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2013 DIGILAW 1397 (RAJ)

Moju v. State of Rajasthan

2013-08-01

MAHESH CHANDRA SHARMA

body2013
JUDGMENT 1. - This appeal has been filed by the accused appellant Moju under Section 374 Cr.P.C. against the judgment dated 14.3.1991 of Additional Sessions Judge, Kishangarhbas in Sessions Case No. 48 of 1989 convicted the accused appellant under Section 2 of the Rajasthan Preservation of Certain Animals Act, 1950 (in short Act of 1950) and sentenced him for two years R.l. and fine of Rs. 1,000/- and in default of payment of fine to undergo six months R.l. 2. Brief facts of the case are that an F.I.R. was registered at Police Station Tizara on 6.8.1989 at about 1.30 P.M. in relation to occurrence alleged to be taken place on 5.8.1989 at about 6 P.M. by Moti son of Mehboob, by caste Mev, wherein he named the appellant as assailant. In the said F.I.R. it has been alleged that on 5.8.1989 at about 6 P.M. he left his two cows for grazing and out of them one cow entered into the field of Moji, where crop of Jawar and Bajra was standing. Moji came in the field duly armed with lathi and immediately gave lathi blow on the rear side of cow and when the cow came out of the field, he again gave beating with lathi and ^tone:. Due to that beating cow died. He further stated that dead cow is still lying and number of persons have seen the occurrence. On the basis of said report F,A.,R. No. 130 of 1989 was registered and investigation was commenced. On the conclusion of investigation, charge-sheet was submitted in the Court of Munsif and Judicial Magistrate, Tizara who committed the case to the Additional Sessions Judge, Kishangarhbas. The Trial Court framed charge against the accused appellant Section 2 of Act of 1950 and on denial of charge the trial was commenced. During the course of trial, prosecution has examined as many as 8 witnesses in support of its case and thereafter statement of appellant was recorded under Section 313 Cr.P.C. wherein the appellant stated that entire case registered against him is false. The appellant did not produce any evidence. The Trial Court after hearing the arguments of the parties reached to the conclusion that the accused appellant is guilty of Section 2 of the Act of 1950 and sentenced him as mentioned above. 3. Mr. R.K. Mathur, Sr. Advocate assisted by Mr. The appellant did not produce any evidence. The Trial Court after hearing the arguments of the parties reached to the conclusion that the accused appellant is guilty of Section 2 of the Act of 1950 and sentenced him as mentioned above. 3. Mr. R.K. Mathur, Sr. Advocate assisted by Mr. Atul Mathur, has argued that the judgment passed by the Trial Court is contrary to law and facts arrived on record. The Trial Court has totally ignored the fact that F.I.R. was registered after a delay of about 18 hours for which no explanation has been given by the informant. The Trial Court has committed serious illegality in not considering the fact that PW-1 Normal, PW-2 Gafur and PW-7 Smt. Amiri did not support the case of prosecution and they have been declared hostile and remaining 3 witnesses upon whom reliance has been placed by the trial are real brothers and their statements do not get corroboration from any other witness. The Trial Court has ignored the material contradiction between the contents of F.I.R. and statement of informant. The possibility cannot be ruled out regarding the death of cow, it may occur due to some illness or sustaining injuries by the hand of informant himself. The cow has not sustained any external injury and post mortem was conducted after expiry of 24 hours and according to prosecution case the dead body of cow remained in the field of informant for about 24 hours. The Trial Court has given the findings on the basis of conjunctures and surmises. The Trial Court has not given any reason as to why the appellant who is admitted not a previous convict person is entitled to the benefit of the provisions of the Probation of Offenders. In these circumstance it was argued that the appellant is entitled to be acquitted and if not he be given the benefit of the provisions of the Probation of Offenders Act. 4. The learned Public Prosecutor on the other hand opposed the submissions of learned counsel for the appellant and stated that the Court below after considering all the evidence, documents and record passed the order of conviction and sentence. There is no illegality or infirmity in the order passed by the Court below. 5. I have heard the learned counsel for the parties and gone through the entire record. There is no illegality or infirmity in the order passed by the Court below. 5. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it would be necessary to have a look at the provisions of Rajasthan Preservation of Certain Animals Act, 1950. His Highness the Rajpramukh of Rajasthan on 18.4.1950 promulgated the Rajasthan Preservation of Certain Animals Act, 1950 (Act No. IV of 1950) (in short Act of 1950). Section 2 of the Act of 1950 read as under: "2. Killing a cow etc. - Whoever intentionally kills a bull, cow, ox, or calf shall be punished with imprisonment of either description for a term which may extent to ten years and shall also be liable to fine." Section 3 of the Act of 1950 is also necessary to be looked into, same reads asunder: "3. Causing serious bodily injury to a cow etc.-Whoever intentionally causes serious bodily injury to a bull, cow, ox or calf shall be punished with imprisonment of either description for a term which may extent to seven years or with fine or with both." 6. Section 2 of the Act of 1950 provides punishment for "intentional killing" while Section 3 covers cases of "intentionally causing serious bodily injury". The presence of intention can only be inferred if death follows as a natural and probable consequence from the act complained, where the accused stabbed cow which later on died, the cause of death was due to serious bodily injury. If the death was caused by an extraordinary intervening circumstances, intention to kill cannot be concluded. (See Nisar v. State of Rajasthan, 1961 RLW 462 ). 7. In this view of the matter now may examine the relevant documents, evidence and the findings of the Trial Court. Moti son of Mehmooda Mev lodged the following written report (Ex.P-4):Appeal dismissed. *******