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2020 DIGILAW 294 (MP)

Arif Alias Sonu v. State Of Madhya Pradesh

2020-02-25

V.P.S.CHAUHAN

body2020
JUDGMENT 1. The appellant has filed this appeal under Section 374(2) of Cr.P.C. being aggrieved by the conviction and sentence passed by 3rd Additional Sessions Judge, Khandwa in S.T. No.110/2018 vide judgment dated 14/05/2019 whereby convicted and sentenced the appellant as follows: Section Act Imprisonment Fine, Imprisonment in lieu of find 4/9 R/w Section 34 M.P. Govansh Pratishedh Adhiniyam, 2004 R/w IPC RI for one year Rs.5,000/- RI for two months 6/9 R/w Section 34 M.P. Govansh Pratishedh Adhiniyam, 2004 R/w IPC RI for one year Rs.5,000/- RI for two months 6A/10, 11 R/w 34 M.P.Krishik Pashu Parirakshan Adhiniyam, 1959 R/w IPC RI for two years Rs.1,000/- RI for one month 6B/10, 11 R/w 34 M.P.Krishik Pashu Parirakshan Adhiniyam, 1959 R/w IPC RI for two year Rs.1,000/- RI for one month 11(1)(d) Animal Cruelty Act Nil Rs.50/ Two days 471 R/w 34 Indian Penal Code RI for five years Rs.2,000/- RI for three months 2. The case of prosecution against both appellant, in short, is that in truck No.M.P.09 H.F.2037 was filled with cow progeny very cruelly in two partition and legs of the cow were cruelly tied by the rope. Informer informed this fact to Police Chowki, Borgaon, Police Station, Pandhana, Distt. Khandwa. Incharge of the Police Chowki after recording this information on Rojnamcha rushed to the spot along with Head Constable Tarchand, Constable Akhilesh, Constable Uday Singh and independent witnesses Sanjay and shivlal and made blockade. The alleged truck came on the bus-stand and when stopped by the Police, driver and persons who were sitting inside the truck after seeing Police stopped the truck and jumped and tried to flee away. They were five in number. Police chased them and caught hold four persons. One Ashfaque who was said to be driver of the truck, another Afsar, Faqueer, Arif alias Sonu (applicant), Irshad. They furnished information that they were carrying cattle cow progeny for slaughtering to Barungaon, Maharashtra. On inspection of truck, it was found that at the back side of the truck a wrong number of plate mentioning number M.P.09 HF 0989 was affixed. In the front side of number of plate two numbers were mentioned; one M.P.09 HF 2037 and on its back side M.P.09 HF 0989. After opening Tirpal Police party found that there were huge number of cow progeny badly filled in cruel manner. In the front side of number of plate two numbers were mentioned; one M.P.09 HF 2037 and on its back side M.P.09 HF 0989. After opening Tirpal Police party found that there were huge number of cow progeny badly filled in cruel manner. Legs and mouth of cattle were tied and some of them found dead. After conducting of these proceeding, temporary Crime No.36/2012 registered at Police Chowki Borgoan and sent FIR for registration of crime number to Police Station, Pandhana where Crime No.97/2012 registered against the appellant along with other co-accused. After recording of evidence and completion of investigation, charge sheet filed against the applicant along with other co-accused. 3. Learned trial Court framed charges against the applicant along with other co-accused persons for the offence punishable under Section 420 read with Section 34, 471 read with Section 34 of IPC, Section 4 read with Section 9 of M.P. Govansh Pratishedh Adhiniyam, 2004 read with Section 34 of IPC, Section 6 read with Section 9 of M.P. Govansh Pratishedh Adhiniyam, 2004 read with Section 34 of IPC as also under Section 6A read with Section 10, 11 of M.P.Krishik Pashu Parirakshan Adhiniyam, 1959 read with Section 34 of IPC, 6-B read with Sections 10, 11 M.P.Krishik Pashu Parirakshan Adhiniyam, 1959 read with Section 34 of IPC, Section 11(d) of Prevention of Cruelty to Animals Act read with Section 34 of IPC, and Section 66/192, 3/181 of Motor Vehicles Act read with Section 34 of IPC. 4. Prosecution examined nine witnesses and produced evidence against the appellant to bring the charges at home. In examination of accused under Section 313 of Cr.P.C., appellant-Arif denied for all incriminating evidence came against him and simply pleaded that he is innocent and has falsely been implicated in the matter. 5. Learned trial Court after hearing both parties, delivered judgment on 14/05/2019 against appellant and convicted and sentenced appellant as aforementioned. 6. The appellant being aggrieved by that conviction and sentence, has preferred this appeal on the ground that there are so many omissions and contradictions in the statement of the prosecution witnesses. 5. Learned trial Court after hearing both parties, delivered judgment on 14/05/2019 against appellant and convicted and sentenced appellant as aforementioned. 6. The appellant being aggrieved by that conviction and sentence, has preferred this appeal on the ground that there are so many omissions and contradictions in the statement of the prosecution witnesses. The appellant has already been acquitted of the charges under Section 420 read with Section 34 of IPC and Section 3 read with Section 181, 66 read with Section 192 of Motor Vehicles Act, on the same set of evidence, however, learned trial Court has committed error in convicting the appellant on the same set of evidence. FIR was lodged after one month. Defence version of the appellant has not been accepted by the trial Court which should have been accepted in the interest of justice. The Police had not recorded the memorandum statement of the appellant under Section 27 of the Evidence Act as well as not of any other co-accused. There is no evidence on record to show that the appellant is involved in manufacturing fake number plate and used the fake number plate as a genuine. There was no evidence on record to prove that cattle were transporting for the purpose of slaughtering. The judgment and finding of the trial Court is bad in law and deserves to be quashed. It has been prayed to set aside the conviction and sentence passed against the appellant and acquit him of the charges. 7. On the other hand, learned Dy. Govt. Advocate and 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 appellant. Learned trial Court has not committed any error in convicting and sentencing the appellant. This appeal has been filed by the appellant on wrong grounds, therefore, prays for dismissal of this appeal. 8. Having heard learned counsel for the parties, perused the evidence recorded in Sessions Trial No.110/2018. 9. Kailash Chand Patidar (PW-6) clearly stated that on 31/03/2012 he was posted at Police Chowki, Borgaon. He received information that one truck bearing No. M.P.09 H.F.2037 and another number plate bearing No. M.P.08 H.F.0989 was coming from Indore side and going to Maharashtra illegally carrying cow progeny. This witness along with other staff and villagers strategically stopped the truck at Borgaon bus-stand. He received information that one truck bearing No. M.P.09 H.F.2037 and another number plate bearing No. M.P.08 H.F.0989 was coming from Indore side and going to Maharashtra illegally carrying cow progeny. This witness along with other staff and villagers strategically stopped the truck at Borgaon bus-stand. Four persons including the truck driver jumped from the cabin of the truck and tried to flee away. Police party and villagers caught hold them. One of them is appellant-Arif alias Sonu. Thereafter searched the truck. There was partition in the truck and 45 cow progeny were badly filled in the truck. Their legs were tied and mouth was closed and out of 45, two cows and one bullock found in dead condition. All cattle were sent for treatment and dead animals were sent for post-mortem. This witness further deposed that in the front side number plate M.P.09 H.F. 2037 was written on one side and on the back side No.M.P.09 H.F. 0989 was written and behind of truck, plat number M.P.09 H.F. 0989 was written. This witness stated that he had not seized the documents of the ownership of the cattle and further stated that he has not inquired that where the cattle were carrying. 10. In para-11 this witness admitted that he has not seized the truck and cattle in the possession of the appellant and he had not inquired whether the appellant was travelling as a passenger in the truck. He had inquired about the truck, the truck was registered as M.P. 09 H.F. 2037. This witness had not been examined on the point that whether the appellant was present on the spot or not. This witness categorically stated that the appellant along with other co-accused after jumping from the truck tried to flee away, however, the Police after chasing caught hold the appellant and other co-accused. Since this fact has not been cross-examined, therefore, cannot create a doubt that the appellant was present in the truck and after seeing Police tried to flee away from the clutches of the Police. No doubt, truck was not seized from the possession of the appellant and not cattle seized from the possession of the appellant. It is the duty of the appellant to prove that he was travelling in the truck as a passenger. Dr. No doubt, truck was not seized from the possession of the appellant and not cattle seized from the possession of the appellant. It is the duty of the appellant to prove that he was travelling in the truck as a passenger. Dr. A.K. Pateriya (PW-2), Veterinary Doctor, conducted post-mortem of two dead cows and one bullock and opined that all died due to asphyxia and other alive animals were injured. 11. Witness Naroo (PW-1) also supported that the applicant was found in the truck and when truck was stopped, he tried to flee away along with other coaccused. This witness categorically stated that in the truck there were badly filled cow progeny and some of cow progeny died. Legs of all the cow progeny were tied with rope. 12. Another witness Tarachand Pawar (PW-4) also supported the fact that the appellant was found in the truck and on seeing Police, he tried to flee away, however, caught hold by the Police and stated his name Arif, residence of Ashtha. This witness also supported that there were badly filled cattle in the truck. 13. Another independent witness Shivlal (PW-5) turned hostile and not supported the case of prosecution. This witness stated that Police called him and took his signatures on some papers. However, other independent witness who is villager i.e. Naroo (PW-1) and Tarachand Pawar (PW-4), member of raiding party supported the fact that Kailash Chand Patidar stopped the truck and appellant along with other co-accused jumped from the cabin of the truck and tried to flee away but the Police caught hold them. The appellant was travelling in the truck. 14. After perusal of whole evidence, it is found that the appellant and other co-accused were resident of same Village Ashta. The appellant was found in the truck and the truck was badly filled with cow progeny, illegally transporting them and going Maharashtra without having any permit or authority for transporting the cow progeny. All cow progeny having bullock and cow. One bullock and two cow died on account of asphyxia. No doubt, it is clear that cow progeny and bullocks were badly filled. The intention of the appellant is clearly reflected that he along with other co-accused committed cruelty upon the cow progeny and carrying for slaughtering. The truck was not having correct registration number. One bullock and two cow died on account of asphyxia. No doubt, it is clear that cow progeny and bullocks were badly filled. The intention of the appellant is clearly reflected that he along with other co-accused committed cruelty upon the cow progeny and carrying for slaughtering. The truck was not having correct registration number. One another registration number M.P.09 H.F. 0989 was affixed at the back side of the truck and this number was written on the back of the front side number plate. This fact also shows fraudulent intention of the appellant along with other coaccused carrying cow progeny in the truck. Considering all these facts, it cannot be said that the appellant was travelling as a passenger without having any knowledge that badly filled cow progeny were transporting in the truck. 15. There is sufficient evidence available against the appellant to prove that all cow progeny, cow and bullock were transporting illegally by the appellant not having any authority or license for transporting them. Legs of cow progeny tied with rope and their mouth was also tied to stop them for making a sound. This fact clearly shows the intention and cruelty committed by the appellant against animals. Some animals were cow, cow-calf and some were bullock. 16. On the basis of forgoing discussions, this Court finds that learned trial Court has not committed any error in convicting the appellant for the offence under Section 11(1)(d) of Prevention of Animal Cruelty Act, 1960. Some bullocks were also found dead, hence offence under Section 6A and 6B punishable under Section 10 of M.P. Krishik Pashu Parirakshan Adhiniyam, 1959 read with Section 34 of IPC was found. The appellant also committed the offence punishable under Section 4/9 and 6/9 of M.P. Govansh Pratishedh Adhiniyam, 2004 also read with Section 34 and Section 471 of IPC because the appellant is having common intention for committing all above offences and he is equally liable for that conviction and sentence. 17. So far as punishment is concerned, the act of the appellant was very cruel. 45 cow progeny and bullock were badly filled in the truck. Legs and mouth of animals were tied by rope. Out of 45, two cow and one bullock died due to asphyxia. 17. So far as punishment is concerned, the act of the appellant was very cruel. 45 cow progeny and bullock were badly filled in the truck. Legs and mouth of animals were tied by rope. Out of 45, two cow and one bullock died due to asphyxia. In these circumstances, this Court is not inclined to adopt any leniency in the sentence awarded by the trial Court looking to the nature of the offences, therefore, it is justified while considering the act of the appellant. 18. In view of aforesaid discussions, this appeal sans merit and the same is hereby dismissed. There shall be no order as to cost. 19. Interlocutory application, if any, is pending, the same stands dismissed. 20. Let copy of this judgment be sent to trial Court for necessary information.