A right of appeal is a substantive right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the said or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

JUDGEMENT

Misra, C. J. :- The petitioner has been convicted under Section 429, Indian Penal Code and S.11(1)(a) of the Prevention of Cruelty to Animals Act and sentenced to a fine of Rs. 100/- under Section 429, Indian Penal Code in default to undergo 10 days' S. I. No separate sentence has been imposed under Section 11(1)(a) of the Prevention of Cruelty to Animals Act.

2. Prosecution case is that the petitioner gave a lathi blow to a calf of P.W. 1 on 21-10-1971. The calf had a fracture in the left hind leg and died on 27-10-1971 P.W. 1 lodged the FIR on the very day the calf was injured. Charge-sheet was submitted on 13-3-1972 and cognizance was taken on 18-4-1972. The petitioner was convicted and sentenced as already stated on 30-4-1974 after the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the new Code) came into force on 1-4-1974. The defence was one of denial.

3. Mr. Ray for the petitioner contended that the conviction is unsustainable as it is based on no evidence. Mr. Patra, the learned standing Counsel, on the other hand, contended that as the fine imposed was more than Rs. 50/- an appeal lay to the Sessions Judge under the Code of Criminal Procedure, 1898 (hereinafter to be referred to as the old Code) and no revision lies.

The case was initially heard by Mohanti, J., who referred the question to a larger Bench and this is how the case has come before us.

4. The following points arise for consideration :-

(1) Is the order of conviction sustainable on merits ?

(2) Is the revision maintainable ?

(3) If the revision is not maintainable, what is the remedy open to the petitioner ?

5. Section 429, Indian Penal Code and Section 11(1)(a) of the Prevention of Cruelty to Animals Act, 1960 run thus :-

"429. Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow, or ox. whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

11. (1) If any person -

(a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated;

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he shall be punishable, in the case of a first offence, with fine which may extend to fifty rupees, and, in the case of a second or subsequent offence committed within three years of the Previous offence, with fine which may extend to one hundred rupees. or with imprisonment for a term which may extend to three months, or with both."

6. If the prosecution case that the petitioner have a lathi blow to P.W. 1's calf is true, the conviction under both the erections is sustainable.

It is therefore necessary to examine the evidence if the prosecution case has been established beyond reasonable doubt. The only witness who is allotted to have seen the assault is Beabaji Bhera, P.W. 3. His entire evidence runs thus :-

"I know the accused. The occurrence took place about two years back in the morning at 8 A.M. I found the calf of P.W. 1 was going towards the house of the accused. She came and gave a blow to its leg. I found that his bone was fractured. When I called P.W. 1, he came. I told about the occurrence. I went away.

Cross - I cannot say about the location of house of the accused. I cannot say because I do not know her."

It is clear from the answer given in cross-examination that P.W. 3 does not know the petitioner and does not know the location of her house. Admittedly P.W. 1, P.W. 3 and the petitioner belong to the same lane and if P.W. 3 does not know either the petitioner or her house, it is difficult 60 accept his evidence as establishing the case of assault on the calf by the petitioner.

The learned magistrate in paragraph 6 of his judgement also took the same view,