IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.827 of 2000 Date of decision: 27th January, 2010 Hidayat … Petitioner Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Manoj Bajaj, Advocate for the petitioner. Mr. Deepak Jindal, Deputy Advocate General, Haryana for the State. Notes: 1. Whether Reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. Hidayat son of Noora was nominated as accused in case FIR No.37 dated 04.02.1997 registered at Police Station Nuh under Sections 4-A/8, 2/80 of The Punjab Prohibition of Cow Slaughter Act, 1955 (hereinafter referred to as, ‘the Act’). The trial Court convicted and sentenced the petitioner for contravening provisions of section 4-A of the Act punishable under Section 8 of the Act to undergo rigorous imprisonment for one year. Aggrieved against the same, petitioner had filed an appeal. The same was dismissed. Conviction of the petitioner was upheld and sentence awarded upon him was maintained. Criminal Revision No.827 of 2000 The Judicial Magistrate (1st Class), Nuh on 23rd April, 1997 charged the petitioner with contravention of section 4-A punishable under Section 8 of the Act. It was stated in the charge that on 4th February, 1997 in the area of Police Station Nuh, petitioner was transporting cows from Haryana to Rajasthan in a vehicle bearing registration No.HR/38-A/9184. The petitioner pleaded not guilty and claimed trial. Prosecution case briefly is that on 4th February, 1997, police party headed by ASI Shish Ram received a secret information from special informant that two persons were carrying cows in a vehicle to Rajasthan via Arawali Hillls for slaughter. It was stated that police party, which was already present at the check post, Arawali Hills on crime detection duty, stopped the truck, which was going at a high speed at the Naka. From the truck, two persons alighted and they ran away. According to ASI Shish Ram, special informant had told him the name of the driver as Hidayat. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. Prosecution examined ASI Shish Ram as PW-1, Constable Udham Singh as PW-2, Chet Ram Sarpanch as PW-3 and Head Constable Raj Pal as PW-4. Counsel for the petitioner has raised following three arguments before this Court: (a) That prosecution has failed to establish the identity of the accused. (b) That confession Ex.PW1/C of the accused recorded in the presence of PW-3 Chet Ram by the police is hit by section 25 of the Indian Evidence Act and is not admissible. 2 Criminal Revision No.827 of 2000 (c) That there is not even a whisper in the prosecution evidence that the cattle were carried for the purpose of slaughter to Rajasthan. Counsel has submitted that accused had taken a definite stand that he was engaged in the sale and purchase of cattle and therefore, petitioner was performing his normal business activity and prosecution has to prove from some evidence that the cows were being transported for slaughter. I have read the evidence of the witnesses with assistance rendered by Mr.Manoj Bajaj, counsel for the petitioner and Mr.Deepak Jindal, DAG Haryana. ASI Shish Ram PW-1 reiterated as to what was stated in the FIR. He stated that he was holding a Naka when he received a secret information from special informant that petitioner will be carrying cows in a truck for slaughter. After some time, the truck was spotted. On a signal given, the truck was stopped. The accused succeeded in escaping from the spot along with another person. During investigation, it surfaced that another person was a passenger. Ten cows were taken into possession and recovery memo was prepared. Later on, these cows were got admitted in the Gaushala and receipt Ex.PW1/D was obtained. Constable Udham Singh PW-2 was member of the raiding party and he also deposed to this effect. PW-3 Chet Ram Sarpanch stated that on 5th February, 1997, he was present along with Ajit Sarpanch of village Chhachhera, when accused came and stated that his vehicle Tata-709 had been apprehended by the police. In the vehicle, there were ten cows belonging to him, therefore, he be produced before the police. At that time, from the Police Post one Thanedar and a Constable had come. Chet Ram handed 3 Criminal Revision No.827 of 2000 over the accused to the police and requested that no beating should be given to the accused. So far as the identity of the accused is concerned, even though no test identification parade was held and PW-1 ASI Shish Ram had named the accused on the basis of the secret information received from special informant, prosecution need not to establish the identity, as petitioner had made an extra-judicial confession to PW-3 Chet Ram. So far as confession Ex.PW1/C recorded by the police in presence of independent witness is concerned, even though the same is attested by independent witness PW-3, the same is inadmissible in evidence. Any confession made by the accused in presence of police officer in view of section 25 of the Indian Evidence Act cannot be relied upon. However, the testimony of PW-3 Chet Ram Sarpanch is to be read in two parts. First part is when accused appeared and made an extrajudicial confession and second part is when accused repeated the same in presence of the police and document Ex.PW1/C was executed. Therefore, even this Court rules out the document Ex.PW1/C out of consideration, the oral testimony of independent witness PW-3 Chet Ram remains that accused came and made an extrajudicial confession. Once this Court has held that the testimony of PW-3 Chet Ram, being independent witness, aspires confidence and accused has made an extrajudicial confession, this Court is put on guard to examine as to what petitioner had stated to PW-3 Chet Ram. A perusal of testimony of Chet Ram PW-3 reveals that accused stated that cows and truck belonged to him and police had apprehended the same, therefore, he be produced before the police, so that he was given no beating. Nowhere it has surfaced in the prosecution evidence that the cows were being carried or transported by the petitioner for the purpose of slaughter. Thus, necessary ingredient of the evidence has not been proved by the prosecution. 4 Criminal Revision No.827 of 2000 Section 4-A of the Act reads as under: “4-A Restriction on export of cow – No person shall export or cause to be exported cow for the purpose of slaughter either directly or through his agent or servant or any other person acting on his behalf in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be slaughtered.” The requirement of the section is that the cows shall not be exported for slaughter. In the present case, no evidence has come that the cows were taken for the purposes of slaughter. However, for export of cows one has to obtain a permit. Section 4-B of the Act reads as under: “4-B Permit of export – (1) Any person desiring to export cows shall apply for a permit to such officer, as the Government may, by notification, appoint in this behalf, stating the reasons for which they are to be exported as also the number of cows and the name of the State to which they are proposed to be exported and shall also file a declaration to the effect that the cows for which the permit for export is required shall not be slaughtered. (2) The officer appointed under sub-section (1) shall, after satisfying himself about the genuineness or otherwise of the request of the applicant; either grant or refuse to grant him a permit for the export of cows specified in the application; Provided that an application for the grant of a permit shall not be refused unless the applicant has been afforded an opportunity of being heard and the reasons for the refusal are recorded. (3) The fee for issuing permits shall be such as may be prescribed.” The petitioner has failed to prove on record any permit. Section 8(1) of the Act reads as under: “8. Penalty – (1) Whoever contravenes or attempts to contravene or abets the contravention of the provision of Section 3, Section 4-A, Section 4-B or Section 5 shall be guilty 5 Criminal Revision No.827 of 2000 of an offence punishable with rigorous imprisonment for a term which may extend to two years or with fine which may extent to one thousand rupees or with both.” Even for export of the cows without permit, offence under Section 8 of the Act is made out. A perusal of charge reveals that it says that petitioner contravened provision of Section 4-A punishable under Section 8 of the Act. In fact, petitioner had contravened Section 4-B and therefore, was punishable under Section 8 of the Act. Mere omission or error in charge will not absolve the petitioner. No prejudice was caused to the petitioner. Counsel for the petitioner, at this stage, has submitted that even there has been no breach of Section 4-B of the Act. Petitioner had not crossed the border, therefore, export of the cows had not taken place. There may be preparation of offence but petitioner has committed no offence. Counsel for the petitioner has relied upon a judgment of this Court rendered in ‘Mohinder Singh and another v. State of Haryana’ 1983 (1) CLR 76, in which, M.M.Punchhi, J. as His Lordship then was, held as under: “3. … … … … Now the test for determining whether the act of the petitioners constituted an attempt or preparation is whether the overt acts already done by them are such that if they afterwards change their mind and do not proceed further in its progress, could acts already done be completely harmless. Necessity in such like cases has always arisen for distinguishing between acts which are merely preparatory to the commission of the crime and those which are sufficiently proximate to it to amount to an attempt to commit it. See in this connection Malkiat Singh and another v. The State of Punjab, A.I.R. 1970 Supreme Court 713. It was held therein that an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have an intention to commit the offence 6 Criminal Revision No.827 of 2000 and secondly to have done an act which constitutes the actus reus of a criminal attempt.” But a bare perusal of Section 4-B of the Act reveals that the ratio of the judgment is not attracted on the facts of the present case, as the section itself says that any person desiring to export cows has to apply for a permit. He has to file a declaration. In the present case, nothing was done to this effect. Therefore, petitioner cannot be absolved of the offence. Counsel for the petitioner has submitted that in the present case, offence if any, was committed in the month of February, 1997. Petitioner has already suffered mental agony and pain of protracted trial for about 13 years. Counsel has further submitted that petitioner was taken into custody on 15th July, 2000 and was released on bail by this Court on 26th July, 2000 and since then, petitioner has committed no such offence and is leading a life of peaceful, honest and law abiding citizen. Counsel has prayed that taking this fact into consideration, an opportunity be granted to the petitioner to reform and rehabilitate himself in the Society, as sending the petitioner behind the bars at this stage will not serve any purpose. Taking into consideration the submissions made by the counsel for the petitioner, this Court is of the view that ends of justice will be fully met in case sentence awarded upon the petitioner is reduced from one year to four months rigorous imprisonment. With the modifications in sentence noticed above, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE January 27, 2010 rps 7