Dog Tracking as an Evidence: Reliable or Not?

Prachiti Suresh Shinde, studies in TYBLS at Thakur Ramnarayan College of Law. She believes that every aspect of life could be made creative just with your art of writing.

INTRODUCTION

So, when you hear the term tracker dog or dog tracker evidence, there is a sense developed that it is the evidence presented with the assistance of the trained tracker dogs. Here the word tracker is used because the dogs generally follow the scent and pursue the traces of scent. However, the challenge remains whether it is accurate because there is no possibility that a dog can evaluate its evidence. He cannot express whether he just thinking based on probability or analyzing based on circumstances or merely playing. There is non-uniformity found in the case of Indian Scenarios as the question of admissibility of such evidence has come before the Apex Court so many times.

ADMISSIBILITY CHALLENGES AND INDIAN SCENARIO

Canines are the first among all mammals that have served humans. The Daily Telegraph, in December 2015 quoted research and said that dogs have been helping humans for the last 33000 years. The canines are known for their ability to smell and track. They are used both for the army and police duties. Here we are concerned with their use in policing and investigating crimes.

Canines are the first mammals that have served the human species. As per a report in 2015, it was to be found that dogs have been assisting humans for the last 33000 years. The dogs are known for their best abilities like smelling and tracking. They are used in police forces as well as in defense. Though in this article we are interested in the evidence aspect. The use of canines in the investigating process goes back to the 1800s. You all might be knowing the famous criminal, Jack the Ripper (1888), the bloodhounds were used for searching him. During that time, they were allowed to accompany the police on patrol. Officially, in 1899, Police started training the dogs for police duties in Ghent, Belgium. It was a great move to use canines for investigating purposes. In the early 1900s, Germany had over 600 police dogs in their largest cities. In the mid-1900s, the South London police forces had started using dogs for sniffing the traces of the accused where there was no clue of the accused’s whereabouts. The widely used breeds for this purpose were German Shepherd, Belgian Malinois, Bloodhound, and Retriever. These dogs are used for a variety of duties like rescuing, attacking, protecting persons and for searching for explosives and drugs, etc. But we here are concerned just with the tracker dogs who are trained to track the traces. One of the abilities of tracker dogs is to separate the odor/scent even if they are mixed with multiple scents.

In Gade Lakshmi Mangraju vs. State of Andhra Pradesh[i] said that it was observed that hounds belonging to certain breeds were staying in specialized kennels and they are trained in a special way that they can provide an important clue in crime detection and help the detectives to advance the clueless situation. The Apex Court further has stated that the English courts as well as the Canadian and Scotland courts have accepted the admissibility of such evidence. Though in the United States the position of such evidence is dubious. Compared to that, our courts had already rated the potential of the Dog’s ability to sniff out the accused.

In Babu Magbul Shaikh V. State of Maharashtra[ii], The Hon’ble Bombay H.C has analyzed that a tracker dog was not swayed and that has increased the probability to accept such evidence. The court has exalted a tracker dog’s special skills by stating that it had outperformed various forms of detection as well as technology. It is widely known that in detecting drugs where all other forms where human technology is not able to bring satisfactory results when a tracker dog is used in such a situation it is found that it is the most reliable and foolproof method. The reliability has also been seen in cases of robbery, and murder, and the odor is uncontaminated, and the area is not congested. It was opined in this case that evidence brought by the tracker dog must be given superiority as well as credibility.

In India, the tracker dog’s evidence credibility has been included under section 45 of the India Evidence Act, 1872 which has provisions related to experts’ opinions. The dog handler can be cross-examined to check the reliability of the evidence brought by the dog and also the credibility could be verified. The Indian Scenario regarding such evidence has shown nonuniformity in the past and has not been considered substantially in a criminal investigation.

In the case of Abdul Rajak Murtaja Dafedar v. State of Maharashtra[iii], The Apex Court came across two questionable propositions, first is that a dog cannot take an oath and verify the evidence brought by him nor can he be cross-examined. However, the dog handler can do the needful. On the other hand, it is highly questionable that the liberty of human beings lies in the hands of a dog. In this case, the evidence of the tracker dog was not permissible, and it was observed by the judges that even If it was permitted it would not have greater substantiality.

In the case of Shaikh v. State of Maharashtra[iv], the evidence of tracker dogs is not potential evidence if it is not supported by any other circumstantial evidence to prove its credibility. The tracker dog convoyed the police forces to the accused's house however the evidence was priorly scrutinized and the evidence was permitted. In this case, the court was susceptible to the tracker dog’s evidence and stated four objectives that must be followed while verifying the evidence. It would be a high risk to permit the evidence as there is a large probability of an error occurring on the part of the dog or its handler.

In the case of Ramesh v. State of Assam[v], it was observed by SC that, "Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill-afford them."
In one of the Landmark judgments, it was found that the accused was convicted based on five reasons, one of which was tracker dog evidence. It was further appealed to the Supreme Court, in that the original judgment was upheld without including the evidence of Dog Squad. Till now it has been noticed that the tracker dog’s evidence could be included while investigating but would not have a substantial value in the criminal proceeding while establishing guilt.

OBJECTIONS:

The international approach toward accepting such evidence has also been reserved. One of the Landmark judgments has argued against the use of R.V. Montgomery[vi]. In this judgment, there were three arguments provided against the use of sniffer dogs. To summarize, it was opined that the canine itself cannot go into the box to give his evidence on oath and, he cannot be cross-examined so the handler has to provide a substantial proposition to verify the canine’s evidence. Secondly, there should not be a feeling that the life of a human being is dependent upon the dog’s inferences. Even if such evidence has been made permissible it would have a great impact on the jury hence such evidence should not be a deciding factor.

In Babu Magbul Shaikh V. State of Maharashtra (1993) CRILJ 2808 following crucial objectives have been laid down while determining the credibility of such evidence.

(a) In a country like India, it is important to have a complete punchnama related to the dog tracking evidence. Also, it should be supported by the testimony of the handler.

(b) There should not be any kind of inconsistency between the testimony of the handler and the evidence recorded in the punchnama as presented before the court.

(c) The handler is bound to go through the process of cross-examination for verification of the evidence provided.

(d) The handler is expected to provide the Court with all necessary credibility factors related to the dog such as its past performance, achievement, type of training, etc. also it may be attested with documents.

CAN SOLE DOG TRACKING EVIDENCE WOULD BE ENOUGH FOR CONVICTION?

In Ramesh Ramchandra vs. the State of Maharashtra: 2018 (4) Bom CR (Cri) 731, The Hon’ble court has held that sole evidence of Dog handler should not be considered as a mere deciding factor as in this case the evidence pointing out towards accused No.1 is not substantial to convict him in this present crime in any manner.

In R. v. Kang-Brown[vii]: It has been recorded over several past instances from some of the authorities cited by the parties that there is a question raised on the reliability of sniffer dogs.

SITUATION IN OTHER JUDICIAL AUTHORITIES

ENGLISH AUTHORITY: In the case of R v. Sykes[viii] in the leading case it was observed that the evidence should be admissible only if the dog handler is able to verify the reliability and accuracy of the traced evidence.

CANADIAN AUTHORITY: In the case of R v. Haas[ix], it was analyzed that once the potential of a tracker dog of tracking the odor has been verified then the evidence should be permitted before the court of law. It should be qualified on par with the opinion of an expert.

AUSTRALIAN AUTHORITY: The well-known judgment of Australian authority is the decision of the New South Wales Court of Criminal Appeals. In this case, the proposition of appeal by the appellant with regards to conviction for sexual penetration related to the caveat given by the trial judge with respect to the activities of the tracker dog. The Judge had specifically indicated that the dog is not subject to cross-examination hence the jurors needed to be cautious not to overestimate the credibility of the dog’s inferences. So, they would avoid arriving at a conclusion in haste. Gleeson CJ opined that the warning given by the trial judge was sufficient.[x]

UNITED STATES AUTHORITY: In the case of Florida v. Jardines[xi] it was observed that the authorities’ put a reservation on the use of sniffer dogs to search around according to the 4th US constitution amendment which protects the citizens from undue interference in their private property by any government officials.

Thus, I would like to conclude my article by saying that, though the evidence brought by canines is accepted internationally, in the Indian scenario the perspective is still reserved. The most important is to verify the credentials of the dog handler and the required documents to prove the potential of the tracker dog. Clear proof of the accuracy of the breed of canine is required to validate the abilities of the dog. Courts must be made aware of the probability rate of identification of traces as well as their resistance to deviations.

REFERENCES

[i] Gade Lakshmi Mangraju vs. State of Andhra Pradesh (2001) 6 SCC 205

[ii] Babu Magbul Shaikh V. State of Maharashtra (1993) CRILJ 2808

[iii] Abdul Rajak Murtaja Dafedar v. State of Maharashtra 1970 AIR 283

[iv] Shaikh v. the State of Maharashtra, 1993 (3) BomCR 309

[v] Ramesh v. the State of Assam (2001) 6 SCC 205.

[vi] R. v. Montgomery 1866 N.I 100

[vii] R. v. Kang-Brown 2008 SCC 18

[viii] R v. Sykes (1977) Crim LR 752.

[ix] R v. Haas (1962) 35 DLR (2d) 172

[x] R v Barnes (unreported, NSW Court of Criminal Appeal, 1 December 1988)

[xi] Florida v. Jardines 569 US 1 (2013)

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