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Judgment
Appellants have challenged the judgments/ orders dated 9th and 12th of December, 2006 whereby appellants came to be convicted and
sentenced for the commission of offence punishable under Sections 298A/ 34 of RPC by the Court of Sessions Judge, Poonch.
Brief Facts;
Abdul GaffarPW 1, lodged a written report with SHO P/S Laran against five persons, namely, Abdul Gani, Mohammad Sadiq and Mohammad
Rafiq including the appellants, that a cow was slaughtered by them in the house of QamarudDin S/o Ramzan Dar R/o Barachar Mandi, Poonch. It
was also alleged in the report that the informer had asked his son to keep watch and ward in order to notice the activities of the accused. The said
report set police in motion. FIR came to be lodged against the accused for the commission of offence punishable under Section 298A/ 34 of RPC.
It is also alleged that the Investigating Officer along with other police officials reached on spot, conducted search of the house of QamaridDin,
seized dressed flesh of the cow weighing 30 Kgs along with skull, legs and skin along with tail, Dagger, Toka, a long and a blood stained piece of
koil wood. It is further allegation that the appellants were present at that point of time in the said house and arrested. The police recorded the
statement of the witnesses, prepared seizure memos, completed other formalities and submitted final report in terms of Section 173 Cr.P.C. against
the appellants in the court of Chief Judicial Magistrate, Poonch and it committed the case of the court of Sessions Judge, Poonch.
Trial court framed charged against the accused for the offences punishable under Section 298A/34 of RPC. They pleaded not guilty and claimed
to be tried.
Prosecution examine nine witnesses, namely, Abdul Gaffar, Abdul Rashid, Abdul Salam, Krishan Lal MHC, Constable Jugjeet Singh, SPO
Surinder Singh, ZahoorudDin, Dr. J. K. Ved and I.O. Mohammad Yaqoob Manhas out of ten cited in the calendar. Prosecution has not examined
PW6Javed Iqbal. The statements of the accused also came to be recorded.
After hearing learned counsel for the parties, the trial court convicted and sentenced the accused for the commission of offence punishable under
Section 298A/ 34 of RPC vide impugned judgment/orders.
It is necessary to give brief resume of the witnesses herein as under:
PW1Abdul Gaffar, has stated that he made a report EXPWAG to the police about slaughtering of cow by five persons, polipe started investigation
and seized dressed flesh of the cow and other articles, details of which are given in seizure memos EXPWAG 1, AG2 and AG3. In cross
examination, he stated that he has specifically recorded the fact of slaughtering of cow by the five persons in the house of QamarudDin but has' not
mentioned the name of the person(s) who had slaughtered the cow because he had not seen any person slaughtering/butchering the cow.
PW2Abdul Rashid had deposed that his father asked him to watch the activities of the accused when he left for lodging the report and when he
returned, accused had slaughtered the cow and were peeling off the skin. He has stated that he has seen the accused slaughtering the cow. Police
has seized flesh, skull, legs, skin, tail, blood stained earth, Toka and wooded logs. He has also admitted that there is enmity between him, his father
and accused. He further deposed that he told his father that five persons were slaughtering the cow.
PW3Retired Master Abdul Salam, shown as witness to occurrence and seizure memos, has not supported the prosecution case, came to be
declared as hostile. During his cross examination conducted by PP, has deposed that the informer has lodged report against the accused/appellants
due to past rivalry. He has specifically stated that he was not present when police came on spot.
PW4Krishan Lal, HC, shown as witness to occurrence, has deposed that he accompanied the Investigating Officer who conducted search of the
house of QamarudDin and during search flesh of cow, skin, skull, hooves, log of wood, dagger and a Toka were recovered. Accused, Abdul
Ahmad and Shabir Ahmad, were arrested on spot.
PW5Jugjeet Singh, has deposed that Investigating Officer and other police officers conducted search of house of QamarudDin and recovered
flesh, skull, legs, dagger, toka, phata and wooden log. The seizure memos were prepared in his presence.
PW6Javed Iqbal, was not produced and examined.
PW7Surinder Singh has deposed that report was received about the slaughtering of cow in village Barachar whereupon he along with other police
officials and SHO reached on spot and saw a slaughtered cow and flesh.
PW8ZahoorudDin, has not supported the prosecution case and came to be declared hostile.
PW9Dr. J. K. Ved, had deposed that Incharge Police Station Loran had produced skull with intact skin over it, 30 Kg meat in parts, extremities
and skin stained with blood for his opinion. After examination, he opined that the meat was found to be of bovine species. He further stated that
corelation of meat sample with skull/skin and hooves revealed that meat so produced was of a cattle species who had died of haemorogic shock.
During his cross examination, he stated as under:
The material produced for post mortem was not sealed. The weapons produced for examination were not blood stained. In the enquiry made by
the police the length and breadth of the weapons has not been mentioned. These weapons were also not sealed. In slaughtering animal it is not
always possible that man slaughtering the animal will get his clothes stained with the blood of the animal. No blood sample was produced before
me. The sex of the animal was not determinable. At the time of the post mortem Chief Animal Husbandry Officer, was also present.
No further question was put to the witness.
PW 10Mohammad Yaqoob Manhas, has deposed that he has conducted the investigation. During investigation, the house of QamarudDin was
searched, slaughtered cows flesh, shin, skull, hooves, dagger, Toka, wooden log and another piece of wood were seized and seizure memos
EXPWAG1, AG2 and AG3 were prepared. He prepared site plan, recorded the statement of witnesses, obtained the post mortem report and
opinion of the doctor. Accusedappellants were arrested on spot. During investigation, it was established that appellants, Abdul Ahad and Shabir
Ahmad had slaughtered/sacrificed black coloured cow on the eve of EiduzZuha (Eid Qurbani). He has further stated that involvement of Abdul
Gani, Mohammad Sadiq and Mohammad Rafiq was not established and has admitted that FIR to that extent was not correct. Further said that the
complainant, Abdul Gaffar, and his son, Abdul Rashid, had stated before him during investigation that five persons, namely Abdul Ahad, Shabir
Ahmad, Abdul Gani, Mohammad Sadiq and Mohammad Rafiq had slaughtered the cow but that was not established. It was also not proved
during investigation that any rope was used at the time of slaughtering of the cow.
I have gone through the entire court file perused the judgment/ order of conviction and am of the considered view that prosecution has failed to
bring guild home to the accused/ appellants for the following reasons. It is att to reproduce Section 298A of RPC herein:
298A. Voluntarily slaughtering or killing cow or the like animals.whoever voluntarily slaughters or kills any bovine animal, [whether domesticated
or wild], such an ox, bull, cow or calf, shall be punished with imprisonment of either description which may extend to ten years, and shall also be
liable to fine.
The words ""voluntarily slaughtering or killings"" used in the provision (supra) are of great importance.
Section 39 of RPC defines ""voluntarily"" which reads as under:
39 Voluntary: A person is said to cause an effect ""voluntarily"" when he causes it by means whereby he intended to cause it, or by means which, at
the time of employing those means, he knew or had reason to believe to be likely to cause it.
In Venkataramaiya's Law Lexicon, word ""voluntarily"" is defined as under:
Voluntarily. ""Voluntarily"" means that a person doing an act acts of his own volition and knows the nature of his act, and does not act in
performance of a legal duty, nor due coercion, or fraud, or misrepresentation, or mistake.
Judicial Officers Law Lexicon by Justice C.K. Thakker defines word ""voluntarily"" as under:
Voluntarily"" means intentional intended, acting on one's own will and unimpelled by other influence.
Keeping in view the definition of ""Voluntarily"" given hereinabove, the prosecution has to prove that accused have intentionally intended and
caused an act by some means. The prosecution has to prove by leading cogent evidence what was/were the instrument(s) used by the accused
during the commission of the offence and all those acts were done intentionally.
The definition of word ""slaughter"" is contained in Advanced Law Lexicon read as under:
Slaughter. ""Slaughter"" means killing by any method whatsoever and includes maiming and inflicting of personal injury which in the ordinary course
will cause death.
In Concise Oxford English Dictionary, the definition of ""Slaughter"" is given as under:
Slaughter. The killing of farm animals for food
The Lexicon Webester Dictionary (Encyclopedia Edition) defines the ""Slaughter"" as under:
Slaughter. Butchering the cattle
Viewed thus, the prosecution had to prove that the accused slaughtered the cow by slaughtering instrument or by any other method.
The definition of the word ""killing"" in Concise Oxford English Dictionary, is given as under:
Killing. An act of causing death. Adj. causing the death of a specified thing: weedkilling. Informal overwhelming or unbearable.
In Stroud's Judicial Dictionary of Words and Phrases, the definition of word ""kill"" is given as under:
Kill. ""Killing is causing the death of a person by an act or omission but for which the person killed would not have died when he did, and which is
directly and immediately connected with his death. The question whether a given act or omission is directly and immediately connected with the
death of any person is a question of degree dependent upon the circumstances of each particular case
Keeping in view the definition (supra) the word ""killing"" means to kill a person, to cause death by any act.
Having glance of the above discussions, prosecution has to prove that accused has voluntarily slaughtered or killed the cow. In order to prove
the said fact, it has to prove how cow was killed, by which method and manner and has to prove role of each accused. Role means the act(s)
done/ committed by the individual accused in order to bring guilt home to him/them. It is for the prosecution to prove beyond any reasonable doubt
that who actually slaughtered/ killed the cow and what was the weapon used. There is not an iota of evidence on the file suggesting the fact that
who used knife and who actually slaughtered/killed the cow.
FIR/reportEXPWAG, came to be lodged against the five persons by the complainant and it is specifically mentioned in the said report that all
the five persons mentioned in the FIR slaughtered the cow. But when he appeared before the court he has deposed that he has not seen who
slaughtered the cow. Thus, FIR and statement are at variance and contradictory.
It is not prosecution case that flesh or articles were seized from the possession of the accused. Prosecution has also not proved the role played
by the appellants and how they are involved.
Two independent witnesses have turned hostile and have not supported the prosecution case. The other witnesses, i.e. police officials are not
witnesses to the occurrence and even they have also not stated that the seized articles were recovered from the possession of the accused.
It is not established by prosecution how QamarudDin allowed the appellants and other three persons to slaughter cow in his house as alleged
and why QamarudDin and his family members are not figuring in the array of accused or in the list of witnesses. Was that house abandoned, where
was QamarudDin and his family members at that point of time is not forthcoming from prosecution story or evidence.
PW1, Abdul Gaffar, and his son, PW2Abdul Rashid have admitted that accused/ appellants had made a complaint against them about dog
biting and informer PW 1 was made to pay compensation of Rs. 3000/ and humiliated. They have specifically stated that the case is outcome of
rivalry and despite of that trial court has believed their statements. Their evidence can not be relied upon. Even otherwise evidence is contradictory,
for the simple reason as discussed hereinabove, that the informer PW1 has specifically stated that he has seen five persons slaughtering cow but
later on stated that he has not seen slaughtering of the cow. They have also stated that all the five persons slaughtered the cow but the charge sheet
was filed against only two persons (accused).
The charge against both the accused/appellants was that they had slaughtered cow of the age of 3 years approximately on 3rd of February,
2004 at 2 PM and thereby have committed offence punishable under Section 298A/34 of RPC. Thus the specific charge against the accused is
that they slaughtered a cow. Doctor has specifically stated that sex of the animal was not determinable. Thus, prosecution has failed to prove that
cow was slaughtered. Doctor has also stated that knife produced was not in sealed cover and was not blood stained. Why the knife was not blood
stained is not forthcoming from the evidence. Who used the said knife is also not proved.
The seizure memoEXPWAG2 relates to seizure of flesh and other articles. It is not mentioned in the said EXPWAG2 that flesh or any other
article was recovered from the possession of the accused. The only independent witness shown in the said seizure memo has not supported the
prosecution case, then how it can be said that these articles were recovered from their possession.
The trial court has held that ""had accused not been arrested on spot, the situation would have been otherwise"" meaning thereby that presence
of the accused/appellants on spot was made ground for recording their conviction.
The learned trial court at internal page18 of the judgment has specifically held that it has also come in the evidence that Abdul Gani,
Mohammad Sadiq and Mohammad Rafiq were also present on spot when police reached on spot. Then how conviction came to be recorded
against the accused/ appellants is best known to the trial court.
The defence of the appellants/ accused before the trial court was that the case/charge is outcome of enemity which is duly supported by
prosecution evidence of PW1Abdul Gaffar, PW2 Abdul Rashid and other two PWsonly independent witnesses who have been declared hostile.
Thus, it can be safely held that the case/charge is outcome of rivalry.
In the given circumstances, this appeal merits to be allowed and the impugned judgment/order of convictionand sentence merits to be setaside
and prosecution case merits to be dismissed. Ordered accordingly. The accused are discharged from their bail bonds.