1. This iS a rule obtained by two accused who have been convicted under B. 6, Bengal Cruelty to Animals Act, 1920, for performing 'the operation called phuka' on a certain cow on lat June 1946.
2. The petitioner, Subol Chandra Koley has been sentenced to three months' rigorous imprisonment and Keru Barik has been sentenced to pay a fine of Its. 50, in default to suffer rigorous imprisonment for one month.
3. The principal ground urged before us was that a certain note by Mr. P. J. Kerr, M. B. O. V. S., I. V. S., Veterinary Advisor to the Govern, ment of Bengal, dated nth March 1930, describing 'phuka' a practice applied to milch cows, and marked as Ex. 7 in the case, was not admissible in evidence. This note describes the methods applied, and the first method described is that lips of the vulva are held in each hand and opened, the operator then blows in with his mouth closing thE lips between each blow to retain the air blown in. This is continued until the cow shows definite signs of discomfort, even pain. It is then pointed out that some operators in order to obtain a still greater degree of distension insert a piece of hollow bambuo and blow up the vagina, and the opinion is expressed that in order to produce the desired result the distension of the vagina is to be carried on until the animal is showing definite signs of discomfort amounting to pain. Therefore the practice is cruelty to animals.
4. The Bengal Cruelty to Animals Act, 1920 -was amended in 1938 and the punishment under Section 6, in respect of the operation called 'phuka' was enhanced and the offence was made cognisable. This was done as is well known, after some public agitation in the matter. At that time (1988) the Government Veterinary Advisor had already expressed from his knowledge his views as to the manner in which 'the operation called phuka' was performed.
5. In our opinion this document is admissible as showing what the Legislature was dealing with in 1920 and 1938. There is admittedly no other authoritative document from which it is to be ascertained as to what the words 'the operation called phuka' really mean. In the Act itself there is nowhere any attempt to define it.
6. In our opinion the words clearly refer to some process in which by use of physical means to milch animals they are induced to produce more milk than they would otherwise have produced if the means were not employed.
7. The prosecution evidence in this case if believed, is quite sufficient to establish that the method employed by the accused was that referred to as a first method in Ex. 7.
8. The defence called a veterinary surgeon, D. w. 9 who at one stage of his evidence said he did not agree with the view expressed in Ex. 7; as pointed out by the learned Sessions Judge in the appellate judgment, this witness had to resile very considerably from that position so that in fact it appears that he was practically quibbling with words. He was asked whether the operation could be performed by blowing alone and he said it could not. He had to concede that though with blowing alone it was impossible, it was practicable if the hands were used in order to separate lips of the vulva. The lower Courts in our opinion very rightly therefore did not place much reliance on his evidence.
9. One other point was mentioned to us, namely, it was suggested that the learned Judge had not properly dealt with the evidence of a clerk who came from the Electric Light Company and deposed that there was no electric light connection to the premises in question, the evidence in the case on the side of the prosecution being that there was an electric light in the khatal. Strictly speaking in our opinion the learned Judge's comments are justified and it cannot be said really that it has been properly proved that there was no electric connection in the premises in question. In my view even if the witness's evidence is accepted at its full value it doss not really go far in throwing any doubt on the prosecution case. There may be some doubt as to the exact nature of the light available at the premises.
10. We see no reason therefore in any way for interfering with the conviction in this case. On the other hand it does appear that the offence here was of a comparatively mild character. The cow was subsequently milked and continued to produce milk indicating that the process of phuka committed on it had not been of a very serious character.
11. We therefore while upholding the convictions alter the sentence passed on the petitioner Subol Chandra Koley from three months' rigorous imprisonment to a fine of Rs. 100. in default one month's rigorous imprisonment. For the rest the order will stand. The rule is disposed of accordingly.