Mahesh Chandra Sharma, J.
1. The petitioner Ramjilal, filed the S.B. Criminal Revision Petition No. 428 of 2009, against the order dated January 30, 2009 of Addl. Sessions Judge No. 1 Sikar Camp Neem Ka Thana in Sessions Case No. 01 of 2009 whereby he convicted the accused respondent No. 2 for the offence under Section 3/8 of the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995 and sentenced him to suffer three years RI and fine of Rs. 2000/- and in default of payment of fine to suffer one month SI, for enhancement of sentence and the appellant filed the S.B. Criminal Appeal No. 173 of 2009 for setting aside the judgment of the Additional Sessions Judge convicting and sentencing him as mentioned above. Since both the revision petition and the appeal relate to one incident, they are being disposed of by this common order.
2. Brief facts of the case are that on August 12, 2008 at 10.00 a.m. a written report was prepared that Bijendra Singh son of Kalyan Singh resident of village Jilo beating a cow indiscriminately by stone over eye, vertebra bone and tongue. The cow is lying in Jilo School waiting for her last breath, signature over this report was made by Mahatma Bairam on August 14, 2007. Names of two witnesses namely Malaram and saitan Gurjar was made as witnesses. This report was registered by the Incharge Police Station Patan on Augsut 14, 2007 at 3.45 p.m. Crime details form was prepared by the Police Station along with site plan on August 14, 2007. Dr. Vinod Kumar Tyagi on August 14, 2007 at 4.30 p.m. prepared injury report Ex.P.3 at Primay Jilo School where cow was lying alive. He found following injuries:
-injury by the blunt object on the Lumber region measures about 1.5 cm. x 1.0 cm. There may be fracture of the colossal Lumber vertebrae so that animal unable to move.
-Injury on the skull
-Blood was oozing out from both the Nostrils.
-Injury on the Right side of the thorax region and abdomen
Age of injuries 48 hours. Place was shown at Jeelo Primary School.
3. On August 20, 2007 injured cow died at 1.00 p.m. After death the postmortem report of the dead body of cow was conducted by Medical Board of Animal Husbandry Department on August 21, 2007. The doctors were of the opinion that the cow died due to septic and nerve shock. The accused was arrested on August 14, 2007. After usual investigation challan was filed. The Judicial Magistrate Neem Ka Thana committed the case to the Sessions Court where from the case was assigned to Addl. Sessions Judge No. 1 Sikar Camp Neem Ka Thana. Charges were framed against the accused under Section 3/8 of Bovine Animal Act. The accused denied the same and claimed to be tried. The prosecution in support of its case examined 10 witnesses and exhibited 7 documents. In defence the accused placed 4 documents on record i.e. police statements of witnesses recorded under Section 161 Cr.P.C. The learned Addl. Sessions Judge after hearing arguments of both the sides acquitted the accused respondent. Against this order of acquittal the petitioner Ramjilal filed S.B. Criminal Revision Petition No. 1458 of 2008. This Court vide its order dated December 15, 2008 allowed the revision petition and directed as under:
The order of acquittal passed by the learned Addl. Sessions Judge dated October 17, 2008 is quashed. The trial court is directed to rehear the parties and pass afresh order after taking into consideration all material evidence and documents on record. The matter is remanded back to the trial court for passing fresh order within a period of 15 days from the date of receipt of the certified copy of the order and the record.
The revision petition is allowed as indicated above. The accused respondent shall appear before the trial court on January 3, 2009.
4. In pursuance of the above judgment of this Court, the accused appellant Vijendra Singh appeared before the Additional Sessions Judge on January 3, 2009 and the Additional Sessions Judge after hearing both the parties convicted the accused appellant for the offence under Section 3/8 of the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995 and sentenced him to suffer three years RI and fine of Rs. 2000/- and in default of payment of fine to suffer one month SI vide judgment dated January 30, 2009.
5. Before proceeding further it would be necessary to have a look at the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995. The provisions of the Bovine Animal Act were published in Rajasthan Gazette dated April 27, 1995. Thus it is clear that the provisions of the Bovine Animal Act were applicable from April 27, 1995 as per the proviso (3) of Section 1. Clause (h) of Section 2 defines 'cow' means a female above the age of three years belonging to the species of bovine animal. Section 10 of Bovine Animal Act provides punishment for intentionally injuring any bovine animal. Section 11 of the Bovine Animal Act defines 'burden of proof', which reads as under:
11. Burden of proof.- Where any person is prosecuted for an offence under the provisions of this Act, the burden of proof that he had not committed the offence under the provisions of this Act shall be on him.
6. Thus it is clear that burden of proof was not on the prosecution but as per the provisions of Section 11 of Bivine Animal Act it is on the accused that he has not committed any such offence for which charges have been levelled against him. The prosecution simply has to say that the accused has committed the offence which is punishable under the Bovine Animal Act.
7. The learned Counsel for the petitioner Ramjilal, argued that the court below convicted the accused respondent for contravention of the provisions of the 1995 Act but instead of sentencing him to the period of 10 years RI, simply sentenced him to suffer RI for three years. Thus the judgment of the court below in so far as it relates to sentencing the accused respondent for a period of 3 years RI should be modified and he be sentenced to 10 years RI. The prosecution has been able to prove the offence beyond reasonable doubt against the accused respondent. Thus as per the provisions of the Bovine Animal Act, the accused respondent should be convicted for the maximum punishment of 10 years RI.
8. The learned Counsel for the appellant argued that the learned Additional Sessions Judge in the previous judgment did not find the accused appellant guilty for the offences charges against him. On the same set of evidence the accused appellant should not be convicted for the offence of Bovine Animal Act. There is no direct evidence against him. Thus the judgment of the court below convicting him should be quashed and set aside.
9. The learned Public Prosecutor on the other hand opposed the submissions of learned Counsel for the petitioner and the learned Counsel for the accused appellant and stated that the court below after considering all the evidence, documents and record passed the order of conviction, convicting the accused appellant for a period of 3 years RI, which is quite reasonable. There is no direct evidence against the accused appellant. There is no illegality or infirmity in the order passed by the court below.
10. I have heard the learned Counsel for the parties and gone through the entire record. The report of the incident is of August 12, 2008 at 10.00 a.m. The police started investigation after endorsing it to be of August 14, 2007. Dr. Vinod Kumar Tyagi on August 14, 2007 at 4.30 p.m. prepared injury report Ex.P.3 and found the injuries caused by blunt object on the Lumber region. He also found that Blood was oozing out from both the Nostrils. The doctor opined the age of the injuries about 48 hours on August 14,2007. Thus it is clear that the injuries suffered by cow were caused by the accused on August 12, 2007 as pointed out in the written report itself. The learned Additional Sessions Judge observed in the judgment that the incident occurred on August 12, 2007 and the doctor examined the injuries on August 14, 2007 at 4.30 p.m. when it has been proved by the complaint and the injury report that the cow sustained injuries on August 12, 2007, there cannot be any suspicion about the incident and time of causing injuries. The learned Addl. Sessions Judge has also opined in the judgment that the accused appellant caused the injuries, which is also corroborated by medical evidence. Dr. Vinod Kumar PW.3 proved the injury report Ex.P.3 and post mortem report Ex. p.4. He has categorically stated that the cow died on account of the blunt object and cause of death was septic and nerve shock suffered by cow. Prosecution witnesses Bairam (PW.1), Saitan (PW.3), Malaram (PW.5) and Ramji Lal (PW.6) all in equivocal terms stated that the cow was beaten by accused Bijendra and cow died on account of the injuries sustained after seven days. Saitan PW.4 stated in his examination in chief that when he has gone in search of cow Pavan stated to him that Bijendra is beating cow in School boundary. He immediately went there and found that Bijendra was beating cow by lathis and stones. Malaram PW.5 in his examination in chief stated that he has seen accused Bijendra Singh beating cow by a big stone on account of which vertebrae bone of cow was broken and she fell down. The accused has not been able to say a single word pointing out that on account of enmity the prosecution witnesses taken his name falsely. Why the witnesses will give false evidence against him. Actually the crime was committed by the accused appellant and it is proved by the medical evidence that the cow died on account of septic and nerve shock, thus the prosecution has been able to prove offence charged against the accused appellant and for contravening the provisions of the Bovine Animal Act, the sentence of three years RI imposed by the trial court cannot be said to be unreasonable. It may be mentioned here that the burden of proof was on the accused appellant to prove that he has not committed any offence. The accused appellant has not been able to produce a single witness pointing towards the fact that he has not committed any such offence. The prosecution witnesses have been able to prove that the accused appellant caused the grievous injury to cow and thereafter the cow died after 7 days. Thus it is clearly a case proved by the prosecution that the accused appellant caused the grievous injuries to the cow and the same is punishable under Section 10 of the Act of 1995 upto seven years, in my opinion in the interest of justice sentencing the accused appellant for a period of three years RI is just and proper.
11. For the reasons mentioned above, the revision petition preferred by the petitioner Ramjilal is rejected. The appeal preferred by the accused appellant, is also rejected. The judgment of conviction and sentence dated January 30, 2009 passed by the Additional Sessions Judge No. 1 sikar camp Neemka Thana in Sessions Case No. 1 of 2009 is maintained. Since the appellant is on bail, he is directed to surrender forthwith for serving out the remaining sentence.