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2023 DIGILAW 848 (KAR)

K. C. Siju v. State of Karnataka

2023-07-06

S.RACHAIAH

body2023
JUDGMENT 1. These two Criminal Revision Petitions have been filed by the petitioners, being aggrieved by the judgment of conviction and order of sentence dtd. 17/8/2007 in C.C.No.1765/2005 on the file of the Court of Additional Civil Judge (Jr.Dn.) and JMFC, Madikeri and its confirmation judgment and order dtd. 12/2/2014 in Crl.A.No.71/2007 on the file of the Court of I Additional District and Sessions Judge, Kodagu at Madikeri, wherein the petitioners have been convicted for the offences under Ss. 4, 5, 8, 9, 11 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 (for short "Act") and Sec. 379 read with Sec. 149 of Indian Penal Code (for short 'IPC'). 2. The petitioners are the accused before the Trial Court and the appellants before the Appellate Court. Brief facts of the case are as under: 3. It is the case of the prosecution that, on 9/6/2005 in the early morning at about 2.30 a.m., when the petitioners were transporting the cattle to Kerala State through the lorry bearing its No.KA.12.A.6336, the lorry was intercepted at Nelli Hudikeri junction by PW.1 and his staff and they seized the vehicle and also took the cattle to the custody and arrested the petitioners. After investigation, a charge sheet came to be filed for the above said offences. 4. To prove the case of the prosecution, the prosecution examined, in all, 9 witnesses namely PWs.1 to 9 and got marked Exhibits P1 to P9. The Trial Court after appreciating the oral and documentary evidence on record, convicted the petitioners for the offences stated supra. Being aggrieved by the same, the petitioners preferred an appeal before the Appellate Court, the Appellate Court confirmed the judgment of conviction rendered by the Trial Court. Being aggrieved by the same, the petitioners have preferred these revision petitions seeking to set aside the concurrent findings. 5. Heard Shri Abdulla I.T., learned counsel for the petitioners and Shri Rahul Rai.K., learned High Court Government Pleader for the respondent - State. 6. It is the submission of learned counsel for the petitioners that, the judgment of conviction and order of sentence passed by the Trial Court and its confirmation order passed by the Appellate Court require to be set aside as the concurrent findings are perverse, illegal and opposed to facts and law. 7. 6. It is the submission of learned counsel for the petitioners that, the judgment of conviction and order of sentence passed by the Trial Court and its confirmation order passed by the Appellate Court require to be set aside as the concurrent findings are perverse, illegal and opposed to facts and law. 7. It is the contention of the learned counsel for the petitioners that, the Trial Court and the Appellate Court have failed to notice that, none of the owners of the said cattle have filed complaint regarding theft of cattle. In the absence of the said complaint, it would not be appropriate to arrive at a conclusion that, the petitioners have committed theft of cattle. It is also submitted that, there are no independent witnesses to support the case of the prosecution in respect of seizure of the cattle. However, the Courts below acted upon the evidence of official witnesses, who are considered as interested witnesses and the Courts below convicted the petitioners which is erroneous and illegal. 8. It is further submitted that, the Courts below ought to have appreciated the evidence of PW.4, PW.5 and DW.1 properly, before arriving at a conclusion that, the petitioners are found guilty of the offences. PW.4 is the witness to Ex.P1, he has not identified the petitioners. PW.5 also witness to Ex.P1 has not supported the case of the prosecution in respect of the identity of the petitioners. Both these witnesses have not supported the seizure of cattle and identity of the petitioners. Making such submission, learned counsel for the petitioners prays to allow the petitions and set aside the concurrent findings of conviction. 9. Per contra, learned High Court Government Pleader (for short 'HCGP') justifying the concurrent findings, submitted that, the Courts below after appreciating the oral and documentary evidence on record held that, the petitioners are found guilty of the offences stated supra. 10. It is further submitted that, the evidence of PWs.1 to 3 and 6 are relevant and they have conducted the raid and rescued the cattle and the cattle were sent to rescue home, namely, Pinjara Pole Society, Mysuru. 10. It is further submitted that, the evidence of PWs.1 to 3 and 6 are relevant and they have conducted the raid and rescued the cattle and the cattle were sent to rescue home, namely, Pinjara Pole Society, Mysuru. The evidence of PW.7- Head Constable, who took the cattle and handed over the same to the rescue home, PW.8 is the Veterinary Doctor who issued certificate as per Ex.P6, are all consistent in their evidence that, the cattle were being transported in the said lorry illegally without having any documents to show that they were authorized to transport the cattle. Making such submissions, learned HCGP justified the concurrent findings and prays to dismiss the petition. 11. Having heard the rival contentions urged by the learned counsels for the respective parties and also perused the judgments of the Courts below, the points which arise for my consideration are: i) Whether the concurrent findings recorded by both the Courts below in convicting the petitioners for the offences under Ss. 4, 5, 8, 9, 11 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 and Sec. 379 read with Sec. 149 of Indian Penal Code are sustainable? ii) Whether the petitioners have made out grounds to interfere with the concurrent findings recorded by both the Courts below for conviction? 12. This Court being a Revisional Court, can assess the evidence and the law only when if there are errors or illegality committed by the Courts below in recording the conviction. 13. It is relevant to note here that, PWs.1 to 3 and 6 are the official witnesses. PWs.4 and 5 are the witnesses to Ex.P1, which is seizure mahazar, both these witnesses have turned hostile. However, PW.4 in his cross-examination, after treating him as hostile witness, has admitted that, the petitioners were transporting the cattle to slaughter house. PW.7 who is a Head Constable, stated to have rescued the cattle and handed them to the rescue home, namely, Pinjara Pole Society, Mysuru. PW.8 is the Doctor who certified the said cattle and issued certificate as per Ex.P6. 14. The official witnesses are consistent in their evidence with regard to transportation of cattle in the lorry. Other witnesses namely, PWs.7 and 8 have also supported the case of the prosecution. Mere hostility of independent witnesses may not be of much significance to the case of the prosecution. 14. The official witnesses are consistent in their evidence with regard to transportation of cattle in the lorry. Other witnesses namely, PWs.7 and 8 have also supported the case of the prosecution. Mere hostility of independent witnesses may not be of much significance to the case of the prosecution. It is needless to say that, the possession of the cattle and its transportation has been proved by the prosecution by leading cogent evidence. 15. Now, it is relevant to refer the provisions of Ss. 4, 5, 8, 9 and 11 of the Act, which are reproduced below: "4. Prohibition of slaughter of cow or calf of shebuffalo.-Notwithstanding any law, custom, or usage to the contrary, no person shall slaughter or cause to be slaughtered, or offer or cause to be offered for slaughter or otherwise intentionally kill or offer or cause to be offered for killing any cow or calf of shebuffalo. 5. Prohibition against slaughter of animals without certificate from competent authority.-(1) Notwithstanding any law, custom, or usage to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter any animal, other than a calf of shebuffalo, unless he has obtained in respect of such animal a certificate in writing from the competent authority appointed for the area that the animal is fit for slaughter. (2) A certificate under sub-sec. (1) shall be granted by the competent authority, after it has, for reasons to be recorded in writing, certified that, - (a) the animal is over the age of twelve years; or (b) the animal has become permanently incapacitated for breeding, draught or giving milk due to injury, deformity or any other cause. (3) No certificate under sub-sec. (1) shall be granted if the animal is suffering from any disease which makes its meat unwholesome for human consumption. (4) A certificate under this Sec. shall be granted in such form and on payment of such fee as may be prescribed. 8. Restriction on transport of animal or cow for slaughter.-No person shall transport or offer for transport or cause to be transported any animal or cow from any place within the State to any place outside the State, for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be, so slaughtered. 9. 9. Prohibition of sale, purchase or disposal of cow or calf of she-buffalo for slaughter.-No person shall purchase, sell or otherwise dispose of or offer to purchase, sell or otherwise dispose of or cause to be purchased, sold or otherwise disposed of, cows or calves of she-buffaloes for slaughter or knowing or having reason to believe that such cattle shall be slaughtered. 11. Penalties.-Whoever contravenes any of the provisions of this Act, shall, on conviction, be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." 16. On perusal of the above said provisions, to prove the case of the offences stated supra, a cogent and reliable evidence must be produced. In this case, it is stated that the vehicle was intercepted during transportation of the cattle. No doubt, it is true that the petitioners have not produced any document to show that the cattle was purchased from the concerned parties, however, the allegations made by the prosecution on the basis of said transportation that, the cattle was being transported for the purpose of slaughtering cannot be accepted. In the criminal jurisprudence, conviction of a person cannot be based on assumption and presumption, but, the prosecution must prove the case beyond all reasonable doubt. 17. The evidence of PWs.1 to 3 and 6 discloses that, the cattle were being transported without any documents for having purchased. PW.4 being an independent mahazar witness, though turned hostile, his evidence may be considered to the extent that, cattle were being transported in the lorry, PW.4 has supported it to that extent, in the cross-examination of the learned P.P. The evidence of PW.7, who stated to be the Head Constable, handed over the rescued cattle to the rescue home and PW.8 is the Doctor, who issued certificate as per Ex.P6, are relevant and based on the evidence of these witnesses, it can be inferred that, the cattle were stolen. Hence, I concur with the findings given by the Courts below in convicting the petitioners for the offences under Sec. 379 read with Sec. 149 of IPC. However, I differ from the concurrent findings of conviction in respect of the offences under Sec. 4, 5, 8, 9 and 11 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 and the conviction requires to be set aside. 18. However, I differ from the concurrent findings of conviction in respect of the offences under Sec. 4, 5, 8, 9 and 11 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 and the conviction requires to be set aside. 18. In the light of the observations made above, the points which arose for my consideration are answered as under:- Point No.(i) - "Partly Negative" Point No.(ii) - "Partly Affirmative" 19. Hence, I proceed to pass the following:- ORDER (i) The Criminal Revision Petitions are allowed-inpart. (ii) The judgment of conviction and order of sentence, dtd. 17/8/2007 passed in C.C.No1765/2005 by the Court of Additional Civil Judge and J.M.F.C, Madikeri and its confirmation judgment and order dtd. 12/2/2014 passed in Crl.A. No.71/2007 by the Court of I Additional District and Sessions Judge, Kodagu at Madikeri, for the offences punishable under Ss. 4, 5, 8, 9 and 11 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 are set aside. (iii) The petitioners are acquitted for the offences under Ss. 4, 5, 8, 9 and 11 of The Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964. (iv) The judgment of conviction and order of sentence, dtd. 17/8/2007 passed in C.C.No.1765/2005 by the Court of Additional Civil Judge and J.M.F.C, Madikeri and its confirmation judgment and order dtd. 12/2/2014 passed in Crl.A.No.71/2007 by the Court of I Additional District and Sessions Judge, Kodagu at Madikeri for the offences punishable under Sec. 379 read with Sec. 149 of IPC are confirmed. (v) The petitioners are sentenced to undergo simple imprisonment for a period of two years and pay fine of Rs.2, 000.00 each, in default, to undergo simple imprisonment for a period of two months for the offences punishable under Sec. 379 read with Sec. 149 of IPC, as ordered by the Trial Court and confirmed by the Appellate Court. (vi) The jurisdictional Police is directed to secure the custody of the petitioners as per law to comply the order of this Court in respect of conviction of petitioners for the offences punishable under Sec. 379 read with Sec. 149 of IPC.