K ARI Vs. STATE

JUDGEMENT

(1.) The accused in Summary Trial Case No. 1935/1956 on the file of the Honorary Special First Class Magistrates Court at Kozhikode is the revision petitioner. The prosecution against him was for the offence punishable under S.3(a) and S.3 A (1) of the Prevention of Cruelty to Animals Act, Central Act XI of 1890 as amended by Act XIV of 1917 and Act XXV of 1938. The prosecution was launched by the S. P. C. A. Inspector at Kozhikode. According to him he noticed the accused driving a double bullock bandy along the Big Bazaar Road at Kozhikode at 3 P. M. on 26-6-1956 and, on finding that the bandy was heavily loaded and that the bulls were struggling hard to move forward with such a load, he stopped the bandy and prepared a mahazar noting the total weight of the load in the bandy and also the weight of the bulls. Since the load was in excess of the permissible limit, the charge was laid against the accused under the aforesaid sections. The accused pleaded not guilty to the charge. On behalf of the prosecution the S. P. C. A. Inspector and another independent witness were examined. This witness had attested the mahazar prepared by the Inspector which was also marked as Ext. PI-The learned Magistrate accepted the evidence of the witnesses supported by the mahazar Ext. P1 and convicted the accused under S.3 (a) and S.3-A (I) of the Prevention of Cruelty to Animals Act and sentenced him to pay a fine of Rs. 10 or in default, to undergo simple imprisonment for 7 days. The accused has come up in revision challenging the legality of the conviction entered against him.

(2.) What is made punishable under S.3 (a) is overdriving, beating, or otherwise treating any animal so as to subject it to unnecessary pain or suffering. From the manner in which this sub-section is worded, it is obvious that overdriving by itself is not made punishable. To constitute an offence under this sub-section, it must be shown that the overdriving was such as to subject the animal to unnecessary pain or suffering. The evidence adduced in this case does not satisfy this test. The witnesses examined in this case do not swear that the accused was seen overdriving the bulls. There is also no mention in the charge sheet filed by the S. P. C. A Inspector that the accused was seen overdriving the bulls. On the other hand, the complaint was that there was overloading and that the bulls appeared to be weak and to be struggling hard to drag the overloaded cart. Overloading is not the same as overdriving. Even accepting the evidence of PWs 1 and 2 that the bulls appeared to be weak and to be struggling hard to drag the cart, that is not sufficient to make out that the bulls were subjected to unnecessary pain or suffering. In fact the witnesses have not stated that it appeared to them that the bulls were being subjected to such unnecessary pain or suffering. Thus the essential ingredients of the offence contemplated by sub-s.(a) of S.3 have not been proved in this case. The conviction under that section cannot, therefore, be sustained.

(3.) The legislature appears to have realised the difficulty that the prosecution may have to face in adducing satisfactory evidence to sustain a charge under S.3 (a) and hence the new S.3-A was added by the Amending Act (Act XXV of 1938). Under this new section, overloading by itself is made punishable. Clause (1) of S.3-A runs as follows: