JUDGMENT AND ORDER :

Dinesh Mehta, J.

1. The present appeal has been preferred by the accused appellant under Section 374 of the Code of Criminal Procedure, 1973, oppugning the judgment and sentence dated 23.2.1993, passed by District & Sessions Judge, Banswara, whereby he had been convicted for offence under Section 2 of the Rajasthan Preservation of Certain Animals Act, 1950 and was asked to undergo two years and six months' rigorous imprisonment with fine of Rs. 1,000/- and in default in payment of the fine, to undergo two months' additional rigorous imprisonment.

2. The present appeal had been admitted on 2.4.1993 after considering the submissions of learned counsel for the appellant and the sentence awarded to the appellant stood suspended.

3. However, thereafter the said counsel did not appear, for which this Court directed the Registry to issue notice to the appellant. Office has reported that the notice upon the appellant has been served, yet nobody has put in appearance to pursue the present appeal.

4. Hence, this Court is constrained to decide the appeal in absence of the appellant/his counsel.

5. The facts appertain to the present appeal are that the complainant Arjun lodged a complaint in the Police Station Sadar, Banswara, informing that the day before, while his son Ishwar was gliding his ox named Singa towards jungle for grazing, it entered the corn-cultivated field of Narayan. At this juncture, infuriated Narayan came with a club (lathi) and started beating it vigorously, resultantly it fell down. Seeing the ox falling down, Ishwar returned home and gave information to his father, where-after he and Ishwar came back, searching for the ox, which was found lying dead on the bulwark of Narayan's field.

6. Pursuant to the first information report, so lodged by the complainant Arjun, the police after usual investigation filed challan against the accused Narayan under Section 429 of the Indian Penal Code and Section 2 of the Rajasthan Preservation of Certain Animals Act, 1950 (for short "the Act of 1950").

7. The trial Court framed the following charge against the accused appellant Narayan under Section 2 of the Act of 1950, while discharging him of offence under Section 429 of the Indian Penal Code:-

*Vernacular Matter committed here

8. The accused while denying the charge framed against him, entreated trial.

9. On behalf of the prosecution, PW-1 Arjun owner of the ox appeared in the witness box and iterated the incident as narrated to him by his son Ishwar. PW-2 Ishwar, the alleged eye witness, appeared in the witness box and deposed that on the fateful day, when he was navigating his ox Singa to the Jungle for grazing, it entered the corn field of accused Narayan; thence accused Narayan came with the club (lathi) and gave multiple blows to the ox and drove it off his field; after receiving 4-5 lathi blows, the said ox fell down at a short distance from Narayan's field. After which, he proceeded towards his house and came back with his father, only to find that the poor ox was lying dead.

10. However, during the cross-examination, PW-2 Ishwar admitted that the ox Singa had slipped in the drain (nala), from where its dead body was recovered.

11. PW-3 Dr. Janardan Shukla Veterinary Doctor appeared in the witness box and deposed that he had conducted post-mortem of the ox and found swelling on his right leg above knee/stifle joint; fracture in the last rib; and its kidney and ureter were found raptured. He suggested rather apprehended that the ox died of excess bleeding and lack of oxygen.

12. Learned District & Sessions Judge, Banswara after appreciation of the oral and ocular evidence found the accused guilty of killing the ox Singa. While convicting the accused appellant, the trial Court recorded a finding that the ox in question died because of the lathi blows given to it, by the accused. The trial Court however disbelieved or ruled out the theory portrayed by the defence/accused that the ox died of falling in the drain (nala).

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