T.S. Misra, J. - (1.) SHAKOOR , Jamal Uddin, Sattar, Sher Ali, Chhotey and Nazir were cha rged for committing an offence punishable under Section 5/8 of the U.P. Prevention of Cow Slaughter Act. The allegation in the charge was that all these accused persons were found slaughtering a cow or her progeny on 1st July 1970 at about 8.30 A.M. in village Dugraia, Police Station Binawar, in the house of Shakoor. All the accused persons denied the prosecution case and pleaded not guilty. The learned Magistrate convicted Shakoor, Jamal Uddin, Sattar, Sher Ali, Chhotey and Nazir and sentenced them to undergo R.I. for one year. Shaukat died while the case was pending before the Magistrate Ist class. Shakoor, Jamal Uddin, Sattar, Sher All, Ghhotey and Nazir thereupon filed an appeal in the court of the Sessions Judge, Budaun. That appeal was heard by the 1st Temporary Sessions Judge, Budaun. He maintained the conviction of the said Appellants but reduced the sentence from one year's R.I. to nine months' R.I. Shakoor, Jamal Uddin, Sattar, Sher Ali, Chhotey and Nazir have come up in revision.
(2.) THE learned Counsel for the applicants submitted that the applicants were greatly prejudiced inasmuch as they were charged under Section 5 of the U.P. Prevention of Cow Slaughter Act though there was no allegation that they were found selling beef. This contention was raised before the appellate court and has been repeated here as well. The appellate court below has repelled that contention and in my view rightly so. The charge levelled against them was that on 1st July 1970 at about 8.30 A.M. in village Dugraiya, P.S. Binawar, in the house of Shakoor they were found slaughtering a cow or her progeny. On these allegations it was clear that they were being charged for an offence punishable under Section 3 of the U.P. Prevention of Cow Slaughter Act and not under Section 5 of the said Act. Merely quoting a wrong section in the charge would not be sufficient to hold that the accused were prejudiced in the trial. The charge was quite specific. The statements of fact stated in the charge were also specific. They were told that the allegation against them was that on 1st July, 1970 at about 8.30 A.M. in village Dugraiya, P.S. Binawar, in the house of Shakoor they were found slaughtering a cow or her progeny. They thus knew that what the prosecution case was and what facts they were required to meet. The evidence was also adduced by the prosecution with regard to these facts. In the circumstances the contention that as in the charge the learned Sub -Divisional Magistrate has mentioned Section 5 of the Act they were prejudiced is not tenable. It was next urged that no prosecution witness had seen actually the slaughtering of the cow in question. Merely cutting the flesh of the cow into pieces by removing the skin thereof would not mean that the accused persons had actually slaughtered the cow. Hence it was argued placing reliance on Bulaqi v. State, 1970 ACR 20 and Dalla v. State : AIR 1958 All 198 that it could not be presumed that the applicants had killed the cow. The learned State Counsel has, however, referred me to other decisions of this Court, namely, Nathoo v. State, 1959 AWR 430 and Fazal Uddin v. State, 1969 AWR 847 to contend that whether presumption can be drawn under Section 114 of the Evidence Act against the accused person would depend upon the facts of individual case. In the instant case the appellate court below, on a careful scrutiny of the evidence on record, came to the conclusion that the present applicants along with Nazir and Shaukat had slaughtered the cow. The applicants did not offer any explanation but merely denied the prosecution case. They did not explain in what circumstances they were at the spot engaged in dismembering the slaughtered cow in question. In these circumstances the appellate court below inferred that the applicants and the other two persons had actually slaughtered the cow. On the facts of the instant case and the evidence adduced on behalf of the prosecution I am satisfied that the presumption drawn by the appellate court below was justified. I find illegality or perversity in the finding recorded by the appellate court below warranting interference in revision.
(3.) IN the result the revision petition is dismissed. The applicants are on bail. They shall surrender forthwith to serve out the sentence awarded by the Court below. Their bail bonds are cancelled.;