- (1.) THIS is an appeal directed against the judgment of the Additional Sessions Judge, Tonk, who convicted the appellant under sec. 2 of the Rajasthan Preservation of certain Animals Act, 1960, and sentenced him to undergo rigorous imprisonment for five years and to a fine of Rs. 500/ -.
(2.) THE circumstances which give rise to this appeal are these. 3. On the 30th April, 1959, Mst. Rodi widow of Bajranga Gujar had gone in the town of Tonk to sell milk and curd. On her return she was informed by Kalyana and Rugha (P. Ws. 2 and 3 respectively) that her cow was stabbed by Nisar, the appellant. She saw the injured cow standing near Bhamor Gate, Tonk. Her daughter's son Ramlal took the cow to the veterinary hospital where the cow received some sort of treatment but it died the next day. On the 1st May, 1950, one Gangaram informed the police that the son of Mohammed Ishaq alias Billo had stabbed a cow belonging to one Gyarasa Gujar. THE injury so caused resulted in the death of the cow. On the post -mortem examination at the veterinary hospital it was found that there was an incised penetrating wound 1 -1/2" long on the left lateral side 1 -1/2" pos -tero -ventriclly from the point of haunch in susro -posterior direction. THE posterior point being little ventricle to the anterior leading to a wound of 1 -1/2" length and deep upto the abdominal cavity in autroventrical direction cutting through the muscles on the way. A number of other injuries were also found and in the opinion of the examiner the cause of death was toxemia due to peritonitis. THE accused appellant was committed to and tried by the Additional Sessions Judge, Tonk. Amongst others the prosecution examined Kalyana (P. W. 2) who is a neighbour of Mst. Rodi. He stated that the day before the death of the cow he saw the cow coming out of the house of the father of the accused. It was followed by Nisar, the appellant, who had a big knife in his hand. He ran after the cow and gave a blow with his 'chhura' to the cow. THE 'chhura' remained in the body of the cow. Nisar followed the cow running towards Bhamor Darwaza. THE accused took out the knife (chhura) from the cow's body at some place outside Bhamor gate and ran away. Rugha (P. W. 3) was also present at the material place and at the relevant time. Both Kalyana and Rugha chased Nisar right upto his house but they did not enter it as the occupants observed 'pardah'. THEy, however, informed Mst. Rodi about the incident. THEse two witnesses identified the hide of the cow (Ex. 1) in the court. 4. THE accused -appellant set up a plea of alibi saying that at the time and on the date when he is alleged to have stabbed the cow, he was not in Tonk but was in Jaipur. He had examined four witnesses in support of this plea. One of them is Dr. Iqbal Singh, a retired medical man, who had issued a certificate (Ex. D. 3) to the accused -appellant dated 30th of April, 1959. 5. As already noticed the learned Additional Sessions Judge,tonk, found it to be proved that Nisar had stabbed the cow belonging to Mst. Rodi as a result of which it died. He held him guilty under sec. 2 of the Rajasthan Preservation of Certain Animals Act, 1950 and sentenced him to 5 years' rigorous imprisonment and to a fine of Rs. 500/ -. He further directed that if the fine be realised a sum of Rs. 100/ - therefrom be paid to Mst. Rodi by way of compensation. 6. THE learned counsel for the appellant assailed this judgment on several grounds. He argued that the first information report did not contain the name of the accused -appellant; that there was great delay in lodging the first information report; the prosecution witnesses Kalyana and Rugha who have come to depose as eye -witnesses had merely heard of the incident as stated in the first information report and it is thus an important variation between the first information report and the prosecution case at the trial. THE learned counsel also contended that the eye -witnesses are interested; their conduct unnatural and their statements before the police were recorded late; they are, therefore, unreliable. Further their statements having been recorded under sec. 164 of the Criminal Procedure Code, this circumstance raises a suspicion that they are not witnesses of truth. Besides, the medical evidence does not support the prosecution story. In any case, the learned counsel argued, the medical evidence ought to be excluded in this case from consideration as the Doctor was not examined by the trial court and he being not a medical witness within the meaning of sec. 509 of Criminal Procedure Code, his statement cannot be read into evidence unless he was examined by the trial court. THE learned counsel supported the theory of alibi and submitted that there is no reason why it should not be believed. 7. THE learned Deputy Government Advocate generally supported the judgment of the Additional Sessions Judge and urged that many of the points raised by the learned counsel for the appellant are without weight as no cross examination was directed in the trial court form that point of view. 8. It is true that the cow is said to have been stabbed on the morning of the 30th April at about 8'o clock and the first information report was lodged on the evening of 1st May at about 8'o clock. THEre is thus an interval of thirty six hours between the time of injury and the lodging of the report. THE prosecution case is that when the dead cow was being carried to the jungle, it occurred to Ganga Ram to lodge a report about this incident. Mst. Rodi, the owner of the cow, had not lodged any report. As to why Mst. Rodi or her witnesses did not lodge the first information report earlier could be best answered by Mst. Rodi herself or these witnesses. Any reason for this delay which may be suggested on behalf of the prosecution would be at its best a mere speculation. No question appears to have been directed on this aspect of the matter in the cross -examination of Mst. Rodi. If the grievance was to be made on account of this delay from the point of time when the injury was caused, it was necessary for the defence to give an opportunity to Mst. Rodi or the witnesses or to both by putting questions on this part of the case. That having not been done the delay from the point of injury i. e. thirty six hours does not appear to have much significance. It was not very much after the death of the cow that the report was lodged. 9. So far as the name of the accused is concerned, what is mentioned in the first information report is that the cow was stabbed by the son of Billo. THE accused appellant is undoubtedly the son of Billo, which is the nick -name of the father of the appellant. In the cross -examination of Ganga Ram no question is suggested that the accused is not the son of Billo or there was another son of Billo who could have been intended by the report. THE whole trial appears to have proceeded on the assumption that the identity of the of Billo was not in dispute. It is, therefore, futile to suggest at the appellate stage that some one other than this son of Billo was intended. Prosecution witnesses Kalyan and Rugha have indentified the appellant as the person who stabbed the cow. 10. THE learned counsel for the appellant contends that in the first information report it is alleged that the prosecution witnesses Kalyan and Rugha who were present at the 'ghantaghar' when Ganga Ram had stopped the bullock cart which carried the dead cow said Dy ls lqu jgs gs fd fcyyk eqlyeku ds ym+ds us bl xk; ds ck;h ewd esa Nqjk ekjk gs] ftlls xk; ej xbz gsa From this it is argued that Kalyan and Rugha had no first hand knowledge about the stabbing of the cow and lit was their hearsay whereas in the court they have deposed that they were the eye -witnesses to the stabbing of the cow. This report was made by Gangaram. At the time of the recording of this report it is not suggested that Kalyan or Rugha were present in the police station. Rugha (P. W. 3) was put a question whether he had heard about the stabbing of the cow or he had seen it himself to which he answered that he had personally seen the stabbing of the cow. Whether the author of the first information report correctly reported the version of Kalyana and Rugha to the police or the expression Lqu jgs gsa** related to causal connection between the stabbing and the death of the cow, it is not easy to say. In the cross -examination of Kalyan (P. W. 2) and Rugha (P. W. 3) nothing has been made out to show that they were speaking from any personal bias or hostility when they deposed that they saw the accused -appellant running after cow, thrusting a knife into the body of the cow and after another run extricating the said knife from the body of the cow. 11. Another criticism in relation to the testimony of these two witnesses is that their statements were recorded under sec. 154 of Criminal Procedure Code and, therefore, suspicion is cast on their veracity. Reliance has been placed on Emperor Vs. Manu Chik (1 ). In this case Dhavle J. observed as under: " A statement of a witness obtained under sec. 164 always raises a suspicion that it has not been voluntarily made. The section was not intended to enable the police to obtain a statement from some person and as it were to put a seal on that statement by sending in that person to a Magistrate practically under custody, to be exami ned before the judicial inquiry or trial, and therefore, compromised in his evidence when judicial proceedings are regularly taken. " This decision came to be considered in a case of this Court in Sakhat Singh Vs. the State (2 ). It has been observed by Ranawat J. in that case that it can not be laid down as a rule, that because a witness has been examined under sec. 154 of the Code of Criminal Procedure he should not be relied upon. The Patna decision also came to be considered in Parmeshar Din Vs. Emperor (3 ). The learned Judges observed: " We are not ourselves prepared unreservedly to endorse this view. No doubt the fact that the police have considered it necessary for the statement of a witness to be recorded under sec. 154 suggests that they do not consider him altogether a reliable witness; that is to say they apprehend that he may be tampered with. But we can see no objection to the procedure being followed in appropriate cases, and we do not know with what other objection this provision was made in sec. 164. Village witnesses are pecu liarly susceptible to local influences. '' In Parmanand Vs. Emperor (4) it was observed: " Sec. 164 cannot be rendered nugatory by the stock argument that if the statement of a witness is recorded under sec. 164, the evidence of the witness should be discarded. If a statement of a witness is previously recorded under sec. 164 Cr. P. C. , it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him through out, the mere fact that his statement was previously recorded under sec. 164, will not be sufficient to discard it. " In the present case there is no suggestion that the statements made by the witnesses under sec. 164 were not voluntary. In my opinion the argument that merely because the statement of a witness was recorded under sec. 164 Criminal Procedure Code his evidence should be discarded suffers from an apparent fallacy. Sec. 164 of the Code of Criminal Procedure is a safe -guard intended to preserve truth in the course of an investigation and before enquiry and trial. To convert this safe -guard as an argument to exclude the testimony of a witness whose version has been sought to be preserved will appear to defeat the object which the legislature intended to achieve. In this view of the matter the criticism of the learned counsel for the appellant that merely because the statements of the prosecution witnesses Kalyana and Rugha were recorded under sec. 164 of the Code of Criminal Procedure, their evidence is unworthy of credit has no substance. 13. The next contention of the learned counsel is that the evidence of Shri Anand Behari Sharma, Medical Officer Incharge, Veterinary Hospital, Tonk, ought not to have been read in evidence by the Additional Session Judge without himself examining the said witness because Shri Sharma is not a medical witness envisaged by sec. 509 of the Code of Criminal Procedure. This section reads: " (1) The deposition of a Civil Surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under Chapter XI, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness. (2) The court may, if it thinks fit, summon and examine such deponent as to the subject matter of his deposition. " 14. Whether the words "or other medical witness" include a medical officer incharge of a veterinary hospital is the question which calls for an answer. The word "medical" has not been defined in the Code of Criminal Procedure and, therefore, its plain grammatical meaning has to be ascertained and adopted. In Webster's new 20th Century Dictionary (Second Edition -1957) "medical" means pertaining to or employed in the science, study or practice of medicine or art of healing diseases. " In Law Lexicon of British India "medical" is stated to mean "of pertaining to or having to deal with the art of healing diseases or the science of medicine; containing medicine; used in medicine. " Veterinary means "designating or of the branch of medicine dealing with the investigation, treatment and prevention of diseases in animals. " (New Webster's 20th Century Dictionary ). The words "other medical witness" employed in sec. 509 in my opinion are wide enough to include a Veterinary Doctor engaged in the practice of medicine in relation to animals. The Additional Sessions Judge was, therefore, not in error in reading the evidence of Dr. Anand Behari Sharma recorded by the Committing Magistrate. 15. The next contention of the learned counsel for the appellant is that the court below seriously erred in convicting the appellant under sec. 2 of the Rajasthan Preservation of Certain Animals Act, 1950. From the prosecution evidence, submits the learned counsel, it is clear that between the injury caused to the cow and its death there was an intervening circumstance of peritonitis and that being the proximate cause of the cow's death, it cannot be said that the accused -appellant was intentionally guilty of killing the cow. Even if the prosecution case succeeds, adds the learned counsel, the case is one of seriously causing bodily injury and, therefore, punishable under sec. 3 of the said Act. Secs. 2 and 3 of the Act read as follows: " Killing of a cow etc. Whoever intentionally kills a bull, cow, ox or calf shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Causing serious bodily injury to a cow etc. Whoever intentionally causes serious bodily injury to a bull, cow or calf shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both. " 16. Sec. 2 provides punishment for 'intentional killing' while sec. 3 covers cases of intentionally causing serious bodily injury'. Presence of intention can be only inferred if death follows as a natural and probable consequence from the act complained. If the death was caused by an extraordinary intervening circumstance intention to kill cannot be concluded. I am inclined to agree with the learned counsel that it cannot be safely concluded in the circumstances of this case that in causing the stab wound there was an unambiguous intention on the part of the appellant to kill the cow. There is no doubt, however, in my mind that the appellant did intentionally cause bodily injury. The stab wound of dimensions already noticed and where the knife got stuck in the body is certainly injury of a serious kind. Therefore, in my opinion the appellant did intentionally cause serious bodily injury to the cow and an offence under section 3 of the Rajasthan Preservation of Certain Animals Act, 1950 is made out and not one under sec. 2 of the said Act. 17. The learned counsel for the appellant argued that the defence of alibi ought not to have been disbelieved. He urged that to establish the plea of alibi there is documentary evidence, the medical certificate (Ex. D. 3) supported by the oral evidence of a respectable witness like Dr. Iqbal Singh (D. W. 4 ). I propose to examine this part of the case with some caution because the court below has already issued a notice to the said Doctor for showing cause why he should not be prosecuted for giving a false evidence. This witness Dr. Iqbal Singh in his affidavit had stated: ************* 18. The certificate (Ex. D. 3) bears no time. In his deposition before the court the Doctor said : ************ 19. Now the deposition lacks definiteness. The Doctor merely conjectures that the accused might have reached him between 7 -30 to 8 a. m. This circumstance has to be examined in the light of the evidence of the appellant's father, who has stated that the appellant had gone to Jaipur by means of a bus. The distance between Tonk and Jaipur is about 60 miles. The earliest bus that leaves Tonk, as observed by the learned Additional Sessions Judge, is at 6 a. m. This statement of the appellant's fathers rules out the possibility of the appellant reaching the Doctor's dispensary before 9 a. m. The evidence of the Doctor therefore, stands shattered by the evidence of the appellant's father. The learned counsel for the appellant suggested that the appellant might have gone by means of some truck. That was no body's case in the court below. In these circumstances, in my opinion, the plea of alibi has not been established and the court below was right in rejecting the same. 20. Then remains the question of sentence. As already observed the case against the appellant is made out under sec. 3 of the Rajasthan Preservation of Certain Animals Act, 1950 and not under sec. 2. The sentence provided in sec. 3 is imprisonment for a term which may extend to seven years or with fine or with both. While on the one hand the appellant is a young man of 20 years on the other he thrust a dagger deep into the abdomen of a pregnant cow and the legislature has considered this act as one which is visited by a penalty upto seven years' imprisonment. In my opinion the ends of justice will be met if the accused is awarded three years' rigorous imprisonment with a fine of Rs. 200/ -, in default whereof a further sentence of three months' rigorous imprisonment. If the fine is realised, a sum of Rs. 100/ - out of it may be paid to Mst. Rodi by way of compensation for the death of her cow. 21. This appeal, therefore, is partly allowed, the conviction under sec. 3 has been altered to one under sec. 2 of the Rajasthan Preservation of Certain Animals Act, 1950, and the sentence also altered from 5 years' rigorous imprisonment to 3 years' rigorous imprisonment and a fine of Rs. 500/ - is also reduced to Rs. 200/ - only. .;