Evidence of sniffer dog: Admissibility.

Sniffer dog trails if evidence?

Services of a sniffer dog may be taken for the purpose of investigation but its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.

Objection against sniffer dog trail:

There are three objections which are usually advanced against reception of the evidence of dog tracking. 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 the report the dog’s evidence and this is clearly herersay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inference.

[Abdul Rajak Murtaja Dafedar v. State of Maharashtra, (1969 (2) SCC 234)]

In another case the objection pertaining to sniffer dog was that the life and liberty of human being should not be made to depend on animals sensibilities and that the possibility of a dog misjudging the smell or mistaking the track cannot be ruled out, for many a time such mistakes have happened. In the said case, Court relying decision in Abdul Rajak Murtaja Dafedar (supra) case held: “We are of the view that criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals.”

[Source Gade Lakshmi Mangaraju alias Ramesh v. State of A.P., (2001) 6 SCC 205]

It was followed with another case and it was held that “the law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused.

[Source: Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697]

Conclusion about sniffer dog in evidence:

Thus the services of a sniffer dog was taken for investigation. The said dog traced the accused and he was formally arrested in the evening of the next day. The Investigating Officer, Ashok Kumar Yadav (PW-10) corroborated the evidence of Abdul Lais Khan (PW-4) to the effect that ‘Raja’ sniffer dog after picking up scent from the place of occurrence tracked down the house of the accused. What is relevant to note is that the accused has not been convicted on the ground that the sniffer dog tracked down the house of the accused and barked at him. The evidence of dog tracking only shows how the accused was arrested.

[Source: Lalit Kumar Yadav @ Kuri vs State Of U.P (Supreme Court of India)]

Liability for Criminal Omission

 Scope of liability of Criminal Omission:

Failure to act when required by law, is an act of criminal omission. It is a strict liability if specifically punishable by a law. However no omission can be presumed as criminal omission, especially if the relevant statute did not provide for the consequences of such criminal omission.

Indian Penal code 1860 vide Sections 32 and 35 provide for criminal liability in respect of certain Omissions:

The section 32 and 35 of Penal Code are as under:

32. Words referring to acts include illegal omissions.: In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.

35. When such an act is criminal by reason of its being done with a criminal knowledge or intention.: Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.

Legal compulsion required to constitute criminal omission:

The law in India as regards illegal omissions has been explained in Ambika Prasad v. Emperor and Anna v. State of Hyderabad AIR 1956 Hyd 99. There must be a legal compulsion to do an act and the failure to perform such an act would result in illegal omission. Not any and every omission to perform an act would result in a criminal liability. A reference may be made to the decisions in Queen v. Anthony Udyan (1883) ILR 6 Mad 280 and Basharat v. Emperor AIR 1934 Lahore 813. These provisions will have to be strictly construed. Otherwise each and every omission can attract criminal liability.
[Source: Delhi High Court  speaking through S Muralidhar, J. in on 29 May, 2008 in Avnish Bajaj v State.]
Thus every omission to act is not criminal omission.