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2018 DIGILAW 1399 (RAJ)

Narayan v. State of Rajasthan

2018-06-08

DINESH MEHTA

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JUDGMENT AND ORDER : Dinesh Mehta, J. 1. The present appeal has been preferred by the accused appellant under Section 374 of the Code of Criminal Procedure, 1973, oppugning the judgment and sentence dated 23.2.1993, passed by District & Sessions Judge, Banswara, whereby he had been convicted for offence under Section 2 of the Rajasthan Preservation of Certain Animals Act, 1950 and was asked to undergo two years and six months' rigorous imprisonment with fine of Rs. 1,000/- and in default in payment of the fine, to undergo two months' additional rigorous imprisonment. 2. The present appeal had been admitted on 2.4.1993 after considering the submissions of learned counsel for the appellant and the sentence awarded to the appellant stood suspended. 3. However, thereafter the said counsel did not appear, for which this Court directed the Registry to issue notice to the appellant. Office has reported that the notice upon the appellant has been served, yet nobody has put in appearance to pursue the present appeal. 4. Hence, this Court is constrained to decide the appeal in absence of the appellant/his counsel. 5. The facts appertain to the present appeal are that the complainant Arjun lodged a complaint in the Police Station Sadar, Banswara, informing that the day before, while his son Ishwar was gliding his ox named Singa towards jungle for grazing, it entered the corn-cultivated field of Narayan. At this juncture, infuriated Narayan came with a club (lathi) and started beating it vigorously, resultantly it fell down. Seeing the ox falling down, Ishwar returned home and gave information to his father, where-after he and Ishwar came back, searching for the ox, which was found lying dead on the bulwark of Narayan's field. 6. Pursuant to the first information report, so lodged by the complainant Arjun, the police after usual investigation filed challan against the accused Narayan under Section 429 of the Indian Penal Code and Section 2 of the Rajasthan Preservation of Certain Animals Act, 1950 (for short "the Act of 1950"). 7. The trial Court framed the following charge against the accused appellant Narayan under Section 2 of the Act of 1950, while discharging him of offence under Section 429 of the Indian Penal Code:- *Vernacular Matter committed here 8. The accused while denying the charge framed against him, entreated trial. 9. 7. The trial Court framed the following charge against the accused appellant Narayan under Section 2 of the Act of 1950, while discharging him of offence under Section 429 of the Indian Penal Code:- *Vernacular Matter committed here 8. The accused while denying the charge framed against him, entreated trial. 9. On behalf of the prosecution, PW-1 Arjun owner of the ox appeared in the witness box and iterated the incident as narrated to him by his son Ishwar. PW-2 Ishwar, the alleged eye witness, appeared in the witness box and deposed that on the fateful day, when he was navigating his ox Singa to the Jungle for grazing, it entered the corn field of accused Narayan; thence accused Narayan came with the club (lathi) and gave multiple blows to the ox and drove it off his field; after receiving 4-5 lathi blows, the said ox fell down at a short distance from Narayan's field. After which, he proceeded towards his house and came back with his father, only to find that the poor ox was lying dead. 10. However, during the cross-examination, PW-2 Ishwar admitted that the ox Singa had slipped in the drain (nala), from where its dead body was recovered. 11. PW-3 Dr. Janardan Shukla Veterinary Doctor appeared in the witness box and deposed that he had conducted post-mortem of the ox and found swelling on his right leg above knee/stifle joint; fracture in the last rib; and its kidney and ureter were found raptured. He suggested rather apprehended that the ox died of excess bleeding and lack of oxygen. 12. Learned District & Sessions Judge, Banswara after appreciation of the oral and ocular evidence found the accused guilty of killing the ox Singa. While convicting the accused appellant, the trial Court recorded a finding that the ox in question died because of the lathi blows given to it, by the accused. The trial Court however disbelieved or ruled out the theory portrayed by the defence/accused that the ox died of falling in the drain (nala). Considering the deposition of the PW-3 Dr. Janardan Shukla the Court below held that the ox died of profused bleeding and lack of oxygen, which was a natural consequence of the incessant lathi blows. Having convicted the appellant, the trial Court handed down rigorous imprisonment of two years and six months' besides imposing a fine of Rs. 1000/- against him. 13. Janardan Shukla the Court below held that the ox died of profused bleeding and lack of oxygen, which was a natural consequence of the incessant lathi blows. Having convicted the appellant, the trial Court handed down rigorous imprisonment of two years and six months' besides imposing a fine of Rs. 1000/- against him. 13. As nobody has appeared on behalf of the accused appellant, the Court proceeded to consider the material available on record with the able assistant of the learned Public Prosecutor, to consider the correctness of the judgment dated 23.2.1993, being subject matter of the present appeal. 14. Mr. Rathi, learned Public Prosecutor defending the judgment under challenge, contended that a look at the medical report of the doctor PW-3 and his statement leave no room for ambiguity that the ox in question died of ceaseless lathi blows, leading to excessive bleeding and inadequacy of oxygen. He submitted that the statement of eye witness PW-2, Ishwar are sufficient to prove that Narayan being agitated of ox having entered his field, gave 4-5 lathi blows to the ox and ran after it to shoo the ox away. Such outrageous attempt resulted in limitless loss of blood and lack of oxygen, to which the poor ox succumbed. He argued that the appellant's guilt is beyond any pale of doubt and he has been rightly convicted for the offence under Section 2 of the Act of 1950. 15. Before adverting to the evidence available on record, it would not be out of context to first glance through the relevant provision of Section 2 of the Act of 1950, which reads thus:- "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 extend to ten years and shall also be liable to fine." 16. It is to be noticed that on the advent of promulgation of Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995; more particularly by virtue of Section 16 of the said Act, Sections 2 and 3 of the Act of 1950 stood deleted. It is to be noticed that on the advent of promulgation of Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995; more particularly by virtue of Section 16 of the said Act, Sections 2 and 3 of the Act of 1950 stood deleted. The statement of objects and reasons of the Act of 1995 predicates that in a bid to follow the constitutional mandate encompassed in Article 48 of the Constitution, the directive principles of State Policy, requiring the State to take steps for prohibition of slaughter of cows, calves and other milch and draught cattle, the State has decided to bring in, extensive provisions for the welfare and cause of bovines. Though not directly relevant, yet it would be worthwhile to have a glance over Section 3 of the newly enacted Act of 1995, which reads thus:- "3. Prohibition of slaughter of bovine animal - Notwithstanding anything contained in any law for the time being in force or in any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter any bovine animal." 17. A bare look at the provisions contained in Section 2 of the Act of 1950 makes it abundantly clear that they are attracted in case of intentional killing. A plain reading of Section 2 of the Act of 1950 suggests that a person can be convicted, if he premeditatedly or purposely causes serious bodily injury to a bull, cow or calf etc. 18. A perusal of the charge framed against the accused reveals that the Court had framed charge and proposed to prosecute the accused appellant for the act of giving lathi blows to the ox, and treating resultant death to be falling foul to Section 2 of the Act of 1950. While framing the charge against the accused appellant, the trial Court remained completely oblivious of the basic ingredient of Section 2 of the Act of 1950, which renders the intention to kill or hurt, as a sine qua non for the offence. Even the Act of 1995, which has been enacted especially to deal with offences against the bovine, does not include the incidental beating resulting into death of a bovine, within the precincts of an offence. 19. Even the Act of 1995, which has been enacted especially to deal with offences against the bovine, does not include the incidental beating resulting into death of a bovine, within the precincts of an offence. 19. A perusal of the material available on record, more particularly the statement of PW-2 Ishwar, drives home only one thing; that the accused Narayan being irked of the ox having sneaked in his field, got furious and started beating it, in order to drive it off the field. In this process, the ox sustained some injuries and started bleeding. It is also a fact established that it ultimately fell in a drain (nala) about 500 yards off the appellant's field and departed. 20. The version of Ishwar, in the FIR (Ex.P/1) had been that while the accused was giving lathi blows to the ox, he hid himself behind teak trees, and then came home to apprise his father Arjun about the incident. When the informer Arjun came with his son Ishwar, at the site the ox was found dead near the field of the accused Narayan. His deposition in the Court was no different in substance, may be with minor variations. 21. A perusal of the site map (Ex.P/2) prepared by the investigating officer reveals that the place of incident was a rugged terrain of the jungle surrounded by small hillocks and the ox was found lying dead in a drain/trench about 500 steps away from the field of accused Narayan. 22. In this view of the matter, it cannot be said with certitude that the death of the ox was caused by the lathi blows alone. It is to be noticed that PW-3, the Veterinary Doctor conducting postmortem had reported and deposed that the ox died of profused bleeding and lack of oxygen; and the injuries as indicated by the doctor show a fracture in the last rib and bleeding from the raptured kidney and ureter. As such, the probability of death resulting from rapturing of kidney and ureter cannot be ruled out, but the fact that ox fell in the drain (nala) and the body recovered therefrom cannot be lost sight of. The eye witness - Ishwar also did not see the ox dying, much less dying instantaneously, he has rather stated that he firstly hid himself when the ox was being beaten and then came home. The eye witness - Ishwar also did not see the ox dying, much less dying instantaneously, he has rather stated that he firstly hid himself when the ox was being beaten and then came home. He went on to admit that the ox was later found dead in the drain (nala). 23. In view of the aforesaid fact situation, this Court is of the view that even if, the ox died of the injuries suffered by the relentless lathi blows by the accused Narayan, but the same was a result of sudden and explicable outbreak of anguish of a tribal, on finding his field being ruined or damaged by the ox. He seems to have given 4-5 lathi blows to the ox apparently, in a bid to drive it off the field. In the present factual matrix, his motive to kill the ox cannot be inferred. 24. Neither is there any evidence to show that the accused appellant had given the lathi blows with an ill-will to kill the ox nor does the injury report evince any blow on the vital part or organs of the ox. The death of the ox could be caused due to falling in the drain, coupled with continuous bleeding caused due to lathi blows. 25. Nevertheless such death deserves to be and is hereby declared an accidental death, and not an intentional slaying bringing the same within the fold of Section 2 of the Act of 1950. 26. In light of the discussion foregoing, the appeal is allowed. 27. The judgment and conviction dated 23.2.1993 passed by District & Sessions Judge, Banswara is quashed and set aside. The appellant Narayan is acquitted of the offence under Section 2 of the Act of 1950. The appellant is on bail, his bail bonds stand discharged. 28. A copy of this judgment be sent to the appellant, while remitting the record to the Trial Court.