M A Aboobaker vs The State Of Karnataka
2022 Latest Caselaw 12720 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF NOVEMBER, 2022

                              BEFORE

 THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY


    CRIMINAL REVISION PETITION No.576 OF 2013

BETWEEN:

M.A. Aboobaker,
S/o. Mahammed,
Aged about 60 years,
R/at Kallukore of
7th Hoskote village,
Suntikoppa Hobli,
Somwarpet Taluk,
Kodagu Dist-571234

                                                      ..Petitioner
(By Sri.D.P. Prasanna, Advocate)

AND:

The State of Karnataka
By Suntikoppa Police.
                                                     .. Respondent

(By Sri. Vinayaka, V.S., High Court Govt. Pleader)

                                    ****
       This Criminal Revision Petition is filed under Section 397 and
401 of the Code of Criminal Procedure, 1973, praying to call for the
                                                       Crl.R.P.No.576/2013
                                   2


records on the file of the Addl.Civil Judge and JMFC, Madikeri,
Kodagu in C.C.No.1744/2004 and in Criminal Appeal No.24/2007 of
the Addl. District and Sessions Judge, Kodagu at Madikeri; to set
aside the judgment of conviction and sentence passed by the
Additional   Civil   Judge   and       JMFC,   Madikeri,     Kodagu   in
C.C.No.1744/2004 dated 23-02-2007 and judgment passed in
Criminal Appeal No.24/2007 of the I Additional District and Sessions
Judge, Kodagu at Madikeri vide its judgment dated 19.06.2013, in
the interest of justice.


      This Criminal Revision Petition having been heard through
physical hearing/video conferencing hearing and reserved on
21-10-2022, coming on for pronouncement of Orders this day, the
Court made the following:


                             ORDER

The present petitioner was accused No.3 in the Criminal

Case No.1744/2004, in the Court of the learned Additional

Civil Judge (Jr.Dn.) and J.M.F.C., Madikeri, (hereinafter for

brevity referred to as "the Trial Court"), who, by the

judgment of conviction dated 23-02-2007 and order on

sentence dated 24-02-2007 of the Trial Court, was convicted

for the offence punishable under Section 379 of the Indian Crl.R.P.No.576/2013

Penal Code, 1860 (hereinafter for brevity referred to as "the

IPC"), and Sections 3, 4, and 5 read with Section 11 of the

Karnataka Prevention of Cow Slaughter and Cattle

Preservation Act, 1964, (hereinafter for brevity referred to as

"the Prevention of Cow Slaughter Act") and was sentenced

accordingly.

Aggrieved by the same, the accused No.3 (petitioner

herein) along with accused No.4 preferred an appeal in

Criminal Appeal No.24/2007, in the Court of the I Additional

District and Sessions Judge, Kodagu at Madikeri, (hereinafter

for brevity referred to as "the Sessions Judge's Court"), which,

after hearing both side, by its judgment and order dated

19-06-2013, partly allowed the appeal, modifying the

sentence of imprisonment for the offences punishable under

Sections 4 and 5 read with Section 11 of the Prevention of

Cow Slaughter Act.

It is challenging the judgments passed by both the Trial

Court as Well the learned Sessions Judge's Court, the accused Crl.R.P.No.576/2013

No.3/petitioner herein has preferred the present revision

petition.

2. The summary of the case of the prosecution in the

Trial Court was that, the present petitioner (accused No.3)

joined by three more accused had stolen one cow and one ox

belonging to CW-1 (PW-1) - Natesh Kumar, who had tied both

the cattle for grazing in his land situated at Kallur village,

within the limits of the complainant Police Station and taking

the said cattle to the land of CW-14 (PW-8) -

Sri. K.C. Mohammed, on the date 03-08-2004, near an unused

Well in the said land, slaughtered both the cattle and

distributed the amount of the sale proceeds of beef and thus

have committed the offences punishable under Section 379 of

the IPC and Sections 3, 4 and 5 read with Section 11 of the

Prevention of Cow Slaughter Act.

3. In view of the accused No.2 being absconding, the

case was split up against him, as such, trial was confined only Crl.R.P.No.576/2013

as against accused No.1, accused No.3 and accused No.4 in

the Trial Court. The accused Nos.1, 3 and 4 appeared in the

Trial Court and contested the matter through their counsel.

They pleaded not guilty, as such, in order to prove the alleged

guilt against the accused persons, the prosecution got

examined in all thirteen (13) witnesses from PW-1 to PW-13,

got marked documents from Exs.P-1 to P-14(a) and got

produced Material Objects from MO-1 to MO-5. However,

neither any witness was examined nor any documents were

got marked on behalf of the accused.

The Trial Court, by its impugned judgment held the

accused No.3 (present petitioner) - Sri. M.A. Aboobaker and

accused No.4 - Tamilara Karpaiah @ Karpaswamy as guilty

for the alleged offences, however, it acquitted the accused

No.1 - M. Yusuf, for the alleged offences.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

Crl.R.P.No.576/2013

5. The Trial Court and the learned Sessions Judge's

Court's records were called for and the same are placed before

this Court.

6. Learned counsel for the revision petitioner/ accused

No.3 and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

7. Heard the learned counsels from both side. Perused

the materials placed before this Court including the impugned

judgments passed by both the Courts and also the Trial Court

and learned Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision

petition is:

Crl.R.P.No.576/2013

Whether the impugned judgments of conviction and order on sentence passed by the Trial Court as Well the Sessions Judge's Court holding the accused No.3 (petitioner herein) as guilty for the alleged offence punishable under Section 379 of the Indian Penal Code, 1860 and the offences under Sections 4 and 5 read with Section 11 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964,, warrants any interference at the hands of this Court?

10. Learned counsel for the revision petitioner (accused

No.3) in his argument submitted that, according to the

information given to him, accused No.4 has not preferred any

revision petition against the impugned judgment passed in

Criminal Appeal No.24/2007 by the Sessions Judge's Court.

Regarding the present petitioner (accused No.3), he

submitted that there is delay in lodging the complaint by four

days. Since the consent of the owner of the land where the

slaughter of the cattle is said to have taken place had not Crl.R.P.No.576/2013

been obtained, the mahazar drawn in the said land is not

acceptable.

He further submitted that the evidence of PW-1 to PW-5

is not trustworthy, since they are the residents of the same

village, as such, interested witnesses.

He also submitted that the recovery of the articles at

MO-2 to MO-5 has not been proved. The absence of blood

stains on MO-4 and MO-5 and broken handle of the chopper at

MO-2 also creates a doubt in the case of the prosecution.

With this, he submitted that the Trial Court and the

Sessions Judges Court have not considered these aspects in

their proper perspective, which has led them in passing the

impugned erroneous judgments.

11. Per contra, learned High Court Government Pleader

for the respondent - State, in his argument submitted that,

the accused No.3 has not denied the alleged fact of theft of

cattle belonging to the complainant (PW-1) and their Crl.R.P.No.576/2013

slaughtering. Though the accused No.3 denied his role in the

alleged commission of the offence, however, the evidence of

the prosecution witnesses have clearly established beyond

doubt, the alleged guilt against the accused. The recovery

made at the instance of the accused No.4 has strengthened

the case of the prosecution in proving the guilt against the

accused No.3, as such, the impugned judgments do not

warrant any interference at the hands of this Court.

12. Among the 13 witnesses examined by the

prosecution, PW-1 (CW-1) - Sri. Natesh Kumar, who is the

complainant in the case has stated about he owning three

cattle including a cow and two oxen and theft of a cow and an

ox on the date of the theft, which was 03-08-2004 and

subsequently, he coming to know about the slaughtering of

the said cattle stolen from his land.

13. PW2 (CW-2)- Sri. K.C. Dayananda, PW-3 (CW-3) -

Sri. D.B. Ramesh Chengappa, PW-4 (CW-5) - Sri. K.R. Ravi Crl.R.P.No.576/2013

Kumar and PW-5 (CW-7) - Sri. K.D. Gopalaswamy have

spoken about the panchanama/mahazar drawn in their

presence including the recovery panchanama which was said

to have been drawn upon the recoveries said to have been

made at the instance of the accused No.3 and accused No.4.

14. PW-6 (CW-15) - Dr.K.B. Chidananda, a Veterinary

Doctor has spoken about he examining the residues of the

slaughtered animals and arriving at the opinion of the type of

the animals said to have been slaughtered, their age, and

estimated the approximate cost price of those cattle.

15. PW-7 (CW-16) - Smt. A. Kaveramma, as a Village

Accountant, has stated that, she has issued a Certificate

certifying that the land where the alleged incident of slaughter

had taken place was belonging to PW-8 (CW-14) - Sri. K.C.

Mohammed. The said Sri. K.C. Mohammed who was examined

as PW-8, though was expected to say that, as owner of the

land where the alleged act of slaughter had taken place, he Crl.R.P.No.576/2013

came to know about the accused throwing the residues of the

body of the cattle slaughtered into a Well located in his land,

however, except stating that he owns 28 acres of land, he has

not supported the case of the prosecution, by expressing his

ignorance about the alleged incident.

16. PW-9 (CW-17) - Sri. B.M. Poonacha, the Police

Constable has spoken about he apprehending the accused

No.2 at the instruction of his superior and producing the said

accused before his superior.

17. PW-10 (CW-18) - Sri. M.B. Suresh, another Police

Constable also has stated about he apprehending the accused

No.3 and accused No. 4 and producing them before his

superior and also further assisting the Investigating Officer in

the investigation including he being present at the time of the

alleged recovery said to have been made as per the mahazar

of Exhibits P-4 and P-5 and getting the recovered articles Crl.R.P.No.576/2013

examined by a Veterinary Doctor and burial of those articles in

a place.

18. PW-11 (CW-20) - Sri. S.B. Ganapathi, as an

Assistant Sub-Inspector of Police, has stated about he

arresting accused No.3 and accused No.4 upon the instruction

of his superior and also he being a witness present while

accused No.3 and accused No.4 were giving their voluntary

statements before the Investigating Officer and leading them

to recover the articles from MO-2 to MO-5. He also stated

about his presence while drawing the two panchanamas at

Ex.P-4 and Ex.P-5.

19. PW-13 (CW-21) - Sri. Jayalakshmana C.B., the

Assistant Sub-Inspector of Police has spoken about he

deputing a Police Constable to arrest the accused persons and

recording the voluntary statement of accused No.2 as per

Ex.P-13 and recovering a rope at the instance of accused No.2

by drawing the recovery panchanama as per Ex.P-14.

                                                           Crl.R.P.No.576/2013



       20.     PW-12      (CW-22)        -   Sri.V.C.   Ganesh      is   the

Investigating Officer in this case, who has stated that, being

the Police Sub-Inspector of the complainant Police Station, at

the relevant point of time, he received the complaint from

CW-1 (PW-1) and submitted the FIR to the Court. He has also

stated that, based on suspicion, he got arrested the accused

No.3 and accused No.4 and recorded their voluntary

statements given before him which led him to recover MO-1 to

MO-5, at the instance of those two accused persons. He has

also stated that he requested the Veterinary Doctor to

examine those seized articles and obtained his opinion as per

Ex.P-6 and Ex.P-7. He further stated that, at the instance of

accused No.4 and keeping him present, he drew the

panchanamas as per Ex.P-4 and Ex.P-5, recorded statements

of several of the charge sheet witnesses and completing his

investigation, filed charge sheet against the accused persons.

Crl.R.P.No.576/2013

21. The ownership and possession of the alleged one

cow and two oxen, the alleged theft of a cow and an ox,

suspicion against the accused persons and also seeing the

residues of the slaughtered cattle after its recovery by the

Police at the instance of the accused have all been stated in

detail by the complainant (PW-1) - Sri. Natesh Kumar. The

said witness in his evidence has stated that, at the time of the

incident, he was rearing three cattle including two oxen and a

cow. He knows the accused persons. On the date of the

incident, which was on the date 03-08-2004, he had tied those

cattle in his agricultural land for grazing. In the evening at

about 5 O' clock, when he returned, he found missing of two

cattle among the cattle tied, i.e. a cow and an ox. He

searched for them for about three days in the nearby places,

but he could not find them, as such, on the date 07-08-2004,

in the afternoon, he went to the Police Station to lodge the

complaint. The Police also asked him to continue his search

for the missing cattle. Stating so, he has identified his Crl.R.P.No.576/2013

complaint at Ex.P-1. He also stated that since he had

suspicion against accused Nos. 1 to 4, he had suspected them

in his complaint. On the same day, in the evening, the Police

brought the accused No.3 to his village. The said accused

took him, Police and others to the land of CW-14 - Sri.K.C.

Mohammad, stating that he had cut both the cattle and sold

their beef and thrown the remains of the slaughtered cattle in

a Well in the field of CW-14. As shown by the said accused,

the Police brought out a plastic bag from a dilapidated Well in

the land of CW-14. He also stated that the contents of the

bag included the head portion of the cow, tail, few bones, skin

etc. and they were found rotten and smelling fowl. After

drawing a panchanama, they were buried in a place. The

witness has identified the plastic bag at MO-1 and the

panchanama of the spot of the incident at Ex.P-3.

In his cross-examination, the complainant, as PW-1 has

given more details as to the distance between where he was Crl.R.P.No.576/2013

working when he had tied the cattle for grazing on the date of

the incident and the location of the land where the dilapidated

Well was situated and other details about the accused No.3

(petitioner herein) leading them to the said Well and recovery

of the plastic bag with contents therein. However, the

evidence given by him could not be shaken much in his cross-

examination.

22. The learned counsel for the revision petitioner

(accused No.3), as the first point of his argument, though

contended that there is delay of nearly four days in lodging

the complaint, however, the answer to the said doubt has

been given by the complainant (PW-1) himself in his evidence

stating that, since the chattels that were found missing were

the cattle, he searched for them in the nearby places and

lands for about three days. He has further stated that even

after he going to the Police Station to lodge the complaint, the

Police also advised him to continue his search for some more Crl.R.P.No.576/2013

time. Thus, he has made it clear that there was no urgency in

lodging the complaint unless he makes a primary effort in

searching for the missing cattle.

The said reasons given by the complainant for the

alleged delay in lodging the complaint having remained un-

denied and undisputed appears to be a natural act of any

looser of a cattle in the normal course. The three days'

delay in lodging the complaint cannot be called as a delay

which is fatal to the case of the prosecution or that the same

has caused prejudice to the interest of the accused, as such,

the argument of the learned counsel for the petitioner

(accused No.3) on the said point, is not acceptable.

23. The main point of argument of the learned counsel

for the revision petitioner/accused No.3 was that, the alleged

recovery of MO-1 which was said to be at the instance of the

present petitioner, was not convincing.

Crl.R.P.No.576/2013

In that regard, as already observed above, the evidence

of PW-1 is clear that the present petitioner (accused No.3) was

apprehended within few hours after the registration of his

complaint by the Police and that it was the said accused who

led him, Police and others to the abandoned Well in the land of

CW-14, from where a plastic bag at MO-1 containing the

remains of the slaughtered cattle was recovered. The said

evidence of PW-1 that, accused No.3 was brought before him

on the same day, is further corroborated by the evidence of

PW-11 - the Assistant Sub-Inspector of Police, who has also

stated that on the very same day of the complaint, based on

suspicion, they apprehended accused No.3 and accused No.4.

Further, the evidence of PW-10 also corroborates the

evidence of PW-3 and PW-11 that it was at the instruction of

his superior, as a Police Constable, he has apprehended

accused No.3 and accused No.4 on that day.

24. In addition to the above, PW-2, PW-3 and PW-4

have also supported the case of the prosecution with respect Crl.R.P.No.576/2013

to the alleged recovery made at the instance of the accused

No.3 (present petitioner).

PW-3 (CW-3) - Sri.D.B. Ramesh Changappa, in his

evidence has stated that, he knows the accused, so also PW-1

and CW-4 to CW-7. On the date 07-08-2004, the Police had

requested him to be a pancha to a panchanama. They took

him to the garden land of CW-14, where from out of a Well,

they got taken out a bag, in which, there were pieces of bone,

horns and other articles. The Police has drawn the mahazar in

his presence and took those articles to their possession.

In his cross-examination, the witness stated that the bag

at MO-1 is of yellow colour. However, PW-1 (CW-1), in his

cross-examination stated that in the Well, they noticed a

white plastic bag. It is highlighting this alleged difference in

the colour of the bag mentioned by PW-3 and PW-1, the

learned counsel for the revision petitioner (accused No.3) Crl.R.P.No.576/2013

vehemently submitted that, the same creates a doubt in the

alleged recovery of MO-1.

No doubt PW-1 (CW-1) has stated that, when the said

bag was found in the Well, it appeared to be white in colour,

but PW-3 (CW-3) has seen the bag few years later in the

Court when it was confronted to him in the cross-examination

and therefore stated that it was yellow colour. Admittedly, it

was a plastic bag and was shown to PW-3 after lapse of few

years from the date of its recovery. Further, when both PW-1

and PW-3 have clearly stated that the said bag had contained

in it skin of the cattle, its horn, bones, and other articles, the

mere alleged difference in describing the colour of the said bag

which is very minor, would not take away the case of the

prosecution regarding recovery. As such, the argument of

the learned counsel for the revision petitioner/accused No.3 on

the point of the alleged difference in the colour of the bag as

making the prosecution case doubtful, is not acceptable.

Crl.R.P.No.576/2013

25. Learned counsel for the revision petitioner/accused

No.3 also submitted that, with respect to the recovery of the

bag at MO-1, PW-1 has stated that the same was taken out

from the Well with the help of a hook, whereas, PW-3 has

stated that somebody got down in the Well and took it out, as

such also, the said discrepancy in the evidence of these two

witnesses creates a doubt in the case of the prosecution.

No doubt, PW-1 (CW-1), in his evidence has stated that,

with the help of a hook, the said bag was lifted from the Well,

however, the very same witness in the very next sentence

has also stated that, it was through one Sri. Dasanna and

Sri. Thimmaiah and others, who got into the Well, the said bag

was taken out. Thus, a reading of his (PW-1) evidence on the

said point in its entirety would go to show that, it was the said

Dasanna and Thimmaiah who went into the Well and with the

help of a hook, the said bag which was containing the remains

of the slaughtered cattle in it, was lifted from out of the Well.

Crl.R.P.No.576/2013

Thus, the argument of the learned counsel for the

revision petitioner/accused No.3 that, there is discrepancy in

the evidence of the prosecution witness regarding recovery of

MO-1, is again not acceptable.

26. PW-2 - Sri.K.C. Dayananda, PW-4 - Sri. K.R. Ravi

Kumar, apart from stating that, all the accused are residents

of their village, have identified the accused persons in the

Court. They further stated that, on the date 08-08-2004, the

Police had brought the accused No.4 along with them to their

village and stated that the accused would show the place of

slaughtering of the cattle. Both these witnesses, joined by

accused No.4 and the Police went to the place as led by

accused No.4, who took them to the garden land of CW-14 -

Sri. K.C. Mohammad. The accused No.4 took them near to a

dilapidated Well therein and stating that, he had kept a

chopper and knife used for slaughtering the cattle in his house

has taken out from beneath a cot from inside his house in the Crl.R.P.No.576/2013

said garden land, a chopper and a knife and produced the

same before them, which articles/instruments the Police

recovered by drawing a seizure panchanama as per Ex.P-5.

Both these witnesses further stated that the said accused

No.4 also led them to a nearby place covered with bushes,

looking like forest and from the said place, produced two

wooden logs stating that it is upon the said wooden logs, the

cattle were slaughtered. The Police drew a seizure

panchanama as per Ex.P-4 in their presence and seized them.

The witnesses have identified those articles from MO-2 to

MO-5 and also identified the panchanamas at Ex.P-4 and

Ex.P-5 and their signatures therein.

Even in their cross-examination, they adhered to their

original versions and given more details as to the place where

MO-2 and MO-3 were kept and how the accused took it out

and as to how he produced MO-4 and MO-5 from amongst the

bushes in a forest like area.

Crl.R.P.No.576/2013

27. Learned counsel for the petitioner/accused No.3,

stating that, when accused No.3 is said to have shown the

Well and the plastic bag at MO-1 inside the Well, he could

have as well shown the two wooden logs also and produced

the chopper and knife at MO-2 to MO-5, as such, the recovery

is not believable.

The said argument of the learned counsel for the

petitioner/accused No.3 is not acceptable for the reason that,

it is nobody's case that, accused No.3 had the knowledge of

the place where the wooden logs were thrown by the accused

No.4 and chopper and knife were hidden by accused No.4.

Even according to the panchas and the Investigating Officer

i.e. PW-2, PW-4 and PW-12 and also the evidence of PW-11, it

is accused No.4 who gave his voluntary statement about those

articles, as such, the accused No.3 having the knowledge of

the places where MO-2 to MO-5 were thrown or hidden, does Crl.R.P.No.576/2013

not arise. Hence, it cannot be expected that accused No.3

should have shown those places and produced those articles.

28. PW-8 (CW-14) - Sri.K.C. Mohammad, though has

stated that, he is the owner of the land, however, he has not

supported the case of the prosecution that, the Police and

panchas had visited his land along with accused No.3 and

have taken out a plastic bag at MO-1 from the Well located in

his land, however, he has pleaded his ignorance about the

same. But merely because PW-8 has pleaded his ignorance,

the same would not take away the trustworthy evidence of

PW-1, PW-10 and PW-11.

The evidence of these witnesses further corroborates the

evidence of PW-12 - the Investigating Officer that, after the

production of accused No.3 and accused No.4 before him, he

arrested them and recorded the voluntary statement given by

both the accused and that MO-1 to MO-5 were recovered at

the instance of those accused.

Crl.R.P.No.576/2013

29. The learned counsel for the petitioner/accused No.3

also submitted that, the alleged recovery at the instance of

accused No.3 and accused No.4 is also not believable for the

reason that, the written permission of the owner of the land,

i.e. PW-8 (CW-14), where the Well was situated and from

which MO-1 and from whose land MO-2 to MO-5 were

recovered, was not obtained by the Police prior to conducting

the mahazar in his land.

The learned counsel for the petitioner/accused No.3,

except making the said submission could not able to convince

the Court as to why any such specific permission in writing

was required to be obtained by the Police from PW-8 (CW-14),

the owner of the said land, when in fact it is nobody's case

that PW-8 (CW-14) had opposed the entry of the Police and

panchas with the accused to his land for the purpose of

investigation. Even PW-8 (CW-14), in his evidence, as

analysed above, has not stated that the Police, accused and Crl.R.P.No.576/2013

the panchas had not visited his land, but he has only pleaded

his ignorance about the Police, accused and the panchas

visiting his land and drawing a recovery mahazar in his land.

Thus, the alleged recovery of MO-1 to MO-5, at the instance of

accused No.3 and accused No.4 also stands proved beyond

reasonable doubt.

30. Learned counsel for the petitioner/accused No.3

further raised a suspicion regarding the alleged recovery and

use of MO-2, MO-4 and MO-5 in the alleged commission of

crime, stating that PW-1 to PW-5 are all neighbours and

villagers, as such, they are interested witnesses. Further,

the Material Objects at MO-4 and MO-5 did not bear the blood

stains upon them and that the handle of the Material Object at

MO-2 was found to be broken.

PW-1 to PW-5 have stated that they are the residents of

the same village. However, PW-2, PW-4 and PW-8 have

further stated that, the accused are also of their village and all Crl.R.P.No.576/2013

of them know the accused pretty Well. Among them, PW-4

has identified accused No.1, accused No.3 and accused No.4

by disclosing their names in the Court. As such, if the

complainant and other material witnesses are of the same

village, equally well the accused are also of the same village

and known to those witnesses. Therefore, the question of

PW-1 to PW-5 having any interest in ensuring the conviction of

the accused cannot be imagined.

Thus, the argument of the learned counsel for the

petitioner/accused No.3 that PW-1 to PW-5 are interested

witnesses, is not acceptable.

31. The Material Objects at MO-4 and MO-5 were not

stained with blood, which has been elicited in the cross-

examination of PW-4 and PW-10. Though it is generally

inferred that, when a cattle is slaughtered on a wooden log or

a wooden piece, the said wooden piece may have some blood

stains on it, however, in the present case, when the wooden Crl.R.P.No.576/2013

logs at MO-4 and MO-5 were recovered at the instance of none

else than the accused No.4, after he stating in his voluntary

statement that he would produce them if he is taken to the

land of PW-8 (CW-14), the recovery of MO-4 and MO-5 cannot

be disbelieved and the mere absence of blood stains upon

them would not take away the case of the prosecution.

Similarly, the wooden handle at MO-2 was found to be

broken when it was identified by PW-2 in the Court. However,

the other witness for the same recovery i.e. PW-4, in his

cross-examination has specifically stated that, when the said

article was seized in his presence, the said handle of the

chopper was not broken and it was in tact.

Admittedly, it is few years after the said recovery of

MO-2, it was shown to PW-2 and PW-4 and at that time, the

handle of the said chopper was found to be broken. However,

both the witnesses have identified that it was the very same

chopper that was recovered in their presence at the instance Crl.R.P.No.576/2013

of the accused No.4. As such, the case of the prosecution with

respect to the recovery of MO-1 to MO-5, at the instance of

accused No.3 and accused No.4 cannot be disbelieved, rather

the said recovery stands proved beyond doubt.

32. Thus, when the complainant, at the first instance,

has suspected the role of the accused persons, including the

present petitioner (accused No.3) in the missing of his cattle

and the slaughtering of those cattle, further when the

investigation has led in the recovery of the remains of the

slaughtered cattle in a bag, thrown in an abandoned Well and

the articles used in the slaughtering of the cattle were also

recovered at the instance of the accused, in the presence of

the panchas by drawing the seizure panchanama as per Ex.P-4

and Ex.P-5, the involvement of the accused, more particularly,

present petitioner/accused No.3, in the theft of two cattle

belonging to the complainant and slaughtering them, without

obtaining any permission letter/Certificate in writing from the Crl.R.P.No.576/2013

competent authority appointed for the area that the animal is

fit for slaughtering and the fact that the slaughtered animal

was a cow and an ox, has proved beyond reasonable doubt

that, the alleged guilt against the accused No.3 is under

Section 379 of IPC and under Sections 4 and 5 of the

Prevention of Cow slaughter Act which is punishable under

Section 11 of the same Act.

33. Since the Trial Court and the Sessions Judge's

Court, have, after analysing the evidence placed before them,

rightly held and confirmed the conviction of the present

petitioner/accused No.3, respectively for the alleged offences,

I do not find any reason to interfere in the impugned

judgment of conviction passed by both the Courts.

34. However, the Sessions Judge's Court, in Criminal

Appeal No.24/2007, while maintaining the sentence imposed

for the offence under Section 379 of the IPC, has modified the

sentence imposed for the offence under Sections 4 and 5 read

with Section 11 of the Prevention of Cow Slaughter Act and Crl.R.P.No.576/2013

the petitioner/accused No.3 was ordered to under go simple

imprisonment for a period of three months and to pay a fine of

a sum of `500/-, in default of payment of fine, to undergo

simple imprisonment for a period of one month for the

offences under Sections 4 and 5 punishable under Section 11

of the Prevention of Cow Slaughter Act. Further, the

substantive sentences of imprisonment was also ordered to

run concurrently and the default sentence was ordered to run

separately.

35. It is the sentencing policy that the sentence ordered

must be proportionate to the gravity of the proven guilt. It

shall be neither exorbitant nor for the name-sake. Since the

modified sentence of imprisonment ordered by the learned

Sessions Judge's Court against the present petitioner in

Criminal Appeal No.24/2007 is proportionate to the gravity of

the proven guilt against the present petitioner/accused No.3, I

do not find any reason even to interfere in the order of Crl.R.P.No.576/2013

sentence in the impugned judgment of the Sessions Judge's

Court.

Accordingly, I proceed to pass the following:

ORDER

[i] The present Criminal Revision Petition

stands dismissed.

[ii] The revision petitioner/accused No.3 -

Sri.M.A. Aboobaker, S/o. Mohammed, to surrender

before the Additional Civil Judge (Jr.Dn.) and

J.M.F.C., Madikeri, within forty-five (45) days from

today and to serve the sentence ordered against

him by the learned Sessions Judge's Court.

[iii] The revision petitioner/accused No.3 be

furnished with a free copy of this entire judgment,

immediately.

Crl.R.P.No.576/2013

Registry to transmit a copy of this order to both the Trial

Court and also the learned Sessions Judge's Court along with

their respective records immediately for doing needful in the

matter.

Sd/-

JUDGE

BMV*