JUDGMENT - V.M. KANADE, J.:---The appellant was charged under section 302 of the Indian Penal Code for having committed the murder of Rameshwar alias Sadhubuwa Pundlik Nanotkar on 3-6-1989. The II Additional Sessions Judge, Amravati by his judgment and order dated 23rd July, 1992 in Sessions Trial No. 163/1989 convicted the appellant under section 302 of the Indian Penal Code and sentenced him to suffer life imprisonment and also directed to pay a fine of Rs. 500/-, in default of payment of fine, to suffer further R.I. for one month. 2. The prosecution case, in brief, is that deceased Rameshwar was working as a driver in the flour mill of Bhagwandas Maldhan. The appellant/accused was running a pan shop near the flour mill of Bhagwandas. It is the case of the prosecution that the relations between the accused and the deceased were strained for some time and the deceased Rameshwar had filed a complaint with the police about six months prior to the said incident. Chapter proceedings under sections 106 and 110 of the Code of Criminal Procedure were also initiated against the accused at the instance of deceased Rameshwar. 3. On 3-8-1989, it is the case of the prosecution that Rameshwar worked up to 7.00 p.m. in the flour mill and thereafter he closed the flour mill and went to a watch repairing shop. Thereafter, at about 8.30 p.m. Rameshwar proceeded towards cotton market and after some time he was found lying on the ground and one Pralhad Barde noticed that Rameshwar had sustained some bleeding injuries. Immediately, a report was sent to the Police Station and Rameshwar was sent to the hospital for treatment. However, Rameshwar died before arrival of the Special Executive Magistrate and hence his dying declaration could not be recorded. The crime was registered as Crime No. 291/1989 and on the basis of the suspicion the accused was arrested mainly on the ground of the earlier complaint filed by the deceased on 23-5-1989. Police recorded the statements of various witnesses. The clothes of the accused and the deceased were seized and they were sent to the chemical analyser. Similarly, the assistance of Dog Squad was taken by the prosecution in order to identify the accused on the basis of the blood stained knife which was found near the scene of the offence. 4. Police recorded the statements of various witnesses. The clothes of the accused and the deceased were seized and they were sent to the chemical analyser. Similarly, the assistance of Dog Squad was taken by the prosecution in order to identify the accused on the basis of the blood stained knife which was found near the scene of the offence. 4. Since a prima facie case was made out, according to the prosecution, a charge-sheet was filed against him and a charge was framed by the Sessions Judge under section 302 of the Indian Penal Code for having committed the murder of deceased Rameshwar. The accused pleaded not guilty to the said charge. The prosecution adduced evidence and the case of the prosecution is mainly based on the circumstantial evidence. The trial Court convicted the accused on the basis of the circumstantial evidence adduced by the prosecution. The appellant has, therefore, challenged the said judgment and order in this appeal. 5. We have heard learned Counsel appearing on behalf of the accused and learned A.P.P. appearing on behalf of the State. 6. Shri Daga, learned Counsel appearing on behalf of the accused, has taken us through the entire evidence on record including the oral deposition recorded by the Sessions Court as also the other documentary evidence on record. We have also perused the judgment and order passed by the trial Court. 7. Learned Counsel appearing on behalf of the accused submitted that the prosecution had not succeeded in establishing that the accused was the author of the said injuries on the person of deceased Rameshwar and that there are several missing links in the prosecution case and as a result of which the accused was entitled to be acquitted from the charges which were levelled against him. 8. Learned A.P.P. appearing on behalf of the State, vehemently opposed the submissions made by the learned Counsel for the appellant. He submitted that though there was no eye-witness to the said incident, there was ample evidence in the form of circumstances which established beyond doubt that the accused had committed the murder of deceased Rameshwar. 9. We have perused the evidence on record. The prosecution has relied on four circumstances for the purpose of establishing that the accused had committed the murder of the deceased. 9. We have perused the evidence on record. The prosecution has relied on four circumstances for the purpose of establishing that the accused had committed the murder of the deceased. The first circumstance was that of motive and the prosecution tried to establish through the evidence of various witnesses that about six months prior to the said incident, the relations between the accused and the deceased were strained and that the deceased had filed a complaint in the Police Station in which he had expressed his apprehension that the accused would commit his murder. Deceased Rameshwar also filed a complaint on the basis of which Chapter proceedings under the provisions of sections 106 and 110 of the Code of Criminal Procedure were initiated against the accused. The second circumstance on which the prosecution relied was that of Chemical Analyser's report. The prosecution had seized the clothes on the person of the accused and also the earth which was attached to the slipper of the accused and also the earth attached to the shoes of the deceased which were blood stained. Similarly, the clothes of the deceased were also seized. The third circumstance, on which the prosecution relied, was the evidence of the Dog Squad where the prosecution had arranged the identification parade and a dog, expert in finding out the accused on the basis of smell, was brought and smell of the knife used in the incident was given to it and on that basis it identified the accused. 10. In our view, the evidence which is adduced by the prosecution does not establish beyond reasonable doubt that the accused was responsible for the murder of the deceased. P.W. 1 Lilaram, P.W. 2 Bhagwandas and P.W. 3 Pralhad Barde have been examined by the prosecution to prove that there was previous enmity between the accused and the deceased. P.W. 1 Lilaram has stated in his examination-in-chief that the relations between the accused and the deceased were strained about six months before the said incident. However, in his cross-examination he has admitted that he did not disclose the fact regarding the strained relations between the accused and the deceased to the police. In view of the said contradictions in his statement, his evidence cannot be relied upon by the prosecution. However, in his cross-examination he has admitted that he did not disclose the fact regarding the strained relations between the accused and the deceased to the police. In view of the said contradictions in his statement, his evidence cannot be relied upon by the prosecution. Secondly, P.W. 2 Bhagwandas also did not disclose before the police that the deceased had told him that he was assaulted at the hands of the accused. P.W. 3 Pralhad Barde also in his evidence has admitted that he did not disclose the fact about the strained relations between the accused and the deceased to the police. He has tried to explain since the police did not ask him about it, he did not disclose the said fact to the police. From the evidence of these three witnesses, it is, therefore, difficult to accept the theory of strained relations between the accused and the deceased. P.W. 4 Dadarao has been examined to prove that after closing the flour mill, the deceased had gone to the shop of P.W. 4 enquiring about the price of the watch. The said evidence does not in any manner assist the prosecution. Even assuming for a moment that relations between the accused and deceased were strained and that the deceased had filed a complaint against the accused six months prior to the incident and the further proceedings under sections 106 and 110 of the Code of Criminal Procedure were initiated against the accused, that by itself, cannot establish that the deceased was murdered by the accused. 11. The prosecution has further relied upon the Chemical Analyser's report. The police, after arresting the accused, had seized the clothes from his person and the police attached one shirt, one pant, slipper from the person of the accused. Similarly, clothes of the deceased, the knife which was found at the scene of the offence and the shoes of the deceased were also sent to the Chemical Analyser. In the Chemical Analyser's report, no blood was detected on the full pant and manila which were worn by the accused. Similarly, no blood was found in the earth which was seized. The blood group on the baniyan could not be determined. The Chemical Analyser, however, stated that there was a similarity in the Exh. 13, shoes of the deceased and Exh. 27, earth attached to the slipper of the accused. Similarly, no blood was found in the earth which was seized. The blood group on the baniyan could not be determined. The Chemical Analyser, however, stated that there was a similarity in the Exh. 13, shoes of the deceased and Exh. 27, earth attached to the slipper of the accused. The Chemical Analyser has stated that there was similarity in respect of the physical property and chemical composition. In our view, the chemical analyser's report also does not conclusively prove that the blood which was found on the clothes of the deceased was having the same blood group as that of the deceased. On the contrary, the chemical analyser's report in respect of the blood shows as inconclusive. The chemical analyser in respect of the similarity of the earth found on the two slippers and the shoes, by itself, cannot conclusively establish that the accused was at the scene of the offence. This evidence does not conclusively prove anything. The last circumstance, on which the prosecution has relied upon, is that of the evidence of the Dog Squad. For that purpose, the prosecution has examined P.W. 7 Wazidahmedkha, who, in his evidence, has stated that he was told to prepare an identification parade with the help of the Dog Squad. He was informed that the accused was sitting behind the Police Station along with some other persons and he was told to observe whether the dog can identify the accused after giving the smell of the knife to it and accordingly 25 to 30 persons were asked to stand behind Police Station in the round and the accused was also asked to stand with others. This witness has stated that Inspector Sayed gave smell of one knife to the dog and on the basis of the said smell on two three occasions the dog identified the same accused standing in the mob. It is pertinent to note here that the crucial evidence regarding which knife was shown to the dog has not been mentioned. The evidence of this witness is silent on this very crucial point as he mentions that Inspector Sayed gave a smell of one knife to the dog. It is pertinent to note here that the crucial evidence regarding which knife was shown to the dog has not been mentioned. The evidence of this witness is silent on this very crucial point as he mentions that Inspector Sayed gave a smell of one knife to the dog. As a result, since it has not been proved by the prosecution that the smell of the same knife which was seized from the scene of the offence was shown to the dog and it had taken its smell, the said evidence cannot be relied upon. The Apex Court has held that though the evidence of a Dog Squad is not inadmissible in evidence, yet it is a very weak type of evidence and unless there are clinching circumstances brought on record an accused cannot be convicted solely on the basis of this evidence. The Apex Court, way back in 1970, in the case of (Abdul Razak Murtaza Dafadar v. State of Maharashtra)1, reported in A.I.R. 1970 S.C. 283, has considered the admissibility of dog tracking evidence. The Apex Court, after considering in detail the admissibility of track of dog evidence, finally came to the conclusion that even if the evidence of dog tracking is held to be admissible, it did not ordinarily carry much weight. In para 11, the Apex Court has considered the various cases of dog tracking evidence. Para 11 reads as follows:--- "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 not admissible in order to prove the guilt of the appellant. The evidence of tracker dogs has been much discussed. In Canada and in Scotland it has been admitted. But in the United States there are conflicting decisions: "There have been considerable uncertainity 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. In Canada and in Scotland it has been admitted. But in the United States there are conflicting decisions: "There have been considerable uncertainity 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, page 429". There are three objections which are usually advanced against the reception of such 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 cases 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 evidence 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. Montgomery)2, 1866 N.I. 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. 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 behaviour of the tracker dog was crucial to sustain the conviction. In these circumstances the Court of 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 species 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 behaviour 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, appeared 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 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." The Apex Court, however, in para 12 of the judgment had made it clear that they did not wish 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 in the said case. 12. Even if the said observations of the Apex Court are in the nature of an obiter even then they are binding on us. 12. Even if the said observations of the Apex Court are in the nature of an obiter even then they are binding on us. In any view of the matter since the evidence of P.W. 7 is itself not reliable on account of the omissions on the crucial aspect as to which knife was shown to the dog, the said evidence, therefore, will be of no assistance to the prosecution case. 13. In our view, the findings given by the trial Court on the basis of these four circumstances, will have to be set aside and in the result the appeal will have to be allowed. The appeal is, therefore, allowed and the accused/appellant is acquitted of the charge under section 302 of the Indian Penal Code and the judgment and order of the II Additional Sessions Judge, Amravati dated 23-7-1992 is set aside. Appeal allowed. -----