Punjab-Haryana High Court
Isuf vs State Of Haryana on 3 May, 2011
Author: Alok Singh
Bench: Alok Singh
Crl. Revision No. 832 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Revision No. 832 of 2011 (O&M)
Date of Decision : May 3, 2011
Isuf ...... Petitioner
Versus
State of Haryana ...... Respondent
****
CORAM : HON'BLE MR. JUSTICE ALOK SINGH
1. Whether reporters of local news papers may be allowed to see
judgement ?
2. To be referred to reporters or not ?
3. Whether the judgement should be reported in the Digest ?
Present : Mr. Sarfraj Hussain, Advocate,
for the petitioner.
Mr. Gaurav Dhir, DAG, Haryana.
****
Alok Singh, J (Oral)
Accused by invoking revisional jurisdiction of this Court is assailing judgement dated 30.3.2009 passed by the Judicial Magistrate 1st Class, Ferozepur Jhirka, whereby accused was found guilty for commission of offence punishable under Section 3/8 and 5/8 of the Punjab Prohibition of Cow Slaughter Act, 1955 (hereinafter referred to as the 1955 Act) and was directed to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 5000/- under Section 3/8 of the 1955 Act and in default of payment of fine to further undergo rigorous imprisonment for 90 days; he has further been directed to undergo rigorous imprisonment for a period of three years and to pay fine of ` 5000/- under Section 5/8 of the 1955 Act and in default of payment of fine to further undergo imprisonment for 90 Crl. Revision No. 832 of 2011 (O&M) 2 days. Both the sentences were directed to run consecutively i.e. one after the other. Appeal filed by the accused was also dismissed by the learned Additional Sessions Judge with the modification that both the substantive sentences awarded to the accused shall run concurrently.
The prosecution story in a nut shell is that on 5.11.2006, PW 2 Head Constable Devi Ram, Police Station Nagina with other police officials was present in area of village Pathakpur in connection with crime detection and patrolling were he received a secret information that Isuf accused after slaughtering cow on a motorcycle was going from village Umra to Sukhpuri to sell the beef and if a nakabandi is held on Sukhpuri to Umra road, he could be apprehended. The secret information was reliable and trust-worthy. He held nakabandi on Umra-Sukhpuri road and after half an hour, appellant was seen coming on a motorcycle. Who on seeing the police party parked the motor cycle on road and ran away. When the gunny bag lying on the motorcycle was checked, the same was found containing 25 kgs beef. The motorcycle was of Rajdoot make. The beef and the motorcycle were taken in police custody. The investigating officer prepared ruqa and sent the same to SHO Police Station Nagina on which FIR No.152 dated 5.11.2006 under Sections 3/8 and 5/8 of C.S. Act was recorded. He also prepared rough site plan of the place of recovery, recorded statements of prosecution witnesses under Section 161 Cr.P.C. and get the beef examined from Dr. R.C. Pandey, Veterinary Surgeon and on return to police station, case property was entrusted to MHC of police station. After completion of investigation and other formalities challan under Section 173 Cr.P.C. was prepared and presented in the Court of Ilaka Magistrate for putting the accused on trial.
I have heard learned counsel for the parties and have carefully perused the record.
Crl. Revision No. 832 of 2011 (O&M) 3
Learned counsel for the revisionist-accused has vehemently argued that 25 kgs. alleged beef was recovered from a motorcycle parked by the petitioner but no weapon (knife etc.), weight and weighing-scale was recovered. Learned counsel for the revisionist-accused has further argued that neither petitioner was found slaughtering the cow nor he was found selling beef. He has further argued that without lab test it cannot be said that meat was of beef. He has, while placing reliance on the judgment of this Court in Criminal Revision No.676 of 2011 titled as "Ibbar @ Ibrahim vs. State of Haryana", argued that facts of present case are almost similar to the case cited above. He has further argued that opinion of Veterinary Doctor without scientific test should not be accepted.
Mr. Dhir, learned Deputy Advocate General has vehemently argued that an argument of learned counsel for the accused before the trial court that 25 kgs. beef is a small quantity, therefore, it would amount to admission.
I do not agree with Mr. Dhir for the reason that it was only an alternate argument advanced before the trial Court and alternate argument before the trial Court shall not be construed as admission.
Mr. Dhir, has further argued that Dr. R.C. Pandey PW1 has stated on oath that on physical examination, meat was found of beef containing yellow fat thereon. He has further argued that since the petitioner was found carrying the beef measuring 25 kgs, therefore, it is rightly presumed that he was carrying the beef for the purpose of selling after slaughtering the cow. Therefore, no interference is called for in the findings of the Courts below.
This Court in case Criminal Revision No.676 of 2011 decided on 19.4.2011 has observed as under :-
Crl. Revision No. 832 of 2011 (O&M) 4
"As per datas available under "Meat and Meat products" expert has opined that different meat shall have different colour and different fat as reproduced in paras 4, 5 and 6 of the revision, which read as under :-
Undisputedly, no chemical examination was done on the meat in question to find out as to whether that meat is of beef and was containing fat as per the chart given in para 4, 5 and 6 of the revision petition, which is being reproduced hereunder :-
Species Meat Fat
Beef Bright to dark red White or cream white
Goat Light to dark red Chalk white
Pork Grey pink to grey red White
Fat Phalmeti Steari Palme- Olei linolei Linoleni Arachidoni
c c Toleic c c c c
Beef 29 20 42
Pork 28 13 3 46
Mutto 25 25 39
n
5. That in the article "Choosing The Best Cuts of Beef"
it is mentioned that the fat around the edges of the beef should be white to ivory. Similarly in the article "How to choose fresh Meat", regarding beef it is provided as under:-
"All fresh beef should be deep in color and appear "juicy"
and wet on the butcher's table. Dry, dark red beef has been exposed to the air far too long. "Marbling" is the term used to describe fat funning through the meat. This give the meats its flavour and tenderness. Also, beef fat should be creamy, and not yellow in color."
Crl. Revision No. 832 of 2011 (O&M) 5
6. That the University of Illinois Extension in its article "Sourcing high quality Beef: The Retailers Guide, under the head Color has mentioned as under:-
"9) Color-Research has shown that muscle color explains 15 to 23% of the variation in beef palatability. The importance of color is reflected by consumer preference and juiciness. Fresh beef should be cherry red (below) in color. Diet, breed, and animal age affect fat color. Optimum fat color for beef is white."
Learned Assistant Advocate General has not disputed different studies as stated in paras 4, 5 and 6 of the revision.
In the opinion of this Court it would be totally unsafe to hold that meat was of beef on seen by naked eye without any chemical examination thereon. Moreover, Dr. Sanjiv Khan PW1 has stated on oath that meat recovered was having yellow fat thereon. While as per Article "Meat and Meat Products" as reproduced hereinbefore, beef must have fat of white or cream colour.
Undisputedly petitioner was not arrested from the spot. As per prosecution story, petitioner while fleeing from the spot after leaving the bicycle and the bag tightened on the rear seat of the bicycle, containing meat, was identified by the secret informer on the spot. However, statement of the secret informer was not reduced in writing. In the opinion of this Court, alleged prosecution story that petitioner was also identified by HC Devi Ram while fleeing from the spot in the mustard filed, does not inspire confidence because petitioner was never arrested before by the police. How Crl. Revision No. 832 of 2011 (O&M) 6 petitioner was known to HC Devi Ram is not made clear by the prosecution. Floating statement of HC Devi Ram that he knew the accused prior to the incident seems to be floating statement.
No knife, kulhari or Gutka was recovered from the accused to say that he has slaughtered cow to make the offence punishable under Section 3/8 of the 1955 Act. None has seen him slaughtering the cow or selling the beef to make out the offence under Section 3/8 or under Section 5/8 of the 1955 Act. There must be a positive evidence that petitioner was found slaughtering the cow or was selling the beef.
In view of the fact that petitioner was not found slaughtering cow or selling the beef and was not arrested from the spot and no chemical examination was done to find out that meat is of beef, it would not be safe to hold the petitioner is guilty for an offence punishable under Sections 3/8 and 5/8 of the 1955. Prosecution story does not inspire confidence. In criminal cases, guilt can not be said to have been proved only on the basis of presumption or assumption."
The facts of the present case are similar to the facts of case Criminal Revision No. 676 of 2011 (supra).
As a result thereof, the present revision petition is allowed. Impugned orders are set aside.
Petitioner be set free immediately, if not wanted in any other case.
(Alok Singh) Judge May 3, 2011 Anand