Bangalore District Court
Joshine Anthony vs Chandpasha on 21 September, 2024
KABC030059202016
Presented on : 27-01-2016
Registered on : 27-01-2016
Decided on : 21-09-2024
Duration : 8 years, 7 months, 25 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 21st Day of September, 2024
C.C. No.2268/2016
The State by J.C.Nagara Police Station,
Bengaluru. ... Complainant
(Represented by Sri. Vishwanath Senior APP)
Versus
1. Sri Chand Pasha
Aged about 43 years,
S/o Sri Syed Abbas,
KABC030059202016 CC 2268/2016
2. Sri Khayum @ Babu
Aged about 52 years,
S/o Late Sri Abdul Ghani,
Both are R/at Jamia Masjid
Mohalla, Near Gowramma Lake,
Magadi Town, Magadi. ...Accused
(Represented By Sri M.R.Harish Kumar, Advocate)
1. Date of commission of 25-04-2015
offence
2. Name of Complainant Smt. Joshine Antony
3. Offences complained of Section 4, 8, 9, 11, 11(a) of
Karnataka Prevention of
Cow Slaughter and Cattle
Preservation Act-1964,
Section 46-56 of
Transportation of Animal
Rules 1978, Section
192(a), 177 of Indian
Motor Vehicle Act and
Section 428, 429, 379 R/w
Sec.34 of IPC.
4. Charge Pleaded not guilty
5. Final Order Acquitted
6. Date of order 21-09-2024
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KABC030059202016 CC 2268/2016
JUDGMENT
The Police Sub-Inspector of J.C.Nagara Police Station submitted charge sheet against accused No.1 and 2 for the offences punishable under Section 4, 8, 9, 11, 11(a) of Karnataka Prevention of Cow Slaughter and Cattle Preservation Act 1964, Section 46-56 of Transportation of Animal Rules 1978, Section 192(a), 177 of Indian Motor Vehicle Act and Section 428, 429, 379 R/w Sec 34 of IPC.
2. Prosecution Case: On 25-04-2015 at about 6.30 a.m. at Jayamahal Main Road within the limits of J.C.Nagara Police Station, the accused No.1 and 2 with common intention, without any license have stolen and transporting six cows (3 ನಾಟಿ ಹಸು, 3 ಸೀಮೆ ಹಸು) one bullock to the slaughter house in their Tata Mobile vehicle bearing Reg.No.KA 27 A 2840 and put the said animals in small vehicle and transported in such a way as to suffocate and cause injury. Thereby accused persons committed aforesaid offences.
3. First Information Report: CW1 to CW4 and CW6 produced the accused No.1 and 2 along with vehicle before CW8, PSI of J.C.Nagara PS and he arrested accused persons, seized the vehicle in presence of CW2 and CW3 and subjected them to PF No.15/15 and handed over the animals to Bengaluru Gourakshan Shala®, Mahadevapura Road, Bangalore, through CW5 and CW7. On receipt of 3 KABC030059202016 CC 2268/2016 complaint from CW1, Sri.Basavarajaiah.C., ASI of J.C.Nagara Police Station registered the case, prepared FIR and sent to court and to his superior officers.
4. Investigation: The PSI of J.C.Nagara PS has recorded the statement of witnesses and collected the documents and submitted the charge sheet against accused persons for the alleged offences.
5. Accused No.1 and 2 were enlarged on bail by the order dated 28/04/2015
6. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused No.1 and 2.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused persons.
8. Charge: After hearing learned Sr.APP and counsel for accused No.1 and 2, charge for the offences punishable under Section 4, 8, 9, 11, 11(a) of Karnataka Prevention of Cow Slaughter and Cattle Preservation Act 1964, Section 46-56 of Transportation of Animal Rules 1978, Section 192(a), 177 of Indian Motor Vehicle Act and Section 428, 429, 379 read with sec.34 of Indian Penal Code has 4 KABC030059202016 CC 2268/2016 been framed, read over and explained to the accused in the language known to them, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 8 witnesses, examined 4 witnesses and exhibited 12 documents and closed their side. The examination of CW3 and CW6 was given up on account of examination of CW2 and CW7 by the order dated 28/07/2023 and 09/10/2023. The examination of CW5 was given up on account of his death by the order dated 29/08/2023. The examination of CW8 was given up on account of paralyis attack who is unable to speak and walk by the order dated 29/11/2023.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.1 and 2 were examined as per section 313 statement of Cr.P.C, wherein they denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
5 KABC030059202016 CC 2268/201612. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that on 25-04-2015 at about 6.30 a.m. at Jayamahal Main Road within the limits of J.C.Nagara PS, the accused No.1 and 2 with common intention without any license transporting six cows (3 ನಾಟಿ ಹಸು, 3 ಸೀಮೆ ಹಸು) one bullock to slaughter house in their Tata Mobile vehicle bearing Reg.No.KA 27 A 2840 thereby resulted in commission of the offences punishable u/Sec.4, 8, 9, 11, 11(a) of Karnataka Prevention of Cow Slaughter and Cattle Preservation Act 1964, Section 192(a), 177 of Indian Motor Vehicle Act?
2. Whether the prosecution proved beyond all reasonable doubt that on above said date, time and place accused No.1 and 2 with common intention have stolen and transported six 6 KABC030059202016 CC 2268/2016 cows and one bullock to slaughter house in their vehicle thereby resulted in commission of an offence punishable u/Sec.379 read with sec.34 of Indian Penal Code?
3. Whether the prosecution proved beyond all reasonable doubt that on above said date, time and place the accused No.1 and 2 with common intention put the six cows, one bullock in their small vehicle and transported in such a way as to suffocate and cause injury thereby resulted in commission of the offences punishable u/Sec. 46-56 of Transportation of Animal Rules 1978 and Section 428, 429 read with sec.34 of Indian Penal Code?
4. What order?
13. The findings on the above points are as under:
Point No.1-3 : In the Negative
Point No.4 : As per final order
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KABC030059202016 CC 2268/2016
REASONS
14. Point No.1 to 3 : These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution has examined the following witnesses, which are as follows i. CW1 Smt.Joshine Anthony, being the informant examined as PW1 deposed that she was working as Executive Member in Gogyan Foundation and also Honorary Member of Animal Welfare of India. On 25-04-2015, she along with CW2, CW3 were going to Mekri Circle, JC Nagar wherien it was observed that cattle were being taken in the Tata Mobile vehicle bearing Reg.No.KA 27 A 2840 and they immediately called the police control room and reported the same. Near J.C.Nagara, the Hosysala police stopped the said vehicle and after search they found 6 cows and one bullock in the said vehicle. Two cattle fell down in the said vehicle and the rest of the cattle were standing. They were injured. On enquiry, they have came to know that the accused persosns were taking the said cattle from Magadi to Shivajinagar slaughter house and they did not have any documents to transport the said cattle. Further deposed that, she filed complaint with J.C.Nagara PS as per Ex.P1, police conducted the spot mahazar as 8 KABC030059202016 CC 2268/2016 per Ex.P2 and taken photographs as per Ex.P3 to 12. She identified her signatures thereon as Ex.P1(a) and 2(a).
ii. CW4/PW2, Sri Gangadhar, the then ASI of J.C.Nagara PS deposed that he was deputed for night patrolling duty on 24-04-2015 from 8.30 pm to 8.30 am at Hoysala vehicle No.102. On 25-04-2015 at about 6.30 a.m. he received a wireless message from control room and they stopped the vehicle bearing Reg.No.KA 27 A 2940 wherein the cattle were transported to slaughter house and CW1 to CW3 were also came behind the said vehicle. Thereafter, the accused persons were taken to the station and produce before Station House Officer.
iii. CW2/PW3 Sri Goutham Sharma, deposed in his evidence that, on 25-04-2015, he along with CW1 and CW3 have informed the police control room about the illegal cattle trafficking from Magadi to Shivajinagar slaughter house in vehicle bearing No.KA-27-A-2840. At about 6.30 p.m. the Hoysala stopped the said vehicle and it was found that there were 7 cows in the vehicle. Then they went to the police station and lodged a complaint, police registered a complaint and conducted a spot mahazar in front of the station from 6.30 to 8.30 in the morning. Amongst the said cattle, there were three farm cows, three field cows and one farm bull. The cattle are kept in the vehicle with chilly powder in their eyes and their horns tied. The police have 9 KABC030059202016 CC 2268/2016 arrested accused persons and handed over to the cattle in the vehicle to the Goushala. He identified Ex.P3 to 12 photographs.
iv. CW7/PW4, Sri Chandrashekar Meti, the then PC of J.C.Nagara PS deposed that on 25-4-2015 he along with CW5 handed over 7 cattle to Mahadevapur Gorakshana Shala, Bangalore and obtained the acknowledgment and reported before the station officer.
15. It is relevant to mention Section 4, 8, 9, 11, 11(a) of Karnataka Prevention of cow slaughter and cattle preservation Act 1964,
4. Prohibition of slaughter of cattle.- Notwithstanding anything contained in any law, custom, or usage to the contrary, no person shall slaughter or cause to be slaughtered, or offer or cause to be offered for slaughter or otherwise intentionally kill or offer or cause to be offered for killing any cattle.
8. Power of search and seizure.-
(1) Where a Police Officer not below the rank of Sub-Inspector or a Competent Authority has reason to believe that an offence under this Act 10 KABC030059202016 CC 2268/2016 has been committed has power to inspect and seize such cattle and premises and materials used or intended to be used for the commission of such offence.
(2) Every person in occupation of any such premises shall allow the competent authority or an Officer not below the rank of Sub-Inspector such access to the premises as may be necessary for the aforesaid purpose and shall answer to the best of his knowledge and belief any questions put to him by the police Officer not below the rank of Sub-
Inspector or the competent authority.
(3) After the seizure under sub- section (1), he shall report such seizure, without unreasonable delay before the Sub-Divisional Magistrate for confiscation.
(4) On receipt of the report, records relating to premises and materials used or intended to be used in the commission of the offence, the Sub- Divisional Magistrate may on his being satisfied that an offence has been committed or intended to be 11 KABC030059202016 CC 2268/2016 committed under this Act, may release the materials including vehicle except cattle on production of a Bank guarantee equal to the value as estimated by him pending disposal of the criminal proceedings instituted in respect of the alleged offence and on the execution of Bank guarantee by the owner thereof of a bond for the production of the property so released as and when so required before the magistrate having jurisdiction to try the offence on account of which the seizure had been made and order for handing over the cattle to an institution established under section 19.
(5) On receipt of report of such seizure records relating to premises and materials used or intended to be used in the commission of the offence, the Sub-Divisional Magistrate may on his being satisfied that an offence has been committed or intended to be committed under this Act, whether a prosecution is instituted for such offence or not pass such orders confiscating the same: Provided that, no such order shall be made without giving an 12 KABC030059202016 CC 2268/2016 opportunity of being heard to the person who committed the offence. (6) While making an order for confiscation under sub-section (5), the Sub-Divisional Magistrate may also order that such of the properties to which the order of confiscation relates which in his opinion cannot be preserved or are not fit for human consumption be destroyed.
(7) If the Sub-Divisional Magistrate in his opinion feels that it is expedient in the public interest so to do, may sell the confiscated premises in public auction.
(8) When any confiscated property is sold as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses, relating thereto, shall, where the order of confiscation is made under sub- section (5) is set aside or annulled by the Appellate court be paid to the owner thereof or to the person from whom it was seized as may be specified in such order.
13 KABC030059202016 CC 2268/2016(9) The confiscated cattle shall be handed over to an institution established under section 19 and shall not in any circumstances be handed over to the accused or sold in public auction.
11. Bar of jurisdiction in certain cases.- Whenever any cattle and premises and materials used or intended to be used for the commission of such offence and detained under the provisions of this Act, the Sub- Divisional Magistrate or the Sessions Judge hearing an appeal under section 10 shall have and any other officer or court, tribunal or authority shall not have jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property.
16. It appears from section 8 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act-1964, the Sub-Inspector or competent authority has a power to seize the Vehicle used for commission of offence, however in the instant case, the ASI/PW2 has alleged to have been seized the 7 cattle and 14 KABC030059202016 CC 2268/2016 vehicle and hence he has no authority to seize the same. Added to which, the order sheet that the accused No.1 has obtained interim release of vehicle KA No.27 A 2840 by the order dated 16/05/2015, however the accused No.1 and 2 has denied the prosecution case that they have not stolen the cattle's and transported to the slaughter house. PW1 being the NGO activist for publicity, the present complaint as per Ex.P1 was lodged though PW1 had alleged to have seen the accused No.1 and 2 on 25/04/2015 at 6.20 am whilst going to Mekri Circle, then, how she could have collected the particulars of accused No. 1 and 2 as per Ex.P1 at 6.45 am to lodge the complaint against them and commenced the procedure of investigation as per Ex.P2 by drawing mahazar in the police station through the PW2. It ought to be seen that prosecution has mainly relies upon Ex.P3 to 12 but none of the photographs, the accused No.1 and 2 were seen.
17. No doubt, the accused No.1 had admitted the ownership of vehicle bearing No. KA No. 27A2840 but does not mean that the accused No.1 and 2 has stolen the 7 cattle's and were transporting the cattle's in a congested small Tata mobile vehicle however prosecution has heavily relies upon Ex.P3 to 12 to convict the accused No.1 and 2 for causing cruelty to the cattle however from the Ex.P3 to 12 does not appear that there were 7 cattle's in the said vehicle bearing No.KA No. 27A2840. In this regard, PW1 has 15 KABC030059202016 CC 2268/2016 been cross examined by the counsel for the accused No.1 and 2 that ನಿಪಿ.3 ರಿಂದ 12 ರಲ್ಲಿ ವಾಹನದ ಸಂಖ್ಯೆ ಹಾಗೂ ಜಾನುವಾರುಗಳು ಇರುವುದು ಒಟ್ಟಿಗೆ ಕಂಡು ಬರುತ್ತಿಲ್ಲ ಎಂದರೆ ಬೇರೆ ಬೇರೆ ಫೋಟೋಗಳಲ್ಲಿ ಎರಡು ಇವೆ ಎಂದು ಸಾಕ್ಷಿ ನುಡಿಯುತ್ತಾರೆ.
Thus, it is clear that the 7 cattle were not seen in the said vehicle as per Ex.P3 to 12. Such being the case, how this court could come to a conclusion that the accused No.1 and 2 have taken the 7 cattles in the vehicle to the slaughter house.
18. If the Ex.P2 was drawn by the PW2 at the premise of the police station, why none of the photographs as per Ex.P3 to 12 reflects as such.
19. Added to which, PW3 one of mahazar witness has been cross examined by the counsel for the accused No.1 and 2 wherein he deposed that ಚಾಸಾ1 ರವರು ಎನ್.ಜಿ.ಓ. ದಲ್ಲಿ ವಾಲೆಂಟರ್ ಹಾಗೂ ಅನಿಮಲ್ ವೆಲ್ಫೇರ್ ಬೋರ್ಡಿನ ಸದಸ್ಯರಾಗಿದ್ದಾರೆ. ನನಗೆ ಅವರು ಪರಿಚಯಸ್ಥರು ಮಾತ್ರ ಆದರೆ ಸ್ನೇಹಿತರಲ್ಲ. ನಾನು ಪೋಲೀಸರ ಮುಂದೆ 16 KABC030059202016 CC 2268/2016 ಹೇಳಿಕೆ ಕೊಟ್ಟಿದ್ದು ಅದರಲ್ಲಿ ಚಾಸಾ1 ಮತ್ತು 3 ರವರು ನನ್ನ ಸ್ನೇಹಿತರು ಎಂದು ಹೇಳಿದ್ದೇನೆ ಎಂದರೆ ಮೊದಲಿಗೆ ಸರಿ ಎಂದು, ನಂತರ ನೆನಪಿಲ್ಲ ಎಂದು ಉತ್ತರಿಸುತ್ತಾರೆ. ಸದರಿ ನನ್ನ ಹೇಳಿಕೆಯಲ್ಲಿ ಚಾಸಾ1 ಮತ್ತು 3 ರವರು ನನ್ನ ಸ್ನೇಹಿತರು ಎಂದು ಹೇಳಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. xxx ನಾವು ಕಾಯುತ್ತಿದ್ದ ಸ್ಥಳ ಯಶವಂತಪುರ ಠಾಣೆಗೆ ಫೋನ್ ಮಾಡಿ ಮಾಹಿತಿ ತಿಳಿಸಿಲ್ಲ ಆದರೆ ಕಂಟ್ರೋಲ್ ರೂಮ್ ಗೆ ತಿಳಿಸಿರುತ್ತೇವೆ ಎನ್ನುತ್ತಾರೆ.
ನಿಪಿ.3 ರಿಂದ 12 ರ ಫೋಟೋಗಳಲ್ಲಿ ಆರೋಪಿತರು ಕಾಣುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ.
ಸದರಿ ಫೋಟೋಗಳಲ್ಲಿ ಕಾಣುವುದಿಲ್ಲ
ಎಂದರೆ ಸರಿ. xxxx ಸಾಕ್ಷಿ ನಿಪಿ.4
ಫೋಟೊವನ್ನು ತೋರಿಸಿ ಅದರಲ್ಲಿ
ವಾಹನದ ಸಂಖ್ಯೆ ಇರುವುದಾಗಿ
ನುಡಿಯುತ್ತಾರೆ. ಆದರೆ ಜಾನುವಾರು
ಕಾಣುವುದಿಲ್ಲ ಎನುತ್ತಾರೆ.xxxxx ಯಾವ ಆರೋಪಿ ಆ ದಿನ ವಾಹನವನ್ನು ಚಾಲನೆ ಮಾಡುತ್ತಿದ್ದ ಎಂದು ನನಗೆ ಹೇಳಲು ಆಗುವುದಿಲ್ಲ. xxxx ನಾನು ಗುರುತಿಸಿದ ಫೋಟೋಗಳಲ್ಲಿ ನಾನು ಎಲ್ಲೂ ಕಾಣುತ್ತಿಲ್ಲ ಎಂದರೆ ಸರಿ.
17 KABC030059202016 CC 2268/2016 Thus, it is clear that the accused No.1 and 2were not seen in the photographs as per Ex.P3 to 12. More so, when the prosecution alleges that the CW1 to CW3 had seen the accused No.1 and 2 were transporting the cattle in the mobile Tata vehicle, then why they could not divulge who had driven the Tata vehicle.
20. The best evidence could be that the CW1 to CW3 were going behind the tata KA No.27A2840, then they could have videographed the entire process of following the accused No.1 and 2 and procedure of mahazar however no such thing was done.
21. It ought to been that the accused No.1 and 2at no point of time had claimed the 7 cattles in this case.
22. Added to which, prosecution had to prove that the accused No.1 and 2 were in the possession of the 7 cattle's in the alleged vehicle. In fact the prosecution has not even placed any record that they had handed over the possession of 7 Cattle to the animals to Bengaluru Gourakshan Shala®, Mahadevapura Road, Bangalore, through CW5 and CW7 as no panchaname was drawn at the time of handing over the possession of the 7 cattle's to the Goshala.
18 KABC030059202016 CC 2268/201623. If the accused No.1 and 2 have filled the chilly powder in the eyes of cattle whilst they were transporting by the accused No.1 and 2, however no medical records were produced to corroborate their version.
24. It appears from the cross examination of PW1 that ಮಹಜರ್ ಮಾಡಿದ ಸ್ಥ ಳದಲ್ಲಿ ಜನಸಂದಣಿ ಇರುತ್ತದೆ ಹಾಗೂ ಅಂಗಡಿಗಳು ಇರುತ್ತದೆ ಎಂದರೆ ಸರಿ Thus, the best witnesses would be immediate neighbours around the seizure spot about the drawing of mahazar however the PW2 did not make any attempt to call the local inhabitants for drawing spot mahazar for the alleged seizure of 7 cattle. It has been held in the case of Pradeep Narayana Vs State of Maharastra reported in AIR 1995 Supreme Court 1930 wherein it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. So it is safe to hold that, the prosecution has not proved the guilt of accused No.1 and 2 beyond all reasonable doubt thereby this court answers the above point No.1 to 3 in the negative.
19 KABC030059202016 CC 2268/201625. Point No.4:- For the foregoing discussion and the findings to the above point No.1 to 3, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offences punishable under Section 4, 8, 9, 11, 11(a) of Karnataka Prevention of Cow Slaughter and Cattle Preservation Act 1964, Section 46-56 of Transportation of Animal Rules 1978, Section 192(a), 177 of Indian Motor Vehicle Act and Section 428, 429, 379 R/w Section 34 of IPC.
(ii) Accused No.1 and 2 are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.20 KABC030059202016 CC 2268/2016
(iv) After expiry of appeal period, the interim custody of vehicle granted in favour of petitioner is made absolute.
(v) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 21st day of September, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Joshine Antony PW2 : Sri Gangadhar PW3 : Sri Goutham Sharma PW4 : Sri Chandrashekar Meti 21 KABC030059202016 CC 2268/2016
Documents marked on behalf of the prosecution:
Ex.P1 : Complaint Ex.P2 : Spot Mahazar Ex.P3 : Photographs to 12
Material Objects marked on behalf of the prosecution:
Nil Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.22 KABC030059202016 CC 2268/2016
21-09-2024 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offences punishable under Section 4, 8, 9, 11, 11(a) of Karnataka Prevention of Cow Slaughter and Cattle Preservation Act 1964, Section 46-56 of Transportation of Animal Rules 1978, Section 192(a), 177 of Indian Motor Vehicle Act and Section 428, 429, 379 R/w Section 34 of IPC.
(ii) Accused No.1 and 2 are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.23 KABC030059202016 CC 2268/2016
(iv) After expiry of appeal period, the interim custody of vehicle granted in favour of petitioner is made absolute.
(v) Ordered accordingly.
VIII ACJM, Bengaluru.
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