State Of Haryana vs Rajmal & Anr

judgment and order dated 20.04.2010 of the High

Court of Punjab and Haryana in Criminal Revision

No.669/2000, whereby the High Court acquitted the

respondents-accused persons (hereinafter "the

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accused persons") from all the charges levelled

against them under Section 8 of the Punjab

Prohibition of Cow Slaughter Act, 1955

(hereinafter "the Act"). By this impugned order,

the judgment and order passed by the Sub-

Divisional Judicial Magistrate, Ferozepur and the

appellate order passed by the Addl. Sessions

Judge, Gurgaon were set-aside by the High Court in

revision.

3. The accused persons were convicted under Section 8

of the Act and sentenced to undergo rigorous

imprisonment for a period of one year by the Court

of Sub-Divisional Judicial Magistrate, Ferozepur

vide judgment dated 14.09.1998 in Crl. Case

No.23/96. On Appeal, this order of conviction and

sentence was confirmed and upheld by the

Additional Sessions Judge, Gurgaon vide order

dated 01.06.2000 in Criminal Appeal No.20/98.

2 4. The facts and circumstances, which are relevant,

are as under:

a) According to the prosecution, on 01.01.1996 Head

Constable Satyabir/p.w.-3 (hereinafter "the

Investigating Officer") received a secret

information that the accused persons were

slaughtering cows in their house and if any raid

was conducted, the accused persons could be caught

red-handed. Consequently the investigating officer

along with Head Constable Bir Singh/p.w.-2 formed a

raiding party and raided the house of the accused

persons.

b) On seeing the Police party, both the accused

persons by scaling the wall, fled away from their

house by taking advantage of the darkness.

c) However the investigating officer found 70 kgs of

fresh beef, one skin of cow, one axe, two blood

stained daggers and four weak and infirm cows.

Those were seized and taken into custody vide

recovery memo. Thereafter ruqa was sent to the

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police station, on the basis of which FIR was

registered and the case was investigated.

d) Thereafter the accused persons were arrested and

charged under Section 8 of the said Act.

e) At the Trial, P.W.-3/investigating officer and

P.W.-2/Bir Singh, who were eye-witnesses, supported

the case of prosecution and categorically deposed

that accused were known to them from before and on

seeing the police party, they ran away from the

place by scaling the wall.

f) The accused persons did not lead any evidence in

their defence.

g) After the appreciation of evidence, vide judgment-

dated 14.09.1998 the Trial Court convicted the

accused persons under Section 8 of the said Act and

sentenced each of them to undergo rigorous

imprisonment for a period of one year.

h) The accused persons challenged the aforesaid

conviction and sentence, by filing an appeal before

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the Additional Sessions Judge, being Criminal

Appeal no. 20 of 1998.

i) By an order-dated 01.06.2000 the Additional

Sessions Judge, after a re-appreciation of

evidence, confirmed the order of conviction and

sentence passed by the Trial Court.

j) Against that order, the accused persons preferred a

revision before the High Court.

k) By impugned order-dated 20.04.2010 the High Court

allowed the revision and set aside the order of

conviction of the accused persons.

5. The High Court in its revisional jurisdiction

while reversing the concurrent finding of the

Courts below indicated the following reasons:

I. No independent witness from the locality was

present at the time of conducting raid.

II. No evidence has been led to prove that the

accused persons were the owners of the house.

5 III. It has also not been established that the

accused persons were in the exclusive

possession of the house and as such they

cannot be said to be in conscious possession

of the house.

IV. The accused persons were not identified and

it is the prosecution case that the accused

persons fled away by scaling the wall and by

taking advantage of the darkness.

6. We are not satisfied with the reasoning of the

High Court, as none of the grounds put forward by

the High Court in the impugned judgment is

sustainable. If we take up the last ground first,

it is clear that the aforesaid conclusion of the

High Court, being a conclusion on pure questions

of fact, is against the evidence on record.

7. The Trial Court has found that there is cogent

evidence on record to show that both the accused

persons were known to the witnesses from before

and they ran away, by scaling the wall, after

seeing the police party. The Trial Court also

recorded a finding of fact that accused persons

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have not made out any case of animosity of the

official witnesses against them.

8. In the appellate forum, the Sessions Judge has

also recorded that P.W.-3/Investigating Officer

has clearly stated that he knew the accused

persons because he had apprehended them in another

case and the said statement of the P.W.-3 was not

challenged in cross-examination. Nor has the

accused persons ever questioned that the witnesses

knew them prior to the date of the occurrence. The

appellate forum also recorded that accused persons

have not suggested that they were falsely

implicated in the case.

9. In view of this admitted factual position, this

Court cannot accept the reasoning of the High

Court in its revisional jurisdiction whereby the

High Court found that in the absence of

independent local witness the prosecution case is

not worthy of credence. The factual conclusion of

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the High Court is contrary to the evidence on

record.

10. In this connection, it may be noted that in

upsetting the concurrent finding of the courts

below, about the identification of the accused

persons, the High Court has not given any reason.

11. In State of A.P. vs. Pituhuk Sreeinvanasa Rao

[(2000) 9 SCC 537] this Court held that the

exercise of the revisional jurisdiction of the

High Court in upsetting concurrent finding of the

facts cannot be accepted when it was without any

reference, to the evidence on record or to the

finding entered by the trial court and appellate

court regarding the evidence in view of the fact

that revisional jurisdiction is basically

supervisory in nature.

12. It has been also held by this Court in Amar Chand

Agarwala vs. Shanti Bose and another [AIR 1973 SC

799] that the revisional jurisdiction of the High

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Court under Section 439 Cr.P.C. is to be

exercised, only in an exceptional case, when there

is a glaring defect in the procedure or there is a

manifest error on a point of law resulting in a

flagrant miscarriage of justice. [para 20, page

804 of the report]

13. Going by the aforesaid principles, it cannot be

held that the interference by the High Court on

the question of identification of the accused

persons in facts of the case is either proper or

legally sustainable.

14. Now let us examine the first question on which the

High Court has interfered, namely the legality of

the search procedure.

15. A three-Judge Bench of this Court in the case of

Radha Kishan vs. State of Uttar Pradesh [AIR 1963

SC 822] while construing similar provision in the

Cr.P.C. of 1898 held that an illegal search does

not vitiate the seizure of the article. The only

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requirement of law in such cases is that the Court

has to examine carefully the evidence regarding

the seizure. But beyond this no further

consequences ensues. (para 4, page 824 of the

report)

16. This principle is being consistently followed by

this Court and by different High Courts since

then. Herein if we follow the aforesaid principle,

we do not discern any error committed by the

Courts below by proceeding on the material

collected, as a result of the seizure of

materials.

17. The other two points on which the High Court chose

to interfere, namely the ownership of the house or

the conscious possession of the house as a valid

requisite before the accused persons could be held

guilty under Section 8 of the said Act, is clearly

based on a misreading of the clear provision of

the Act.

1 18. The said Act, which has been enacted to give

effect to the provisions of Article 48 of

Directive Principle of State Policy and which is

still in force, prohibits cow slaughter in Section

3 thereof in following terms-

"3. Prohibition of cow slaughter -

Notwithstanding anything contained in any other

law for the time being in force or 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 cow in

any place in Punjab:

Provided that killing of a cow by accident

or in self defence will not be considered as

slaughter under the Act."

19. Under Section 4 there are certain exceptions to

section 3. Those exceptions are as under:

"4. Exceptions. - (1) Nothing in section 3

shall apply to the slaughter of a cow -

(a)whose suffering is such as to render

its destruction desirable according to

the certificate of the Veterinary

Officer of the area or such other

Officer of the Animal Husbandry

Department as may be prescribed; or

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(b)which is suffering from any contagious

or infectious disease notified as such

by the Government; or

(c)which is subject to experimentation in

the interest of medical and public

health research by a certified medical

practitioner of the Animal Husbandry

Department.

(2) Where it is intended to slaughter a cow

for the reasons specified in clause (a) or

clause (b) of sub-section (1) it shall be

incumbent for a person doing so to obtain a

prior permission in writing of the Veterinary

Officer of the area or such other Officer of

the Animal Husbandry Department as may be

prescribed."

20. The expression "slaughter" is defined in Section

2(e) of the Act, which is as follows:

"2(e) - "slaughter" means killing by any method

whatsoever and includes maiming and inflicting

of physical injury which in the ordinary course

will cause death."

1 21. If we read Section 3 and Section 4 together, it is

clear that the person contravening Section 3

cannot put up a defense that the act of slaughter

was being done in a place, of which he is not the

owner or in respect of which he does not have the

conscious possession. Slaughter of Cows, subject

to exceptions under Section 4, in any place, is

prohibited under Section 3 and penalty for doing

so is provided under Section 8.

22. The High Court's finding that the guilt of the

accused persons has not been proved in the absence

of proof of their ownership or conscious

possession of the house where slaughter took

place, is a finding which is de-hors the said Act

and is clearly not legally sustainable. Slaughter

of the Cows is clearly prohibited under Section 3,

subject to the exceptions in Section 4. The case

of the accused persons is not covered under the

exceptions in Section 4. No such defense was ever

taken.

1 23. Therefore the impugned order of the High Court is,

with respect, legally not sustainable. We

therefore are unable to accept the reasons of the

High Court. The appeal is allowed. The order of

the High Court is set-aside and that of the

learned Sessions Judge is affirmed.

.......................J.

(ASOK KUMAR GANGULY)

.......................J.

New Delhi (JAGDISH SINGH KHEHAR)

November 25, 2011

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