Sniffer Dog Evidence:

Police Dogs: Evidence of Dog Tracking:

There are generally three kinds of Police Dogs:

a)    Tracker Dogs

b)    Patrol Dogs

c)     Sniffer Dogs

(Hounds: A dog of breed used for hunting; especially one able to track by scent;)

IMPORTANT CASE LAWS:

I. Abdul Razak Murtaza Dafadar v. State of Maharashtra

(1970 AIR (SC) 283)

1.    There has been considerable uncertainty in the minds of the Courts as to the reliability of dogs in identifying 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 upon a proper foundation being laid by proof that 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 defendant with the Crime. (Para 378, Am. Juris. 2nd edn. Vol. 29, p. 429.)"

2.    There are three objections which are usually advanced against the reception of such evidence.

a)    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.

b)    Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences.

c)     And, thirdly, it is suggested that even if such evidence is strictly admissible under the rules of evidence it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value.

3.    In R. v. Montgomery, 1866 NI 160 a police constable 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 the police tracker dog was taken to the base of the telegraph pole and when he had made a few preliminary sniffs 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 that other evidence against the accused that they had been stealing the wire was inconclusive and that the evidence of the behavior of the tracker dog was crucial to sustain the conviction. In these circumstances the Court Criminal Appeal ruled that the evidence of the constable who handled the dog on its tracking and reported the dog's reactions was properly admitted. The Court did not regard its evidence as a piece of hearsay but instead the dog was described as "a tracking instrument" and the handler was regarded as reporting the movements of the instrument, in the same way that a constable in traffic case might have reported on the behavior of his speedometer.

                        It was argued in that case that the tracker dog's evidence could be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behavior of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But Dogs 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 dog tracking, even if admissible, is not ordinarily of much weight.

However, after referring various decisions of foreign courts, Hon’ble Court observed: 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 appellant.

II. Gade Lakshmi Mangraju @ Ramesh v. State of Andhra Pradesh 2001 AIR (SC) 2677

Relevant Paras regarding Sniffer Dog Evidence are reproduced below:

“9.One of the main contentions advanced by the learned counsel is that the evidence pertaining to the sniffer dog is so fragile that no adverse inference could be drawn against the appellant on the strength of the said evidence. PW-8 is the police constable who deployed the police dog "Raja" for the purpose of tracking down the culprits of this murder. PW-8 said that the police dog was brought to the place of occurrence on 15.4.1993 and that dog after smelling the blood, blood-stained handkerchief, a knife and a belt which were strewn on the floor near the dead body, began its pursuit in search for the hideout of the culprits or where the body was stashed away. The track which the terrier followed thereafter has been narrated by PW-8 in his evidence. The termini of the track was the house of the appellant.

10. The uncanny smelling power of canine species has been profitably tapped by investigating agencies to track the culprits. Trained dogs can pick up scent from the scene of any object and trace out the routes through which the culprits would have gone to reach their hideouts. Developing countries have utilised such sniffer dogs in a large measure. In India also the utilisation of such tracker dogs is on the increase. Though such dogs may be useful to the Investigating Officers, can their movements be of any help to the court in evaluating the evidence in criminal cases ?

11. A four-fold criticism is advanced against the reception of such evidence. First is, it is not possible to test the correctness of the canine movements through the normal method available in criminal cases, i.e. in cross- examination. Second is that the life and liberty of human beings should not be made to depend on animal sensibilities. Third is that the possibility of a dog misjudging the smell or mistaking the track cannot be ruled out, or many a time such mistakes have happened. Fourth is that even today the science has not finally pronounced about the accuracy of canine tracking.

12. There are basically three kinds of police dogs - the tracker dogs, the patrol dogs and the sniffer dogs. Recent trends show that hounds belonging to certain special breeds sheltered in specialised kennels and imparted with special training are capable of leading investigating agency to very useful clue in crime detection and thereby help detectives to make a breakthrough in investigation. English courts have already started treating such evidence as admissible. In Canada and in Scotland such evidence has become, of late, admissible though in United States the position is not uniform in different States.

13. The weakness of the evidence based on tracker dogs has been dealt with in an article "Police and Security Dogs". The possibility of error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close to its heels. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. The last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Police dogs engage in these actions by virtue of instincts and also by the training imparted to them.

14. We will now refer to two decisions of this court in which the evidence relating to sniffer dogs movement have been tested.

15. In Abdul Razak Murtaza Dafadar v. State of Maharashtra, AIR 1970 Supreme Court 283 a three Judge Bench of this Court declined to express any concluded opinion or to lay down any general rule with regard to tracker dog's evidence or its admissibility against the accused, as it was not necessary to do so on the fact situation. However, their Lordships made the following observations on the usefulness or otherwise of such evidence :

"It was argued that the tracker dog's evidence could be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But dogs are intelligent animals with many thought process similar to the thought processes of human begins 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 dog tracking, even if admissible, is not ordinarily of much weight."

16. In Surinder Pal Jain v. Delhi Administration, 1993 Supp.(3) SCC 681 : 1993(3) RCR(Crl.) 195 (SC) a two Judge Bench expressed the opinion that "the pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime, so save their Lordships sidelined that item of evidence from consideration."

17. 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.

18. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.”

III. Dinesh Borthakur v. State of Assam 2008 AIR (SC) 2205

After referring Abdul Rajak Murtaja Dafedar v. State of Maharashtra [(1969(2) SCC 234 and Gade Lakshmi Mangaraju alias Ramesh v. State of A.P, 2001(3) RCR(Criminal) 403(SC) : [2001(6) SCC 205], this Court opined : "There are inherent frailties in the evidence based on sniffer or tracker dog. The possibility of an error on the part of the dog or its master is the first among them........ The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. Last, but not the least, is the fact that from scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals....... Investigation exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them."

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.

IV. Lalit Kumar Yadav @ Kuri v. State of Uttar Pradesh 2014(11) SCC 129

Law regarding Evidentiary value of evidence of sniffer dog may be summed as follows:

(i) In the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight. 1969(2) SCC 234, relied.

(ii) Criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties although court cannot disapprove the investigating agency employing such sniffer dogs for helping the investigating to track down criminals. 2001(3) RCR (Crl.) 403, relied.

(iii) While the services of a sniffer dog may be taken for the purpose of investigation, its facilities cannot be taken as evidence for the purpose of establishing the guilt of an accused.

Adv. Johny Goyal,
Punjab & Haryana High Court, Chandigarh
Law Teacher: Professionals' Law Institute, Sector 24D, Chandigarh