Kailash S/O Raisingh & Another vs State Of M.P

This is a revision filed under section 397 read with section 401 of the Cr.P.C against the judgment dated 13.03.2020 passed by Additional Sessions Judge, Bhikangaon, district Khargone (West Nimar), Mandleshwar whereby the Criminal Appeal No.35/2018 has been dismissed and the judgment dated 24.09.2018 passed by Judicial Magistrate, First Class, Bhikangaon (West Nimar) in Criminal Case No.292/2012 has been affirmed, whereby applicants / accused have been convicted and sentenced as under:

Applicant No.1 Kailash s/o Raisingh

Offence

Sentence awarded

Fine amount

In default of fine.

Section 4 of Govansh Vadh Adhiniyam, 2004

1 year RI

Rs.5000/-

3 months SI

Section 6/9 of GovanshVadh Adhiniyam, 2004

1 year RI

Rs.5000/-

3 months SI

Section 11(d) of the Prevention of Cruelty to Animals Act

Rs.50/-

1 day SI

Section 66/192 A of the Motor Vehicles Act

Rs.2000/-

2 months SI

Applicant No.2 Salam s/o Gulam.

Offence

Sentence awarded

Fine amount

In default of fine.

Section 4 of Govansh Vadh Adhiniyam, 2004

1 year RI

Rs.5000/-

3 months SI

Section 6/9 of GovanshVadh Adhiniyam, 2004

1 year RI

Rs.5000/-

3 months SI

Section 11(d) of the Prevention of Cruelty to Animals Act

Rs.50/-

1 day SI

As per the prosecution case, on 28.02.2012 Shri R.N.Damade, A.S.I posted at Police Chowky Helapadava got discreet information on his mobile phone that one Eicher truck bearing registration No.MP-09-GE-5612 loaded with animals is coming from Khargone and going towards Maharashtra for slaughter. He immediately rushed to the Check post along with Constable Shri Vatan Singh and intercepted the said truck. After the search, they recovered 16 bulls from the said truck and arrested the applicant No.1 who was driving the truck and applicant No.2 who was working as a cleaner. The bulls were found to be tied with rope in a cruel manner and out which one bull was found dead in the truck. The bulls were sent to the District Veterinary Hospital, Jhirnya where Dr.Chaturbhuj Nagar (PW/1) thoroughly examined them. On interrogation, the accused/applicants disclosed that they were transporting the bulls to Maharashtra for slaughter. The truck and bulls were seized in the presence of the witnesses. After completing the investigation, Police filed the final report on 16.03.2012. Learned JMFC framed the charge under sections 4 & 6/9 of the Govansh Vadh Pratishedh Adhiniyam 2004 (hereinafter referred to as 'the Adhiniyam of 2004'), section 11(d) of the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as 'the Act of 1960') and section 66/192 A of the Motor Vehicles Act (hereinafter referred to as 'the MV Act').

In trial, the prosecution examined Dr.Chaturbhuj Nagar VS as PW/1, seizure witnesses Ramdas as PW/2 & Shriram Soni as PW/3, Constable Vatan Singh as PW/4 and A.S.I R.N.Damade as PW/5. The applicants denied the charges and pleaded that they have been falsely implicated.

After appreciating the evidence came on record, learned JMFC held that the applicants were transporting the 16 bulls to Maharashtra for slaughter and they have failed to give any evidence that they were transporting bulls for agricultural purposes and since they have failed to disclose any purchase bills/receipts or any permission for transportation of cattle, therefore, they have committed the offences as mentioned herein above. Being aggrieved by the aforesaid judgment dated 24.09.2018 the applicants preferred a criminal appeal No.35/2018. Vide judgment dated 13.03.2020, learned A.S.J has dismissed the appeal and affirmed the conviction and sentence of the applicants passed by the trial Court, hence the present revision before this Court.

Learned counsel for the applicants submits that learned Courts below have wrongly presumed that the applicants were transporting the bulls for slaughter. The burden was on the prosecution to prove that the applicants were indulged in transporting the bulls for slaughter purposes, however, the burden has wrongly been shifted on the applicants to prove their innocence. The independent seizure witnesses have turned hostile and did not support the prosecution case. As per the evidence of Veterinary Surgeon (PW/1), out of 16 bulls, six were found healthy and fit for agricultural work, therefore, was no question of their slaughter. There cannot be any presumption that the applicants were transporting those bulls to Maharashtra for slaughter purposes. As per the statement of the Investigating Officer (PW/5), the accused/applicants have themselves disclosed that they were transporting the bulls for slaughter purposes but such evidence is not admissible in law especially when two independent witnesses did not support the prosecution. They have only supported the case of the prosecution to the extent of recovery of the bulls from the vehicle. Learned counsel further submits that the in case this court comes to the conclusion the applicants has committed the offence than in the interest of justice their period of custody e reduced to the period already undergone by them Learned counsel appearing for the State refuted the aforesaid argument by submitting that the burden has rightly been shifted on the applicants to prove their innocence because there is a presumption under section 13A of the Adhiniyam of 2004. It was the duty of the applicants to prove that they were transporting the bulls for agricultural purposes, however, they have failed to produce any bills, permission etc. The scope of interference with the findings recorded by the learned trial court and appellate court in revision is very limited. Both the Courts below have concurrently recorded the findings which do not call for any interference in this revision, hence the revision is liable to be dismissed.

As per the prosecution story, Shri R.N.Damade ASI received discreet information that one Eicher truck loaded with containing cow progeny was going towards Maharashtra. He along with Constable Vatan Singh intercepted the said truck near the check post and found that 16 bulls were kept inside the truck in cruel manner. Out of 16 bulls, one bull was found dead in the truck. The bulls were sent to the veterinary doctor, Jhirnya for medical examination. Dr.Chaturbhuj Nagar (PW/1) examined the bulls and found that out of 16, 6 bulls were healthy and fit for agricultural work, however, he found certain abrasions on their body. That one bull was found dead due to excessive bleeding and old age. Later on, another bull was found dead due to lack of food and water.

The prosecution examined seizure witnesses PW/2 & PW/3 who supported the case of the prosecution to the extent that in their presence the bulls were seized vide Ex.P/4 and the applicants were arrested vide Exs.P/5 & P/6, however, they denied the investigation and recording of their statement by I.O. The prosecution examined Constable Vatan Singh (PW/4) who found 16 bulls inside the Eicher truck which was being driven by applicant No.1 and according to him the applicants themselves have disclosed that they were transporting the bulls to Maharashtra for slaughter. In cross-examination, he admitted that they produced the receipts, and all documents were seized. Likewise, Investigating Officer (PW/5) has also deposed that during investigation the applicants themselves have disclosed about the transportation of the bulls to Maharashtra for slaughter. Apart from this evidence of PW/4 & PW/5, the prosecution did not produce any material to show that the applicants were transporting the bulls to Maharashtra for slaughter. Learned Courts below have presumed that the applicants were transporting the bulls to Maharashtra for slaughter, therefore, they have committed offence under sections 4 & 6/9 of the Adhiniyam of 2004.

That section 4 of the Adhiniyam of 2004 prohibits the slaughter of cow progeny and section 6 prohibits the transportation of cow progeny for slaughter within the State or outside the State. Section 9 provides the penalty and as per section 9(1) whoever contravenes or attempts to contravene or abets the contravention of the provision of section 4 shall be punished with imprisonment for a term which shall not be less than one year but which may extend to 7 years and with fine which shall not be less than Rs.5,000/-. As per sub-section (2) of section 9 whoever contravenes or attempts to contravene or abets the contravention of the provisions of section 5,6, 6A and 6B shall be punished with imprisonment for a term which shall not be less than six months but which may extend to 3 years and with fine which shall not be less than Rs.5,000/-. Section 10 makes the offence cognizable and non-bailable. By way of M.P Act 43 of 2011, section 13A has been inserted w.e.f. 05.03.2012 whereby the burden of proof is on the accused that he had not committed the offence under the provisions of this Act, if the prosecution is in a position to produce the prima facie evidence against him at the first instance. Learned Courts below have convicted the present applicants under sections 4 & 6/9 of the Adhiniyam of 2004 because of provisions of section 13A.

Both the Courts below have failed to see that this section 13A has been inserted w.e.f 05.03.2012 whereas the present incident took place on 28.02.2012. Before 05.03.2012 there was no such provision under the Act for drawing the presumption against the accused. The burden was on the prosecution to prove that the accused has violated the provisions of sections 4 & 6. Likewise, by Act No.43 of 2012, section 9 was also amended w.e.f. 05.03.2012 whereby minimum sentence of one year has been prescribed for contravention of the provision of section 4, therefore, the learned Courts below have wrongly shifted the burden on the appellant to prove their innocence and wrongly imposed the penalty of minimum one year.

The definition of 'slaughter' is given in section 2(e) of the Adhiniyam of 2004 and according to which slaughter means killing by any method whatsoever and includes maiming or inflicting of physical injury which in the ordinary course will cause death or doing any act to cause unnatural death. In the case in hand out of 16 bulls, one was found dead inside the vehicle and during the investigation, another bull died due to starvation. As per the evidence of PW/1 and medical examination report Ex.P/1 & P/2, one bull died due to excessive bleeding and old age and another bull died due to starvation and other bulls were also found injured though they were useful for agricultural purpose, therefore, the conduct of the present applicants falls within the definition of slaughter which prosecution has successfully established. Since applicants kept the bulls in the vehicle in cruel a manner, hence their acts come under the category of doing any act with the intention of causing unnatural death which is slaughter, hence they have been rightly convicted under sections 4 & 6/9 of the Adhiniyam of 2004.

Applicants have been convicted under section 11(d) of the Act of 1960. It is not in dispute that the applicants were found transporting 16 bulls in Eicher truck. As per the evidence of PW/2, 3 & 4, the bulls were tied up with rope inside the vehicle. One bull was found dead and later on another bull has also died due to starvation, therefore, they were kept in a cruel manner, hence the learned Courts below have rightly convicted and sentenced them under section 11(d) of the Act of 1960. Accordingly, their conviction under section 11(d) of the Act of 1960 is hereby maintained.

Applicant No.1 has been convicted and sentenced for violation of section 66/192 A of the MV Act. Admittedly, applicant No.1 has failed to produce any document of permit and bill for transportation of the animals, therefore, he has rightly been convicted under section 66/192 A of the MV Act. Accordingly, his conviction under section 66/192A of the MV Act is hereby upheld.

Learned counsel for the applicants submits that the applicants are only driver and cleaner of the truck and are neither the owner of the bulls nor the truck. They did not know the intention or purpose of transportation of the bulls in the truck. They are in jail since 13.03.2020 and during the trial also they remained in jail for 10-15 days. They are the only earning member of their family. There have no criminal antecedents also against them, therefore, in the interest of justice, their jail sentence be reduced to the period already undergone.

Considering the facts and circumstances of the case, and there was no minimum sentence under section 9(1) at the time of the commission of offence, the period of jail sentence is liable reduced to the period already undergone in the jail by both the applicants, and the revision is liable to be allowed in part. While maintaining the conviction of the applicants, their jail sentence is reduced to the period already undergone subject to deposit of additional fine of Rs.2,500/-each. The applicants be released forthwith on depositing the fine amount, if they are not required in jail in any other offence.

The revision is allowed in part.

C.c as per rules.