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Kitab All Munshi and ors. Vs. Santi Ranjan Deb - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantKitab All Munshi and ors.
RespondentSanti Ranjan Deb
Excerpt:
.....of the petitioners was that the evidence in this case does not justify the conviction of the accused persons and that the judgment of the learned magistrate is perverse in that he has overlooked the discrepancies in the evidence of the witnesses which clearly go to show that they are not witnesses of truth. although instances of cow sacrifice may tie found in the hindu scriptures, it is well known that the idea 'slaughter of cow' is abhorrent to the hindus in general. lakshmindra thirtha swamiar [1954]1scr1005 a decision which has been relied on by the learned counsel for the petitioner himself-that religion is a matter of faith with individuals or communities and that a religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess..........one month.2. the prosecution case was that on 23rd jaistha, 1967 b. s. corresponding to 6-6-60 the accused persons slaughtered a bullock in an open space in front of the house of the accused petitioner abdul khaleque which was by the road side and also close to the house of p. w. 1, complainant; that the act was done in spite of protest by the complainant with the deliberate intention of wounding the religious feelings of the complainant and other hindus of the locality. on a complaint having been made to that effect, the accused persons were summoned under section 298 i, p. c. the defence of the accused persons was that they sacrificed the bullock in question on the occasion of bakr-id-day, that they did so in pursuance of their religious practice without any intention to offend the.....
Judgment:

Rajvi Roop Singh, J.C.

1. This is a Criminal Revision filed by Kitab Ali, Munshi Mafizuddi, Manu Mia and Abdul Hassim against the order dated 31-1-63 passed by the Sessions Judge, Tripura in Criminal Motion No. 65 of 1961 rejecting the application for making reference to this Court against the Order dated 9-5-1961 of Shri N. G. Paul, Magistrate First Class, Khowal, passed In C. R. Case No. 84 of 1960 convicting the accused persons under Section 298 I. P. C. and sentencing them each to pay a fine of Rs. 50/- in default to undergo R. I. for one month.

2. The prosecution case was that on 23rd Jaistha, 1967 B. S. corresponding to 6-6-60 the accused persons slaughtered a bullock in an open space In front of the house of the accused petitioner Abdul Khaleque which was by the road side and also close to the house of P. W. 1, complainant; that the act was done in spite of protest by the complainant with the deliberate intention of wounding the religious feelings of the complainant and other Hindus of the locality. On a complaint having been made to that effect, the accused persons were summoned under Section 298 I, P. C. The defence of the accused persons was that they sacrificed the bullock in question on the occasion of Bakr-Id-Day, that they did so in pursuance of their religious practice without any intention to offend the religious feeling of the complainant or any other Hindus; that the act was done in the private land of the accused Abdul Khaleque and that the act was not seen either by the complainant or his witnesses nor was visible from the complainant's house or the road.

3. In order to substantiate the charge against the accused persons five witnesses were examined on behalf of the prosecution but none for the defence.

4. The learned Magistrate on a consideration of the evidence and the defence of the accused persons found all the accused guilty under Section 298 I, P. C. for deliberately wounding the religious feeling of the complainant and some other local Hindus by slaughtering the bullock in question in spite of protest in an open space only a few cubits away from the complainant's house and the public road and clearly visible from those places. He accordingly convicted and sentenced the accused petitioners.

5. Being aggrieved by this Judgment of the learned Magistrate the petitioners went in Revision to the Court of Sessions Judge. The learned Sessions Judge rejected their Revision Petition. They have now come to this Court,

6. The first contention advanced on behalf of the petitioners was that the evidence in this Case does not justify the conviction of the accused persons and that the judgment of the learned Magistrate is perverse in that he has overlooked the discrepancies in the evidence of the witnesses which clearly go to show that they are not witnesses of truth. In this connection he has drawn my attention to the evidence of P. W. 1, the complainant to the effect that the house of the prosecution witnesses Gouransa Saha and Krishnadhan Goswami were at distances of about one drone and 12 kanis respectively; whereas P. W. 2 Gouranga Saha has stated that the house of Krishnadhan Goswami was at a distance of about 1/2 kani from that of the complainant and that P. W. 3 Krishnadhan Goswami has said that his house is within one kani of the house of the complainant. Further there is discrepancy in the testimony of the witnesses as to the colour of the bullock in question. P. W. 1 has stated that it was spotted black and white; whereas the evidence of P. W. 4 Durgadhan Das and P. W. 5 Nani Gopal Chakraborty are respectively that it was of Makra and White Colour. These discrepancies, according to the learned Counsel go to show that none of these witnesses saw the actual slaughter of the bullock in question. There are undoubtedly the discrepancies in the evidences of the witnesses as pointed out by the counsel for the petitioners. But these are minor discrepancies which do not affect the merits of their testimony. Besides that it is not possible for me in revision to interfere with the appreciation of oral evidence, when two Courts below have come to concurrent findings of fact. I do not therefore propose to deal with the oral evidence.

7. The learned Counsel for the petitioners next contended that in the present case no conviction is warranted unless it is established that the act of the accused persons wounded the religious feeling of any person. He pointed out that the words religious feelings' occurring in Section 298 I. P. C. have not been denned anywhere in the Indian Penal Code but has argued that there can be no doubt that the words 'religious feeling' cannot mean any feeling which anybody or class of persons may have on account of superstition. According to him there is no express provision prohibiting sacrifice of cow in the Hindu religion; on the contrary there are instances of sanction of cow sacrifice in Hindu scriptures. If any Hindu, therefore, has any feeling against cow-slaughter, that is nothing but a superstition and as such the slaughter of bullock in question in the present case cannot be held to have wounded the religious feeling of any person. It is true that the Indian Penal Code does not define religious feeling but it is evident that religious feeling can mean nothing more or less than feeling associated with a person's religious ideas. Although Instances of cow sacrifice may tie found in the Hindu scriptures, it is well known that the idea 'slaughter of cow' is abhorrent to the Hindus in general. There are various castes and sects among the Hindus but no one who calls himself a Hindu can look upon cow-slaughter with equanimity and without his religious reeling being wounded.

It has been held in Commr. Hindu Religious. Endowments Madras v. Lakshmindra Thirtha Swamiar : [1954]1SCR1005 a decision which has been relied on by the learned Counsel for the petitioner himself-that religion is a matter of faith with Individuals or communities and that a religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. It has been further pointed out in that decision a. religion may not only lay down a code of ethical rules for its followers to accept. It might prescribe rituals and observances ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. That being so, the idea of slaughter of cow which is repugnant to the Hindus universally cannot be held to be a mere superstition. Such repugnance is nothing but a part of the religious idea of all who profess the Hindu religion. All the eye-witnesses in the present case namely P. Ws. 1, 2, 3, 4, and 5 who are Hindus have spoken in one voice that the sight of the accused persons slaughtering the bullock offended their religious feeling. In such state of evidence, there can be no room for doubt that the act of the accused persons had wounded the religious feeling of the complainant and other witnesses who are Hindus.

8. Lastly the learned Counsel for the petitioners argued that admittedly the accused persons had scarified the bullock in question on the occasion of Bakr-Id-Day in pursuance of their religious practice as enjoined by the Holy Koran and that the accused, therefore, cannot be said to have done anything with the deliberate intention of wounding the religious feeling of the complainant or any other Hindu. According to him,, the sacrifice of the bullock in question by the accused persons must be taken to have been made by them under Article 25 of the Indian Constitution. In support of his argument he placed reliance on a decision of the Supreme Court reported in Mohd. Hanif Quareshi v. State of Bihar : [1959]1SCR629 . The Govt. advocate has also relied on this ruling. In this case their Lordships of the Supreme Court, how-ever, held that the sacrifice of a cow on the Bakr-Id-Day cannot be held to be an obligatory act for a Muslim to exhibit his religious belief and idea. That was a case in which certain Acts passed by legislatures of Bihar, Uttar Pradesh and Madhya Pradesh banning the slaughter of certain animals, including cows were challenged as offending against Article 10(1)(g) and Article 25(1) of the Indian Constitution and it was contended on behalf of the petitioners in that case that the section prohibiting slaughter of cow violated the fundamental rights of the petitioners guaranteed under Article 25 of the constitution Inasmuch as on the occasion of their Bakr-Id-Day, it is the religious practice of the petitioners' community to sacrifice a cow on the said occasion and that the poor members of the community usually sacrifice one cow for every 7 members whereas it would require one sheep or one goat for each member which would entail considerably more expense. Their Lordships in repelling the contention of the petitioners in that case observed as follows:

All that was placed before us during the argument were Surah XXII, verses 28 and 33. and Buran CVIII. What the Holy book enjoins is that people should pray unto the Lord and make sacrifice. We have no affidavit before us by any Maulana explaining the implications of those verses or throwing any light on this problem. We, however, find it laid down in Hamilton's translation of Hedaya BOOK XLIII at P. 592 that it is duty of every free Mussalman, arrived at the age of maturity, to offer a sacrifice on the Yd Kirban. or festival of the sacrifice, provided he be then possessed of Nisab and be not a traveller. The sacrifice established for one person is a goat and that for seven a cow or a camel. It is, therefore optional for Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. It does not appear to be obligatory that a person must sacrifice a cow. The very fact of an option seems to run counter to the notion of an obligatory duty, it is, However, pointed out that a person with six other members of his family may afford to sacrifice a cow but may not be able to afford to sacrifice seven goats. So there may be an economic compulsion although there is no religious compulsion. It is also pointed out that from the time immemorial the Indian Mussalmans have been sacrificing cows and this practice, if not enjoined, is certainly sanctioned by their religion and It amounts to their practice of religion protected by Article 25, while the petitioners claim that the sacrifice of a cow is essential the State denies the obligatory nature of the religious practice. The fact, emphasised by the respondents, cannot be disputed, namely, that many Mussalmans do not sacrifice a cow on the Bnkr-ld-Day. It is part of the known history of India that the Moghul Emperor Babar saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun to follow this example. Similarly emperors Akbar, Jehangir and Ahmad Shah, it is said, prohibited cow slaughter. Nawab Hyder Ali of Mysore made cow slaughter an offence punishable with the cutting of the hands of the offenders. Three of the members of the Go-semvardhan Enquiry committee set up by the Uttar Pradesh Government in 1953 were Muslims and concurred in the unanimous recommendation for total ban on slaughter of cows. We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.

9. Even if it be conceded that the accused persons as Muslims were under a religious compulsion to sacrifice a cow on the occasion of Bakr-Id-Day, It must be noted that their right to do such acts are subject to some Important limitations under Article 25(1) wnicn is as follows:

Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

It is clear that a person has a right to practise his religion subject to public order. It follows, therefore, that the accused persons could pursue their religious practices so as not to offend the religious feeling of others which might cause a breach of public order i.e. the public tranquillity and peace. In the present case as has been found by the learned Magistrate, the accused persons had caused the slaughter of bullock in an open public space in spite of protest by the complainant, a Hindu and in presence of other witnesses who are also Hindus. This fact clearly goes to establish that the accused persons deliberately Intended to offend the religious feelings of the complainant and other Hindus. This view finds support from the ruling in Mir Chilian v. Emperor AIR 1937 All 13 wherein it has been held that an accused slaughtering cow in broad day light in full view of the house of Hindus is guilty of an offence under Section 2D8 inasmuch as he must have known that his act would wound the religious feelings of Hindus and he must have, supposed to have intended the necessary consequences of his acts.

The learned lawyer appearing for the petitioner has cited the decision In a Patna case retorted in Amjad Sheikh v. Emperor AIR 1942 Pat 471 in support of his contention that the act of the accused persons cannot be held to have been done with any deliberate intention to offend the religious feeling of the complainant or anybody else. The facts of that case, however, are clearly distinguishable from those in the present case. What happened in that case is this : Certain Mahomdans killed a cow at dawn before sunrise. It was done at a place not near any public road, but there was a village pathway running along the top of an embankment 2 1/2 feet high, 50 feet distant from the scene of the sacrifice. The sacrifice was actually made within a new room which was being constructed at the side of the house of the accused. The plinth was 1 1/2 feet high, and the wall had reached a height of two feet. There was thus a total height of 3 1/2 feet of wall on the embankment side of the enclosure, but persons walking along the embankment could see within and could see at least a portion of the floor. The other three sides of the room were bounded by the walls of houses. On these facts it was held by their Lordships of the Patna High Court that the place of sacrifice could in no sense be said to be a public one, and though the case was a marginal one, in view, of the time and situation of the place at which the sacrifice was committed, an offence under Section 290 could not be said to have been committed. The fact that some of the Hindus did happen to see the sacrifice of the cow did not Justify the Inference that the sacrifice was committed with the intention of annoying those Hindus, This decision cannot be held to be in any way applicable to the present case where the finding is that the accused persons slaughtered the bullock at broad day light in an open space in spite of protest by the complainant whose house was close-joy.

10. No other point worth mentioning has been pressed in arguments. The application for revision is without substance, therefore, it is rejected.


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