ORDER W. Broome, J.
1. This criminal revision application, which has been filed by the Secretary of the Gohatya Nirodh Samiti of Muzaffarnagar against the acquittal in appeal of certain persons who had been convicted by a first class Magistrate of that district for an offence under Section 8 of the U. P. Prevention of Cow Slaughter Act, raises an interesting point regarding the distinction between attempt to commit an offence and mere preparation for an offence.
2. The prosecution case was that at about 6 p.m. on 29-1-1959 Head Constable Deep Chand of Police Station Titavi, being informed that some persons had collected a number of cows in a piece of waste land in the vicinity of the police station with the object of slaughtering them, proceeded to the spot along with a number of witnesses; and when he arrived there he found a cow lying on the ground tied up with rope, being held down by Sharif and Khairati accused, while Imtiaz accused stood by with a knife in his hand. Three other persons Ishtiaq, Rafiq and Hanif were also present on the spot along with a herd of 51 cows and calves.
3. The Magistrate who tried the case accepted the prosecution story in its entirety and convicted all the six of the accused for an offence under Section 8 of the U. P. Prevention of Cow Slaughter Act. Imtiaz, Sharif and Khairati were sentenced to six months' R. I. and a fine of Rs. 200/- each, while Hanif, Rafiq and Ishtiaq were sentenced to three months' R. I. In appeal however the Additional. Sessions Judge of Muzaffarnagar found that Hanif, Rafiq and Ishtiaq were mere onlookers; while as regards Imtiaz, Sharif and Khairati he came to the conclusion that the acts attributed to them fell short of proving an attempt to slaughter the cow and amounted to nothing more than mere preparation, which would not make them criminally liable. Accordingly all six were acquitted.
4. This revision has been dismissed summarily as regards Hanif, Rafiq and Ishtiaq and has been admitted with respect to Imtiaz, Sharif and Khairati only.
5. The facts alleged by the prosecution have been accepted by both the courts below as proved and cannot be challenged in this revision. But the point that arises for determination is whether these proved facts disclose an attempt to slaughter a cow, punishable in accordance with Section 511 I.P.C., or only preparation for slaughter, which would not be punishable at all,
6. Preparation, normally speaking, consists of devising and arranging the means necessary for the commission of the offence; while attempt implies some direct move towards the commission of the offence after the preparation has been made. But there is no sharp clear-cut distinction between the two. The one shades into the other and the dividing line can only be decided with reference to the facts of each particular case. Before any decision on this point can be reached in the present case therefore, it is necessary to subject the prosecution evidence to a close scrutiny, in order to determine precisely what was being done by each of the accused.
7. Three eye-witnesses have been examined in this case viz. Head Constable Deep Chand (P.W. 1), Gopal (P.W. 2) and Kishan Chand (P.W. 3). And the description given by each of them of what they saw when they reached the spot is as follows:
Deep Chand: The three accused named Imtiaz, Sharif and Khairati had thrown down an old cow that had been tied with rope. Imtiaz had a knife in his hand. Sharif and Khairati were holding the cow down .......... (and in cross-examination:) When I arrived on the spot, the knife was in his hand; it had not been wielded; he was holding it in his hand. There was no injury on the cow's body.
Gopal: A cow was lying tied up. There were three men near it. Two were holding it down. One had a knife in his hand.
Kishan Chand: A cow was tied up with rope. There were three men near it. One had a knife. Two were holding it down.
8. From this evidence three facts and no more emerge: there was a cow lying tied up on the ground; Sharif and Khairati accused were holding it down; and Imtiaz accused was present on the spot, with a knife in his hand. It is not clear whether Sharif and Khairati were holding the cow down so as to facilitate the cutting of its throat or merely because they were completing the process of tying it up. Nor is there any suggestion that Imtiaz was doing anything with the knife apart from merely holding it in his hand. It has not been alleged, for example, that he had placed the knife on the animal's throat or that he had raised it to strike a blow or anything of that kind.
9. Learned counsel for the applicant has drawn my attention to the decision of Dwivedi, J. in Chhidda v. State, Criminal Revn. No. 373 of 1958 (All), in which the circumstances were somewhat similar to those in the present case and the accused were held guilty of an attempt to slaughter. The distinguishing feature of that case, however, is that the accused were caught at the stage when they were reciting 'bismillah', a rite which is meant to be practically simultaneous with the actual slaughter of the victim. In the present case there is no suggestion that the accused were reciting 'bismillah', nor is there any other evidence that might go to show that they were on the brink of slaughtering the cow.
10. In the circumstances of the present case it seems to me that the learned Sessions Judge was perfectly right in coming to the conclusion that the prosecution has succeeded in proving only preparation, not attempt. Making an animal ready for slaughter by tying it with rope and throwing it down on the ground is obviously nothing more than mere preparation for its slaughter. One could do all that and then go off and leave the animal lying on the ground, postponing the actual slaughter for an hour or two.
Attempt to slaughter must imply some act more proximate to the actual killing. Similarly, merely arming oneself with a knife would only amount to preparation. The stage of attempt would be reached when the knife was raised or pointed at the animal with the intention of inflicting the fatal blow. This distinction is clearly brought out by illustration (c) to Section 307 I.P.C., which shows that merely arming oneself with a gun and loading it do not constitute attempt to murder, though firing the gun at the intended victim, does. I am therefore satisfied that Imtiaz, Sharif and Khairati cannot be held guilty of attempt to slaughter the cow, but only of preparation for its slaughter.
11. In the case of attacks on human beings, mere preparation by itself may amount to an offence (under Section 351 I.P.C.); but preparation for the slaughter of an animal is no offence. This revision application is accordingly rejected, the acquittal of the accused being confirmed.