P.N. Goel, J.@mdashThis appeal is directed against the order dated 21-1-1975 passed by Extra Magistrate Bijnor acquitting Noor Ali, Ramzani of village Seda, Jamil Ahmad Respondent of village Neehdru of the offence punishable u/s 8 of the U.P. Prevention of Cow Slaughter Act, 1955 (U.P. Act No. I of 1956) hereinafter called the Act.
2. Briefly stated that case of the prosecution was: On 21-10-1972 at about 11.15 P.M. Som Dutt Tyagi (P.W. 1), Station Officer Dhampur learnt from an informer that some persons would slaughter cows in the Ahata of Noor Ali Respondent (Pradhan of village Seda). Thereupon Som Dutt Tyagi collected two sub-inspectors and 8 constables and reached village Sedhi. Balram Singh (PW 3) was taken from Sedhi. Then the police party reached Ibrahimpur which is about a furlong from village Sedhi. On reaching Ibrahimpur, he went to the house of Jiraj Singh (PW 2) Pradhan of village Ibrahimpur and called Shiv Charan Lal of village Sedha (PW 4) there. Village Seda is 9 kilometers from the police station Dhampur. There are Jhunds to the north of the Ghera of Noor Ali All the members of the police party saw from behind the Jhunds that the three Respondents and one Abdul Shakoor were cutting pieces of flesh. Then the members of the police party rushed and apprehended all the four persons. Two skins, four horns were lying aside. Flesh about four mounds was in four gunny bags. The remaining flesh was being cut by the four persons. One axe, one scale with two weights, four Chhuries, a piece of wood etc. were at the scene of occurrence. Som Dutt Tyagi prepared recovery memo at the scene of occurrence and then took away the four arrested persons and the articles to the police station.
3. The four persons were tried by the magistrate. On 29-9-1973 Abdul Shakoor admitted his guilt and was sentenced to undergo R.I. for 6 months and to pay a fine of Rs. 400/-The other persons did not admit their guilt. They asserted that no cow was slaughtered in the there of Noor Ali and that the two cows were in fact slaughtered at the place of Abdul Shakoor near a Mosque. They further asserted that they had been falsely implicated on account of enmity with the police and Jiraj Singh Pradhan of village Ibrahimpur (PW 2).
4. The prosecution examined Som Dutt Tyagi, Jiraj Singh, Balram Singh and Shiv Charan Lal.
5. The learned magistrate acquitted the Respondents on three grounds mentioned below:
(1) Jiraj Singh had old enmity and litigation with Noor Ali. Noor Ali was awarded an award for showing courage in an encounter with the dacoits. The prosecution witnesses did not admit this fact. Jiraj Singh remained present in court throughout.
(2) The two cows were slaughtered within a diameter of 10 steps, it was not believable.
(3) As there was no obstruction in the Gher of Noor Ali the Respondents could easily escape and could not have been apprehended by the police party.
6. Learned Counsel for the parties have been heard and record has been examined with their assistance.
7. The contention of the learned Counsel for the State is that the Magistrate was not justified in acquitting the Respondents for the reasons given by him.
8. The second reason given by the magistrate may be taken up first. Som Dutt Tyagi (PW 1) admitted that the area of the cow slaughter was of about 8 x 10 steps diameter. One step is equal to two and a half feet. Thus the diameter was 25 feet. No cow is about 25 feet in length. Therefore, two cows could easily be slaughtered in a diameter of 25 feet or 10 steps. Therefore, this reason given by the magistrate is wholly fallacious and erroneous. The learned Counsel for the Respondents conceded it.
9. The third reason given by the magistrate may next be taken up. It is true that there was no obstruction in the there of Noor Ali. Site-plan Ex. Ka 5 shows that the police party took position behind the Jhunds at a few steps to the north of the Kothas and verandah of the Gher of Noor Ali. These Kothas and verandah are towards west. To the east of these Kothas and verandah, there is a Kotha of Rustum at the north eastern corner. It appears that there were fields on the southern side and the eastern side of the there of Noor Ali. The Respondents and Abdul Shakoor were engaged in cutting pieces of flesh. The police party suddenly challenged them and rushed towards them. In this situation the Respondents and Abdul Shakoor could easily be arrested at the time of occurrence. Hence the reason given by the magistrate is wholly inadequate and erroneous.
10. The first reason given by the magistrate may now be dealt with. Jiraj Singh (PW 2) has admitted that 15-16 years ago there took place a mar pit between him and Noor Ali. Both parties lodged cross-reports and then both of them were prosecuted. He has denied the suggestion that in the election for the office of Pradhan Noor Ali helped his rivals. He has stated that in May 1972 a dacoit was committed at the place of Abdul Hai in village Sedhi, that there took place an encounter between the dacoits on one side and the village people on the other side, that one of the dacoits was caught in injured condition. He then stated that he did not know if Noor Ali was given an award of Rs. 50 and a certificate of bravery in connection with this encounter. Shiv Charan Lal (PW 4) denied the suggestion that a year before the village people accused him of a theft and in that connection a panchayat in which Noor Ali was a pinch decided that he should pay Rs. 550/- to the owner of the articles. He then admitted that he supported Jiraj Singh Balram Singh (PW 3) is of the Biradari of Jiraj Singh. He has admitted that 4-5 years ago Kundan Chauhan prosecuted him u/s 436 IPC but he showed ignorance if Noor Ali was a pairokar on behalf of Kundan Chauhan. The Respondents have not filed any paper to indicate that the panchayat of which Noor Ali was a Panch decided that Shiv Charan Lal should give Rs. 550/- to the owner of the stolen articles. The Respondents have also not filed any paper to show that Noor Ali was a parker of Kundan Chauhan. It is, however, evident that She Charan Lal is of the party of Jiraj Singh and Balram Singh is of the Biradari of Jiraj Singh. Therefore, these two witnesses can give evidence at the instance of Jiraj Singh. No question was put to Balram Singh and Shiv Charan Lal that Noor Ali was given an award of Rs. 50/- for bravery in connection with an encounter with the dacoits.
11. Som Dutt was Station Officer at Police Station Dham Pur from 1-7-1972. He was not Station Officer Dhampur in May in 1972 in which month dacoit was committed at the house of Abdul Hai in village Sedhi. The suggestion of the Respondent was that the police also wanted to take credit of catching hold of the dacoit. Noor Ali did not agree to it. Therefore, the police was inimical to him. It is evident that the police gave him award. Therefore, the entire police cannot be considered hostile to him. At the most some police officers posted at police station Dhampur in May 1972 might have desired to take credit but on this account it cannot be said that Som Dutt Tyagi was hostile to Noor Ali. No doubt Som Dutt Tyagi has shown ignorance if Noor Ali was given award of Rs. 50/- for showing courage. The magistrate is not right in saying that the prosecution witnesses had shown ignorance about the giving of award to Noor Ali. Som Dutt Tyagi and Jiraj Singh only have shown ignorance. No such question, as said above, was put to Balram Singh and Shiv Charan Lal There is nothing on record to indicate that Som Dutt Tyagi was under the influence of Jiraj Singh. No doubt at the time of occurrence Jiraj Singh helped Som Dutt Tyagi in providing gunny bags and his bullock cart for carrying the recovered articles and the arrested persons, but on this ground it cannot be said that Jiraj Singh had influence upon Som Dutt Tyagi.
12. Taking into consideration the entire picture of the case it does not appear that the prosecution has woven a completely false case against the Respondents and that this false case has been woven at the instance of Jiraj Singh. In this view of the matter the first reason given by the learned Magistrate is also erroneous and not justified
13. The position that follows is that the version set up by the prosecution stands proved against the three Respondents beyond any shadow of doubt.
14. The learned Counsel for the Respondents has raised a legal question and it is this that the prosecution witnesses simply saw the three Respondents cutting pieces of some flesh, that the prosecution witnesses had not seen any of the Respondents slaughtering the two cows, that the skins and horns as well as four mounds of flesh in a gunny bag were lying aside and that the cows might have been slaughtered by some one else and as such the Respondents were not liable to be convicted u/s 8 of the Act.
15. Section 8 punishes a person who contravenes or attempts to contravene or abets the contravention of the provisions of Sections 3 or 5. Section 3 lays down prohibition of cow slaughter. It says that no person shall slaughter or cause to be slaughtered a cow. Section 5 lays down prohibition on sale of cows flesh. Word ''slaughter'' has been defined in Section 2(d) of the Act as meaning killing by any method whatsoever and includes maiming and inflicting of physical injury which in the ordinary course will cause death.
16. In the present case it is evident that none of the prosecution witnesses saw the Respondents killing the cows in any way. The prosecution witnesses simply saw the three Respondents cutting pieces of some flesh of the cows which had already been killed.
17. The learned Counsel for the State urged that because the Respondents were seen cutting the pieces of flesh, it would be presumed u/s 114 of the evidence Act that they had killed the cows. He placed reliance on the case of Nathoo v. State 1959 AWR 430. Section 114 of the Evidence Act lays down that the Court may presume the existence of any fact which it thinks likely to have "happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case." Illustration (a) of the above section indicates that the court may presume that a man who is in possession of stolen goods soon after the theft can be presumed to be thief or receiver of goods knowing them to be stolen unless he can account for his possession.
18. In the present case there is no evidence at what time the two cows were actually slaughtered. In the case of Dulla v. The State AIR 1958 Allahabad 198 a cow was slaughtered about 6 hours before the arrest of the offenders. It was held that it was doubtful that a presumption could be raised against the offender that he had killed the cow.
19. In the case relied on by the learned State Counsel the prosecution succeeded in proving two facts: (1) The offenders were skinning a cow, and (2) they were cutting flesh. It was held that a presumption could be raised u/s 114, Illustration (a) that they had slaughtered the cow. It will be of use to re-produce relevant observation from this case which reads as follows:
It can always happen that a few persons who had not aided in the slaughter of the cow may later on join, on their own or when approached by persons who had slaughtered the cow, in appropriating for their personal consumption flesh etc. of the slaughtered cattle and for that purpose cut the flesh into smaller pieces before removal to their houses. However, where fresh blood was flowing from the dead body, proving thereby that the cattle had been slaughtered very recently, persons present near the dead body and found cutting the flesh into pieces and skinning the dead body are likely to be those who had actually slaughtered it. Consequently, whether the Courts can presume the existence of facts u/s 114 of the Evidence Act or not shall depend upon the facts of an individual case.
20. In the present case there is no evidence that blood was flowing from the flesh which the Respondents were cutting into pieces. As said above there is no evidence on behalf of the prosecution with regard to the time of the actual slaughter of the cows. The evidence in the case is that the skins and horns of the two cows and 4 mounds of flesh in a gunny bag were lying aside. In these circumstances it cannot be presumed that the Respondents were the persons who had actually slaughtered the two cows. The learned Counsel for the State next urged that the statement of Abdul Shakoor, who was a co. accused could be read against the Respondents u/s 30 of the Indian Evidence Act. This Section lays down that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the persons who makes such confession.
21. In the present case Abdul Shakoor was tried along with the Respondents. But on 29-9-1973 he admitted his guilt and was immediately convicted. It means that the case against Abdul Shakoor ended on that day. The case against the Respondents ended in or about March 1974. The Respondents were examined u/s 342 Code of Criminal Procedure on 2-3-1974. If the prosecution wanted to take advantage of the statement of Abdul Shakoor the prosecution should have relied on it and the trial magistrate should have put the statement of Abdul Shakoor to the Respondents u/s 342 Code of Criminal Procedure. But the magistrate did not question the Respondents in respect of the confession made by Abdul Shakoor. Therefore, the Respondents have been prejudiced in the trial and as such the confession of Abdul Shakoor, in the circumstances of the case, cannot be read against the Respondents.
22. The result of the above discussion is that the order of acquittal cannot be reversed despite the fact that the magistrate did not assign any good reason for acquitting the Respondents.
23. Appeal is, therefore, dismissed.
