Criminal Revision No.669 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.669 of 2000 Date of Decision 20.04.2010 Rajmal and another ...... Petitioners VERSUS State of Haryana ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Puneet Sharma, Advocate, as Amicus Curiae, for the petitioners. Mr.Rajiv Malhotra, Addl. Advocate General, Haryana, for the respondents-State. ***** A.N.JINDAL, J(ORAL): This petition is directed against the judgment dated 01.06.2000, passed by Addl. Sessions Judge, Gurgaon, dismissing the appeal of the petitioners-accused (herein referred as 'the accused') against the judgment dated 14.09.1998, passed by Sub Divisional Judicial Magistrate, Ferozepur, convicting and sentencing them to undergo rigorous imprisonment for a period of one year each under Section 8 of the Punjab Prohibition of Cow Slaughter Act, 1955. The case set up by the prosecution is that on 01.01.1996, Head Constable Satyabir, Investigating Officer (herein referred as 'the Investigating Officer') had received the secret information that the accused were slaughtering the cows at their house. If the raid is conducted, they could be caught red handed. On this information, the raid was conducted. On seeing the police party, both the accused fled away from their house Criminal Revision No.669 of 2000 2 while scaling over the wall taking advantage of the darkness. However, the Investigating Officer found 70 kgs. fresh beef, one skin of cow, one axe, two blood stained daggers and four weak and infirm cows in the house of the accused, which were taken into possession by him vide recovery memo Ex.PB. Thereafter, he sent Ruqa Ex.PD to the police station on the basis of which FIR was registered and the case was investigated. The accused were charged, tried and ultimately convicted and sentenced accordingly. Their appeal also failed. Arguments heard. Record perused. The case is based on the testimonies of Head Constable Satyabir Singh (PW3), Investigating Officer of the case, and Head Constable Bir Singh (PW2), an eye witness. No independent witness from the locality was associated at the time of conducting the raid. Though, the four live cows, one axe and two knives were recovered besides the beef but none of the instruments or the cow was produced in the Court in order to authenticate the recovery thereof. There is no denying a fact that recovery memo Ex.PB was prepared before the case was registered and the prosecution has failed to explain as to how the FIR number of the case registered against the accused came on the recovery memo. Even otherwise, no evidence has been led on the record in order to prove that the accused were the owners of the house. Assuming for the sake of argument that the accused were the occupants of the house but it is not established that they were in exclusive possession of the said house, as such, they cannot be said to be in conscious possession of the same. There is another crucial question with regard to identification of the accused. The case of the prosecution itself is that the accused fled away while getting Criminal Revision No.669 of 2000 3 benefit of darkness, thus, it means that the accused and the witnesses did not come face to face and the witnesses had no occasion to identify them. At that time the witnesses moved with the assumption that the house belonged to them. In these circumstances, the question of identification was essential in the case. No identification parade was got effected by the Investigating Officer and the accused were not arrested at the spot, as such the benefit should go to the accused. Resultantly, I accept the present petition and set aside the impugned judgment. The petitioners-accused are directed to be set at liberty forthwith. Bail bonds/surety bonds, furnished by them, stand discharged. Fine, if any deposited, be refunded. (A.N.Jindal) Judge 20.04.2010 mamta-II