of Jamir to that of Medu. Thereafter it moved no more to anywhere. After that a test parade was arranged taking in these three, viz. Jamir, Medu and Asar who were mixed amongst fifty such similar persons. After that a dagger cover found at the place of occurrence was given to smell. After smelling it. it smelt the man in the parade and arrested Medu and Jamir by biting. After that the Police brought Medu and Jamir arrested.
In cross-examination. he stated:
This power of the dog Juliana depends upon smell. Relating to smell no scientific truth is known. (The translation in the paper book is not accurate). The dog receives smell from the cloth or the material used....The parade was arranged after half an hour the dog stooped at the house of Medu.
3. Accused Jamir made a confessional statement (Ext. 1) before the Magistrate (P. W. 1) on 12th November 1965. Accused Medu made his confessional statement (Ext. 2) on 13th November 1965 before the same Magistrate. P. W. 3. who was a Magistrate at the material time and who was later appointed as Assistant Superintendent of Police, proved that he took the accused for verification of the confessions and his report is marked as Ext. 4. P. Ws. 5. 6, 7, 8. 10. 12. and 13 have not given any material evidence. On the other hand. P. W. 6 has not even support-ed P. W. 5 with regard to the deceased going to his house at night and his informing that fact to the father. P. W. 9 suggests a motive for the murder.
He stated that the deceased Faizuddin had told him that he (Faizuddin) had quarrelled with accused Jamir and that Jamir told that he would kill him (The translation in paper book is not correct.) He also stated that this auarrel ensued because both Faizuddin and Jamir loved accused Medu's sister. This might have given the occasion for suspecting Jamir and Medu leading to their arrest as admitted by the Police Officer. But if there is no positive evidence about their guilt. this aspect will not hold the prosecution. P. Ws. 11 and 12 are seizure list witnesses the former stating that Jamir brought out the dagger and the blade from the water and the later only stating that the Police showed him certain clothes which Were seized as per Exts. 8 and 9 P. W. 14 is also a seizure list witness about the production of the dagger and the blade by accused Jamir.
4. The learned Sessions Judge based his conviction on the retracted confessional statements of the two accused, which according to him were voluntary and true and which were also corroborated in material particulars, He. however observed:
So far as the other circumstantial evidence is concerned most of the witnesses have gone back and appear to have been gained over....
He also did not give importance to the evidence of the Dog Master. We may also point out that the accused were charged under Section 302/34. Indian P. C. although in the recitals of the charge the ingredients of Section 34 were not at all mentioned. So far as the charge about furtherance of the common intention is concerned, the learned Judge held that that has been established form the confessions themselves. As the accused persons were hardly sixteen years of age. the learned Judge did not inflict the extreme penalty under the law.
5. The most important point for consideration in this case is whether the confessions of the two accused are voluntary. Before we deal with the point, we may read the confessions. The confession of accused Jamir reads as follows :
One day I asked Faiz soru bamboos. He did not give it. Then on another date he asked me some fish but I stated that I would not give him any fish and at this he (Faiz) said that he would cause my death by black magic. Out of that grudge myself and Medhu on the night of occurrence, on a Sunday, at about mid-night took Faiz on the pretext of eating sugarcane on the field near which there was a tank. Our intention was 'we will catch him and cut off his hair and then let him off'. With that end in view Medhu put a chaddar round the neck of Faiz and then grabbed him down and I with a blade started cutting his hair. Faiz tried to extricate himself but Medhu pressed him down with more force and tightened up the chaddar and Faiz died. We had no intention to kill him but when he died all of a sudden we took the dead body near a drain and left it there. The dagger and the blade were thrown in the tank. Afterwards I produced the dagger and the blade before the Police.
The confession of accused Medhu reads as follows:
Faiz threatened myself and Jamir with death by black magic. Out of that grudge, myself and Jamir thought of putting him into fear. We did not intend to cause his death. We only thought of putting him into some fear but suddenly he died. Accordingly on Sunday night we took Faiz with us on the pretext of eating sugarcane and then near a tank we, namely myself & Jamir put a Chaddar round the neck of Faiz and grabbed him down. I took one end of the chaddar and the other was taken by Jamir. I drew one end and Jamir another end of the chaddar and soon after I took both the ends and Jamir with a blade started cutting the hair of Faiz. While Faiz was being held like that he became senseless and we thought he is dead and then dragged his dead body to a drain and left it there. The blade and the knife were thrown in the tank by Jamir. Then we went home. On the following day Tuesday Police arrested us. We did not intend to cause death of Faiz. We wanted to put him into fear only. but he died suddenly.
It will appear that accused Jamir has not taken upon himself any responsibility for the death of Faizuddin. According to him even accused Medu had no intention of killing him. but his action in tightening up the chaddar caused the death of Faizuddin. He. however, admits that he started cutting the deceased's hair with a blade and the only intention was to 'cut off his hair and let him off'. The confession of accused Medu however implicates himself, as well as accused Jamir. He also stated 'we did not intend to cause death of Faiz'. In order to appreciate whether the above two confessions are voluntary, we have to note certain material facts leading to the confession in each case. The accused were said to be arrested on 9th November. 1965 although it appears from the recitals in the confessional forms that they were arrested on 8th November 1965. It also appears that they were in Police custody from the date of arrest till the dates of confession.
The Police produced these two accused along with others before the Magistrate on 10th November 1965 and they prayed for Police custody for 24 hours to recover the weapons used in committing the murder and the prayer was allowed. On the next day, 11th November all the accused were produced by the Police before the Magistrate and they prayed for remanding accused Medu and Jamir to Police custody for 48 hours which was granted and the other three accused were remanded to Jail custody. On 12th November accused Jamir produced the dagger at 10 a. m. (Ext. 6) at Sarpara Pathar which is stated to be 17 miles from the Magistrate's Court at Gauhati. Accused Jamir produced the blade at 10.30 a. m. at the same place (Ext. 7). He was produced before the Magistrate the same morning at 11 a. m. and he was forwarded to Judicial custody after recording the confession at 3.30 p. m. The Magistrate stated that he save him time for reflection till 3 p. m.
It is clear that the accused had all along been in Police custody immediately before recording of the confession. The Magistrate stated in his evidence:
At that time no Police man was in my sight or to the hearing of me. To my belief I think his confession to be voluntary and true'. When the accused was examined under Section 342. he stated that he had made the statement 'under the assault of the Police.' The Magistrate however stated that the accused did not complain to him of any assault by the Police. Recording of confession under Section 164, Criminal P. C. is a solemn and responsible act. A Magistrate in recording a confession performs a very important Judicial function. Although the accused is produced before him when Police investigation is in progress, it is necessary for the Magistrate to properly consider the situation and the circumstances under which an accused is produced before him for confession. It is clear in this case that the accused had been all along in Police custody for three days, if not four, and half and hour before production in Court, he was in active company of the Police in which he is said to have produced incriminating articles.
Although the Magistrate in this case has stated that he has given him four hours time for reflection, we do not think that in this particular case, in view of the age of the accused and prolonged Police custody. it can be said that the accused was free from Police influence in making the statement. Even if he were not assaulted by the Police, there might be some reasonable ground to hold that some hope or fear might have been engendered or promise made to the accused for making the statement before the Magistrate to obtain some advantage with reference to the charge. This was a case in which the Magistrate may have done well by sending, the accused to judicial custody for a day with sufficient safeguard against mixing with other persons before recording his confession. What will be the time for reflection in an individual case will depend upon the circumstances of each case. We are, however, satisfied in this case that the time given to the accused is not sufficient to render him free from the influence of the Police in making the statement. We therefore come to the conclusion that the! confession of accused Jamir is not voluntary. That being the position, the confession is not admissible under Section 24 of the Evidence Act.
6. We may now come to the confession of accused Medu. The same infirmities which are noticed in the case of Jamir's confession are attracted to his confession as well. In addition, we may observe that he was kept in the Police custody for four days. if not five. Besides from the order-sheet, it appears that a copy of the confession made by Jamir on 12th November has been given to the Police and he was not produced on the same day as Jamir for recording of the confession. It may be therefore possible that with a copy of the confessional statement with the Police, wherein Jamir had already implicated Medu, some kind of undue influence might have been brought to bear upon him to make the confession as he has done by implicating Jamir as well as himself. He was produced before the Magistrate at 10 a. m. on 13th November and he was forwarded to judicial custody at 2 p. m. after recording of the confession. He was brought immediately from prolonged Police custody and we reach the same conclusion with regard to his confession that the effect of any promise or hone which might have been given by the Police had not been removed when his confession was recorded by the Magistrate so soon after the Police custody. We therefore hold that the confession of accused Medu is also not voluntary and is not admissible under Section 24 of the Evidence Act.
Even though both the confessions are irrelevant under Section 24 of the Evidence Act. these could have been admitted under Section 28 of the Evidence Act if the impression caused by promise indicated above has been fully removed from the minds of the accused. We are clearly of opinion that this has not happened in this case. Mr. Islam, appearing on behalf of the accused, has with justification pointed out that the recording of the confessions has been done very casually and cursorily by the learned Magistrate.
Once these confessions are not admissible in evidence, as we have held above there is no evidence to connect the two accused with the offence charged.
We may also point out the serious infirmity in the prosecution case even otherwise. According to the prosecution the deceased died as a result of the head injury. There is nothing in the confession that any person has hit him on the head or on any part of the body. On the other hand, the confession indicates that the deceased died of strangulation. Even though this aspect should have been prominent during the investigation by the Police, no attempt was done to clarify the medical evidence about the cause of death even in face of the injuries described by the doctor. The doctor has stated the head injury to be ante mortem, but has not given any information with regard to the other injuries.
If the confessions were voluntary and true, the conclusion would have been that the deceased died of strangulation and not on account of the head injury, which, however, is not the prosecution case and it would not be permissible for the Court to substitute a theory different from that set up by the prosecution in a case of this description.
7. Coming to the evidence of the doe pointing out the two accused along with another non-accused, it is very difficult to give any undue importance to such material. It is true that the Police has for some time now utilised trained does in detecting and investigating crime, but as admitted by P. W. 4 the method is not vet scientifically established. Apart from that, while this intelligent animal with proper training may be able to help the Police in unearthing a crime, proper care will have to be taken by the investigating agency not to overdo it to substitute the same as the sole evidence in the trial, by somehow obtaining a confession from the person on whom the dog pounces upon. Good care will have to be taken by the investigating officer to obtain and produce admissible evidence from which independently it is possible to come to the conclusion that the accused has committed the offence. In this case we may point out that the doe lumped upon three persons and not merely two and the third man namely Asar has not even been sent up by the Police.
Besides, it is not at all certain how by merely scenting the leather sheath discovered at and seized from the Place of occurrence the dog jumped at accused Medu. Neither the Police officer nor P. W. 4 gives the date of the parade in which the dog Juliana took part, but it appears that an endi chaddar in the wearing of accused Medu was seized by the Police at the Police Station on 10th November, When a person is detected with the help of a doe by scent identification, sufficient safeguard will have to be taken by the Police to ward off suspicion against manipulation. It will be good to remember that investigation has also to be fair as well as efficient. The investigating agency will have to keep in mind that the dramatic effect of the dog jumping at the accused may not always carry the day, although it will immensely help them in their investigation and the procedure is worthy of encouragement, not only by resorting to it taut also by improving upon it. At any rate the canine part of the material of the squad is to indefinite and insecure and cannot have the status of evidence in the case.
In : 1970CriLJ373 (Abdul Razak v. State of Maharashtra), the Supreme Court although did not finally express any concluded opinion or lay down any general rule with regard to tracker dog's evidence or its significance or its admissibility, observed as follows:
But does 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 doe tracking, even if admissible. is not ordinarily of much weight.
8. A word about the verification report of the confessions by the Magistrate. This verification contained, as it were, a joint statement of the two accused who accompanied the Magistrate to the place of occurrence. These statements find place in the Magistrate's report but were not recorded in conformity with Section 164 (3). Criminal P. C. They are therefore, inadmissible evidence. Besides when the confessions are inadmissible, the verification falls through.
9. We felt a little unhappy when looking at the three seizure lists exhibited in the case. Two seizure lists Exts. 6 and 7 are stated to be prepared by Officer-in-charge G. K. Roy at Camp Sarpara Father. Ext 6 was prepared on 12-11-65 at 10 a. m. and Ext. 7 after half an hour at 10.30 a. m. as the recitals in the seizure lists show. It is rather intriguing that the ink of the first seizure list is different from that of the second. Besides it does not look like the ink fading in the second because the witness Rahmat Ali signed with the same ink in both the seizure lists. Even the signature of the officer-in-charge who is said to have prepared the seizure lists is of different style and character. Letter 'G' of the signature in Ext. 6 is different from that 'G' in Ex. 7.
Coming to the seizure list Ext. 12 pre-pared by R. Boro. A. S. I. (P. W. 15.). on 8-11-65. we find significant interpolation therein. The first item of seizure is definitely interpolated in different ink after the seizure list had once been written supposedly in presence of the witnesses. This item relates to the cut-hair which finds place in the confessions and about which there was controversy raised by the defence in the case. These are ugly features in Police investigation and will certainly receive the attention of the superior authorities.
10. In sum. even impelling suspicion is no proxy for proof. When the two confessions are ruled out of consideration in this case, there is nothing on which to convict the accused persons. There conviction and sentence are set aside. They are acquitted and are discharged from their bail bonds. The appeal is allowed.
M.C. Pathak, J.
11. I agree.