Bombay High Court
Pandian Kanappan Nadar vs State Of Maharashtra on 29 June, 1993
Equivalent citations: 1994(3)BOMCR295, 1993CRILJ3883
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT Saldanha, J.
1. The much-maligned Bombay Police Force deserves a compliment and a pat on the back for some excellent detection and investigation in this very unfortunate case wherein an elderly gentleman was fatally stabbed for some small economic gain. Along with the Investigating Officers, the Police dog "Julie" who provided the crucial links with the murder weapons and the bloodstained chappals also deserves an appreciative and affectionate pat on the head. Dog-tracking evidence, which has been much in use with the Investigative Agencies in recent times, particularly in cases relating to explosives and drugs, was hitherto regarded in many quarters as being evidence of a rather weak or unreliable class. The Courts need to take cognizance of the fact that there exists a very elaborate procedure for the selection dogs that from part of the dog squad maintained by the Investigative Agencies in so far as not only does the Department select that breed of dogs which has been proven to be outstanding where its skills in this field and concerned, but that the puppies are carefully selected also on the basis of their pedigree. These animals are thereafter put through very rigorous training programmes lasting over a year at the hands of persons who can be regarded as experts in the field. Therefore, the special skills are not only sharpened but oriented to an extent whereby they acquire a very high level of professionality and it is thereafter that the dogs are used for actual detection. In this background where a dog is successful in pointing out the criminal, the evidence is of an extremely high calibre and a Court would place heavy reliance on it. This Court had occasion to consider the value of dog-tracking evidence in Criminal Appeal No. 510 of 1985 decided on 7-10-1992 by one of us (Saldanha, J.) wherein the Court had occasion to consider the evolution of the concept of dog-tracking evidence over the years and to hold that, undoubtedly, this evidence must pass the test of scrutiny and reliability as in the case of any other evidence, but once it does so, that it material evidence of the highest order.
2. Two issues of considerable importance have been canvassed with a degree of vehemence by the contesting parties to this Criminal Appeal. The first of them concerns the question as to whether in a case of multiple dying declarations some oral and one written coupled with communication through gestures, the prosecution would be justified in asking for a conviction on the strength of such material. The second issue which is of equal importance concerns the interesting aspect as to whether Dog-tracking evidence can provide conclusive proof in relation to identification of a culprit. It is necessary however to first set out briefly the facts relating to these appeals.
3. The deceased in this case, a retired gentleman by the name of Mukund Bedekar aged-62 years was at the relevant time residing in a flat on the first floor of Rukmini Nivas at Hindu Colony, Dadar. On 20-10-1987 his neighbour Waman Chintaman Joglekar was resting in the afternoon after lunch and he heard a thud from the adjoining flat occupied by Bedekar which is separated only by a partition wall. Shortly, thereafter his door bell started ringing continuously and on opening the door Joglekar who himself is a retired Major from the Army was taken aback to see his neighbour Bedekar standing there in his Vest and underwear virtually soaked with blood with his intestine protruding from it. Bedekar spoke a few words to Joglekar and exclaimed to him "see Dada how seriously I have been attacked" and expressed to him that he had been stabbed with a Sura. Joglekar and his wife immediately got hold of a table cloth with which they covered the injured Bedekar; they took him to his room and laid him down on the floor and tried to give some assistance to him. Bedekar asked for some water and he thereafter expressed the desire to go to the toilet whereupon Joglekar assisted him by providing him with an enamel pot in view of his condition.
4. Joglekar telephoned the police on the emergency number and he also called for a doctor. The doctor got there first but on seeing the condition of Bedekar, he immediately rushed out to fetch an ambulance. The control Room in the meanwhile relayed the emergency message to the Matunga Police Station and the P.S.I. Nadaf who was the Duty Officer along with certain other police personnel rushed to the scene. On coming there, they noticed a large knife thrown on the ground floor, blood stains and chappals on the stair-case and on the landing and Bedekar lying in a pool of blood.
5. It is necessary for us to record that Bedekar was naturally asked by Joglekar as to what had happened whereupon he stated that at about 1-30 in the afternoon somebody rang his door bell and on opening it he was three persons standing there, one of them asked for water and on his going inside they followed him and stabbed him on the abdomen with a large knife. He alleged that the other two persons had held him while the stabbing took place, that he grappled with the assailant, was able to get hold of the knife and thereby sustained injuries on his hand. In the course of the struggle the leg of the radiogram broke and the radiogram fell down making a loud noise. Bedekar also cried out for help whereupon the three assailants ran away from that spot. Bedekar states that he tried to chase them for some way down the stair-case but in view of his injuries, he came back to Joglekar's door and rang the bell. On the ambulance arriving, P.S.I. Nadaf immediately had Bedekar shifted to the hospital. In the ambulance the P.S.I. stated that on being asked, Bedekar informed him that he had been stabbed and he gave the identity of the persons as "Rangwallas" also stating that the further particulars of the painters would be available from his wife. We need to record here that Bedekar had made an identical statement to Joglekar when he had described the incident earlier. He did not describe the assailants nor was he able to name them, but he did refer to them as Rangwallas.
6. On reaching the hospital, having regard to the fact that Bedekar was conscious and was talking, the Police Officer arranged for his dying declaration to be recorded P.W. 8, Narayandas Baria, who is a Special Executive Magistrate was asked to come to the hospital and the Special Executive Magistrate had recorded the dying declaration of Bedekar at about 3-30 p.m. Thereafter, Bedekar was taken for an emergency operation. The prosecution alleges that on being informed telephonically about the incident that P.W. 2 Mrs. Padma Bedekar, the wife, rushed to the hospital. She was told that her husband had been stabbed by a painter, whereupon she immediately contacted her relation who had undertaken the painting job of their flat a few months earlier in December, 1986. He in turn immediately contacted P.W. 4 Kanchan Oze because that was the person to whom the painting contract had been assigned. Oze had hired the services of one Reddy who had supplied the labour and had undertaken the painting job and Oze states that he brought the said Reddy and proceeded along with him to the hospital and thereafter, that these persons were taken to the Police Station. According to the prosecution both Reddy and his wife Basanti who had worked with him on the job were able to indicate the whereabouts of accused Nos. 1 and 2 who were residing in a Jhopadpatti at Andheri. The Police immediately went to that place and arrested accused Nos. 1 and 2 early in the morning on 21-10-1987. There is one other aspect of some significance which requires to be recorded. According to the prosecution immediately after recording the dying declaration in the hospital, P.S.I. Nadaf returned to the scene of offence, he drew up an elaborate panchnama and attached two articles the first of them being a pair of chappals one of which was lying on the landing and the other one close to the entrance of Bedekar's flat as also a large knife or a Sura, which was found thrown on the ground floor. Both these articles were blood stained. In order to track down the assailants, the Police had asked for the services of the tracker dog and the dog was brought to the scene of offence. The dog was asked to pick-up the scent from the chappal and the knife. The dog proceeded for some distance but was unable to track down further as the scent was lost. These two items along with the scrapings of blood etc. were taken charge of by the Police under a panchanama.
7. As indicated by us, the accused were arrested early in the morning on 21-10-1987. The prosecution alleges that on the afternoon of that day, the services of the dog squad was once again requisitioned. The Special Executive Magistrate, P.W. 11 Anandraj was requested to supervise the identification Several dummies were sent for and the two accused mixed with the dummies. The blood stained chappals and the Sura which were in a wrapped condition were brought and these were opened out and placed on the ground some distance away from where the persons the parade were standing. The dog Julie was asked to sniff the Chappals and to thereafter find the person to whom this footwear belongs. The dog went round all the persons standing in the line and picked out accused No. 2. The dog was allowed to rest for 10 minutes and thereafter the operation was repeated with the knife. On this occasion, the dog went round all the persons standing there and picked up accused No. 1. The Memorandum was drawn up in respect of what had transpired. Thereafter, the police took the two suspects to the hospital, and produced them before the injured Bedekar. The prosecution alleges that on being asked by the Police Officer, Bedekar immediately pointed out to accused No. 1 and indicated that he was the person who had stabbed him and as far as accused No. 2 was concerned, that he indicated that he was the person who was with accused No. 1 and who had held him when he was being stabbed. The Police thereafter, completed the investigation and put the two accused persons on trial. The learned Additional Sessions Judge, found both the accused guilty of the offence under section 302 read with S. 34, IPC and sentenced them to imprisonment for life. It is against this set of convictions and sentences that the present appeals have been directed.
8. Mrs. Thorat, learned counsel appearing on behalf of the two appellants has with a very high degree of meticulousness, argued these appeals and she has advanced a variety of submissions which we shall deal with presently. Mr. S. B. Patil, the learned A.P.P. who appears for the State has supported the conviction.
9. The principal thrust of the attack by the defence is with regard to the identification. The bulk of the evidence which deals with the incident in question is undisputed. It is established that on the afternoon in question, when the deceased Bedekar was alone in the flat that grievous injuries, that he was thereafter removed to the hospital and in spite of medical attention that he succumbed to his injuries on 24-10-1987. There is no dispute about the fact that the cause of death was due to multiple injuries or with regard to the fact that Bedekar had met with a homicidal death. Whereas the prosecution alleges that it is the two accused before the Court who are responsible for his death, along with one more person namely Ganesh who is absconding, and could not be traced; it is the defence contention that the two accused have been wrongly identified, that the prosecution case suffers from several serious lacunae and infirmities and that consequently the conviction ought to be set aside.
10. The crucial evidence in this case is with regard to the identification of the two appellants. Mrs. Thorat has seriously attacked this evidence by pointing out to us that there are inter se contradictions in it, that it is wholly unreliable and more importantly, that taken cumulatively that it does not inspire complete confidence that on the other hand gives rise to grave doubt. The other head of evidence namely the dying declarations which are virtually the material that led to the tracking down of the appellants, their involvement and their identification has also been found fault with because Mrs. Thorat contends that the learned trial Judge has unfortunately attached undue significance to this material which in her submission does not pass the test of legal scrutiny. It is therefore, these two head of material alone that required to be re-examined by us for the purpose of the determining as to whether the conviction of the appellants was justified or not.
11. The law on the point is well crystallised and as far as the dying declarations are concerned, for a variety of reasons, namely the limited time available the situation and the condition of the injured person, these declarations whether oral or written do suffer from certain infirmities. It is in this context that the Court have had occasion to examine as to what sort of infirmities are grave enough to discredit this evidence and on the other hand as to in what situations the dying declaration ought to be relied upon. We do not need to recount the cases in detail because it is settled law that even an oral dying declaration quite apart from a written one and in some given instances a communication that is intelligible even if it is through signs and gestures could still be relied upon provided it inspires complete confidence in the mind of the Court. We are conscious of the fact that the liberty of an accused and possibly a heavy sentence could result in cases where a dying declaration is acted upon and the defence is in an obviously handicapped position of not being able to test its veracity because the maker is no longer available and in these circumstances, the rule the prudence that guides the Court requires a very high degree of scrutiny and equally rigorous examination of the aspect of absolute credibility. One more aspect that is present in this case is that there are multiple dying declarations. The law on the point is to the effect that a Court would have to be even more guarded where the dying declarations are more than one particularly in those cases where the defence points out variations, inconsistencies or contradictions. By and large the principle has emerged that where there are multiple dying declarations and there are several inconsistencies inter se as a result of which the genuine question arises as to which of them represents the correct facts and which does not, that a Court will be left with no option except to reject all of them. The converse position arises in a situation where there is consistency between the various dying declarations and in these cases the confidence of the Court is reinforced by the fact that even if at different spans of time the injured person made further statements that these statements support each other and do not contradict.
12. The first of the dying declarations in this case was made to P.W. 1 Waman Joglekar. He is the next door neighbour of the deceased Bedekar. He is the person to whom Bedekar ran for assistance immediately after the incident. Joglekar is a retired Major from the Army. His presence is quite natural and cannot under any circumstances be disputed because even the Public Officers are witness to the fact that he and his wife were the persons who had rendered the assistance to the injured Bedekar. Further more, it has come on record that Joglekar was the person who had phoned the doctor and the emergency police number. Joglekar is quite categorical about the manner in which Bedekar narrated the incident to him, and he stated that Bedekar was clear about the fact that these were the three persons who had come. These two aspects of the matter are quite vital because it is on the basis of these clues that Mrs. Bedekar and the Police subsequently acted and the present accused were arrested in a very short period of time. As regards the statements made to Joglekar, Mrs. Thorat submits that in the first instance for whatever reason, the statement of Joglekar though he was present on the spot when the Police arrived, came to be recorded after several hours. She contends that this would naturally affect the accuracy of the narration. As regards the contents of the dying declaration which is basically all that we are concerned with, Mrs. Thorat came out very strongly by pointing out that having regard to the age of Bedekar and the fact that he had two serious stabs injuries the fact that he was bleeding, profusely and the intestine had protruded out through one of the injuries, that there can be no dispute about the fact that he was not only in intense pain but was in a condition of coma. She therefore submits that in this state, that even if he was able to mumble some words, that it was physically impossible for him to have given an elaborate narration of the incident and of the fact that the assailant was the painter. Apart from these two aspects, of the matter, it is the contention of the learned counsel that the police officers, through a variety of sources had concluded that the assailants were in fact the painters and this is the reason why according to Mrs. Thorat the reference to a painter finds place in the first dying declaration made to Joglekar. The learned A.P.P. has vehemently countered this argument and submitted that Joglekar had no special interest whatsoever in this case nor did he have any bias against any set of people least all of the painters; that it was physically impossible for Joglekar to have made up any such story that the assailants were the painters and more importantly as we shall point out, that there is support from the subsequent, dying declarations made to other persons than Joglekar that the assailants were the painters, and taking all this material cumulatively that there is no substance in the challenge that is presented.
13. We have carefully scrutinised the evidence of Joglekar. We have considered his status, his age, the qualify of the evidence and his general credibility as also the fact that he has withstood rather rigorous cross-examination. Having regard to all this, in our considered view, the evidence of Joglekar cannot be discarded and it has been rightly accepted by the learned trial Judge. This evidence would in fact establish that at the earliest point of time namely within minutes of the commission of the offence that the injured Bedekar did indicate that the assailants were the painters. As regards the condition of Bedekar, we have noted the fact that the subsequent medical evidence indicates that even though the stab injuries were on the abdomen that they had not penetrated any of the vital organs which was why even though there was considerable amount of pain and bleeding that he had not gone into a state of collapse. The record satisfactorily indicates to us that his physical and mental condition was good enough to make the statements which are attributed to him.
14. We then come to the second stage namely the statement made by Bedekar to P.W. 17 P.S.I. Nadaf who had rushed to the scene of offence along with the other police personnel. It was Nadaf who accompanied Bedekar in the Police van to the hospital. He is quite categorical about the fact that Bedekar was in a condition to speak and that he being the Officer in charge of the investigation he naturally asked him all possible questions with regard to the manner in which the incident took place and more importantly any clues with regard to the identification of the assailants. According to him Bedekar was quite categorical about the fact that there were three assailants and that he even showed the number by holding up three fingers. He also states that Bedekar informed him that the assailants were the painters. It is true that as far as this dying declaration is concerned, that we do not have any contemporaneous record of it. Unlike in the case of Joglekar, whose statement came to be recorded on that very afternoon which corroborates the dying declaration. We do not have on record any immediate document evidencing the fact that the deceased Bedekar had made the statement to P.S.I. Nadaf. Mrs. Thorat, has strongly attacked this part of the evidence on two grounds, the first of them being that it is the mere word of the P.S.I. but the second and more substantial objection being that even if in the initial stages Bedekar was in a position to utter something, with the loss of blood alone and having regard to his age, by the time he was carried and put in an ambulance he would have been in the state of complete collapse. She has pointed out to us that the only assistance which the injured got was by way of a little water which Joglekar had given. Even the doctor who came rushing to the spot was unable to give him any assistance because of the fact that he was grievously injured and in these circumstance, it is her contention that it is too much to expect that the deceased was in a position to answer the series of questions from the police officer on the way to the hospital.
15. Mr. Patil on the other hand reiterated that just as he was in a position to talk to Joglekar earlier that he was most certainly in a position to speak to the police officer. He reinforces his argument by pointing out to another significant aspect of this case namely that approximately an hour after this, or even more than that, the Special Executive Magistrate has recorded the dying declaration of Bedekar, and Mr. Patil contends that going back in time Bedekar would have been in a far better condition and would certainly have been able to speak. We have considered the evidence of P.W. 17 who is the investigating officer in this case. Mrs. Thorat has drawn out attention to one fact namely that the P.I. Kadam who was the Senior Inspector of Police and who has also taken over the investigation from the evening of that day has insisted on stating that the documents namely the panchanama, the dying declaration etc. which bear the Crime Number have so indicated because the offence was registered in the afternoon. Mrs. Thorat points out to us that when confronted with the documentary evidence of the fact that the offence was registered only at 8.00 p.m. that night that P.I. Kadam had virtually no answer and that this document conclusively contradicts his evidence. It is in the same light that Mrs. Thorat has cast serious doubt not only on the manner in which this case was investigated but on the credibility of P.W. 17 P.S.I. Nadaf, with whom we are immediately concerned. She states that if Nadaf were as truthful a Police Officer as he himself makes out to be, he cannot explain as to how and under what circumstances the Crime Number appears on the panchanama and on the dying declaration when he had admitted in his own evidence that he registered the offence only at 8.00 p.m. that night. It is in this light that Mrs. Thorat submits that these two parts of the prosecution evidence just cannot be reconciled with each other, that documentary evidence will therefore have to prevail and that the oral evidence will necessarily have to be rejected. The inevitable result according to her is that the Court cannot accept the second dying declaration that is alleged to have been made to P.S.I. Nadaf.
16. We shall deal with the evidence of P.I. Kadam separately. As far as P.S.I. Nadaf is concerned, we have noted the fact that not only did he rush to the scene of offence but that he has immediately taken the injured to the hospital and he has thereafter adopted all necessary steps with the minimum possible delay to have dying declaration recorded. On doing this, he thereafter returns to the scene of offence and draws up an elaborate panchanama. He has also recorded the statement of Joglekar and of several other witnesses on that day, he has completed the record formalities in the evening and the explanation given by him was that having regard to the pace at which he was required to complete all these jobs which virtually could not wait, that he finally finished the paper work in the police station, such as filling-up of the FIR, endorsements etc. at about 8.00 p.m. and handed over the investigation to P.I. Kadam thereafter. Criticising the police officers and the investigation has become habitual and is the main plank of many defences. In this case the criticism is thoroughly unjustified. The police deserve kudos.
17. We do not see any fault that can be found with regard to the acts performed by P.S.I. Nadaf on that day. In fact on a scrutiny of the various actions of the P.S.I., in our considered view he deserves to be complemented on the pace at which the skill with which he has gone about his duties. Statements have been correctly recorded by him, various entries etc. have been completed and he has also taken the precaution having regard to the fact that the injured was in a serious condition to have his dying declaration recorded by a Special Executive Magistrate. It is this last aspect of the matter that impells us to accept his evidence when he states that the deceased informed him in the Police van that there were three assailants and that they were the painters. As the investigating officer it is quite obvious that he understood the significance of this aspect and the importance of the fact and that he sent for a Special Executive Magistrate after getting to the hospital, indicates that the deceased was very much in a position to make a proper statement, that this statement consisted of something very crucial to the investigation and that therefore it ought to be recorded immediately. It is in these circumstances that we have no hesitation in accepting the dying declaration made to P.S.I. Nadaf. It is equally of importance to note that this dying declaration fits in completely with the earlier one made to P.W. 1 Joglekar and virtually corroborates him.
18. We are thereafter required to consider the third dying declaration that has been recorded by the Special Executive Magistrate who is P.W. 8 Narayandas Baria. A perusal of this document indicates that it has been written by the Police Officer but that it has been countersigned not only by the deceased but also by the Special Executive Magistrate who has put his official seal on it. Apart from this, there is also an endorsement of Dr. Nadkarni who states that the dying declaration in question was read over to the injured person in his presence. As regards this document, Mrs. Thorat learned counsel on behalf of the appellants points out to us that it is a basic and elementary requirement that the doctor must certify that the deponent of that declaration was in a fit condition to make a statement. Mrs. Thorat contends that it is not the opinion of the Special Executive Magistrate or the opinion of the Police Officer that are of any relevance because the physical and the mental condition namely the aspect as to whether the injured person is in a state of shock or trauma, whether the pain is so intense that it would impair his condition and handicap or suspend his faculties, and more particularly whether the injured person has been administered sedatives or drugs or whether the mental condition of the injured is such as to disqualify him from making a correct and cogent statement that are paramount. Mrs. Thorat rightly points out to us that the law on the point is quite settled namely the fact that the combination of all these facts would have a strong bearing on aspects of recall because it is the injured who is required to virtually and cogently think back and set down very correctly in answer to the questions put as to what exactly transpired.
19. It is in these circumstances, that Mrs. Thorat attacks the dying declaration which once again states that the assailants were the painters. It is true that the names and descriptions are again not given. Mrs. Thorat also relies on the fact that the learned trial Judge has preferred not to place reliance on this dying declaration because Dr. Nadkarni who is the doctor who has signed on the endorsement after the declaration was made was also not examined. Whereas, it is her case that the defence even provided the address of doctor Nadkarni, the learned A.P.P. submits that this is not so. Whatever be the reason, Dr. Nadkarni has not been examined. Had he been examined, he would possibly have been able to throw some light as a doctor, on the condition of Bedekar. The Special Executive Magistrate as stated that he satisfied himself that Bedekar was in a perfectly fit condition to make a statement and the police officer also supports this version. Normally, in the absence of the requisite certificate from the doctor, that the patient was in a fit condition to make a statement, we would have been totally reluctant in accepting the dying declaration in question and under normal circumstances would have upheld the view taken by the learned trial Judge. There are, however, certain indications that are quite inherent from the record of the present case that Bedekar was in a position to make a statement. The defence has not brought anything on record from the cross-examination of the doctor who had produced the patient's case papers in order to establish that Bedekar was not in a fit condition. Apart from this, we have ourselves perused the documents in question that are on record and there is nothing from these documents to indicate that Bedekar was either in such a bad or such a low physical or mental condition or for that matter that he had been administered any sedatives or drugs that would impair his mental faculties. The strongest reason that persuades us not to reject this particular document is the fact that apart from the non-obtaining of the doctor's endorsement regarding fitness of the patient, there is virtually nothing that has been brought out in the cross-examination of the Special Executive Magistrate or the Police Officer that would justify our rejecting the document. There are no interpolations, there are no apparent inconsistencies and what compells us to virtually accept is the fact that the versions set out in this dying declaration though it is the third in the series, is identical and fits in completely with the earlier two. It is in these circumstances that we are inclined to repose confidence in this document and to place reliance on it. This dying declaration coupled with the earlier two would, therefore, completely establish the fact that the injured Bedekar had noted the number of assailants and that he was also quite clear about the fact that they were the painters.
20. Like the sternal controversy over whether the egg or the chicken came first, Mrs. Thorat vehemently contended that the burden of establishing that the patient was in a fit condition to make a statement rests on the prosecution. She adds that it is not for the defence to establish that the condition was unsatisfactory. Learned counsel is absolutely right but the problem in the present case arises because the prosecution, through facts and circumstances, has done its job and it was therefore for the defence to have successfully assailed that position where unfortunately, it has staggered.
21. This brings us to the second major head namely the question of identification of the two accused who are before the Court. As far as this evidence is concerned, in order of sequence, we have examined the deposition of P.W. 2 Mrs. Padma Bedekar, the wife of the deceased. According to her almost immediately after the incident, P.W. 1 Joglekar telephoned her and informed her that her husband Bedekar had been stabbed and that this had been done by the painters. Mrs. Bedekar states that she immediately contacted her relation who was a contractor and who had assisted at the time when their flat was painted in December, 1986; that was about 10 months earlier. It is this person who immediately got in touch with P.W. 4 Kanchan Oze, because it was Oze who used to undertake painting contracts. It was he in fact who had undertaken to do the job as indicated by us earlier. It was Oze who in turn called Reddy and brought him on a scooter to the hospital because it was Reddy and his wife along with certain other workers who had physically done the job of painting of the Bedekar's flat. Mrs. Bedekar states that even though her husband did make certain statement on 20-10-1987 to her on that they were not coherent. According to her on the next day he was quite categorical when he spoke to her about the fact that it was the painter who was the assailants. What is of greater importance is the fact that Bedekar contends that on the evening of the 21st when the police officer brought the two accused to the hospital that her husband identified them as the persons who were responsible for the assault on him. As far as this evidence is concerned, Mrs. Thorat has attacked it very strongly because she points out to us that there is a direct contradiction between the evidence of Mrs. Bedekar and the evidence of P.W. 4 Kanchan Oze who is the Contractor, who had brought Reddy with him to the hospital. Oze in his evidence has stated that when the police brought the two accused to Bedekar, that he indicated through gestures that it was accused No. 1 who had stabbed him and that it was accused No. 2 who was the person who was holding Bedekar when the incident took place. This last aspect of the matter has been relied upon by the prosecution as a fourth dying declaration and is a very important one in so far as it was in the course of this action that Bedekar confirmed in terms that the painters to whom he had referred to earlier were in fact the present two accused.
22. We prefer to dispose of this last aspect of the matter in the light of the critism from the learned counsel Mrs. Thorat who has pointed out to us that it is too much to believe that Bedekar who admittedly was not in a position to talk has conveyed cogently through gestures that accused No. 1 was the person who stabbed and the accused No. 2 was the one who held him. She contends that this is pure fabrication, that this has been done is order to fix the liability on the two accused persons who were picked up merely as suspects. She further argues that even assuming that Bedekar had named the assailants as being the painters, that the evidence of Oze and Mrs. Bedekar will indicate that when the painting job was done by Reddy and his wife along with three other males, in all five persons had darried out that job. Mrs. Thorat points out therefore that the term painters could equally apply to any of these five persons and that there was no reason why it should be restricted to the present two accused merely because the police had chosen to pick them up. She states that if at all the police desired to be fair and correct that they should have taken Reddy and his wife alongwith the other three persons and lined up all of them preferably along with others and asked Bedekar as to who the assailants were and in which case it would have inspired confidence if he identified some out of them. She states that when the police bring two persons to the hospital and ask the injured whether they were the assailants, he is bound to shake his head and that such evidence is absolutely worthless.
23. We have considered all these submissions in the light of the evidence of P.W. 2 Padma Bedekar and P.W. 4 Oze. Both P.Ws. 2 and 4 have successfully withstood the cross-examination and there is nothing of any significance that has come on record to indicate that has come on record to indicate that their evidence is shaky or unreliable. Mrs. Bedekar is quite clear when she states that her husband identified the accused in her presence. Oze had indicated in his evidence that Bedekar did identify the two accused, but he has stated that Mrs. Bedekar was outside at that time. In our considered view this infirmity which is capitalised by the defence is not of such a significant or a crucial nature as to destroy the evidence itself. There is every possibility that Oze was mistaken about the proximity of Mrs. Bedekar though he does admit the fact that she was around. This infirmity, therefore, according to us will not affect the calibre of the evidence. Mr. Patil the learned A.P.P. has placed reliance on a decision of the Saurashtra High Court, reported in AIR 1956, Saurashtra Page-83 (1956 Cri LJ 1240), in the case of Vaghari Madha Kana v. The State. The Division Bench of the Saurashtra High Court in a considered judgment had occasion to consider the views expressed in and to lay down in this judgment that whether the accused indicated by nods, signs, motions of figures etc. in answer to the question in such a manner as to convey very clearly that the person shown to him was in fact the one who had committed the offence which had resulted in the injury, that even though there was no verbal statement that this would constitute a valid dying declaration within the meaning of Section 32(1) of the Evidence Act. We have no hesitation in endorsing this view particularly on the facts of the present case. As many as three parsons, the first being the wife of the deceased, the second one being an independent contractor and the third one being the Investigating Officer have in terms stated that Bedekar has clearly conveyed to them without any ambiguity that it was the two accused who were the assailants. The fact that this was not recorded in writing or the fact that no further statement of Bedekar or of the witnesses was taken down thereafter would not in any manner be good enough to discredit the validity of this evidence. In our considered view the identification of the two accused by the deceased is required to be relied upon and will have to be acted upon.
24. On the question of identification as indicated by us earlier, the Police Officer Nadaf had decided to make an attempt to co-relate the blood stained chappals found at the scene of offence and the blood stained knife that was also found at the scene of offence. The fact that these Chappals could have belonged to none other than the assailants does not require to be restated as also the fact that the blood stained knife thrown there was the weapon used in the assault. The crucial question was as to whether these items could be linked with the accused, who are facing trial. The Investigating Officer, therefore, requisitioned the services of the Dog Squad and this was done very expeditiously namely on the same after-noon after the arrest of the two accused. He took the precaution to request P.W. 11 Anandraj to supervise the entire operation. The Special Executive Magistrate has drawn up a memorandum indicating as to what transpired on that afternoon and he has also given evidence. He has indicated that the two accused persons were mixed up along with several other dummies and were made to stand in a line. He has stated that the chappals and the knife which had been wrapped in a paper and tied with string were brought and opened them and placed at some distance from where the persons were standing. He thereafter asked the person in charge of the Dog Squad P.S.I. Kazi who is P.W. 6 to instruct the Dog Julie to proceed with the attempt towards identification. The Dog handler took the dog to the Chappals. The Dog smelt them and after it was given an order to find and let off that the Dog encircled the persons standing there and thereafter came up to the accused No. 2 and jumped on him putting its paws on his chest and barking. The Dog was thereafter allowed to rest for 10 minutes. The operation was repeated with the knife and on this occasion the dog jumped on the chest of the accused No. 1 and barked. All this has been recorded. Mrs. Thorat has attacked this evidence by pointing out that the P.S.I. has admitted in cross-examination that the sole method on which the dog proceeds to identify is through the human scents. She has pointed out to us that the dog picks up the scent from the article of the person who has last handled that item and on that basis it would have to identify the person. In these circumstances, she states that the two items in question which were found at the scene of offence had been picked up in the course of the panchanama and that they had obviously been handled by the panchas and the police. She also points out to us that the Special Executive Magistrate himself had opened the packages and taken these items out and that in these circumstances, according to her, it is impossible to accept the statement of the Special Executive Magistrate that the dog in fact picked out the two accused. She has advanced an alternate argument which is the suggestion put to Special Executive Magistrate namely that the two accused were made to handle the two items in order to get their scent on the chappals and on the knife. As regards this last suggestion in our considered view there is nothing to support the charge that the police hand indulged in such mischief. On the other hand we have the evidence of the Special Executive Magistrate who very clearly states that the items in question were opened by him and that they were in a wrapped condition. P.S.I. Kazi has even gone to the extent of recording in the memorandum of the Dog Squad that the items in question were "in a preserved condition." Having made one attempt on the previous day, to our mind P.S.I. Nadaf was conscious of the fact that there might be the possibility of utilising the services of the "Tracker Dog and quite obviously for this purpose the necessary precaution was taken to wrap the items in paper in such a manner as to best preserve the original scent". We also need to note the fact that hardly 24 hours had elapsed since the incident and under such circumstances, there is no ground on which we can doubt the evidence of the Special Executive Magistrate who states that the Tracker Dog straightway picked out both the accused from amongst the persons in the parade. We need to compliment the police for their alertness and skill with regard to this aspect of the case which has provided the accused. After carefully assessing the material before us, we refuse to hold that the dog could have gone wrong.
25. Mrs. Thorat has submitted that the Dog tracking evidence is necessarily evidence of a weak character and that the Court should not place any reliance on it. She has submitted that there are various possibilities whereby this evidence could go wrong and she has also relied on the old position that obtained in law namely the fact that this evidence happens to be evidence of such a character that cannot be rigorously tested by a Court cross-examination. In fact in some of the old English cases, the Dog Tracking evidence was sought to be treated as being of very low evidentiary value on the solitary ground that the dog could not enter the witness box. Judicial thinking worldwide, even in the U.K. has undergone a complete change and later judicial decisions from all over indicate that the Courts have taken cognizance of certain other factor the first of them being that as far as the tracker dog is concerned, it happens to be an animal of a particular pedigree which is selected on its special qualities such as skill, alertness and intelligence. It is not that any and every dog is picked up by the police for these purposes. There are special rules which prescribe the manner in which the dog is required to be selected. In this context the learned A.P.P. has brought before us the Maharashtra State Police Dog Squad Manual and a perusal of this indicates that not only is the dog very carefully selected but that it comes through a rigorous process of training at the hands of experts. Its training takes place over a period of time where the dog is made absolutely proficient in the fined points of detection by experts in the field on the basis of well settled principles of training. Even after the skills are communicated to the dog it is put through a rigorous process of exercises in order to satisfy the police authorities that the dog has not only learnt but is able to carry out these skills with a high degree of precision, and that it does not go wrong, under any circumstances. In the course of daily training the dog is put through regular exercises in order to eliminate any possibility of an error. One needs to take cognizance of this factor because the dog Julie which is the animal used in the present case happens to be one such Police Dog which was brought there by its Trainer and by a Senior Police Officer who himself is very much of a veteran in the field and it was under the supervision of these two officers and the presence of the Special Executive Magistrate that the dog picked out the two accused. It would be extremely difficult under these circumstances and in this background to brush aside this evidence. We need to record in this context that we are not placing complete and implicit reliance with regard to the identification only on the dog tracking evidence. As indicated by us earlier, the accused in this case have been identified by the deceased Bedekar and we are satisfied that he in fact did so. That evidence is supported by the evidence of his wife Smt. Padma Bedekar and P.W. 17 P.S.I. Nadaf and it is in this context and this background that we found the dog tracking evidence to lend complete clinching and conclusive corroboration to the material that is on record. We have accepted this last head of evidence in addition to the earlier evidence in so far as it completely supports the same, though we must record that even independently, it inspires such confidence in the mind of the Court. We need also observe that judicial notice must be taken of the fact that the training skills and the special qualities that are found in the Police Dogs are now universally being recognised as being of such a high calibre that in cases such as detection of explosives, drugs etc., they are found superior and more effective than the most sophisticated instruments. In this background, one needs to take cognizance of the fact that for the purpose of tracking down a criminal, that special faculties, qualities and skills of the dog are aspects of which serious note must be taken. Where the Police rely on such evidence, the Courts would be more than fully justified in accepting it provided that it passes the test of complete testimony.
26. On a total consideration of the material before us, therefore, we are fully satisfied that the learned trial Judge was right in holding that the two accused who are the appellant before us had committed the offence of murder of the deceased Bedekar on 20-10-1987 and that they had acted in furtherance of their common intention. The conclusions arrived at by the learned trial Judge do not require to be interfered with. In the result, both the appeals fail and stand dismissed.
27. Before parting with these appeals, we would like to place on record the fact that the consideration of the evidence did involve certain unusual and interesting aspects and we would like to compliment Mrs. Thorat, the learned defence counsel who in our considered view has done an excellent job as also the learned A.P.P. Shri S. B. Patil, who has ably assisted us in the matter.
28. Criminal Applications Nos. 2840 of 1992 and 2681/1992 do not survive and accordingly stand dismissed.
29. Order accordingly.