Commenting on the incidence of lynching of Pehlu Khan in Alwar, Rajasthan’s Home minister said “The problem is from both the sides. People know cow-trafficking is illegal but they do it …… Police will act against both sides.” This statement is being seen by many as an unfortunate attempt to equate the guilt of both sides. The courts while deciding the case of lynching of Pehlu Khan will not be effected by the fact that whether he was guilty of smuggling of cattle or not, but the public opinion about the incidence of lynching and the amount of sympathy for the murdered depends a lot on this fact.
The family of Pehlu Khan has been claiming that they had the valid documents for the transit of the cattle. However this claim has been rejected by the Home Minister. According to the Minister, Pehlu Khan did not have any valid paper, apart from a Sub-Divisional Officer, no one can authorise anyone to transport cows. The Superintendent of Police of Alwar also asserted that they were cow smugglers because they did not have any transit permit and what they had are unverified documents and they will not stand the scrutiny of law.
There is no reason to dispute the government’s version about the requirement of the documents and that the documents that Pehlu Khan’s family claims to be carrying at the time of incident were not sufficient for the transit of the cattle. Does this mean that Pehlu Khan was guilty of smuggling of cattle? This needs to be analysed in the context of the facts and circumstances of this case and the observation of the Supreme Court in a relevant case.
The truck carrying the cattle was stopped by the mob at Behror, Alwar, well within the borders of Rajasthan. The Rajasthan-Haryana boundary was still some distance away. It follows therefore that there was no export of cattle within the meaning of Section 5 of The Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995.
If a person commits a crime voluntarily, it involves four different stages. These stages are, first, ‘intention’ to commit it, secondly, ‘preparation’ to commit it, thirdly, ‘attempt’ to commit it and lastly the ‘accomplishment’ or ‘completion’.
As a general rule, mere preparation itself does not constitute an offence, and not punishable at the stage of preparation. There are certain exceptions to this Rule. For example, preparation to commit waging war against the State under Sec. 122 of IPC is an offence, and is punishable; or, preparation to commit depredation on the territories of any power at peace with the Government of India under Section 126 of IPC ; preparation for dacoity under Sec. 399 of IPC.
On the facts found, there was no ‘attempt’ on the part of the Pehlu Khan to commit the offence of export. It was merely a preparation and as a matter of law a preparation for committing an offence is different from attempt to commit it.
The Supreme Court of India in the ‘Malkiat Singh & Anr vs State Of Punjab,1968’ made the following observation, “preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made.
In order that a person may be convicted of an attempt to commit ‘a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes a criminal attempt. It is necessary to distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted, arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his Digest of Criminal Law, defines an attempt as follows: “an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case.”
The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless”.
In the present case it is quite possible that Pehlu Khan and others may have been warned that they had no valid document to export the cattle and they may have changed their mind at any place between Behror and the Rajasthan-Haryana boundary and not have proceeded further in their journey.
Section 8 of the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995 that “whoever ‘contravenes’ or ‘attempts to contravene’ or ‘abets the contravention’ of the provisions of Section 4 or Section 5 shall, on conviction, be punished with a rigorous imprisonment for a term which shall not be less than six months but may extend to five years and with fine which may extend to five thousand rupees”. But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that Pehlu Khan and others were NOT GUILTY.
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