# ABDUL RAJAK MURTAJA DAFEDAR v. STA],$ OF MAHARASHTRA

- **Citation:** [1970] 1 S.C.R. 551
- **Court:** Supreme Court of India
- **Decided:** 1969-05-02
- **Case number:** Criminal Appeal No. 245 of 1968
- **Bench:** S. M. Sikri, R. S. Bachawat, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-rajak-murtaja-dafedar-v-sta-of-maharashtra-4660
- **Pages:** 8

## Headnote

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Criminal Procedure Code (5 of 1898), s. 164-Confession to Magis.
Irate-Prolonged police custody-When confession can be held to b.e not
voluntary.
Evidence Act ( 1 of 1872), s. 9-Identification of accused by means of
tracker dogs-Admissibility and weight.
The appellant was convicted for the offence of murder in that he
had removed the fish plates, nuts aod bolts of a rail joint and thus knowingly caused a derailment resulting in the death of ten passengers travelling
in a passenger train. The evidence against him consisted of his confessional
statement to the Magistrate, discovery of a spanner as a result of his statement to the police, and his identificatio!l by 'a police. tracker dog.
In appeal to this Court it was contended that : ( 1) the confession was
not voluntary because it was made after prolonged police custody of about
a fortnight; and (2) evidence of identification by the tracker dog was
not admissible in evidence.
HELD : ( 1) The appellant himself never said that he made the confession on account of any inducement or coercion on the part of the
police.
Further, immediately before he made the confession, he spent
four days in judicial custody ·and was not under the influence of the investi·
gating agency. Also, he had ~4 hours t<> think after he was told by the
Magistrate that he was not bound to make any confession and that if be
made one it would be uSed gainst him. Therefore, it could not be said
,the confession was not voluntary. [555 F-H; 556 C-D]
Nathu v. State of U:P. A.LR. 1956 S.C. 56 and Swaran Singh v.
State of Punjab, A.LR. 1957 S.C. 637, distinguished.
(2) In the present state of scientific knowledge evidence of dog tracking even if admissible, is not ordinarily of much weight. But, even on the
assumption that the identificat!on of the appellant by the tracker dog was
not admissible, the rest of the prosecution evidence., natUely, the appellant's
confession and the discov~ry of the spanner at the instance of the appellant,
condusively established the guilt of the appellant. [556 G-H; 558 C, D-E]

## Text

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ABDUL RAJAK MURTAJA DAFEDAR
v.
STA],$ OF MAHARASHTRA
.
:
May 2, 1969
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[S. M. SIKRI, R. S. BACHAWAT AND V. RAMASWAMI, JJ.J
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Criminal Procedure Code (5 of 1898), s. 164-Confession to Magis.
Irate-Prolonged police custody-When confession can be held to b.e not
voluntary.
Evidence Act ( 1 of 1872), s. 9-Identification of accused by means of
tracker dogs-Admissibility and weight.
The appellant was convicted for the offence of murder in that he
had removed the fish plates, nuts aod bolts of a rail joint and thus knowingly caused a derailment resulting in the death of ten passengers travelling
in a passenger train. The evidence against him consisted of his confessional
statement to the Magistrate, discovery of a spanner as a result of his statement to the police, and his identificatio!l by 'a police. tracker dog.
In appeal to this Court it was contended that : ( 1) the confession was
not voluntary because it was made after prolonged police custody of about
a fortnight; and (2) evidence of identification by the tracker dog was
not admissible in evidence.
HELD : ( 1) The appellant himself never said that he made the confession on account of any inducement or coercion on the part of the
police.
Further, immediately before he made the confession, he spent
four days in judicial custody ·and was not under the influence of the investi·
gating agency. Also, he had ~4 hours t<> think after he was told by the
Magistrate that he was not bound to make any confession and that if be
made one it would be uSed gainst him. Therefore, it could not be said
,the confession was not voluntary. [555 F-H; 556 C-D]
Nathu v. State of U:P. A.LR. 1956 S.C. 56 and Swaran Singh v.
State of Punjab, A.LR. 1957 S.C. 637, distinguished.
(2) In the present state of scientific knowledge evidence of dog tracking even if admissible, is not ordinarily of much weight. But, even on the
assumption that the identificat!on of the appellant by the tracker dog was
not admissible, the rest of the prosecution evidence., natUely, the appellant's
confession and the discov~ry of the spanner at the instance of the appellant,
condusively established the guilt of the appellant. [556 G-H; 558 C, D-E]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
245 of 1968.
Appeal by special leave from the judgm~t and order dated
November 17 1967 of' the Bombay High Court in Criminal Appeal
No. 1166 of,1967 and confinnation case No. 15 of 1967 ..
B. D. Sharma, for the appellant.
H. R. Khanna and S. P. Nayar, for the respondent.
L14 Sup. C.I./69-;6
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SUPREME COURT REPORTS
The Judgment of the Court was delivered by
[1970] 1 S.C.R.
Ramaswami, J.
The appellan! was convicted under ss. 302,
307, 325 and 427, I.P.C. and also under s. 126 of the Indian
Railways Act by the Additional Sessions Judge of Sangli in
Sessions Case No. 9 of 1967.
The appellant was sentenced to
death under s. 302, I.P.C. No other sentence was awarded for
the remaining offences. The appellant preferred an appeal to the
Bombay High Court in Criminal Appeal No. 1116 of 1967 which
was dismissed on the 17th November 1967 and the sentence of
death imposed on the appellant was affirmed. This appeal is
brought by special leave from the judgment of the Bombay High
Court.
The prosecution case arises out of the derailment of PoonaWasco Express train at about .4.40 in the early morning of October 10, 1966. The derailment occurred on the Vaddi bridge
which is beyond Miraj station. As a result of this derailment,
five bogies were capsized.
Out of these five bogies, two we.o.t
into the stream down below, 'two were on the slope and one on
the track. In this incident ten persons died and a large number
of other persons received grievous injuries.
The charge against
the appellant was that he had removed fish plates, nuts, bolts .!tc.,
of the rail joint near Vaddi bridge No. 215 on Miraj Mhaisal
Railway track at Km. No. 743/9 and 10 between 4.05 J.m. and
4.50 a.m. in the early morning of October 10, 1966 with intent
or k.nowledge that he was likely to endanger the safety of the
persons travelling in the said train and he caused the Poona-Wasco
express train No. 206 Dn. to be capsized at Vaddi •II''. thereby
committed murder knowingly causing deaths of 10 persons who
were j!assengers in that train.
The appellant Abdul Rajak Murtaja Dafedar was working at
Miraj railway station as gangman in gang No. 13 of which
Laxman Madar was the Mukadam or Gangrnate and 'lapu Sopana
was the Keyman.
The area under this gang was from Km.
No. 741/3 to 747 /5 covering a railway track of 4 miles or 6 km.
Vaddi bridge falls within this area.
Vaddi bridge is at 2t miles
from the rJi!way station of Miraj, towards Belgaum. Mhaisal
gate is also towards Belgaum at 1 + miles from the railway station
on the way to Vaddi bridge.
At Mhaisal gate is the quarter of
Laxman Madar the gangrnate.
Near the quarter of LaYman is
the tool box where the tools of the gang are kept under Ioele and
key.
Vaddi bridge i~ the biggest bridge out of the seven bridges
lying betwcn Km. No. 743/9 to 747 /5. The height of the bridge
is about 30' to 40'.
There are six big arches and two small
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ABDUL RAJAK v. MAHARASHTRA (Ramaswami, J.)
553
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arches on each side of the bridge. The bridge is of masonry
stone. The case of the prosecution is that the appellant quarrelled
with Laxman who always found fault with him and did not spare
him when he was absent from or late in attending duties. On two
or three occasions Laxnum had ·altercation with the appellant and
Laxman had reported against him and Dastgir, a friend of the
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appellant.
On October 9, 1966, an altercation took place
between the appellant and Laxman. Lax.man found the work of
levelling and packing done by other gangmen CACCpt the appellant
satisfactory and so Lax.man asked the appellarit to correct the
defect.
The appellant got. irritated and took ex~on to the
remark of L8Xlllll(ll ·and: rushed towards him with a pick axe sayC
ing that he would ·break . his head. Laxman threatened to report
the conduct of the appellant to the Permanent Way Inspector and
went away towards the tool box.
Laxman got a report written
by Maruti about the incident and handed over the report to the
Assistant Station Master at about 7 or 7.30 p.m. Train No. 204
was due to arrive and the Station Master was in a hurry and so
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he despatched the complaint by free service way bill slip through
his office boy to the under-guard of the incoming train, namely,.
204 Dn.
According to prosecution case Ramchand Sadre,
P.W. 37, saw the appelJant going on the track at 3 or 3.15 a.m.
P.W. 37 was serving as a Sainik of the Railway Protection Fon:e
at Miraj Railway Station. He was on duty at 'G' point from
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9 pl.m. on October 9, .1966 till 7 a.m. the next day. After the
iwitlless saw the appellant going along the track goods train
No. 239 arrived at Miraj Railway Station at 4.10 or 4.15 a.m.
This goods train had passed the Vaddi bridge at 4.05 a.m. The
appellant let th~ goods train pass and approached the railway
bridge at Vaddi with a spanner and removed the fish plates and
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the keys and jaws of the sleepers of the 18" rail of right hand
side of the rail line.
When the Poona-Wasco Express Train
approached the bridg~. there was a "thud-thud" sound as if the
train was collapsing. , The engine driver closed the steam and
applied breaks as soon as the engine entered the bridge but before
stopping, the engine h*d coverl'!l 3 I 4ths length of the bridge. The
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lights went off, there was screaming and wailing of the people. It
was found by the engine driver, guard and others who alighted
from the train that th~ basal wheel of the engine had derailed and
the tender of the engin;e was tilted and to this tender was hanging
the first bogie which had vertically fallen down iiD the stream. The
second bogie had com#letely fallen in the stream. The third bogie
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had also telescoped like the first bogie resting its one end on the
second bogie that ha~ fallen in the stream and the other end at
the slope. The fourth bogie had derailed and slanted whereas the
front wheels of the filth bogie had derailed. The engine driver,
554
SUPREME COURT REPORTS
(1970] I S.CR.
guard and one police constable searched and found the affected
joint near which had fallen the removed fish plates, nuts, bolts,
.keys and jaws scattered in undamaged condition. There was also
.another fish plitte and one nut fallen on embankment in undamaged condition.
The engine driver made a complaint to the Police SubInspector Bendigiri.
Panchanama of the scene of offenee was
prepared. The thing.5 lying at the spot were not touched but were
guarded and an area of half a mile was cordoned off. On October 10. 1966 at 7 a.m. all the gangmen including the appellant
colrected at pole No. 744/4 for daily work but were asked by
the police officers to be seated below the bridge as their state·
ments were to be recorded.
Laxman and appellant were also
detained for interrogation. On the same night at 8.30 p.m. near
the spot of the accident the police dog Sheru of C.I.D., Poona,
was brought.
The appellant, Laxman and five other persons
were made to stand in a row facing the rail line in the presence
of panchas. The police dog Sheru was made to smell the affected
joint The leading strap was held by the controller of the dog.
The dog after smelling the articles near the affcct~d joint went
towards the embankment where one fish plate was lying, smelt it
and then went to the row of persons and smelling two persons
smelt the appellant also and pounced upon him with its forelei:s
resting on the chest of the appel'ant.
On October 17, 1966 the appellant offered to produce the
"Spanner from the place where he had hidden it near the railway
track.
A memorandum of his statement was drawn in the pregnce of panchas. It is said that the appellant led the panchas
and the police officers to the place between pole Nos. 744/6-7
and there dug out the earth and ·took out the spanner and produced it On October 29, 1966 the appellant made a confession
before the executive magistrate, Ex. 130.
The appellant pleaded not guilty to the charges. He alleged
that there was no altercation between him and Laxman and that
lte did not threaten Laxman with pick axe. As regards the confessional statement the appellant said that he did not understand
Marathi properly and therefore did not know what was written in
the statement
He also denied that he had gone to the spot to
recover the spanner in the presence of panchas. As regards the
police dog Sheru the appellant said that after smelling the articles
on the spot the dog passed him without pouncing upon him.
The trial court based the conviction of the appellant 0n
( 1) movement of the appellant on the day of the incident as
stated by Ramchand Sadare P.W. 37; (2) discovery of the spanner
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ABDUL RAJAK V. MAHARASHTRA (Ramaswami, J.)
555
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with which the nuts and bolts were removed, ( 3) the confession
statement of the appellant made to the Executive Magistrate and
( 4) the identification ·of the appellant by the dog Sheru.
The
High Court accepted the prosecution evidence on all these points
and affirmed the conviction of the appellant.
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It was contended on behalf of the appellant in the first place
that the confession Ex. 130 recorded by Taluka Executive Magistrate P.W. 54 was not voluntary.
It was pointed out that the
appellant was arrested on October 10, 1966 at 11 p.m. and was
kept in remand till October 18, 1966. On October 18 a remand
applica;;.on was made and time was~granted for a week.
On
October 25, 1966 the Magistrate directed that the accused should
be detained in District Jail at Sangli. The appellant was produced before the Magistrate on October 28, 1966 when there was
preliminary questioning and warning given to the appellant. On
the next day the appellant was produced before the Magistrate
and the confession was made.
The argument was stressed on
behalf of the appellant that he was in prolonged police custody
for at least a fortnight before the confession was made and there.
fore it must be held that the confession was not voluntary. Reliance was placed on the judgment of this Court.
In Nathu v.
State of U.P. (1) in which the appellant was kept in the custody
of C.I.D. Inspector Oil 7th August and the confession was recorded
on 21st August. It was held that prolonged custody immediately
preceding the making of the confession was sufficient, unless it
was properly explained to stamp it as involuntary.
No attempt
was made in that c.ase to explain the prolonged custody. In the
absence of such explanation it was held by the Court that the confession was not a voluntary confession. In the present case the
appellant was kept in jail custody for three days from October 25
to October 28, 1966 and on October 28,the Executive Magistrate
made the preliminary questioning of the appellant, gave him a
warning and sent him back to the District Jail at Sangli. On the
next day the appellant was produced before the Magistrate and
the confession was recorded.
It is clear that the appellant had
spent four days in judicial custody and he was not under the i
influence of the investigating agency for at least four days. Again
he had 24 hours to think after he was told by the Magistrate that
he was not bound to make any confession and if he made one
it would be used against him. It is manifest that the material
facts of the present case are not parallel to those of Swaran Singh
v. Stale. of Punja~(
2 ) and the ratio of that case has no application to the present case. It was also argued that the wife of the
appellant used to go to the police station with her child and it
(I) A.I.R. 1956 S.C. 56.
(2) A.I.R.1957 S.C. 637.
556
SUPREME COIJKT REPORTS
[1970] l S.C.R.
was at her persuasion that the appellant had agRed to make the
confession.
The suggestion was that the confession was not
voluntary but was made on account of some inducement.
But
no such suggestion was made to the police officers.
The only
question pu: to the Deputy Superintendent of Police Chavan was
whether the wife of the accused used to go to the police station
everyday and the witness denied it.
According to Chavan, she
went to the police station only on October 13 and 18, that is,
only on two occasionB.
No further suggestion was made to
Chavan.
Apart from this, if any coercion or inducement was
u>ed the appellant was the person who should make such a complaint.
The appellant, in answer to question No. 77 regarding
the confession merely said that he did not make the confession.
He did not say that the confession was made on account of any
inducement or coercion on the part of the police. Both the trial
Court and the High Court have upon an examination of all the
circumstances reached the conclusion that the confession of the
appellant was voluntary and we sec no reason to take a different
view.
The next question is regarding the discovery of the spanner.
The Deputy Superintendent of Police, Chavan, P. W. 86 was
questioning the appellant from the 11th to the 16th October. It
was on the 17th that the appellant was prepared to point out
where he had kept the spanner.
Two panchas were called, one
of whom is Narayandas Shedji, P.W. 46.
In his presence the
memorandum of what the appellant stated was made.
Therein
the appellant said "the same spanner while -coming back, l have
kept hidden in the ~hrub on the corner of railway line between
pole Nos. 744/6 and 744/7. I will produce the same personally.
The appellant then led the panchas and the police to the spot
where he had kept the spanner under the shrubs about 6 inches
below the earth which he dug out for takiing out the spanner.
The panchanama is Ex. 112. The spanner was found about
5 furlong.5 from the bridge towards the residence of the appellant.
The evidence of the Deputy Superintendent of Police and the two
panchas has been accepted ho.th by the trial court and the High
Court.
The discovery of the spanner at the instance of the
appellant is an important circumstance which corroborates the
confession of the appellant that he had removed the fish plates,
mus, bolts and the keys and jaws of the sleepers from the railway
line on the alleged date.
It was lastly urged on behalf of the appellant that the lower
courts ought not to have relied upon the evidence of dog tracking
and such evidence was Rot admi,sible in order to prove the guilt
of the 11ppellant.
The evidence of tracker dogs has been much
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ABDUL RAJ"AK v. MAHARASHTRA (Ramaswami, J.)
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discussed. In Canada and in Scotland it has been admitted. But
in the United States(') there are conflicting decisions :
"There have .been considerable uncertainty in the
minds of the courts as . to the reliability of dogs in indentifying criminals and much conflict of opinion on the
question of the admissibility of their actions in evidence. A survey of the cases, however, reveals that most
courts in which the question of the admissibility of
evidence of trailing by blood-hounds has been presented
take the position that up<>n a proper foundation being
. laid by proof tha,t the dogs were qualified to trail human
beings, and that the circumstances surrounding the
trailer were such as to make it probable that the person
trailed was the guilty party, such evidence is admissible
and may be permitted to go to the jury for what it is
worth as one of the circumstances which may tend to
connect the defendan_t with the crime."
There are three objections which are usually advanced against the
reception of isuch evidence. · First, since it is manifest that the
dog cannot go into the box and give his evidence on oath, and
consequently submit himself to cross-examination, the dog's
human companion must go into ·the box and report the dog's
evidence, and this is, clearly hearsay. Secondly, there is a feeling
that in ·criminal case$ the life and liberty of a human being should
not be dependent on canine inferences.
And, thirdly, it is
suggested that even if such evidence is strictly admissible under
the rules of eviden~e it should be excluded because it is likely to
have a dramatic impact on the jury out of proportion to its value.
In R. v. Momgomory(') a police COtDStable observed men stealing wire by the side of a railway line. , They ran away when he
approached them.
Shortly afterwards the police got them on a
nearby road. About an hour and half later tl1e police tracker dog
was taken to the base of the telegraph pole ~
when he had
made a few preliminary sllifl's he set off and tracked continuously
until he stopped in evident perplexity at the spot where the accused
had been put into, the police car. At the trial it appeared tllat
other evidence against the accused that they had been stealing
the wire was inconclusive and that the evidence of the behaviour
of the tracker dog was crucial ·to sustain the conviction. In these
circumstances the ·Court of Criminal Appeal ruled that the evidence pf the constable who handled the dog on its tracking · and
re~ed the dog's reactions was properly admitted.
The Court
did .1 not regard its evid,ence as a species of hearsay but instead
the dog was described as "a tracking instrument" and the handler
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(!) Para 378, Am. Juris. 2nd edn. Vol; 29, p. 429.
(2) 1866 N.I.160.
558
SUPREME COURT REPORTS
(19 70] l S.~.R.
was regarded as reporting the movements of the instrument, in
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the same way that a constable in traffic case might have reponed
on the behaviour of his speedometer. It was argued in that case
that the tracker dog's evidenee could be likened to the type of
evidence accepted from scientific experts describing chemical reactions._ blood tests and the actions of barilli.
The comparison
does not, however, appear to be sound because the behaviour of
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chemicals, blood corpuscles and bacilli contains no clement of
conscious volition or deliberate choice.
But dogs are intelligent
animals with many thought processes similar to the thought proCCS.'iCS 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 c
of scientific knowledge evidence of dog tracking. even if admissible, is not ordinarily of much weight.
In the present case it is not, however, necessary for us to
express any concluded opinion or lay down any general rule with
regard to tracker dog evidence or its significance or its admissibility as against the appellant.
We shall assume in favour of
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the appellant that the evidence of P. W. 72 and of the panchas
with regard to the identification of the appellant by the tracker
dog is not admissible. Even on that assumption we are of opinion
that the rest of the prosecution evidence namely the confession
of the appellant Ex. I 30 and the discovery of the spanner con-.
elusively proves the charges of which the appellant has been conE
victed.
For these reasons we affirm the judgment of the High C0urt
of Bombay dated 16/17, November, 1967 in Crl. A. No. 1116
of I 967 and dismiss this appeal.
V.P.S.
Appeal c/is11iis.\f:d.