NISAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal directed against the judgment of the Additional Sessions Judge, Tonk, who convicted the appellant under sec. 2 of the Rajasthan Preservation of certain Animals Act, 1960, and sentenced him to undergo rigorous imprisonment for five years and to a fine of Rs. 500/ -.

(2.) THE circumstances which give rise to this appeal are these. 3. On the 30th April, 1959, Mst. Rodi widow of Bajranga Gujar had gone in the town of Tonk to sell milk and curd. On her return she was informed by Kalyana and Rugha (P. Ws. 2 and 3 respectively) that her cow was stabbed by Nisar, the appellant. She saw the injured cow standing near Bhamor Gate, Tonk. Her daughter's son Ramlal took the cow to the veterinary hospital where the cow received some sort of treatment but it died the next day. On the 1st May, 1950, one Gangaram informed the police that the son of Mohammed Ishaq alias Billo had stabbed a cow belonging to one Gyarasa Gujar. THE injury so caused resulted in the death of the cow. On the post -mortem examination at the veterinary hospital it was found that there was an incised penetrating wound 1 -1/2" long on the left lateral side 1 -1/2" pos -tero -ventriclly from the point of haunch in susro -posterior direction. THE posterior point being little ventricle to the anterior leading to a wound of 1 -1/2" length and deep upto the abdominal cavity in autroventrical direction cutting through the muscles on the way. A number of other injuries were also found and in the opinion of the examiner the cause of death was toxemia due to peritonitis. THE accused appellant was committed to and tried by the Additional Sessions Judge, Tonk. Amongst others the prosecution examined Kalyana (P. W. 2) who is a neighbour of Mst. Rodi. He stated that the day before the death of the cow he saw the cow coming out of the house of the father of the accused. It was followed by Nisar, the appellant, who had a big knife in his hand. He ran after the cow and gave a blow with his 'chhura' to the cow. THE 'chhura' remained in the body of the cow. Nisar followed the cow running towards Bhamor Darwaza. THE accused took out the knife (chhura) from the cow's body at some place outside Bhamor gate and ran away. Rugha (P. W. 3) was also present at the material place and at the relevant time. Both Kalyana and Rugha chased Nisar right upto his house but they did not enter it as the occupants observed 'pardah'. THEy, however, informed Mst. Rodi about the incident. THEse two witnesses identified the hide of the cow (Ex. 1) in the court. 4. THE accused -appellant set up a plea of alibi saying that at the time and on the date when he is alleged to have stabbed the cow, he was not in Tonk but was in Jaipur. He had examined four witnesses in support of this plea. One of them is Dr. Iqbal Singh, a retired medical man, who had issued a certificate (Ex. D. 3) to the accused -appellant dated 30th of April, 1959. 5. As already noticed the learned Additional Sessions Judge,tonk, found it to be proved that Nisar had stabbed the cow belonging to Mst. Rodi as a result of which it died. He held him guilty under sec. 2 of the Rajasthan Preservation of Certain Animals Act, 1950 and sentenced him to 5 years' rigorous imprisonment and to a fine of Rs. 500/ -. He further directed that if the fine be realised a sum of Rs. 100/ - therefrom be paid to Mst. Rodi by way of compensation. 6. THE learned counsel for the appellant assailed this judgment on several grounds. He argued that the first information report did not contain the name of the accused -appellant; that there was great delay in lodging the first information report; the prosecution witnesses Kalyana and Rugha who have come to depose as eye -witnesses had merely heard of the incident as stated in the first information report and it is thus an important variation between the first information report and the prosecution case at the trial. THE learned counsel also contended that the eye -witnesses are interested; their conduct unnatural and their statements before the police were recorded late; they are, therefore, unreliable. Further their statements having been recorded under sec. 164 of the Criminal Procedure Code, this circumstance raises a suspicion that they are not witnesses of truth. Besides, the medical evidence does not support the prosecution story. In any case, the learned counsel argued, the medical evidence ought to be excluded in this case from consideration as the Doctor was not examined by the trial court and he being not a medical witness within the meaning of sec. 509 of Criminal Procedure Code, his statement cannot be read into evidence unless he was examined by the trial court. THE learned counsel supported the theory of alibi and submitted that there is no reason why it should not be believed. 7. THE learned Deputy Government Advocate generally supported the judgment of the Additional Sessions Judge and urged that many of the points raised by the learned counsel for the appellant are without weight as no cross examination was directed in the trial court form that point of view. 8. It is true that the cow is said to have been stabbed on the morning of the 30th April at about 8'o clock and the first information report was lodged on the evening of 1st May at about 8'o clock. THEre is thus an interval of thirty six hours between the time of injury and the lodging of the report. THE prosecution case is that when the dead cow was being carried to the jungle, it occurred to Ganga Ram to lodge a report about this incident. Mst. Rodi, the owner of the cow, had not lodged any report. As to why Mst. Rodi or her witnesses did not lodge the first information report earlier could be best answered by Mst. Rodi herself or these witnesses. Any reason for this delay which may be suggested on behalf of the prosecution would be at its best a mere speculation. No question appears to have been directed on this aspect of the matter in the cross -examination of Mst. Rodi. If the grievance was to be made on account of this delay from the point of time when the injury was caused, it was necessary for the defence to give an opportunity to Mst. Rodi or the witnesses or to both by putting questions on this part of the case. That having not been done the delay from the point of injury i. e. thirty six hours does not appear to have much significance. It was not very much after the death of the cow that the report was lodged. 9. So far as the name of the accused is concerned, what is mentioned in the first information report is that the cow was stabbed by the son of Billo. THE accused appellant is undoubtedly the son of Billo, which is the nick -name of the father of the appellant. In the cross -examination of Ganga Ram no question is suggested that the accused is not the son of Billo or there was another son of Billo who could have been intended by the report. THE whole trial appears to have proceeded on the assumption that the identity of the of Billo was not in dispute. It is, therefore, futile to suggest at the appellate stage that some one other than this son of Billo was intended. Prosecution witnesses Kalyan and Rugha have indentified the appellant as the person who stabbed the cow. 10. THE learned counsel for the appellant contends that in the first information report it is alleged that the prosecution witnesses Kalyan and Rugha who were present at the 'ghantaghar' when Ganga Ram had stopped the bullock cart which carried the dead cow said