1. Appellants have challenged the judgments/ orders dated 9th and 12th of December, 2006 whereby appellants came to be convicted and sentenced for the commission of offence punishable under Sections 298-A/ 34 of RPC by the Court of Sessions Judge, Poonch. Brief Facts: 2. Abdul Gaffar-PW1, lodged a written repot with SHO P/S Laran against five persons, namely, Abdul Gani, Mohammad Sadiq and Mohammad Rafiq including the appellants, that a cow was slaughtered by them in the house of Qamar-ud-Din S/O Ramzan Dar R/O Barachar Mandi, Poonch. It was also alleged in the report that the informer had asked his son to keep watch and ward in order to notice the activities of the accused. The said report set police in motion. FIR came to be lodged against the accused for the commission of offence punishable under Section 298-A/ 34 of RPC. It is also alleged that the Investigating Officer along with other police officials reached on spot, conducted search of the house of Qamar-ud-Din, seized dressed flesh of the cow weighing 30 Kgs along with skull, legs and skin along with tail, Dagger, Toka, a log and a blood stained piece of koil wood. It is further allegation that the appellants were present at that point of time in the said house and arrested. The police recorded the statement of the witnesses, prepared seizure memos, completed other formalities and submitted final report in terms of Section 173 Cr.P.C. against the appellants in the court of Chief Judicial Magistrate, Poonch and it committed the case to the court of Sessions Judge, Poonch. 3. Trial court framed charged against the accused for the offences punishable under Section 298-A/34 of RPC. They pleaded not guilty and claimed to be tried. 4. Prosecution examine nine witnesses, namely, Abdul Gufar, Abdul Rashid, Abdul Salam, Krishan Lal MHC, Constable Jugjeet Singh, SPO Surinder Singh, Zahoor-ud-Din, Dr. J. K. Ved and I.O Mohammad Yaqoob Manhas out of ten cited in the calendar. Prosecution has not examined PW6--Javed Iqbal. The statements of the accused also came to be recorded. 5. After hearing learned counsel for the parties, the trial court convicted and sentenced the accused for the commission of offence punishable under Section 298-A/ 34 of RPC vide impugned judgment/ orders. 6. It is necessary to give brief resume of the witnesses herein as under: 7. The statements of the accused also came to be recorded. 5. After hearing learned counsel for the parties, the trial court convicted and sentenced the accused for the commission of offence punishable under Section 298-A/ 34 of RPC vide impugned judgment/ orders. 6. It is necessary to give brief resume of the witnesses herein as under: 7. PW1-Abdul Gaffar, has stated that he made a report-EXPW-AG to the police about slaughtering of cow by five persons, police started investigation and seized dressed flesh of the cow and other articles, details of which are given in seizure memos--EXPW-AG1, AG2 and AG3. In cross examination, he stated that he has specifically recorded the fact of slaughtering of cow by the five persons in the house of Qamar-ud-Din but has not mentioned the name of the person(s) who had slaughtered the cow because he had not seen any person slaughtering/butchering the cow. 8. PW2-Abdul Rashid had deposed that his father asked him to watch the activities of the accused when he left for lodging the report and when he returned, accused had slaughtered the cow and were peeling off the skin. He has stated that he has seen the accused slaughtering the cow. Police has seized flesh, skull, legs, skin, tail, blood stained earth, Toka and wooden logs. He has also admitted that there is enmity between him, his father and accused. He further deposed that he told his father that five persons were slaughtering the cow. 9. PW3-Retired Master Abdul Salam, shown as witness to occurrence and seizure memos, has not supported the prosecution case, came to be declared as hostile. During his cross examination conducted by PP, has deposed that the informer has lodged report against the accused/ appellants due to past rivalry. He has specifically stated that he was not present when police came on spot. 10. PW4-Krishan Lal, HC, shown as witness to occurrence, has deposed that he accompanied the Investigating Officer who conducted search of the house of Qamar-ud-Din and during search flesh of cow, skin, skull, hooves, log of wood, dagger and a Toka were recovered. Accused, Abdul Ahmad and Shabir Ahmad, were arrested on spot. 11. PW5-Jugjeet Singh, has deposed that Investigating Officer and other police officers conducted search of house of Qamar-id-Din and recovered flesh, skull, legs, dager, toka, phata and wooden log. The seizure memos were prepared in his presence. 12. Accused, Abdul Ahmad and Shabir Ahmad, were arrested on spot. 11. PW5-Jugjeet Singh, has deposed that Investigating Officer and other police officers conducted search of house of Qamar-id-Din and recovered flesh, skull, legs, dager, toka, phata and wooden log. The seizure memos were prepared in his presence. 12. PW6-Javed Iqbal, was not produced and examined. 13. PW7-Surinder Singh has deposed that report was received about the slaughtering of cow in village Barchar whereupon he along with other police officials and SHO reached on spot and saw a slaughtered cow and flesh. 14. PW8--Zahoor-ud-Din, has not supported the prosecution case and came to be declared hostile. 15. PW9-Dr. J.K. Ved, has deposed that Incharge Police Station Loran had produced skull with intact skin over it, 30 Kg meat in parts, extremeties and skin stained with blood for his opinion. After examination, he opined that the meat was found to be of bovine species. He further stated that co-relation of meat sample with skull/ skin and hoves revealed that meat so produced was of a cattle species who had died of haemorogic shock. During his cross examination, he stated as under: "The material produced for post mortem was not sealed. The weapons produced for examination were not blood stained. In the enquiry made by thepolice the length and breadth of the weapons has not been mentioned. These weapons were also not sealed. In slaughtering animal it is not always possible that man slaughtering the animal will get his clothes stained with the blood of the animal. No blood sample was produced before me. The sex of the animal was not determinable. At the time of the post mortem Chief Animal Husbandary Officer, was also present. No further question was put to the witness." 16. PW10-Mohammad Yaqoob Manhas, has deposed that he has conducted the investigation. During investigation, the house of Qamar-ud-Din was searched, slaughtered cows flesh, skin, skull, hoves, dagger, Toka, wooden log and another piece of wood were seized and seizure memos EXPW-AG1, AG2 and AG3 were prepared. He prepared site plan, recorded the statement of witnesses, obtained the post mortem report and opinion of the doctor. Accused--appellants were arrested on spot. During investigation, it was established that appellants, Abdul Ahad and Shabir Ahmad had slaughtered/ sacrificed black coloured cow on the eve of Eid-uz-Zuha (Eid Qurbani). He prepared site plan, recorded the statement of witnesses, obtained the post mortem report and opinion of the doctor. Accused--appellants were arrested on spot. During investigation, it was established that appellants, Abdul Ahad and Shabir Ahmad had slaughtered/ sacrificed black coloured cow on the eve of Eid-uz-Zuha (Eid Qurbani). He has further stated that involvement of Abdul Gani, Mohammad Sadiq and Mohammad Rafiq was not established and has admitted that FIR to that extent was not correct. Further said that the complainant, Abdul Gaffar, and his son, Abdul Rashid, had stated before him during investigation that five persons, namely, Abdul Ahad, Shabir Ahmad, Abdul Gani, Mohammad Sadeeq and Mohammad Rafiq had slaughtered the cow but that was not established. It was also not proved during investigation that any rope was used at the time of slaughtering of the cow. 17. I have gone through the entire trial court file and perused the judgment/ order of conviction and am of the considered view that prosecution has failed to bring guilt home to the accused/ appellants for the following reasons. It is apt to reproduce Section 298-A of RPC herein: "298-A. Voluntarily slaughtering or killing cow or the like animals. -- Whoever volunatarily slaughters or kills any bovine animal, [whether domesticated or wild], such an ox, bull, cow or calf, shall be punished with imprisonment of either description which may extend to ten years, and shall also be liable to fine." 18. The words "voluntarily slaughtering or killing" used in the provision (supra) are of great importance. 19. Section 39 of RPC defines "voluntarily" which reads as under: "39.Voluntary: - A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it." 20. In Venkataramaiyas Law Lexicon, word "voluntarily" is defined as under: "Voluntarily. -- "Voluntarily" means that a person doing an act acts of his own volition and knows the nature of his act, and does not act in performance of a legal duty, nor due coercion, or fraud, or misrepresentation, or mistake." 21. Judicial Officers Law Lexicon by Justice C. K. Thakker defines word "voluntarily" as under: "Voluntarily" means intentional intended, acting on ones own will and unimpelled by other influence." 22. Judicial Officers Law Lexicon by Justice C. K. Thakker defines word "voluntarily" as under: "Voluntarily" means intentional intended, acting on ones own will and unimpelled by other influence." 22. Keeping in view the definition of "Voluntarily" given hereinabove, the prosecution has to prove that accused have intentionally intended and caused an act by some means. The prosecution has to prove by leading cogent evidence what was/were the instrument(s) used by the accused during the commission of the offence and all those acts were done intentionally. 23. The definition of word "slaughter" is contained in Advanced Law Lexicon read as under: "Slaughter. "Slaughter" means killing by any method whatsoever and includes maiming and inflicting of personal injury which in the ordinary course will cause death." 24. In Concise Oxford English Dictionary, the definition of "Slaughter" is given as under: "Slaughter. The killing of farm animals for food" 25. The Lexicon Webester Dictionery (Encyclopedia Edition) defines the "Slaughter" as under: "Slaughter: Butchering the cattle" 26. Viewed thus, the prosecution had to prove that the accused slaughtered the cow by slaughtering instrument or by any other method. 27. The definition of the word "killing" in Concise Oxford English Dictionary, is given as under: "Killing. An act of causing death. Adj. causing the death of a specified thing: weed-killing. In-formal overwhelming or unbearable." 28. In Strouds Judicial Dictionary of Words and Phrases, the definition of word "kill" is given as under: "Kill. "Killing is causing the death of a person by an act or omission but for which the person killed would not have died when he did, and which is directly and immediately connected with his death. The question whether a given act or omission is directly and immediately connected with the death of any person is a question of degree dependent upon the circumstances of each particular case" 29. Keeping in view the definition (supra) the word "killing" means to kill a person, to cause death by any act. 30. Having glance of the above discussion, prosecution has to prove that accused has voluntarily slaughtered or killed the cow. In order to prove the said fact, it has to prove how cow was killed, by which method and manner and has to prove role of each accused. Role means the act(s) done/ committed by the individual accused in order to bring guilt home to him/them. In order to prove the said fact, it has to prove how cow was killed, by which method and manner and has to prove role of each accused. Role means the act(s) done/ committed by the individual accused in order to bring guilt home to him/them. It is for the prosecution to prove beyond any reasonable doubt that who actually slaughtered/ killed the cow and what was the weapon used. There is not an iota of evidence on the file suggesting the fact that who used knife and who actually slaughtered/ killed the cow. 31. FIR/report--EXPW-AG, came to be lodged against the five persons by the complainant and it is specifically mentioned in the said report that all the five persons mentioned in the FIR slaughtered the cow. But when he appeared before the court he has deposed that he has not seen who slaughtered the cow. Thus, FIR and statement are at variance and contradictory. 32. It is not the prosecution case that flesh or articles were seized from the possession of the accused. Prosecution has also not proved the role played by the appellants and how they are involved. 33. Two independent witnesses have turned hostile and have not supported the prosecution case. The other witnesses, i.e. police officials are not witnesses to the occurrence and even they have also not stated that the seized articles were recovered from the possession of the accused. 34. It is not established by prosecution how Qamar-ud-Din allowed the appellants and other three persons to slaughter cow in his house as alleged and why Qamar-ud-Din and his family members are not figuring in the array of accused or in the list of witnesses. Was that house abandoned, where was Qamar-ud-Din and his family members at that point of time is not forthcoming from prosecution story or evidence. 35. PW1, Abdul Gaffar, and his son, PW2-Abdul Rashied have admitted that accused/ appellants had made a complaint against them about dog biting and informer PW1 was made to pay compensation of Rs.3000/- and humiliated. They have specifically stated that the case is outcome of rivalry and despite of that trial court has believed their statements. Their evidence can not be relied upon. They have specifically stated that the case is outcome of rivalry and despite of that trial court has believed their statements. Their evidence can not be relied upon. Even otherwise evidence is contradictory, for the simple reason as discussed hereinabove, that the informer PW1 has specifically stated that he has seen five persons slaughtering cow but later on stated that he has not seen slaughtering of the cow. They have also stated that all the five persons slaughtered the cow but the charge sheet was filed against only two persons (accused). 36. The charge against both the accused/ appellants was that they had slaughtered cow of the age of 3 years approximately on 3rd of February, 2004 at 2 PM and thereby have committed offence punishable under Section 298-A/34 of RPC. Thus the specific charge against the accused is that they slaughtered a cow. Doctor has specifically stated that sex of the animal was not determinable. Thus, prosecution has failed to prove that cow was slaughtered. Doctor has also stated that knife produced was not in sealed cover and was not blood stained. Why the knife was not blood stained is not forthcoming from the evidence. Who used the said knife is also not proved. 37. The seizure memo-EXPW-AG2 relates to seizure of flesh and other articles. It is not mentioned in the said EXPW-AG2 that flesh or any other article was recovered from the possession of the accused. The only independent witness shown in the said seizure memo has not supported the prosecution case, then how it can be said that these articles were recovered from their possession. 38. The trial court has held that "had accused not been arrested on spot, the situation would have been otherwise" meaning thereby that presence of the accused/ appellants on spot was made ground for recording their conviction. 39. The learned trial court at internal page-18 of the judgment has specifically held that it has also come in the evidence that Abdul Gani, Mohammad Sadeeq and Mohammad Rafiq were also present on spot when police reached on spot. Then how conviction came to be recorded against the accused/ appellants is best known to the trial court. 40. 39. The learned trial court at internal page-18 of the judgment has specifically held that it has also come in the evidence that Abdul Gani, Mohammad Sadeeq and Mohammad Rafiq were also present on spot when police reached on spot. Then how conviction came to be recorded against the accused/ appellants is best known to the trial court. 40. The defence of the appellants/ accused before the trial court was that the case/ charge is outcome of enemity which is duly supported by prosecution evidence of PW1-Abdul Gaffar, PW2 Abdul Rashid and other two PWs--only independent witnesses who have been declared hostile. Thus, it can be safely held that the case/ charge is outcome of rivalry. 41. In the given circumstances, this appeal merits to be allowed and the impugned judgment/ order of conviction and sentence merits to be set aside and prosecution case merits to be dismissed. Ordered accordingly. The accused are discharged from their bail bonds. Registry to send down the record along with a copy of this judgment.