Gujarat High Court
State Of Gujarat vs Ismile @ Bhikho Ibrahim Shiva on 7 September, 2021
Bench: Umesh A. Trivedi
R/CR.MA/15789/2021 ORDER DATED: 07/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15789 of 2021
In
R/CRIMINAL APPEAL NO. 1245 of 2021
With
R/CRIMINAL APPEAL NO. 1245 of 2021
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STATE OF GUJARAT
Versus
ISMILE @ BHIKHO IBRAHIM SHIVA
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Appearance:
MS. JIRGA JHAVERI, APP (2) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 07/09/2021
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION NO.15789 OF 2021.
1. This application is filed by the State of Gujarat, under
Section 378 (3) of the Code of Criminal Procedure, 1973, praying for
leave to appeal challenging the judgment and order passed by the learned
8th Additional Sessions Judge, Panchmahals at Godhra, dated 15.7.2020,
in Sessions Case Nos.43 of 2018 and 44 of 2018, whereby the
respondents - accused came to be acquitted of the charges levelled
against them.
R/CR.MA/15789/2021 ORDER DATED: 07/09/2021
2. As per the case of the prosecution, on 07.04.2018 at about
6:45 p.m., all the accused collectively slaughtered cow progeny in the
house of accused No.1 -Ismail @ Bhikho Ibrahim Shiva, at Village -
Natapur behind the mosque, for the purpose and with an intention to gain
financial benefits, of about 150 k.g. valued at Rs.6000/-. On seeing the
Police raiding the premises, all the accused fled away. In short, there is an
allegation that all the accused, in connivance with each other, slaughtered
big animals kept or stored for sell and thereby committed an offence
under Sections 5(1A), 6(B) and 8 of the Gujarat Animal Preservation Act,
1954 (hereinafter referred to as the "the Act") as also under Sections 429
and 114 of the Indian Penal Code.
3. Pursuant to the registration of the offence, the Investigating
Officer recorded the statement of the witnesses, collected the material
evidence, arrested the accused and submitted charge sheet in the Court of
learned Judicial Magistrate First Class, Morva(H). Since respondent No.7
herein came to be arrested subsequently to the charge sheet submitted
against respondent Nos.1 to 6, a separate case was registered against him
being Sessions Case No.44 of 2018, but it also arises from the very same
offence registered against rest of the accused. The learned APP before
the Trial Court requested the Court to amalgamate the case arising out
from the very same offence and record the evidence in common in both,
R/CR.MA/15789/2021 ORDER DATED: 07/09/2021
which was allowed by the Court, and therefore, evidence was recorded
before the Court of learned Additional Sessions Judge and common
judgment is delivered. On hearing the parties and considering the
evidence let before it, the learned Additional Sessions Judge acquitted all
the accused of the charges levelled against them.
4. The present application as also the appeal came to be filed
challenging the order of acquittal recorded by the learned Additional
Sessions Judge. Before the Court, in all, 14 witnesses came to be
examined and nearly about 17 documents were produced and proved by
the prosecution. The present application as also the appeal came to be
filed on 31.08.2021. While filing the appeal, Office of the Government
Pleader and Public Prosecutor addressed a letter to the Registrar, High
Court of Gujarat, stating that all the copies of depositions and the
panchnamas as also all relevant documents pertaining to the case are
received by it on 31.07.2021. Therefore, the present application along
with appeal may be listed before the Court for hearing.
5. Ms. Jirga Jhaveri, learned Additional Public Prosecutor for
the applicant / appellant - State of Gujarat, vehemently submitted that
though witnesses may have turned hostile, the deposition of PW-12,
exhibit - 34, Jigneshkumar Vishnubhai Patel, Veterinary Doctor of the
Veterinary Hospital, who joined the raid with the Police at the place of
R/CR.MA/15789/2021 ORDER DATED: 07/09/2021
the offence on a Yadi received by him and there he found pieces of horn,
ribs, bones, muscles and blood etc. of big animals. The said witness has
also deposed that four samples were drawn from there of ribs, bones, skin
and the pieces of muscles. He has also deposed before the Court that the
muddamal found there appears to be of more than one animals.
Therefore, she has submitted that the deposition of the Veterinary Doctor,
who had accompanied the raiding officer at the place of offence, is
supported by the deposition of the Investigating Officer Mr. Rajubhai
Tersingbhai Parmar, PW-13, Exhibit-37. She has further submitted that
on 07.04.2018, while witness was serving as 2 nd Police Sub-Inspector, he
received an information that all the accused together slaughtering the cow
progeny in the house of accused No.1 - Ismail @ Bhikho Ibrahim Shiva,
situated behind mosque at Village - Natapur and the same is carried to
Godhra. It was further revealed in the information that the accused No.1
- Ismail @ Bhikho Ibrahim Shiva is in habit of doing such activity
frequently and therefore, he went along with Veterinary Doctor,
Jigneshkumar Vishnubhai Patel, PW-12, at the place of information i.e. at
the house of Ismail @ Bhikho Ibrahim Shiva. He has further deposed that
on seeing raid of Police, all the accused leaving house open ran away. It
is asserted in his deposition that out of the accused, who ran away, the
police personnel accompanying the raid identified one of the accused
namely Ismail @ Bhikho Ibrahim Shiva, who was earlier arrested in
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another offence of very same nature at the very same police station.
6. On conducting search of the said house, they found head of
cow, ribs, skin of the animal along with two yellow colored plastic tags
from the ear. Over and above that, cow horns, tails along with muscles
were found there. The said articles were seized and samples were drawn
and sent to the Forensic Science Laboratory (F.S.L.). Ms. Jirga Jhaveri,
learned APP, has submitted that the deposition of Veterinary Doctor
along with deposition of Investigating Officer is corroborated by the
Report of F.S.L. and therefore, learned Judge has committed grave error
in acquitting the accused. Therefore, she has submitted that leave be
granted and appeal be admitted against the impugned judgment and order.
7. As such, scope in entertaining an acquittal appeal is very
limited before the High Court even if two views are possible, the view,
which favours the accused, has to be adopted by the Court and therefore,
in that case also the acquittal appeal cannot be entertained. Keeping in
mind the aforesaid principle, if the evidence led before the Court is
examined, it is clear that out of 14 witnesses almost 11 witnesses have
turned hostile and not supported the case of the prosecution. The learned
Judge has dealt with the deposition of witnesses on and from para-14 of
the impugned judgment and order. PW-1 to PW-4 are the panch
witnesses, who have not supported the case of the prosecution and have
R/CR.MA/15789/2021 ORDER DATED: 07/09/2021
submitted that except the signature in the panchnama they know nothing.
The aforesaid two witnesses claimed to have accompanied the raiding
party at the place of incident. Gopalsinh Prabhatsinh Baria (PW-3) and
Shaileshkumar Veersinh Baria (PW-4), panch witnesses, who have also
not supported the case of the prosecution, are the witnesses to the
panchnama regarding recovery of muddamal articles i.e. big knife as also
the clothes of certain accused. Though those articles claimed to have been
discovered at the instance of accused, neither of the panch witnesses have
so stated about the disclosure of the information by the accused and
consequent discovery and / or recovery of such articles at the instance of
the accused. Even the raiding officer, Rajubhai Tersinh Parmar (PW-13),
deposed that Police Sub Inspector, Mr. Rakeshkumar Dahyabhai
Bharwad, had arrested the accused, drawn panchnama of the physical
condition of them and drawn the panchnama of recovery of muddamal
weapons.
8. Vipualbhai Mahendrabhai Trivedi (PW-5), Manojbhai
Pratapbhai Raval (PW-6), Rajubhai Ramsingbhai Patel (PW-7),
Gulambhai Isabhai (PW-8), Kalubhai Yusufbhai Umar (PW-9),
Amitkumar Dhanrajbhai Gidhwani (PW-10), as also Rajeshkumar
Ambalal Gandhi (PW-11) witnesses to the incident have not supported
the case of the prosecution, in toto, and they were declared hostile during
R/CR.MA/15789/2021 ORDER DATED: 07/09/2021
the trial. Thus, out of 14 witnesses, panch witnesses as also other
independent witnesses have not supported the case of the prosecution.
However, prosecution has attempted to prove the guilt of the accused on
the basis of deposition of Veterinary Doctor, who had accompanied
raiding party at the scene of offence wherefrom raiding party recovered
the horns, ribs, muscles and tails etc. of slaughtered big animals. As
observed by the learned Judge, Jigneshkumar Vishnubhai Patel (PW-12),
Veterinary Doctor, has admitted in his cross-examination that from the
place of incident whatever material is seized, no separate panchnama was
drawn. There is no evidence on record to show that any of the accused
were seen by any of the witnesses at the time of raid at the place of
offence. Since accused belong to same village they were known to the
witnesses. Therefore, case rests on the information received, source from
which is not disclosed to the Court and rightly so, deposition of
Veterinary Doctor, raiding Officer as also the Investigating Officer of the
case. The F.S.L. may support that the material found from the place of
offence is articles of the slaughtered animals which is prohibited under
Section 5 of "the Act" without certificate from the competent authority.
9. In absence of any evidence that any of the accused has
slaughtered any animal apart from slaughtering of big animals, they
cannot be convicted for an offence under Section 5 of "the Act". Though
R/CR.MA/15789/2021 ORDER DATED: 07/09/2021
prosecution asserts that the house wherefrom remnants of cow progeny
found belongs to accused No.1, the prosecution has miserably failed to
produce any material to show that it belongs to him. Not only that,
accused No.1 was not arrested from the premises where the muddamal
articles were kept. No witness has ever deposed that any of the accused
were even seen at the place of incident. Not only that, the Investigating
Officer, Mr. Rajubhai Tersingbhai Parmar (PW-13), in his cross-
examination admitted that it is not inquired from the Panchayat Office
about the ownership of a house wherefrom muddamal is seized. It is
further admitted in his cross-examination that during the raid not a single
accused was even identified to have committed offence. It is further the
admission on behalf of the said witness that based on sticker / tag found
from the ear of the slaughtered cow, no attempts were made to ascertain
the identity of the owner of the animal. Since no accused were found
from the house, wherefrom muddamal articles were seized, nor any of the
accused were seen running away even from the house at the time of raid,
they cannot be punished for the offence alleged against him and rightly
not punished by the learned Judge.
10. Though prosecution has claimed that out of the persons
running away from the house when raid was carried out one was
identified as Ismail @ Bhikho Ibrahim Shiva by a member of raiding
R/CR.MA/15789/2021 ORDER DATED: 07/09/2021
party, he is not examined before the Court. Even raiding officer as also
the investigating officer examined before the Court have also not deposed
to that they had seen accused No.1 - Ismail @ Bhikho Ibrahim Shiva,
running away from the house when raid was carried out. Thus, the
prosecution has miserably failed to prove the case against the respondents
- accused. Considering the reasons assigned by the learned Judge as also
the certified copies of all the documents made available by the learned
APP at the time of hearing of this appeal, I see no reason to interfere with
the well reasoned order of acquittal recorded by the learned Judge.
Hence, this leave to appeal application stands rejected.
ORDER IN CRIMINAL APPEAL NO. 1245 of 2021.
Since leave to appeal is rejected, this appeal stands disposed
of as dismissed.
(UMESH A. TRIVEDI, J)
Lalji Desai
