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2017 DIGILAW 1888 (JHR)

Dilawar Hussain v. State Of Jharkhand

2017-11-06

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. - None appears on behalf of the petitioners. However, Mr. Ram Prakash Singh, learned A.P.P., is present. 2. This application is directed against the judgment dated 27.07.2005 passed by the learned 1st Additional Sessions Judge, Hazaribagh in Criminal Appeal No. 119 of 1990 whereby and whereunder the judgment and order of conviction and sentence dated 09.07.1990 passed by the learned Judicial Magistrate, 1st Class, Hazaribagh in Gola P. S. Case No. 23 of 1988 convicting the petitioner nos. 1 to 9 for the offence under Section 429/34 of the Indian Penal Code and the petitioner No. 10 for the offence under Sections 379, 429/34 of the Indian Penal Code and sentencing them accordingly has been affirmed. 3. The prosecution story in brief is that on 26.04.1998 the cow of the informant was found missing since the evening. The informant came to learnt that at Village-Betulkhurd the cow was in the mohalla of a particular community. The informant went and saw a crowd having assembled near the house of petitioner No. 10. It is alleged that the informant found that the petitioners had already killed the cow and were cutting into pieces the flesh of the cow. The informant identified the cow from its severed head. It is alleged that he managed to catch hold of the head of the cow and went to the police station. 4. Based on the aforesaid allegation G.R. Case No. 23 of 1988 was instituted. Investigation resulted in submission of charge-sheet under Sections 429 and 379 of the Indian Penal Code as also section 11 of Prevention of Cruelty to Animals Act. After cognizance was taken charge was framed and thereafter trial proceeded. 5. In course of trial six witnesses were examined on behalf of the prosecution. P.W.-1, Dr. Mundrika Prasad Mandal, has stated that he was posted on 27.04.1988 as T.V.O. in Gola Veterinary Hospital. The report of this witness with respect to examination of the head of the cow has been marked as Exhibit-1. He has further stated that he had gone to the place of occurrence and examined the scattered body and internal parts of the cow and his report has been marked as Exhibit-1/1. He had stated that those parts belonged to a bovine animal. P.W.-2, Mustafa Ansari, has deposed that on the date of occurrence his cow was grazing in the bari. He had stated that those parts belonged to a bovine animal. P.W.-2, Mustafa Ansari, has deposed that on the date of occurrence his cow was grazing in the bari. Subsequently the cow was found missing. He had stated that the informant on search came to Village-Betulkhurd and found his cow slaughtered. He has further stated that on alarm the villagers had assembled near the place of occurrence. He has also stated that he had also taken severed head of the cow to the police station. P.W.-3, is Mohan Sao, whose deposition is not of any consequence to decide the culpability or otherwise of the petitioners. P.W.-4, Alakh Niranjan Bhagatiya, has stated that he had reached the place of occurrence after hearing the cry of alarm. He had claimed to have seen the severed head of the cow in the hand of P.W.-2. This witness had stated that he had found the flesh of the animal in the house of petitioner No. 10. P.W.-5, Deonath Munda, who is also the resident of Village-Betulkhurd has also stated on similar terms to what has been stated by P.W.-4. P.W.-6, Murari Lal Sharma, is the Investigating Officer of the case who had stated that on 27.04.1988 at about 06:10 am the informant had brought to the police station the severed head of a cow. This witness had proved the formal F.I.R. which has been marked as Exhibit-3. He had investigated the place of occurrence and had recorded the statement of the witnesses. This witness had sent the severed head of the cow to the veterinary doctor for examination. He had found parts of the dead cow inside the house of the petitioner No. 10. 6. The defence had examination four witnesses in support of its case. D.W.-1, Yadunandan Prasad, is a formal witness who had proved a Kewala executed by Tazmuddin M. Sheikh Afzal in favour of Alakh Niranjan Bhagatiya on 27.05.1992 and which was marked as Exhibit-A. This witness had stated that he has no personal knowledge in respect of the sale deed. D.W.-2, Amrul Ansari, is the nephew of the informant who had stated that there was a land dispute between P.W.-2 and the petitioner No. 1. He had further stated that both had purchased the same land from Tazmuddin Mian. D.W.-3, Md. Rashid, has deposed that the informant is his cousin brother. D.W.-2, Amrul Ansari, is the nephew of the informant who had stated that there was a land dispute between P.W.-2 and the petitioner No. 1. He had further stated that both had purchased the same land from Tazmuddin Mian. D.W.-3, Md. Rashid, has deposed that the informant is his cousin brother. This witness had feigned ignorance about the incident which had taken place. D.W.-4, Ramdeo Sah, had deposed that the petitioner No. 1 works as an Amin who had stayed from 23.04.1988 to 27.04.1988 at Village-Barkilari as he was doing measurement work of Laljee Mahto and Nago Mahto. This witness had proved the certificate issued by the Mukhiya which has been marked as Exhibit-B. 7. It has been stated by the learned counsel for the petitioner that the evidence of the witnesses is full of contradictions. Learned counsel for the petitioners submits that the plea of alibi taken by the petitioner No. 1 has been disbelieved without recording any cogent reasons. He has further submitted that not a single witness had seen the cow being taken by the accused and as such the conviction of the petitioner No. 1 by the learned appellate court under Section 379 of the Indian Penal Code cannot be sustained. 8. Learned A.P.P. has opposed the prayer made by the petitioners. 9. The evidence on record reveals that the cow of the informant was found missing and on receiving some information the informant had found his cow slaughtered in the house of the petitioner No. 10. The petitioner No. 10 has been convicted for the offence under Section 379 of the Indian Penal Code apart from the offence under Sections 429/34 of the Indian Penal Code. The cow of the informant which was stolen was found in the house of petitioner No. 10 and, therefore, the petitioner No. 10 was rightly convicted for the offence under Sections 379 of the Indian Penal Code. The plea of alibi which has been taken on behalf of the petitioner No. 1 is not of much significance as the same has been taken for the first time in course of trial and even at the stage of investigation this plea was not taken. The evidence of the informant P.W.-2 has been sufficiently corroborated by the evidence of P.W.-4, P.W.-5 and the Investigating Officer (P.W.-6). The evidence of the informant P.W.-2 has been sufficiently corroborated by the evidence of P.W.-4, P.W.-5 and the Investigating Officer (P.W.-6). The defence could not elicit any contradiction from the witnesses and, therefore, the prosecution witnesses being consistent and corroborative has rightly been relied upon by the learned courts below while convicting the petitioners. Thus in view of the above, the judgment of conviction passed by the learned appellate court is, hereby, sustained. 10. However, with respect to the sentence which has been imposed upon the petitioners, it appears that the petitioners are facing the rigors of the prosecution case since the year 1988. The petitioners have also remained in custody for sometime. 11. Regarding being had to the aforesaid fact, the period of sentence imposed upon the petitioners is modified to the period already undergone. This application stands dismissed with the aforesaid modification in sentence.