IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.584 of 1998 Date of decision: 22nd February, 2010 Sharfu … Petitioner Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. G.C. Shahpuri, Advocate for the petitioner. Ms. Hemlata Balhara, Assistant Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) In pursuance of order passed by this Court on 27th January, 2010, Mr.G.C. Shahpuri, Advocate has filed his power of attorney. Present revision petition has been preferred by Sharfu son of Sher Khan. He was named as accused in case FIR No.41 dated 03.04.1986 registered at Police Station Chhachhrauli under Section 4-B/8 of the Punjab Prohibition of Cow Slaughter Act, 1955 (hereinafter referred to as, ‘the Act’). Present petitioner was tried along with Ramesh Kumar son of Sita Ram and Inderpal Singh son of Tikka Singh, Jat. Ramesh Kumar and Inderpal Singh were declared as proclaimed offenders. The FIR was registered on the basis of ruqa sent by HC Dharampal. HC Dharampal, along with companion police officials, was present in village Mandewala near bank of Yamuna river for investigating the case registered under Section 4-B/8 of the Act. The police party saw two trucks bearing registration No. UHD-250 and URK-1577 coming from the side of village Criminal Revision No.584 of 1998 Mandewala. The trucks were stopped. Both the trucks were carrying cows and calves. In truck No. UHD-250, 40 cows were loaded. The conductor of the truck, Ramesh Kumar was apprehended. Driver of the truck and the present petitioner are said to have fled away from the spot. During interrogation, Ramesh Kumar is said to have disclosed the name and particulars of the present petitioner and Inderpal Singh driver. Ruqa Ex.PW5/A was sent to the Police Station, on the basis of which formal FIR Ex.PW4/A was registered. The Investigating Officer prepared rough site plan Ex.PW5/B of the spot. Cows and calves were taken into custody and a memo Ex.PW1/A was prepared, which was attested by two independent witnesses Ramjatan Singh and Karan Singh. The offending vehicle was also taken into custody vide a separate memo Ex.PW1/B. Ramesh Kumar is said to have suffered disclosure statement Ex.PW5/D to the Investigating Officer. From the disclosure statement, incriminating circumstances were found against the petitioner. Petitioner Sharfu was arrested on 22nd September, 1986. He was sentenced by the Court of Judicial Magistrate (1st Class), Jagadhri on 9th February, 1996. The petitioner was found guilty for offence under Section 8 of the Act. The trial Court sentenced the petitioner to undergo rigorous imprisonment for three years and to pay a fine of Rs.3000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. Aggrieved against the same, petitioner had filed an appeal. The appellate Court upheld the conviction, however, reduced the sentence from three years to one year rigorous imprisonment. In the above said FIR, after investigation, report under Section 173 Cr.P.C. was submitted. The trial Court framed following charge against the petitioner: “Firstly: That you on 3.4.86 in the area of village Mandewala on UP border were transporting 40 calves in truck 2 Criminal Revision No.584 of 1998 No.UHD-250 from Haryana to UP side and you thereby committed an offence punishable under Section 8 of the Cows Slaughter Act and within my cognizance. And I hereby direct that you be tried by me on the said charge. Sd/- JMIC, Jag.17.3.88” Petitioner pleaded not guilty and claimed trial. Prosecution examined Ramjatan Singh as PW-1. He stated that he was present at village Mandewala when two trucks came loaded with cows and calves. The driver of the vehicle ran away. The witness knew the present petitioner Sharfu. He also ran away from the spot. This witness further stated that he was aware, for what purposes cows and calves were transported. Cows and calves were taken into possession by the police vide memo Ex.PW1/A and trucks were taken into possession vide memo Ex.PW2/B. Karan Singh appeared as PW-2. He also supported the prosecution. HC Satpal PW-3 stated that he had arrested the present petitioner on 22nd September, 1986. PW-4 ASI Jai Singh stated that on receipt of ruqa, formal FIR Ex.PW4/A was registered. ASI Dharampal appeared as PW-5 and deposed regarding various facets of investigation. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to him. He denied the same and pleaded false implication. He stated that in Punjab on 1st and 2nd April a cattle fair was organized where cattle are taken for sale and purchase, and people from all over India came there. 3 Criminal Revision No.584 of 1998 He had purchased cattle from about 20 persons. He stated that he had got Export Permit Ex.D1 to transport 46 cattle. On 3rd April, 1986, Senior Veterinary Officer had issued Export Permit Ex.D1. A perusal of the permit Ex.D1 reveals that it was issued by Senior Veterinary Officer, Phillaur (Jalandhar). It reads as under: “Export Permit Shri Sharfu s/o Shri Sher Khan is permitted to export 46 Calves from Phillaur to village Banat, Distt. Muzaffar Nagar, U.P. for agricultural purposes. These animals have been vaccinated against Rinderpest Disease. This permit is valid for Fifteen days from the date of issue of this permit. Sd/- Dated: 2/4/1986 Senior Veterinary Officer Phillaur (Jalandhar)” Regarding veracity of the Export Permit Ex.D1, the trial Court observed as under: “13. Now the next question is as to whether the document Ex.D-1, produced by the accused Sharfu, is a valid permit for exporting of 46 cows or not ? Learned counsel for the accused has drawn my attention towards Form ‘EE’ attached with the Haryana Prohibition of Cow Slaughter Rules, 1972. Such like permit is required to be issued by Sub Divisional Officer, Animal Husbandry Department, under Rule 7-A(i) wherein it is contemplated that a permit for the export of cows under sub Section (2) of the Section 4-B shall be issued in form ‘E’. Under Rule 4-B, such permit can only be issued for such cows, which are suffering from a contagious or an infections disease and which is incurable and only then such permit is to be issued. On perusing the Form ‘EE’ attached with the said rule, document Ex.D-1 does not confirm to it. There is no description about the number of milching cows and dry cows, identification mark tattooing No./tag. No. age, 4 Criminal Revision No.584 of 1998 breed and colour etc. It also does not mention about the said description of cows in document Ex.D-1 and therefore, in my opinion the document Ex.D-1 is not a valid permit nor the person who has allegedly signed it, was competent to issue the same.” The lower appellate Court stated that present petitioner led no evidence to prove document Ex.D-1. Section 4-A of the Act imposes restriction on export of cows. The same 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.” Section 4-B of the Act requires that for export of cows one has to obtain a permit. The same 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. 5 Criminal Revision No.584 of 1998 (3) The fee for issuing permits shall be such as may be prescribed.” In case Export Permit Ex.D1 is ignored, this Court has to ponder as to what evidence is available with the prosecution to hold the petitioner guilty. From the prosecution evidence, following incriminating circumstances emerge against the accused: (a) That Ramesh had made disclosure statement that the cattle belong to Sharfu, who was engaged in the trade of cattle. (b) Ramjatan Singh PW-1 stated that he knew Sharfu, who ran away from the spot. (c) Accused in statement recorded under Section 313 Cr.P.C., stated that cattle belong to him and he was exporting them on the basis of export permit Ex.D1. So far as disclosure statement PW5/D suffered by Ramesh is concerned, the same is inadmissible in evidence. On the basis of the disclosure statement, no recovery was effected. Cows were already in the truck, they were taken into possession and thereafter, disclosure statement was made, therefore, disclosure statement which led to no recovery, cannot be made admissible under Section 27 of the Indian Evidence Act. The petitioner is resident of village Banat, Police Station Shamali, Distt. Muzaffar Nagar. Ramjatan Singh PW-1 is resident of village Bhoor Kalan. In cross examination, he stated “Police apprehended three persons and out of them, two accused persons Sharfu and Ramesh can be recognized by me by face. I am not aware of their name.” He further stated that trucks were apprehended at 4.00 p.m. They remained at the spot for 45 minutes. This witness further stated in cross examination 6 Criminal Revision No.584 of 1998 that it is wrong to suggest that trader of the cattle accused Sharfu and driver of the truck after parking the same near Yamuna river, ran away from the spot. He stated that only driver of the truck ran away from the spot. He was confronted with his statement. This witness further stated that it was wrong that Sharfu was not arrested by the police in his presence or he was arrested later. Statement of Ramjatan Singh PW-1 totally demolished the prosecution case. As per the Investigating Officer, Sharfu had run away from the spot and he was not known to the witnesses earlier. No test identification parade was conducted. Therefore, regarding the arrest and identity of the accused, statement of the witnesses cannot be reconciled. Furthermore, the accused has taken a stand that he was in the business of trading of cattle. It was incumbent upon the prosecution to prove that he was not in possession of valid permit. Statement of the accused recorded under Section 313 Cr.P.C., in the circumstances of the present case, is to be taken as a whole. It cannot be dissected. It is true that any admission made in statement under Section 313 Cr.P.C. can be used to corroborate the prosecution case. When the prosecution case in itself is lacking on material aspect, there is no need to corroborate the same from statement recorded under Section 313 Cr.P.C. Thus, this Court is of the view that benefit of doubt can be extended to the petitioner, as a matter of abundant caution. Hence, present revision petition is accepted, conviction and sentence of the petitioner is set aside and he is acquitted of the charges. [KANWALJIT SINGH AHLUWALIA] JUDGE February 22, 2010 rps 7