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2004 DIGILAW 255 (PNJ)

Tahir v. State of Haryana

2004-03-03

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Tahir, Rashid and Jamil sons of Allah Mehar resident of Alalpur and Anis son of Indrish resident of village Bajidpur were convicted by learned Sub Divisional Judicial Magistrate, Nuh vide judgment dated 16.4.1999 under section 3 of the Punjab Prohibition of Cow Slaughter Act, 1955 (for short the Act) and have been sentenced to undergo simple imprisonment for 1-1/2 years each. All the petitioners thereafter preferred an appeal against their conviction and the same also stands dismissed vide impugned application dated 14.2.2000 passed by learned Additional Sessions Judge, Gurgaon. Hence, this revision. 2. In short the case of the prosecution is that on 27.10.1996, Head Constable Moti Ram who was present at Bus Stand turning of Bibipur on Nuh- Hodel Road received a secret information that Fazru, Kasam and Ayub sons of Gusa resident of Bajidpur, Tahir, Rashid sons of Allah Mehar resident of Alalpur were slaughtering certain cows on the land owned by Panchayat and in case a raid is conducted, they can be apprehended. Finding the secret information true, a ruqa was sent by Head Constable Moti Ram and consequently a case under Sections 3/8 of the Act was registered in the concerned police station. 3. It is then the case of the prosecution that subsequently, the police raided the place and the present four petitioners were found slaughtering the cows. However, after seeing the police party, the petitioners managed to escape. 13 cows with sharp cut marks on their necks were found. They were already dead. A big knife and axe were also recovered from the spot. The present petitioners were subsequently arrested and were challaned to face trial. 4. The petitioners were charged under section 8 of the Act for contravening the provisions of section 3 of the Act. 5. The prosecution in support of its case, examined Dr. Ravinder Singh as PW1, who visited the spot and found that 13 cows were already slaughtered there. He prepared his report Ex. PW1/A. PW2 is Constable Krishan Kumar who was also one of the members of the raiding party. Head Constable Moti Ram has been examined as PW3. He is the investigating officer. PW4 is Bhagwan Singla Photographer who had also gone to the spot and had clicked 13 photographs of the slaughtered cows. PW5 is SI/SHO Kailash Chand who has prepared the final report under section 173 Criminal Procedure Code 6. Head Constable Moti Ram has been examined as PW3. He is the investigating officer. PW4 is Bhagwan Singla Photographer who had also gone to the spot and had clicked 13 photographs of the slaughtered cows. PW5 is SI/SHO Kailash Chand who has prepared the final report under section 173 Criminal Procedure Code 6. The stand of the present petitioners as emerges from their statements recorded under section 313 Criminal Procedure Code is that they have been falsely implicated in this case on account of party faction in the village and in fact they had not slaughtered any cow. However, the petitioners did not produce any witness in defence. 7. After appreciation of entire evidence, the petitioners, as stated above, have earned conviction. 8. I have heard Mr. Satish Chaudhari, learned counsel for the petitioners and Mr. Rattan Singh, learned Assistant Advocate General, Haryana. With their assistance, I have also gone through the entire record. 9. It has been vehemently argued by the learned counsel for the petitioners that so far as Jamil and Anis petitioners are concerned, their names do not find mention in the initial ruqa which was the basis of the FIR as in the said intimation, besides Tahir and Rashid, the other persons named were Fazru, Kasam and Ayub. It is then contended that according to the prosecution case when the police party reached the spot all the persons who were found slaughtering the cows had sped away from the spot and have been apprehended subsequently. In this eventuality it was the bounden duty of the prosecution to fix the identity of the accused by holding a test identification parade, which is not done in this case. This is the material lacuna which goes to the root of the case, the learned counsel so contends. It is then contended that axe or knife which were allegedly recovered from the place of occurrence were not blood stained and as such it cannot be said that the said instruments were used for slaughtering the cows This infirmity also weakens the case of the prosecution. The learned counsel while pointing out certain discrepancies in the statements of prosecution witnesses contends that the prosecution case is not proved against any of the petitioners beyond reasonable doubt and as such they deserve acquittal. 10. The learned counsel while pointing out certain discrepancies in the statements of prosecution witnesses contends that the prosecution case is not proved against any of the petitioners beyond reasonable doubt and as such they deserve acquittal. 10. The learned counsel for the petitioners in the alternative submits that all the four petitioners have already undergone four months of their substantive sentence and as such they deserve a sympathetic tilt with regard to the quantum of sentence as they have already faced the agony of protracted trial of more than 7 years. 11. The learned State counsel has opposed the contentions raised by the learned counsel for the petitioners and submits that the case of the prosecution is supported by the doctor who immediately reached the spot and noticed 13 cows were already slaughtered. It is then contended that the police without wasting anytime had immediately swung into action and reached the spot where the present four petitioners were found present and after seeing the police party had fled away from the spot. The petitioners, thus, have no case for acquittal, the learned State counsel contends. At the same time, the petitioners do not deserve any leniency so far as quantum of sentence is concerned. 12. After hearing the rival contentions of both the sides, I am of the view that the case of the prosecution is not proved beyond reasonable doubt so far as Jamil and Anis petitioners are concerned but the charge against Tahir and Rashid petitioners stands proved to the hilt. 13. Admittedly Jamil and Anis do not figure in the initial ruqa Ex. PW3/A which is the basis of the FIR. In the said ruqa other three persons namely Fazru, Kasam and Ayub are mentioned. The case of the prosecution as projected is that immediately after the receipt of the secret information, the police personnel reached the spot and saw the present petitioners running away from the spot. So far as Constable Krishan Kumar is concerned, he does not say a word that the present petitioners were known to the police party. He has simply stated that after seeing the police, the accused had fled away from the spot and they had seen them running, No doubt he has identified all the four persons in the Court. HC Moti Ram, however, has made an attempt to overcome this lacuna by saying that the knew the accused earlier. He has simply stated that after seeing the police, the accused had fled away from the spot and they had seen them running, No doubt he has identified all the four persons in the Court. HC Moti Ram, however, has made an attempt to overcome this lacuna by saying that the knew the accused earlier. This statement in my view would not satisfy the judicial conscience fully and the natural consequence which would flow is that the presence of atleast Jamil and Anis becomes doubtful. Whole of the prosecution case has to be visualised in the light of the secret information because the prosecution has consumed no time in reaching the spot after the receipt of the secret information in which the secret informer was very much sure about the involvement of Tahir and Rashid petitioners and three others namely Fazru, Kasam and Ayub, as their parentage or even the complete address is given. Had the secret information been to the effect that Tahir and Rashid petitioners alongwith other persons were slaughtering the cows at particular place, the situation would have been otherwise. 14. In the light of the aforesaid discussion, I am sceptical about the involvement of Jamil and Anis in this case and they deserve the benefit of doubt. Consequently, their conviction recorded by the trial Court and ultimately confirmed by the appellate court deserves to be set aside. They are accordingly acquitted of the charge. 15. So far as charge against Tahir and Rashid petitioners are concerned, in my view, it is proved to the hilt. Their conviction is, thus, maintained. 16. Dealing with the quantum of sentence, I am of the view that both the petitioners deserve some leniency on the ground that they are facing the agony of protracted trial for the last seven years. Keeping in view the totality of facts and circumstances of the present case, the ends of justice would be adequately met if the substantive sentence imposed upon both the petitioners namely Tahir and Rashid is reduced from 1-1/2 years to one year only. Ordered accordingly. 17. The net result, on account of aforesaid discussion, thus, is that the present revision petition is partly allowed. Jamil and Anis petitioners stand acquitted of the charge whereas the present revision petition qua Tahir and Rashid is dismissed except with the modification in the quantum of sentence as indicated above. 18. Ordered accordingly. 17. The net result, on account of aforesaid discussion, thus, is that the present revision petition is partly allowed. Jamil and Anis petitioners stand acquitted of the charge whereas the present revision petition qua Tahir and Rashid is dismissed except with the modification in the quantum of sentence as indicated above. 18. As stated above, Tahir and Rashid petitioners have already undergone some part of their substantive sentence, they be now taken to custody to serve out their remaining part of substantive sentence. Let the intimation of this judgment of sent to the concerned quarters. Petition partly allowed.