STATE OF HARYANAversusRAJMAL AND ANOTHER

                [2011] 13 (ADDL.) S.C.R. 347


                     STATE OF HARYANA                                 A
                                v.
                  RAJMAL AND ANOTHER
             (Criminal Appeal No. 2203 of 2011)

                     NOVEMBER 25, 2011
                                                                      B
    [ASOK KUMAR GANGULY AND JAGDISH SINGH
                 KHEHAR, JJ.)

     Punjab Prohibition of Cow Slaughter Act, 1955:
                                                                      c
     s.8- Conviction under, by courts below, reversed by High
 Court on grounds of absence of independent witness from the
locality at the time of conducting raid, absence of evidence
to prove that the accused persons were the owners of the
house and were in exclusive possession of the house where             0
raid was conducted and non-identification of accused - On
appeal, held: None of the grounds put forward by High Court
were sustainable - Trial court found that there was cogent
evidence to show that both the accused persons were known
to the witnesses from prior to the date of incident and they ran      E
away, by scaling the wall, after seeing the police party and that
accused persons did not make out any case of animosity of
the official witnesses against them - The first appellate court
also recorded that Investigating Officer had clearly stated that
he knew the accused persons because he had apprehended
them in another case and this statement was not challenged            F
in cross-examination - In view of the admitted factual position,
reasoning of High Court in its revisional jurisdiction that in th'e
absence of independent local witness the prosecution case
was not worthy of credence cannot be accepted - In upsetting
the concurrent finding of the courts below, about the                 G
identification of the accused persons, High Court had not
given any reason - The revisional jurisdiction of High Court
uls.439 Cr.P.C. is to be exercised, only in an exceptional case,
when there is a glaring defect in the procedure or there is a
                              347                                     H
   348    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C~R.


A manifest error on a point of law resulting in a flagrant
   miscarriage of justice - It cannot be held that the interference
   by the High Court on the question of identification of the
   accused persons in facts of the case was either proper or
   legally sustainable - Code of Criminal Procedure, 1973 -
B: s. 439 - Revision.
          Search and ,seizure - Held: An illegal search does not
    vitiate the seizure of the article.

       ss.3, 4, 8 - Ownership of the place where act of
C slaughtering done - Requirement of - Held: Reading of s.3
  and s.4 together would show that the person contravening s.3
  cannot put up a defense that the act of slaughter was being
  done in a place, of which he is not the owner or in respect of
  which he does not have the conscious possession -
D Slaughter of Cows, subject to exceptions uls.4, in any place,
  is prohibited uls.3 and penalty for doing so is provided u/s.8
  - The case of the accused persons was not covered under
  the exceptions in s.4 - No such deFense was ever taken -
  Therefore, order of acquittal by the High Court was le•gally not
E sustainable.
         Words and phrases:· Word 'slaughter' - Meaning of

       The prosecution case was that on receipt of secret
  information that the accused persons were slaughtering
F cows in their hoUse, a raid was conducted. On seeing the
  police party, both the accused persons scaled the wall
  and fled away from their house by taking advantage of
  darkness. The Investigating officer found 70 Kgs. of fresh
  beef, one skin .. of cow, one axe, two blood stained
G daggers and four weak and infirm cows. The accused
  persons were convicted under Section 8 of the Punjab
  Prohibition of Cow Slaughter Act, 1955. The first appellate
  authority upheld the order of the trial court. The High
  Court in its revisional jurisdiction reversed the concurrent
H finding of the courts below on the ground that no
    STATE OF HARYANA v. RAJMAL AND ANR.                349


independent witness from the locality was present at the A
time of conducting raid; that no evidence was led to
prove that the .accused persons were the owners of the
house; that it was also not established that the accused
persons were in the exclusive possession of the house
and as such they cannot be said to be in conscious B
possession of the house; and that the accused persons
were not identified. The instant appeal was filed
challenging the order of the High Court.

    Allowing the appeal, the Court
                                                             c
     HELD: 1. None of the grounds put forward by the
High Court in the impugned judgment was sustainable.
The trial court found that there was cogent evidence on
record to show that both the accused persons were
known to the witnesses from before and they ran away, D
by scaling the wall, after seeing the police party. The trial
court. also recorded a finding of fact that accused
persons did not rpake out any case of animosity of the
official witnesses against them. The first appellat~ court
also recorded that P.W.-3/lnvestigating Officer has clearly E
stated that he knew the accused persons because he had
apprehended them in another case and the said
statement of the P.W.-3 was not challenged in cross-
examination. Nor the accused persons ever questioned
that the witnesses knew them prior to the date of the F
occurrence. The appellate forum also recorded that
accused persons had not suggested that they were
falsely implicated in the case. In view of this admitted
factual position, this Court cannot accept the reasoning
of the High Court in its revisional jurisdiction whereby the G
High Court found that in the absence of independent
local witness the prosecution case is not worthy of
credence. The factual conclusion of the High Court was
contrary to the evidence on record. (Para 6-9] [354-E-H;
355-A-C]
                                                              H
    ~350   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A        2. In upsetting the concurrent finding of the courts
    below, about the identification of the accused persons,
    the High Court had not given any reason. The revisional
    jurisdiction of the High Court under Section 439 Cr.P.C.
    is to be exercised, only in an exceptional case, when
B   there is a glaring defect in the procedure or there is a
    manifest error on a point of law resulting in a f!agrant
    miscarriage of justice. Going by the said principles, it
    cannot be held that the interference by the High Court on
    the question of identification of the accused persons in
c   facts of the case was either proper or legally sustainable.
    [Para 10, 12, 13] [355-D-G-H; 356-A]

        State of A.P. vs. Pituhuk Sreeinvanasa Rao (2000) 9
    SCC 537; Amar Chand Agarwala vs. Shanti Bose and another
    AIR 1973 SC 799: 1973(3) SCR 179 - relied on.
D
         3. An illegal search does not vitiate the seizure of the
    article. The only requirement of law in such cases is that
    the Court has to examine carefully tt e evidence regarding
    the seizure. But beyond this no further consequences
E   ensues. Following the said principle, there was no error
    committed by the courts below by proceeding on the
    material collected, as a result of the seizure of materials.
    [Para 15, 16] [356-C-E]

        Radha Kishan vs. State of Uttar Pradesh AIR 1963 SC
F   822: 1963 Suppl. SCR 408 - relied on.

       4. The other two points on which the High Court
  chose to interfere, namely the ownership of the house or
  the conscious possession of the house as a valid
G requisite before the accused persons could be held guilty
  under Section 8 of the said Act were clearly based on a
  misreading of the clear provision of the Act. The said Act,
  which was enacted to give effect to the provisions of
  Article 48 of Directive Principle of State Policy and which
H is still in force, prohibits cow slaughter in Section 3. The
    STATE OF HARYANA v. RAJMAL AND ANR.                351


expression "slaughter" is defined in Section 2(e) of the A
Act as killing by any method whatsoever and includes
maiming and inflicting of physical injury which in the
ordinary course will cause death." Reading of Section 3
and Section 4 together would show that the person
contravening Section 3 cannot put up a defense that the B
act of slaughter was being done in a place, of which he
is not the owner or in respect of which he does not have
the conscious possession. Slaughter of Cows, subject to
exceptions under Section 4, in any place, is prohibited
under Section 3 and penalty for doing so is provided         c
under Section 8. The High Court's finding that the guilt
of the accused persons was not proved in the absence
of proof of their ownership or conscious possession of
the house where slaughter took place, is a finding which
is de-hors the said Act and is clearly not legally D
sustainable. The case of the accused persons was not
covered under the exceptions in Section 4. No such
defense was ever taken. Therefore, the impugned order
of the High Court was legally not sustainable. [Paras 17-
18, 20, 21-23] [356-F-H; 357-G-H; 358-A-E]
                                                             E
                    Case Law Reference:
     c2000) s sec 537        relied on           Para 11
    1973 (3) SCR 179         relied on           Para 12
                                                             F
    1963 Suppl. SCR 408 relied on                Para 15

    CRIMINAL APPELLATE JURISDICTION: Crimianl Appeal
No. 2203 of 2011.

    From the Judgment & Order dc;ited 20.04.2010 of the High G
Court of Punjab & Haryana at Chandigarh in Criminal Revision
No. 669 of 2000.

    Dr. Monika Gusain for the Appellant.

    Altaf Hussain, R.C. Kaushik for the Respondents.         H
     352    SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


A          The Judgment of the Court was delivered by

           GANGULY, J. 1. Leave granted.
                                         '
          2. This Criminal Appeal is directed against the judgment
     and order dated 20.04.2010 of the High Court of Punjab and
B    Haryana in Criminal Revision No.669/2000, whereby the High
     Court acquitted the respondents-accused persons (hereiinafter
     "the accused persons") from a!I the charges levelled against
     them under Section 8 of. the PL!njab Prohibition of Cow
     Slaughter Act, 1955 (hereinafter "the Act"). By this impugned
C    order, the judgment and order passed by the Sub-Divisional
     Judicial Magistrate, Ferozepur and the appellate order passed
     by the Addi. Sessions Judge, Gurgaon were set-aside by the
     High Court in revision.

0         3. The accused persons were convicted under Section 8
     of the Act and sentenced to undergo rigorous imprisonment for
     a period of one year by the Court of Sub-Divisional Judicial
     Magistrate, Ferozepur vide judgment dated 14.09.1998 in Crl.
     Case No.23/96. On Appeal, this order of conviction and
.E   sentence was confirmed and upheld by the Additional Sessions
     Judge, Gurgaon vide order dated 01.06.2000 in Criminal
     Appeal No.20/98.

         4. The facts and circumstances, which are relevant, are as
     under:
F
          (a) According to the prosecution, on 01.01.1996 Head
     Constable Satyabir/p.w.-3 (hereinafter "the Investigating
     Officer") received a secret information that the accused persons
     were slaughtering cows in their house and if any raid was
G    conducted, the accused persons could be caught red-handed.
     Consequently the investigating officer along with Head
     Constable Bir Singh/p.w.-2 formed a raiding party and raided
     the house of the accused persons.

           (b) On seeing the Police party, both the accused persons
H
     STATE OF HARYANA v. RAJMAL AND'ANR.                     353
           [ASOK KUMAR GANGULY, J.]

by scaling the wall, fled away from their house by taking            A
advantage of the darkness.

     (c) However the investigating officer found 70 kgs of fresh
beef, one skin of cow, one axe, two blood stained daggers and
four weak and infirm cows. Those were seized and taken into          6
custody vide recovery memo. Thereafter ruqa was sent to the
police station, on the basis of which FIR was registered and the
case was investigated.

    (d) Thereafter the accused persons were arrested and
charged under Section 8 of the said Act.                 C

     (e) At the Trial, P.W.-3/investigating officer and P.W.-2/Bir
Singh, who were eye-witnesses, supported the case of
prosecution and categorically deposed that accused were
known to them from before and on seeing the police party, they       o
ran away from the place by scaling the wall.

     (f) The accused persons did not lead any evidence in their
defence.

    (g) After the appreciation of evidence, vide judgment-dated E
14.09.1998 the Trial Court convicted the accused persons under
Section 8 of the said Act and sentenced each of them to
undergo rigorous imprisonment for a period of one year.

    {h) The accused persons challenged the aforesaid F
conviction and sentence, by filing an appeal before the
Additional Sessions Judge, being Criminal Appeal no. 20 of
1998.

     (i) By an order-dated 01.06.2000 the Additional Sessions
Judge, after a re-appreciation of evidence, confirmed the order G
of conviction and sentence passed by the Trial Court.

     0) Against that order, the accused persons preferred a
revision before the High Court.
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    354         SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A        (k) By impugned order-dated 20.04.2010 the High Court
    allowed the revision and set aside the order of conviction of
    the accused persons.

         5. The High Court in its revisional jurisdiction while
    reversing the concurrent finding of the Courts below indicated
8   the following reasons:

           I.      No independent witness from the locality was
                   present at the time of conducting raid.

c          II.     No evidence has been led to prove that the
                   accused persons were the owners of the house.

           Ill.    It has also not been established that the accused
                   persons were in the exclusivepossession of the
                   house and as such theycannot be said to be in
D                  conscious possessionof the house.

           IV.     The accused persons were not identified and it is
                   the prosecution case that the accused persons fled
                   away by scaling the wall and bytaking advantage
E                  of the darkness.

         6. We are not satisfied with the reasoning of the High
    Court, as none of the grounds put forward by the High Court in
    the impugned judgment is sustainable. If we take up the last
    ground first, it is clear that the aforesaid conclusion of the High
F   Court, being a conclusion on pure questions of fact, is against
    the evidence on record.

        7. The Trial Court has found that there is cogent evidence
  on record to show that both the accused persons were known
G to the witnesses from before and they ran away, by scaling the
  wall, after seeing the police party. The Trial Court also recorded
  a finding of fact that accused persons have not made out any
  case of animosity of the official witnesses against them.

          8. In the appellate forum, the Sessions Judge has also
H
      STATE OF HARYANA v. RAJMAL AND ANR.                      355
            [ASOK KUMAR GANGULY, J.]
  recorded that P.W.-3/lnvestigating Officer has clearly stated that A
  he knew the accused persons because he had apprehended
. them in another case and the said statement of the P.W.-3 was
  not challenged in cross-examination. Nor has the accused
  persons ever questioned that the witnesses knew them prior to
  the date of the occurrence. The appellate forum also recorded       s
  that accused persons have not suggested that they were falsely
  implicated in the case.

     9. In view of this admitted factual position, this Court cannot
accept the reasoning of the High Court in its revisional
jurisdiction whereby the High Court found that in the absence C
of independent local witness the prosecution case is not worthy
of credence. The factual conclusion of the High Court is contrary
to the evidence on record.

      10. In this connection, it may be noted that in upsetting the D
 concurrent finding of the courts below, about the identification
 of the accused persons, the High· Court has not given any
 reason.

       11. In State of A.P. vs. Pituhuk Sreeinvanasa Rao ((2000) E
 9 SCC 537] this Court held that the exercise of the revisional
 jurisdiction of the High Court in upsetting concurrent finding of
 the facts cannot be accepted when it was without any reference,
 to the evidence on record or to the finding entered by the trial
 court and appellate court regarding the evidence in view of the
 fact that revisional jurisdiction is basically supervisory in nature. F

     12. It has been also held by this Court in Amar Chand
 Agarwala vs. Shanti Bose and another [Al R 1973 SC 799] that
the revisional jurisdiction of the High Court under Section 439
Cr.P.C. is to be exercised, only in an exceptional case, when G
there is a glaring defect in the procedure or there is a manifest
error on a point of law resulting in a flagrant miscarriage of
justice. [para 20, page 804 of the report]

      13. Going by the aforesaid principles, it cannot be held that H
    356    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A   the interference by the High Court on the question of
    identification of the accused persons in facts of the case is
    either proper or legally sustainable.

        14. Now let us examine the first question on which the High
    Court has interfered, namely the legality of the search
8
    procedure.

         15. A three-Judge Bench of this Court in the case of
    Radha Kishan vs. State of Uttar Pradesh [AIR 1963 SC 822)
    while construing similar provision in the Cr.P.C. of 1898 held
C   that an illegal search does not vitiate the seizure of the article.
    The only requirement of law in such cases is that the Court has
    to examine carefully the evidence regarding the seizure. But
    beyond this no further consequences ensues. (para 4, page
    824 of the report)
D
         16. This principle is being consistently followed loy this
    Court and by different High Courts since then. Herein if we
    follow the aforesaid principle, we do not discern any error
    committed by the Courts below by proceeding on the material
E   collected, as a result of the seizure of materials.

          17. The other two points on which the High Court chose
    to interfere, namely the ownership of the house or the conscious
    possession of the house as a valid requisite before the accused
    persons could be held guilty; under Section 8 of the said Act,
F   is clearly based on a misreading of the clear provision of the
    Act.

         18. The said Act, which has been enacted to give effect
    to the provisions of Article 48 of Directive Principle of State
G   Policy and which is still in force, prohibits cow slaughter in
    Section 3 thereof in following terms-

          "3. Prohibition of cow slaughter - Notwithstanding
          anything contained in any other law for the time being in
          force or any usage or custom to the contrary, no person
H
     STATE OF HARYANA v. RAJMAL AND ANR.                    357
           [ASOK KUMAR GANGULY, J.]

    shall slaughter or cause to be slaughtered or offer or cause   A
    to be offered for slaughter any cow in any place in Punjab:

         Provided that killing of a cow by accident or in self
    defence will not be considered as slaughter under the Act."

     19. Under Section 4 there are certain exceptions to section   8
3. Those exceptions are as under:

    "4. Exceptions. - (1) Nothing in section 3 shall apply to
    the slaughter of a cow -

      (a)   whose suffering is such as to render its destruction
                                                                   c
            desirable according to the certificate of the
            Veterinary Officer of the area or such other Officer
            of the Animal Husbandry Department as may be
            prescribed; or
                                                                   D
      (b)   which is suffering from any contagious or infectious
            disease notified as such by the Government; or

      (c)   which is subject to experimentation in the interest
            of medical and public health research by a certified   E
            medical practitioner of the Animal Husbandry
            Department.

    (2) Where it is intended to slaughter a cow for the reasons
    specified in clause (a) or clause (b) of sub-section (1) it
    shall be incumbent for a person doing so to obtain a prior     F
    permission in writing of the Veterinary Officer of the area
    or such other Officer of the Animal Husbandry Department
    as may be prescribed."

     20. The expression "slaughter" is defined in Section 2(e)     G
of the Act, which is as follows:

    "2(e) - "slaughter" means killing by any method whatsoever
    and includes maiming and inflicting of physical injury which
    in the ordinary course will cause death."
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    358    SUPREME COURT REPORTS (2011) 13 (ADDL.) S.C.R.


A       21. If we read Section 3 and Section 4 together, it is clear
  that the person contravening Section 3 cannot put up a defense
  that the act of slaughter was being done in a place, of which
  he is not the owner or in respect of which he does not have the
  conscious possession. Slaughter of Cows, subject to
B exceptions under Section 4, in any place, is prohibited under
  Section 3 and penalty for doing so is provided under Section
    8.
       22. The High Court's finding that the guilt of the accused
C persons has not been proved in the absence of proof of their
  ownership or conscious possession of the house where
  slaughter took place, is a finding which is de-hors the said Act
  and is clearly not legally sustainable. Slaughter of the Cows is
  clearly prohibit~d under Section 3, subject to the exceptions in
  Section 4. The case of the accused persons is not covered
D under the exceptions in Section 4. No such defense was ever
  taken.

      23. Therefore the impugned order of the High Court is, with
  respect. legally not sustainable. We therefore are unable to
E accept the reasons of the High Court. The appeal is allowed.
  The order of the High Court is set-aside and that of the learned
  Sessions Judge is affirmed.

    D.G.                                          Appeal allowed.