Abdul Khader vs The State Of Karnataka
2023 Latest Caselaw 6196 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 31st DAY OF AUGUST, 2023
                        BEFORE
    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
   CRIMINAL REVISION PETITION NO.793 OF 2016

BETWEEN:
ABDUL KHADER,
S/O LATE HASANABBA,
AGED ABOUT 48 YEARS,
R/A ANGADI HOUSE,
KANTHARABETTU, ULLAIBETTU VILLAGE,
MANGALORE TALUK,
D.K. DISTRICT-574 214.
                                          ....PETITIONER
(BY SRI. LETHIF .B, ADVOCATE)

AND:
THE STATE OF KARNATAKA
BY R.F.O, BELTHANGADY,
REP. BY S.P.P, HIGH COURT BUILDING,
BENGALURU-560 001.
                                        ...RESPONDENT
(BY SRI.K. NAGESHWARAPPA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT/ORDER IN CRL.A.NO.233/2014 DATED
18.05.2016 PASSED BY THE IV ADDL. DIST. AND S.J., D.K.,
MANGALORE     AND   JUDGMENT    AND   ORDER     DATED
10.09.2014 IN C.C.NO.1720/2013 PASSED BY THE JMFC-III
COURT, MANGALORE BY ALLOWING THE ABOVE R.P. AND
ACQUIT THE PETITIONER.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 14.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:
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                             ORDER

This revision petition is filed under Sections 397 and

401 of Cr.P.C. challenging the judgment of conviction and

order of sentence passed by the J.M.F.C. (III Court),

Mangalore in C.C.No.1720/2013 dated 10.09.2014 and

confirmed by IV Additional Sessions Judge, Mangalore in

Crl.A.No.233/2014 vide judgment dated 18.05.2016.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are

as under:

According to the case of the prosecution on

26.10.2012 at 5.30 a.m. on receiving credible information,

CW9 along with his staff raided the place called

Kantharabettu, Ulayibettu Village, Mangalore Taluka in a

shed near the house of the accused and they found that

accused was in illegal possession of four calves and he had

an intention to kill them for the purpose of converting their

body into mutton. It is also asserted that certain blood

stains were also noted there and further the fresh skin was

also traced. In this regard, CW9 drawn a mahazar and

then seized certain properties and filed a report which

came to be registered in Cr.No.302/2012. When the raid

was conducted, the accused is said to have been fled away

from the spot. During the course of the investigation, the

accused was arrested and after completing the

investigation, the investigating officer has submitted the

charge sheet for the offences punishable under Sections 4,

5, 7 and 9 r/w Section 11 of the Karnataka Prevention of

Cow Slaughter and Cattle Preservation Act, 1964. The

accused was enlarged on bail and he was provided with

prosecution papers. The accusation was read over and

explained to him and he pleaded not guilty.

To prove the guilt of the accused, the prosecution

has in all examined seven witnesses and also placed

reliance on five documents marked at Ex.P1 to Ex.P5.

After conclusion of the evidence of the prosecution, the

statement of accused under Section 313 Cr.P.C. was

recorded to enable the accused to explain incriminating

evidence appearing against him in the case of prosecution.

The case of accused is of total denial.

4. After hearing the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has convicted the accused for the

offences punishable under Sections 4, 5, 7, 9 r/w 11 of the

Act and imposed imprisonment for a period of two months

with fine of Rs.1,000/- with a default clause. Being

aggrieved by this judgment, the accused preferred the

appeal before IV Additional Sessions Judge, Mangalore and

the learned Sessions Judge after re-appreciating the oral

and documentary evidence dismissed the appeal by

confirming the judgment of conviction and order of

sentence passed by the trial Court. Being aggrieved by

these concurrent findings, the accused is before this Court

by way of this revision.

5. Heard the arguments advanced by the learned

counsel appearing for the revision petitioner and learned

HCGP for the respondent/State. Perused the records.

6. It is the contention of the learned counsel for

the revision petitioner that as per the case of the

prosecution, four calves and a skin were recovered and

accused ran way and mahazar was drawn between 5.30 to

6.30 p.m. But it is evident that general diary entry was

made at 5.00 p.m. and there is no entry pertaining to this

offence. He would contend that FIR was subsequent to

mahazar. He would also contend that under Sections 3 and

4, the prosecution has failed to establish that CW1 was

competent authority under the Act and notification was

issued in this regard. He would also contend that no

authorization as required under Section 10 of the said Act

was produced and there are no criminal antecedents

against the accused. He would contend that the accused is

a senior citizen having two unmarried daughters and in

case the conviction needs to be confirmed, he may be

released on the Probation of good conduct under Probation

of Offenders Act, 1958.

7. Per contra, the learned HCGP would support the

judgment of conviction and order of sentence passed by

the both the Courts below. He would contend that all the

witnesses have supported the case of the prosecution and

there is no denial of the fact that the place wherein the

raid was conducted belongs to the accused. Admittedly,

accused was not possessing valid licence to run a

slaughter shop and there is no evidence to show that there

is any false motive for false implication. He would also

contend that in 313 statement, there is no explanation and

he would further assert that in a revision, finding of fact

need not be entertained and a just sentence is passed.

Hence, sought for dismissal of the revision.

8. Having heard the arguments and perusing the

records, now the following point would raise for my

consideration:

"whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court are arbitrary and erroneous so as to call for any interference by this Court?"

9. It is the specific contention of the prosecution

that on 26.10.2012 at 5.30 p.m., the complainant raided

the house of the accused on the credible information and

found that the accused was involved in illegal

slaughtering of the cattle without licence and he

recovered four calves and a fresh skin. It is further

asserted that the accused fled from the spot after seeing

the police there. PW1-Prashanth is a mahazar witness

who accompanied the police during the raid and he has

supported the case of the prosecution. Though this

witness was cross-examined at length, nothing was

elicited so as to impeach his evidence. In his cross-

examination also he is very specific that accused fled

from the spot when they raided the spot.

10. PW2-Sanjay is another mahazar witness and

he has also supported the case of the prosecution. In

the cross-examination, it is simply elicited that the

accused who ran away on the date of offence and the

accused before the court cannot be said to be one and

same, but the said suggestion came to be denied by the

witness and he has specifically identified the accused in

this regard. PW3-Narayan Bhandari is a police constable

who has accompanied the complainant for raid and PW5

is the Head Constable who has also accompanied the

complainant. He has also identified the mahazar as per

Ex.P1.

11. PW5 is the Vetenary Doctor, who has stated

that he was requested by the Investigating Officer to

examine the four calves and the skin and he examined

them and issued a report as per Ex.P2. There is no

material cross-examination in this regard. PW6-Jagadish

has deposed regarding issuing Ex.P3, which is standing

in the name of the accused. He has also deposed that no

licence was obtained by the accused for carrying

slaughter business. PW7-Sudhakar is the complainant

and Investigating Officer. All these witnesses have

specifically supported the case of the prosecution and in

the entire case; there is no denial of the fact that the

spot wherein the raid was conducted belongs to the

accused.

12. Admittedly, accused was not possessing any

valid licence and the spot mahazar discloses that blood

stains was found at the spot and a fresh skin of the cow

was also recovered. These aspects clearly establish that

the accused was involved in cow slaughtering business

without any licence and thereby he has violated the

provisions of Karnataka Prevention of Cow Slaughter and

Cattle Preservation Act, 1964 (hereinafter referred to as

'the Act' for short). Much arguments have been

advanced by the defence counsel that notification

regarding appointing competent authority is not

produced and there is no authorization to the

complainant, but interestingly, the accused has not

disputed the authority of complainant to raid and hence,

now the said arguments holds no water.

13. Both the courts below have appreciated the

oral and documentary evidence in proper perspective

and have rightly convicted the accused under Section 11

of the said Act. The conviction order cannot be said to

be perverse or arbitrary so as to call for any

interference.

14. The learned counsel for the revision petitioner

would further assert that petitioner is aged about nearly

60 years having two unmarried daughters and hence,

the benefit of Probation of Offenders Act, 1958 can be

extended to him. In this context, he placed reliance on a

decision of Apex Court in Crl.A.No.1444/2023 arising out

of SLP Crl.D.No.28476/2018 dated 10.05.2023. In the

said case, the prosecution was under the provisions of

Essential Commodities Act, 1955 and the benefit of

Probation of Offenders Act, 1958 was extended.

However, in the instant case, the offence was under the

Karnataka Prevention of Cow Slaughter and Cattle

Preservation Act, 1964. The facts and circumstances are

entirely different and under such circumstances, it is not

proper to extend the benefit of Probation of Offenders

Act, 1958 to the accused, since, the offence committed

by the accused is against the society and cattle.

15. The offence under Section 11 is punishable

with imprisonment which may be extend to six months

or fine, which may be extended to Rs.1,000/- or both.

Hence, it is evident that the offence is punishable with

imprisonment or fine or both and discretion is granted to

the court. Looking to the age of the accused and

considering the fact that the matter is pending since

2012, it is not proper to convict the accused by imposing

sentence of imprisonment at this belated stage and

considering the nature and gravity of the offence, fine

would serve the purpose. Hence, in my considered

opinion, fine would serve the purpose and the order of

sentence so far as it relates to imprisonment is

unwarranted. Considering these facts and

circumstances, the point under consideration is partly

answered in the affirmative and the revision petition

needs to be allowed partly so far as it relates to only the

sentence of imprisonment. Accordingly, I proceed to

pass the following:

ORDER

1. Revision Petition is allowed in part.

2. The impugned judgment of conviction passed by by the J.M.F.C. (III Court), Mangalore in C.C.No.1720/2013 dated 10.09.2014 and confirmed by IV Additional Sessions Judge, Mangalore in Crl.A.No.233/2014 vide judgment dated 18.05.2016 stands confirmed. However, the sentence of imprisonment is set aside and the sentence stands confirmed so far

as it relates to fine amount alone. The rest of the order stands confirmed.

3. Send back the TCRs to the Trial Court along with copy of this order with a direction to learned Magistrate to recover the fine if not yet deposited.

Sd/-

JUDGE

SS/DS