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2017 DIGILAW 1796 (RAJ)

KALWA S/O LALLU SINGH v. STATE OF RAJASTHAN

2017-08-10

DEEPAK MAHESHWARI

body2017
JUDGMENT : DEEPAK MAHESHWARI, J. 1. This appeal has been preferred on behalf of accused-appellant Kalwa to challenge the judgment impugned dated 20.10.2016 passed by learned Additional Sessions Judge, Kotputli, District Jaipur in Sessions Case No.11/2016. Learned trial court has convicted accused Kalwa vide this judgment for the offences punishable under Sections 3/8, 5/8, 6/8, 9 & 10 of the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995 ('the Act of 1995'). He has been awarded sentence for the aforesaid offences as follows :- 2. Heard learned counsel appearing for the accused-appellant and also learned Public Prosecutor. Perused the judgment impugned and material available on record. 3. As per the prosecution story, a report was lodged at Police Station Kotputli to the effect that near Raj Hotel, NH-8, Chowki Gordhanpura loading Eicher Canter vehicle bearing registration No.DL-01-GC-3178 is standing since previous night. Sacks of old clothes and rugs have been loaded in the vehicle. On receiving the information, Sub-inspector Naresh Singh of Police Station Kotputli reached on the spot and found above said vehicle surrounded by many persons. They have caught hold the driver also. On removing the old clothes and rugs, it was found that beneath the bamboo funtees, bovine animals were found in the vehicle, which were tied very badly. On checking the vehicle, 07 cows, 06 calves and 01 heifer were found dead. 13 bulls and 16 cows were found injured. Thereupon a report (FIR No.28/2016) was lodged for the offences punishable under Sections 3, 5, 6, 7, 8, 9 & 10 of the Act of 1995. After investigation, charge-sheet was filed against accused-appellant Kalwa S/o Lallu Singh for the aforesaid offences. After concluding the trial, learned trial court convicted the accused and sentenced him for the offences mentioned above. 4. Learned counsel appearing for the accused has argued that as per the prosecution story a Canter No.DL-01-GC-3178 was caught in the previous night of 5.1.2016 by some villagers. But prosecution has not examined those villagers, who caught the said vehicle on the spot. His argument is that they were the important witnesses which the prosecution has failed to get examined. Learned counsel appearing for the accused has argued that as per the prosecution story a Canter No.DL-01-GC-3178 was caught in the previous night of 5.1.2016 by some villagers. But prosecution has not examined those villagers, who caught the said vehicle on the spot. His argument is that they were the important witnesses which the prosecution has failed to get examined. He further submits that PW-1 Shimbhu Dayal and PW-2 Ram Kuwar have been examined as the eye-witness of catching hold of the vehicle No.DL-01-GC-3178, but PW-1 has admitted in his cross-examination that he reached on the spot within 15 minutes after getting a call of SHO Mr. Naresh Naruka, so he was not the eye witness. 5. Learned counsel has further drawn attention of this Court towards various lacunas of the investigation. Seizure memo and temporary supurdgi Ex.-P/1 has been prepared at 12:10 p.m. on 5.1.2016 whereas the postmortem reports Ex.-P/3 to Ex.-P/16 have been prepared prior to seizure of the vehicle and the bovine animals kept therein. These PMRs are stated to be prepared from 11:00 a.m. onwards. Injury report Ex.-P/17 has been prepared in respect of 16 bovine animals only whereas it is alleged that 29 bovine animals were seized, in injured position. He has also stated that the vehicle which is alleged to be seized was having the registration No.DL-01-GC-3178, but the documents Ex.-P/23 and Ex.-P/24 mentions the different registration number which is DL-01-JC-3178. He has argued that no proof has been submitted by the prosecution with regard to the fact that the bovine animals were being transported to any place situated outside the State of Rajasthan. In this situation, the factum of export does not stand proved by prosecution evidence. In light of these arguments his submission is that the judgment impugned suffers from serious legal infirmities and is liable to be quashed and set-aside. 6. Learned Public Prosecutor has vehemently opposed the prayer stating that the offences against the accused have been proved beyond doubt. PW-7 Mahaveer Singh has been examined besides PW-1 and PW-2 as the eye witness of seizure of the Canter No.DL-01-GC-3178 alongwith bovine animal. PW-9 Naresh Singh, who seized the vehicle alongwith bovine animals is also eye witness of the incident. He also submits that the difference regarding the registration number of the vehicle as mentioned in Ex.-P/23 and Ex.-P/24 is not very material. PW-9 Naresh Singh, who seized the vehicle alongwith bovine animals is also eye witness of the incident. He also submits that the difference regarding the registration number of the vehicle as mentioned in Ex.-P/23 and Ex.-P/24 is not very material. The crucial issue is not the ownership of the vehicle, but the fact as to who was the person transporting the bovine animals in the vehicle concerned. As per the prosecution evidence, it is proved beyond doubt that accused Kalwa was carrying the bovine animals in Canter No.DL-01-GC-3178. 7. Learned public prosecutor has also drawn attention of the Court to Section 11 of the Act of 1995, whereby the burden of proof is upon the accused to prove that he had not committed the offence under the provisions of the Act. This burden has not been discharged by him. Learned Public Prosecutor thus submits that the appeal is liable to be dismissed. 8. I have scanned the judgment impugned in light of arguments advanced by rival sides and also in view of the material available on record. 9. It is true that the villagers, who initially caught the vehicle bearing registration No.DL-01-GC-3178 have not been examined by the prosecution. But PW-1 Shimbhu Dayal is witness of seizure memo and temporary supurdgi Ex.-P/1 of 13 injured bulls and 16 cows. Though, he has admitted that he reached within 15 minutes on receiving the phone call from SHO, Mr. Naresh Naruka, but his cross-examination reveals that the process of releasing the bovine animals from the vehicle was done in his presence. So, in my view, the time gap of 15 minutes does not make any difference and PW-1 is certainly an eye witness of the incident. He has categorically mentioned that he saw the driver sitting in the vehicle, who informed his name as Kalwa. Similarly, PW-2 Ram Kuwar has witnessed the process of releasing the bovine animals from the seized vehicle. He has stated the situation, in which the bovine animals were forcibly kept in the vehicle by fixing ballies and keeping loads of rugs upon them. He has stated that 16 cows and 13 bulls were found in injured position. Besides them, 07 cows, 06 calves and 01 heifer were found dead in the Canter. 10. The evidence given by these two witnesses is fortified by the statements of PW-7 Mahaveer Singh, who accompanied Sub-Inspector Mr. He has stated that 16 cows and 13 bulls were found in injured position. Besides them, 07 cows, 06 calves and 01 heifer were found dead in the Canter. 10. The evidence given by these two witnesses is fortified by the statements of PW-7 Mahaveer Singh, who accompanied Sub-Inspector Mr. Naresh Naruka and reached on the spot where the canter alongwith the driver was detained by some villagers. Nothing adverse has come out in his cross-examination. PW-9 Naresh Singh has also stated same facts about the bovine animals having been found in Canter bearing registration No.DL-01-GC- 3178. In light of statements of these witnesses, I do not find any lacuna in the prosecution case on the ground that the villagers, who caught the vehicle, have not been examined. 11. In so far as, the shortfall of the investigation which have been highlighted by learned counsel for the appellant is concerned, statement of PW-7 Mahaveer Singh is relevant to be considered. He has stated that scene was terrific. It was not possible even to stand there because of bad smell. It is obvious that when large number of bovine animals were found dead and injured the scene on the spot would be mind boggling. In this situation, if there is any lapse in recording time on various documents prepared during investigation, it cannot be considered to make the prosecution case unreliable. Otherwise also, it is settled proposition of law that lacunas left in the investigation cannot be a ground to disbelieve the prosecution story. Even if, 29 animals were found injured and injury report Ex.-P/17 is prepared only in regard to 16 animals, it does not materially effect the prosecution case as number of animals injured is not material. Even if, lessor number of animals were medically examined by PW-5 Dr. Harish Kumar, the prosecution case is not shattered and liability for the alleged offence is not washed out. 14 postmortem reports (Ex.-P/3 to Ex/-P/16) are proved to have been prepared by PW-5. This clearly shows that as many as 14 bovine animals were found dead, who were being transported in Canter No.DL-01- GC-3178 by the accused. 12. Discrepancy regarding registration number of the vehicle, which was caught on the spot and the registration numbers mentioned in Ex.-P/23 and P-23 have been pointed out by learned counsel in his arguments. PW-3 Mohd. This clearly shows that as many as 14 bovine animals were found dead, who were being transported in Canter No.DL-01- GC-3178 by the accused. 12. Discrepancy regarding registration number of the vehicle, which was caught on the spot and the registration numbers mentioned in Ex.-P/23 and P-23 have been pointed out by learned counsel in his arguments. PW-3 Mohd. Tahir was examined by the prosecution to prove the fact that he sold the vehicle bearing registration No.DL-01-GC-3178 to Kallu Singh S/o Lallu Singh. He has also stated that because of some outstanding amount for which finance was taken on the vehicle, the registration papers could not be transferred in the name of Kallu Singh. In this situation, agreement Ex.-P/23 and power of attorney Ex.-P/24 were executed between them. In my considered opinion, if the number of vehicle has been wrongly mentioned as "DL-01-JC-3178" in place of "DL-01-GC-3178" in these documents it is not going to affect the prosecution case for the following reasons. Firstly, the correct registration No. DL-01- GC-3178 of the vehicle has been stated by PW-3. Secondly, documents Ex.-P/23 & Ex.-P/24 are not essentially required to be proved to connect the accused to the offence alleged. As per definition of "transporter" given in Section 2(n)(ii) of the Act of 1995, "the person for the time being incharge of the vehicle" is liable to be dealt with under the provisions of this Act as transporter. Further, sub-clause (d) of Section 2(n) also includes "any other person carrying or accompanying the livestock" within the definition of transporter. It has been proved by the prosecution evidence that accused was found carrying the livestock in the vehicle, which was caught on the spot. In light of above, the arguments advanced by learned counsel for the appellant with regard to discrepancy of registration number of the vehicle in Ex.- P/23 and Ex.-/24 is of no avail. 13. Learned counsel for the appellant has further argued that to prove the offence punishable under Section 5 of the Act of 1995, it was required for the prosecution to establish that the accused was exporting the bovine animals from any place within the State to any place outside the State for the purpose of slaughter. He has argued that prosecution has utterly failed to prove this fact. He has argued that prosecution has utterly failed to prove this fact. On scanning the entire prosecution evidence, I find that this fact has not come on record that to which place the bovine animals were being taken by the accused, located outside the State. National permit of the said vehicle Ex.-P/25 is not sufficient to prove the fact that the bovine animals were being taken to any place situated outside the State in absence of any further proof regarding the destination. In view of this, I am convinced with the arguments advanced by learned counsel for the appellant that the offence defined under Section 5 of the Act of 1995 is not proved against the accused. 14. So far as other offences are concerned, the offence defined under Section 3 for which the penalty has been provided under Section 8 is found proved against the accused. The definition of slaughter as given in sub-section (m) of Section 2 of the Act of 1995 says that intentional killing by any method and for any purpose whatsoever is said to be slaughter. The facts proved by the prosecution evidence are sufficient to show that this offence defined under Section 3 was committed by the accused as 14 bovine animals were found dead in the Canter for which the accused was incharge while carrying the said livestock. 15. As per Section 6 of the Act of 1995, transporter is said to be abettor of the offence and is liable for the same punishment as is provided for a person committing the said offence. So with the help of Section 6 also, the accused-appellant is liable to be convicted for the offence defined under Section 3 of the Act of 1995. However, on going through the Act of 1995, I am fully convinced that Section 6 does not constitute a substantive offence in itself, it only makes the accused-appellant liable as an abettor for the offence defined under Section 3, which is punishable under Section 8 of the Act of 1995. Hence, the conviction recorded and sentence awarded by learned trial court for the offence under Section 6/8 of the Act of 1995 deserves to be quashed and setaside. 16. Hence, the conviction recorded and sentence awarded by learned trial court for the offence under Section 6/8 of the Act of 1995 deserves to be quashed and setaside. 16. The conviction recorded against the accused-appellant for the offence under Sections 9 & 10 of the Act of 1995 and the sentence awarded in respect of these offences are liable to be upheld in view of the fact that atleast 16 bovine animals were found to have been hurt and suffered severe bodily pain at the instance of the accused as per the medical report Ex.-P/17. Further, 07 cows, 06 calves and 01 heifer were found dead in the Canter. It is also pertinent to mention here that as per Section 11 of the Act of 1995, the burden is upon the accused to prove that he had not committed the offence under the provisions of this Act, for which he is being prosecuted. This burden has not at all been discharged by the accused. He has not produced any evidence in his defence. On the contrary, the prosecution has adequately proved the offence alleged against the accused beyond any reasonable doubt. In such situation, impugned judgment passed by the learned trial court is partly found sustainable to the extent mentioned above. 17. In view of the discussions made above, the appeal filed on behalf of the accused-appellant is partly allowed to the extent of the conviction and sentence passed for the offences punishable under Section 5/8 and 6/8 of the Act of 1995. Rest of the judgment impugned is maintained so far as the conviction and sentence awarded to the accused for the offences under Sections 3/8, 9 & 10 of the Act of 1995 are concerned. 18. The appeal is, thus, partly allowed as stated above.