SOBHAGMAL JAIN, J. - (1.) THIS appeal is directed against the judgment dated Nov. 25,1978, of the Sessions Judge, Merta, convicting and sentencing the appellant for the offence under section 2 of the Rajasthan Preservation of Certain Animals Act, 1950, (hereinafter referred to as the 'act') to 2 years RI and a fine of Rs. 1000/- and in default of payment of fine to further R. I. for six months.
(2.) THE case is more than 12 years old. According to the prosecution, it was on April 11, 1. 977, that the accused gave lathi blows to the cow belonging to Smt. Bagtawari widow of Jabdi Khan resident of Khunkhuna, Tehsil Deed-wana, District Nagaur. THE first information report of the occurrence was lodged by Chhotu Khan at the police station, Khunkhuna, on April 12, 1977, on which a case under section 3 of the Act was registered. After investigation the police filed a charge-sheet against the accused in the Court of Munsif & Judicial Magistrate, Deedwana, who committed him for trial to the Court of Sessions Judge, Merta. After trial,the learned Sessions Judge has convicted and sentenced the accused, as aforesaid. I have heard Shri B. Advani and Shri P. K. Bhansali, counsel for the accused and Shri. S. S. Vyas, Public Prosecutor for the State. The learned Sessions Judge held that it was the accused who gave lathi blows to the cow belonging to Smt. Bagtawari and the said cow died as a result of the injuries inflicted on her. This finding is supported by the evidence of Juma P. W. 6 who was a eye-witness to the occurrence and three other witnesses, namely, Gulaba P. W. 3, Chhotu Khan P. W. 7 and Dhool Chand P. W. 8 who have deposed that the accused had made extra-judicial confession in their presence. I do not find any reason to up-set the finding of the learned Sessions Judge that the accused gave lathi blow to the cow as a result of which she died. Learned counsel for the accused has, however, urged that the prosecution evidence was deficient to bring the case within the ambit of section 2 of the Act as it was not established that the accused intentionally killed the said cow. I find substance in the submissions made by the counsel for the accused. Juma P. W. 6 has said that when he asked the accused why he had killed the cow, the accused said that the cow had eaten up the fodder belonging to him. In cross-examination he further admitted that there were 5-6 cows which had entered the field of the accused and he was driving them out. The words used by the accused in the extra-judicial confession do not take the case beyond Section-3 of the Act. Gulab Khan has stated that the accused had said:-
(3.) ESJS gkfk ls ej xbz gsa** Chhotu another witness of the extra judicial confession has stated that the accused said to him that the cows entered in his 'bara' and had eaten up the fodder belonging to him. He then gave lathi blows to the cows, as a result of which she died. The last witness to the extra judicial *. confession was Dhool Chand, Sarpanch. Re too has stated that accused had told them that the cows entered his Jhupa and had eaten up his fodder. The words used by this witness were, Esjs gkfk ls mlds ykbh dh yx xbz] ftlls oks ej xbza** These facts evidences that though the accused gave lathi blows to the cow but it was not with the intention to kill but merely With the intention causing bodily injury to the cow. The offence for which the accused can be held liable would thus fall under section 3 and not section 2 of the Act. On the question of sentence, the counsel for the accused has urged that the accused has already remained in custody for about 25 days from April 13,1977 to April 23,1977, and Dec. 21,1978 to Jan. 3,1979. In the circumstances of the case, 1 am of the opinion, that the ends of justice will be fully met if the accused is sentenced to the imprisonment already undergone by him and the fine is suitably increased, to be paid to Smt. Bagtawari as compensation. ;