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2020 DIGILAW 105 (MP)

Rajkumar Uikey v. State Of Madhya Pradesh

2020-01-17

V.P.S.CHAUHAN

body2020
ORDER 1. The applicant has filed this criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 21/11/2019 passed by 4 th Additional Sessions Judge, Seoni in Criminal Appeal No. 17/2015 whereby learned appellate Court while affirming the conviction under section 9 of M.P. Gowvansh Pratished Adhiniyam, 2004 and sentenced to undergo one year RI along with fine of Rs.5,000/- with default stipulation and under Section 11(d) of Prevention of Cruelty to Animal Act (17 times) and sentenced for each count Rs.20/- with default stipulation passed by the Court of JMFC, Seoni in Criminal Case No.3311/2012 vide judgment dated 06/02/2015, dismissed the appeal filed by the applicant. 2. The case of prosecution against the applicant, in short, is that Sub Inspector Shivcharan Tekam received information on telephone that from Village Chukta one truck coming with badly filled cattle and carrying the cattle for slaughter house at Nagpur. On receiving information, Sub Inspector along with other Police personnel went for checking and saw that one truck bearing registration No.M.R20-G-6631 was coming from village Chutka, however, on seeing the Police, driver of the truck trying to flee away from the spot and drove the truck speedily, however, when chased by the Police, the truck was stopped at the Tiraha and the driver fled away after abandoning the truck. When truck was inspected, it was found that 17 cattle were badly filled and out of which 16 were cows and one was ox. Police seized cattle, truck and also found that kerosene smell was coming out from the fuel tank of the truck and registered CrimeNo.198/2012 at Police Station, Kanhibada. After completion of investigation, charge sheet came to be filed for the offence punishable under Sections 4, 6, 9 of MR Govansh Vadh Pratished Adhiniyam, 2004, Section 11 (d) of Prevention of Cruelty to the Animals Act, 1960, Section 66 read with Section 192 of Motor Vehicles Act and also under Section 3 read with Section 7 of the Essential Commodities Act. 3. Learned trial Court after hearing both the parties vide order dated 06/05/2014 framed charges against the applicant for the offences punishable under Sections 6, 6A, 6B read with Section 9 of M.P. Govansh Vadh Pratished Adhiniyam, Section 11(d) of Prevention of Cruelty to the Animals Act and Section 3 read with Section 7 of Essential Commodities Act. 3. Learned trial Court after hearing both the parties vide order dated 06/05/2014 framed charges against the applicant for the offences punishable under Sections 6, 6A, 6B read with Section 9 of M.P. Govansh Vadh Pratished Adhiniyam, Section 11(d) of Prevention of Cruelty to the Animals Act and Section 3 read with Section 7 of Essential Commodities Act. The applicant denied for the charges and pleaded to be tried. Learned trial Court recorded the evidence of Shivcharan Tekam (PW-1), Anand Kumar Hanwat (PW-2), Dr. Santosh Kumar Daheriya (PW-3), Rohindra Varshekar (PW-4), Mahesh Prasad Jandhela (PW-5). In examination of accused under Section 313 of Cr.P.C, the applicant denied for all the incriminating evidence and circumstances came against him and pleaded defence that he is innocent and has falsely been implicated, however, did not produce any defence witness. 4. Learned trial Court after hearing both the parties delivered judgment on 06/02/2015 and found proved the offence under Section 9 of MR Govansh Vadh Pratished Adhiniyam, Section 11(d) of Prevention of Cruelty to the Animals Act and sentenced the applicant as aforementioned, however, acquitted him for the offence under Section 3 read with Section 7 of Essential Commodities Act. 5. The applicant against that conviction and sentence, preferred an appeal before the Sessions Court registered as Criminal Appeal No. 17/2015 under Section 374 of the Code of Criminal Procedure, 1973. Learned appellate Court after hearing both the parties vide judgment dated 21/11/2019 affirming the conviction and sentence dismissed the appeal. 6. The applicant being aggrieved by that affirmation of conviction and sentence has preferred this criminal revision on the ground that the judgment of the Court of JMFC dated 06/02/2015 is illegal and contrary to law. Learned trial Court has not properly appreciated the evidence of prosecution witnesses. Statement of the witnesses are contradictory. Prosecution totally failed to prove the case against the applicant, therefore, benefit of doubt goes in favour of the applicant. Both the Courts below should have acquitted the applicant, hence committed an error in convicting and sentencing the applicant. 7. On the other hand, learned Panel Lawyer appearing on behalf of respondent/State has supported the impugned judgment of conviction and order of sentence and submits that there is sufficient evidence available on record against the applicant. This revision has been filed by the applicant on wrong grounds, therefore, prays for dismissal of this revision. 8. 7. On the other hand, learned Panel Lawyer appearing on behalf of respondent/State has supported the impugned judgment of conviction and order of sentence and submits that there is sufficient evidence available on record against the applicant. This revision has been filed by the applicant on wrong grounds, therefore, prays for dismissal of this revision. 8. Heard learned counsel for the parties. In this revision the applicant only pressed the ground that learned trial Court has not appreciated the evidence of witnesses properly. There were contradiction in the statement of witnesses. Prosecution failed to prove the case beyond reasonable doubt against the applicant and learned both Courts below have not extended the benefit of doubt in favour of the applicant. 9. Before going to deal with the prosecution evidence, it is pertinent to clear the ambit and scope of the revisional Court when conviction and sentence passed by the trial Court has been affirmed by the appellate Court and as per Section 393 of Cr.P.C, this conviction and sentence attains finality. 10. Hon'ble Apex Court recently in the case of Kishan Rao vs. Shankargouda, (2018) 8 SCC 165 again reiterated the ambit and scope of re-appreciation of evidence under Section 397 read with Section 401 of Cr.P.C. when conviction and sentence affirmed by the Sessions Judge in appeal. Hon'ble Apex Court in para 12 to 14 of the said judgment has held as under : 12. This Court has time and again examined the scope of Section 397/401 Cr.P.C. and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri, 1999 (2) SCC 452 , while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following (SCC pp.454-55, para 5): "5......In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence....." 13. Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in paragraph 14: "14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction." 14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis." 11. In the backdrop of aforesaid proposition of law, perused the statement of witnesses. Shivcharan Tekam (PW-1) clearly stated that on seeing Police, driver of the truck trying to flee away, and on chasing by the Police, stopped the truck. On inspection of the truck, he found 16 cow progeny and one ox badly filled in the truck. This witness categorically stated that he took Mahesh Prasad Jandhela and Anand Kumar Hanwat along with him and admitted that the persons who were living near the place of checking, were not agreed to become witnesses of that incident. This witness categorically stated the name of applicant but on that point he was not cross-examined. Anand Kumar Hanwat (PW-2) also stated that in the truck 18-19 cattle were filled. Rohindra Varshekar (PW-4) turned hostile as he did not support the case of prosecution. Mahesh Prasad Jandhela (PW-5) supported the fact that the truck was filled with cattle of cow progeny. On the basis of appreciation of this evidence, this Court is of the firm view that learned Court below has not committed any error in recording the finding that the truck was filled by cow progeny and the cow progeny were transporting illegally. 12. On the basis of appreciation of this evidence, this Court is of the firm view that learned Court below has not committed any error in recording the finding that the truck was filled by cow progeny and the cow progeny were transporting illegally. 12. While chasing the truck by the Police, the applicant stopped the truck and fled away from the spot and later on Police arrested him. Witness-Shivcharan Tekam (PW-1) in para-2 clearly stated that the documents of the truck i.e. fitness certificate, registration, driving license, insurance produced by co-accused-Sunil Kumar Barmaiya and applicant-Rajkumar Uikey was his colleague. This witness in para-5 categorically stated that when he seized the truck and cattle till then he did not know that the truck belonged to whom and whose cattle were found in the truck. Other witnesses who were present along with Shivcharan Tekam (PW-1) also not stated the fact that the applicant was present in the truck and they saw that the applicant was fled away from the spot. The documents of truck seized from the possession of co-accused Sunil Kumar Barmaiya. The only fact came in the evidence of the prosecution is that the applicant is the colleague of accused- Sunil Kumar Barmaiya. All the witnesses stated against co-accused- Sunil Kumar Barmaiya who was possession holder of the truck at the time of incident, however, none of the witnesses stated anything against the applicant that he was present in the truck or he had been seen in the truck along with co-accused- Sunil Kumar Barmaiya. 13. Learned trial Court in para-14 of its judgment clearly held that prosecution failed to prove that cattle were carrying for slaughter. No doubt, after perusal of the whole statement of witnesses and the judgment, it is reflected that it is the co-accused - Sunil Kumar Barmaiya who was in possession of the truck and directly connected with the offence, thus, as per Section 13A of M.R Govansh Vadh Pratishedh Adhiniyam, 2004, burden of proof shifted on the shoulder of co-accused- Sunil Kumar Barmaiya to rebut that fact. However, nothing came in the evidence of prosecution witnesses that applicant is having a direct complicity with the act of co-accused-Sunil Kumar Barmaiya so far as present offence is concerned. However, nothing came in the evidence of prosecution witnesses that applicant is having a direct complicity with the act of co-accused-Sunil Kumar Barmaiya so far as present offence is concerned. Shivcharan Tekam (PW-1) specifically admitted in his evidence that when he seized the truck, he did not know that who is the owner of the truck and this witness no where stated that the applicant was found in the truck or fled away from the truck and this witness identified him when he was fleeing away. 14. Prosecution should, prima facie, establish the case thereafter rebuttal burden under Section 13A of M.R Govansh Vadh Pratishedh Adhiniyam comes in the picture. If the prosecution failed to prove the connectivity and complicity of the applicant with the crime, no offence is made out against the applicant. No doubt there is perversity in appreciation of evidence committed by both the Courts below, therefore, this Court finds that the applicant is entitled to be acquitted of the charges. 15. On the basis of forgoing discussions, this revision is allowed. The conviction and sentence passed against the applicant is here by set aside and the applicant is acquitted of the charges. The applicant is in jail, he be set at liberty forthwith, if not required in any other case. 16. Copy of this order be sent to the trial Court for information and necessary action.