Madhya Pradesh High Court
Babu vs The State Of Madhya Pradesh on 2 December, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
-1- CRR No.5304/2019
HIGH COURT OF MADHYA PRADESH,
BENCH AT INDORE
CRR NO.5304/2019
(Babu s/o Ibrahim vs. State of M.P)
02.12.2019 (INDORE):
Shri Yashpal Rathore, learned counsel for the
applicant.
Shri Vikas Yadav, learned Govt. Advocate for the
respondent/State.
With consent, heard finally.
ORDER
The present revision is filed under section 397 & 401 of the Cr.P.C against the judgment dated 30.10.2019 passed by Ist A.S.J, Neemuch in Criminal Appeal No.53/2019 whereby the appellate Court has partly maintained the conviction and sentence of the applicant given by JMFC, Neemuch in Criminal Case No.1097/2014 dated 12.03.2019. The details of charges under which he has been convicted and sentenced are as under:
Conviction under Jail Sentence Fine amount In default of fine, section jail sentence Section 11(d) of --- Rs.50/- 5 days SI the Prevention of Cruelty to Animals Act, 1960 Section 38(3) of 01 months RI Rs.100/- 10 days SI the Prevention of Cruelty to Animals Act, 1960 Section 10 r/w 06 months RI Rs.1,000/- 2 months SI section 4(1) & 6 of the M.P Krishik -2- CRR No.5304/2019 Pashu Parirakshan Adhiniyam, 1959 Section 66/192 of -- Rs.3,000/- 2 months SI the Motor Vehicles Act Section 56/192 of -- Rs.3,000/- 2 months SI the Motor Vehicles Act.
Facts of the case in short are as under:
On 21.06.2014 Police received information from the complainant Praveen Mittal that in an Eicher truck bearing registration No.MP-43-G-1871 buffaloes are being transported illegally from Jaora to Nasirabad, Rajasthan for the purpose of slaughter. The Investigating Officer after recording the "Rojnamcha" reached to the spot along with Hansmukh Jain and intercepted the said vehicle. After search Police recovered 16 buffaloes from the truck and arrested the applicant. According to the prosecution the buffaloes were kept inside the vehicle tiding their legs and mouth with rope in a cruel manner. On demanding, the applicant who was driving the said vehicle has failed to produce neither the permission for transportation of animals nor any sale or purchase invoice. The statement of the applicant was recorded and thereafter the buffaloes were sent for medical examination The market value of the buffaloes were found to be Rs.80,000/-. After completing investigation, Challan was filed.
In trial prosecution examined Praveen Mittal (PW/1) who gave information to the Police about the transportation -3- CRR No.5304/2019 of buffaloes, Hansmukh Jain (PW/2), Veterinary Development Officer, Asharam Dhakad (PW/4), Veterinary Surgeon & Narendra Singh Sengar (PW/4), ASI and Investigating Officer. After appreciating evidence came on record vide judgment dated 12.03.2019 the applicant has been convicted and sentenced under sections 11(d) & 38(3) of the Prevention of Cruelty to Animals Act, 1960, under section 10, 4(1) & 6 of the M.P Krishik Pashu Parirakshan Adhiniyam, 1959 and under sections 66/192 & 56/192 of the Motor Vehicles Act. Thereafter he preferred an appeal which has been partly allowed and vide judgment dated 30.10.2019, hence the present revision along with an application (IA No.8883/2019) for suspension of sentence.
Shri Yashpal Rathore, learned counsel for the applicant submits that in the present case the FIR was registered by Narendra Singh Sengar (PW/4), who himself has conducted the investigation, therefore, the entire trial vitiates. He further submits that the applicant is not the owner of the buffaloes and he was only driving the vehicle. The applicant has been falsely implicated in the case speculating that he was transporting the buffaloes for the purpose of slaughter.
As per the report, the buffaloes were 8 to 12 years of age and some of them were conceived, therefore, the slaughter of such buffaloes can not be believed. The prosecution has also not proved the size of the vehicle in which the buffaloes were being transported, therefore, the -4- CRR No.5304/2019 Courts below have wrongly come to a conclusion that the buffaloes were kept inside the vehicle in a cruel manner.
Shri Vikas Yadav, learned Govt. Advocate appearing for the respondent opposes the prayer for suspension of sentence of the applicant on the ground that both the Courts below have duly proved the evidence came on record and rightly convicted and sentenced the applicant.
Shri Rathore, learned counsel for the applicant submits that the applicant has already undergone more than one month imprisonment and also deposited the fine amount, therefore, he does not wish to challenge either the conviction of the applicant nor IA No.8883/19 for suspension of sentence, however, he praying for leniency in the matter of sentence that his jail sentence be reduced to the period already undergone and he be released.
So far as the offence of transportation of buffaloes without license and other documents is concerned, the applicant has been convicted under sections 8/177, 66/192 & 56/192 by imposing fine of Rs.500, Rs.3000/- & Rs.3000/- respectively. The other allegation against the applicant is that he was found transporting the buffaloes for the purpose of slaughtering, however, there is no conclusive evidence on record to prove the said allegation. As regards the other allegation that the applicant kept the animals in the truck in a cruel manner by tiding their legs and mouth with rope because of which they could not breath properly and no cattle feed and water were available in the vehicle, the -5- CRR No.5304/2019 prosecution was required to measure the size of the truck, however, except the vehicle number and its make nothing has been brought on record to prove the said charges.
So far the conviction under section 11(d) of the Act of 1960 is concerned there is enough evidence that the applicant was found transporting the animals in a cruel manner due to which some of them suffered minor injuries and as per the evidence of veterinary doctor the findings recorded under section 11(d) is upheld. Resultantly, the conviction and sentence under section 38(3) of the Act of 1960 is also upheld. Since the applicant was transporting the cattle without permit and other documents, therefore, he has rightly been convicted and sentenced with fine under sections 66/192 & 56/192 of the Motor Vehicles Act, hence no interference is called for in the said conviction and sentence.
As regards the conviction and sentence under section 10 read with 4(1) & 6 of the Adhiniyam of 1959 is concerned, both the Courts below have held that the burden was on the applicant to discharge that he was not transporting the agriculture cattle other than for slaughter purpose. The burden under section 12 in any trial for an offence punishable under section 11 for contravention of provision of section 5, 6 or 7 of the Act, the burden of proving that slaughter, transport or sale of agriculture cattle was not in contravention of provision of this Act shall be on the accused. As per the certificate issued by PW/2 & PW/3 -6- CRR No.5304/2019 Ex.P/6 all the 16 buffaloes are from the age between 8 to 12 years and they were capable for work or breeding. Under section 4 (2) no person shall slaughter or caused to be slaughtered any agriculture cattle unless he has obtained such certificate in writing from the competent authority. The competent authority may issue a certificate after examining the cattle that the cattle is over 15 years of age or has become permanently incapacitated for work or breeding, therefore, it is clear that the cattle between the age of 8 to 12 years are fit for work and for breeding, hence there cannot be a presumption that they are being transported for slaughter purpose. Likewise section 6 prohibits that no person shall transport the agriculture cattle from one place to another place for the purpose of its slaughter in contravention of the provisions of the Act.
That under section 10 of the Adhiniyam of 1959 whoever contravenes the provisions of clause (a) of sub section (1) of section 4 or section 6-A or section 6-B shall be punished with imprisonment of either description for a term which may extend to 3 years and with fine which may extend to five thousand rupees. As per the proviso to section 10 except for special and adequate reasons to be recorded in the judgment of the Court such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees. Learned first appellate Court has set aside the conviction under section 7/11 and maintained the penalty under section 10 for contravention of section 6-A & 6-B and -7- CRR No.5304/2019 penalty under section 11 is provided for contravention of other than 6-A & 6-B for which there is no minimum period of imprisonment, therefore, for contravention of section 4(1) & 6 the penalty is provided under section 11 and maximum term of imprisonment is one year, therefore, in view of the above, the conviction of the applicant is maintained, however, his jail sentence is reduced to the period already undergone subject to payment of fine amount, if not already deposited. The applicant be released forthwith, if not required in any other offence.
C.c as per rules.
(VIVEK RUSIA)
JUDGE
Digitally signed by Hari Kumar
Nair
hk/ Date: 2019.12.06 11:21:31 +05'30'