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J&K High Court · body

2001 DIGILAW 2 (JK)

Jalli Dar v. State

2001-01-01

QAZI MASUD HASAN

body2001
In this case six persons were convicted under section 298-A Ranbir Penal Code and were sentenced by the learned Sessions Judge of Srinagar to one and a half years rigorous imprisonment and a fine of Rs. 5 each. The story for the prosecution briefly is that on the night between 3oth Katik and Ist Maghar 2000 one Shambu Nath Head Constable who was on patrol duty in village Tukna about 3 miles away from village Panchgam got information that in the latter village a bullock was slaughtered by Jalli Dar and Rahman Waza in connection with the marriage of Jalli Dars sister. The Head Constable laid the first information report on this basis at the Police Station Anantnag and required a posse of constables to assist him to raid the place. Soon after, it is stated, the Head Constable along with a party of constables and others started towards village Panchagam and raided the house of Jalli Dar. All the appellants with the exception of Rehman Dar, according to the story of Shambu Nath, were found in the act of chopping the meat of the bullock which had already been skinned dismembered. In the course of investigation Aziz Dar one of the persons so engaged was granted a pardon and made an approver. His statement is to the effect that he was approached by Jalli Dars brother Mehda Dar, also an appellant, to join in the slaughtering of the bullock at the time of the marriage of Jalli Dars sister, that he refused to do so in the first instance and joined later and that all the appellants engaged themselves on that date in slaughtering this bullock in a field close by Jalli Dars house. Apart from the evidence of Shambu Nath and three members of the raiding party, namely Rasool Gooroo, Ama Dar and Ama Chowkidar we have the statement of one Rahim Doom also belonging to village Panchagam. It may be stated here that none of the constables that was drafted from the Police Station, Anantnag, was produced; nor was any of the other people who were mentioned in the statement of the approver put into the witness box. The statement of the raiding party naturally is confined to the fact that the appellants, apart from Rehman Dar, were engaged in the act of chopping meat. They naturally do not say anything as to who slaughtered the bullock. The statement of the raiding party naturally is confined to the fact that the appellants, apart from Rehman Dar, were engaged in the act of chopping meat. They naturally do not say anything as to who slaughtered the bullock. This lacuna is sought to be filled up by the evidence of Aziz Dar, the approver and corroboration of the evidence of the approver in this behalf is sought by the evidence of Rahim Doom. Rahim Doom is a man of no consequence. He is a menial appertaining to this village and his story is that he happened to have gone to the house of Jalli Dar on the materi al date at about 11-30 in the night when he saw the bullock being skinned (not slaughtered) by all the appellants. This evidence does not carry conviction with me. I am the more 10th to believe this evidence because I find that it is the only evidence on the important point of the actual slaughter of the bullock (and yet falls short of it) in corroboration of the evidence of the approver. I find that it has become quite an etiquette for the investigating authorities to get hold of an approver in each case. This cheap method does away with all effort at investigation. Persons like Rahim Doom, who are men of straw, can always be found in every village to volunteer corroboration of the doubtful evidence of approvers. I find no justification in this case for granting a pardon to Aziz Dar. It should be clearly understood that the granting of a pardon or making an approver in a criminal case should not be resorted to as a matter of course. It is only when all avenues are exhausted and there is an apprehension of a serious crime remaining un-proved that recourse must be had to this practice. In this case there was not the slightest justification for making Aziz Dar an approver because there were three witnesses like Rasool Gooroo, Ama Dar and Ama Chowkidar in corroboration of the information that was furnished to Shambu Nath Head Constable. Shambu Nath should have produced the person from whom he got this information but he flatly refused to do so. Shambu Nath should have produced the person from whom he got this information but he flatly refused to do so. I can quite understand that in a case involving a matter of public policy the name of an informer may, with some justification, be with-held, but in a case of this nature there seems to be no justification for with-holding the name of the informer. If the name of the informer had been known, his evidence would have been the best evidence as to the actual slaughter of the animal and no recourse was then necessary to make Aziz Dar, obviously a guilty man, an approver. Practices Iike these raise suspicion that Head Constables like Shambu Nath are allowed to distribute patronage gratis both in the case of informers and in the case of making culprits as approvers. These suspicious elements cannot be ignored in this case. Nor has any evidence been produced to show that there was marriage to be performed in the house of Jalli Dar. There is no evidence except that of the approver on this point. We are, therefore, left with the bare testimony of Rasool Gooro, Ahmad Dar and Ama Chowkidar that flesh of a bovine animal was found in the possession of the appellants except Rehman Dar. It appears that Shambu Nath tried to recover pieces of flesh of the bullock from the houses of various people. Aziz Dar produced the head and Mehda Dar the skin of the bullock. An attempt would have been made to produce other parts if they had been taken away. About 3 maunds of flesh was recovered at the spot. This evidence is quite good and reliable evidence for an offence under section 298-B Ranbir Penal Code. In my opinion ingredients of an offence under section 298-A are lacking in this case. I would like further to remark that positive evidence is, in my opinion, necessary for bringing home a guilt under section 298-A. The Legislature has provided a sentence of ten years rigorous imprisonment in case of those who voluntarily slaughter a bovine animal and only one year in the case of those who are found in possession of the flesh of such an animal. To this large disparity must be attributed some sensible meaning. To this large disparity must be attributed some sensible meaning. If in every case where a person is found to be in possession of the flesh of a slaughtered bovine animal the inference is to follow that he should have also slaughtered it, there should have been no point in making this distinction between these two offences. Nor do I consider a sentence of 1½ years imprisonment where the maximum is ten years, in the case of slaughtering as sufficient punishment. If the accused were convincingly found guilty of the offence of slaughtering a bullock then the sentence of 1½ years rigorous imprisonment was far too inadequate. In my opinion the conviction under section 298-A Ranbir Penal Code is misconceived and I would alter it to one under section 298-B. The maximum sentence that can be passed under that section is one years rigorous imprisonment. The sentence will be reduced to that extent because there are no extenuating circumstances present in this case to pass a lighter sentence. It would appear that there is no evidence against Rehman Dar with regard to offence under section 298-B Ranbir Penal Code. I set aside his conviction and direct that he shall be set at liberty forthwith if not wanted in connection with some other case. The conviction of the rest of the appellants is altered to one under section 298-B Ranbir Penal Code. They are sentenced each to one years rigorous imprisonment and Rs. 5 as fine.