REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2203 OF 2011
(Arising out of SLP (Crl.) No.372/2011)
State of Haryana ....Appellant(s)
- Versus -
Rajmal & another ....Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. This Criminal Appeal is directed against the
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.
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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.
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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.
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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."
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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.
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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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