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AFR Reserved Court No. - 5 Case :- JAIL APPEAL No. - 5784 of 2007 Appellant :- Israr Respondent :- State Counsel for Appellant :- From Jail,Nishi Mehrotra Counsel for Respondent :- A.G.A. and Case :- CRIMINAL APPEAL No. - 403 of 2005 Appellant :- Mohd. Zahid Respondent :- State Of U.P. Counsel for Appellant :- Praveen Kumar Singh Counsel for Respondent :- Govt. Advocate ****************************** Hon'ble B. Amit Sthalekar,J. Heard Ms. Nishi Mehrotra, learned Amicus Curiae for the appellant and Sri Praveen Kumar Singh, learned counsel for the appellant in Criminal Appeal No.403 of 2005 and Sri Tarkeshwar Yadav, learned A.G.A. for the State. In the jail appeal preferred by accused Israr, since no one appeared on his behalf, Ms. Nishi Mehrotra, learned counsel was appointed as Amicus Curiae. In the appeal preferred by Mohd. Jahid Sri Praveen Kumar Singh learned counsel appeared and stated that he adopts the submissions made by Ms. Nishi Mehrotra. These two appeals, arising out of the common judgmment, are therefore being taken up together for disposal. The accused persons have been found guilty of offence under Section 3, 5-A and 8 of the U.P. Prevention of Cow Slaughter Act, 1955 (hereinafter referred to as 'the Act,1955'). Briefly stated the facts of the case are that a First Information Report was lodged by S.O. Raj Narayan Singh stating that on the night of 1.8.2003 at about 3.00 a.m. in the morning he was on duty along with

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Constables Satish Kumar and Rajendra Singh. At about 4.00 A.M he saw a truck coming from the direction of Kamupur. He apprehended that this vehicle may be carrying cows for slaughtering. Therefore, they parked their police jeep on the side of Unchadih Patepur crossing and when the truck came near them they tried to indicate the truck with torch light to stop the truck but the Driver of the truck instead of stopping the vehicle tried to make good his escape by speeding away. The informant along with other constables followed the truck in the police jeep. In this process the truck hit a tree a branch of which also broke but because near Gandhi Nagar Inter College turning the road was narrow and though the truck turned but its wheels slipped off the road and got stuck in the mud with the result that the Driver of the truck could not move the truck any further. In the meantime Constables reached the spot. The persons in the truck got down and ran in the north east direction towards Sewan whereupon the constables chased them. One of the persons while running away fired upon the police with intention to cause death but the police party was able to catch one person. Three persons, however, escaped due to darkness. The person who was arrested at 4.15 a.m. disclosed his name as Mohd. Jahid s/o Inayatulla, resident of Senduri Thana Musafir Khana District Sultanpur. Mohd. Jahid disclosed the names of the other persons as Israr Ahmad s/o Jamir Ahmad resident of Usra Bahadur Pur Thana Kotwali, District Sultanpur the trader of the cattle, being carried on the truck, was Jamal Sheikh alias Baba alias Fauji s/o Bhola Sheikh alias Bhola Pradhan, resident of Bhulai Ka Pura (Aliganj) Thana Musafirkhana, District Sultanpur and his associate Ibrar son of late Rafeeq, Chakauri, Thana Munshiganj, District Sultanpur. These three persons escaped under cover of darkness. Mohd. Jahid disclosed that the truck was loaded with bulls which were being taken to Bengal for slaughtering. When asked who had fired he did not disclose the name of that person. The truck was examined in the presence of Mohd Jahid and it was found that its window screen had broken. It was a large truck with ten wheels being Truck no. U.P. 42 B 9794

which was covered on the top with green tarpaulin. The

constables opened the tarpaulin and found 16 bulls with large horns

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which were badly tied up with ropes. Two of the bulls were lying on the floor of the truck and on a close examination they were found dead. The remaining bulls were grievously injured and looked frightened. Blood was also oozing from the wounds. The truck along with the bulls were seized. Mohd. Jahid was examined and on questioning he disclosed that the bulls belong to Fauji trader and were being carried for sale and slaughter to Panduwa West Bengal through Bihar as these bulls fetch a good price there. On being asked to show the requisite papers for transporting the bulls Mohd. Jahid stated that he was only an associate of Fauji and he did not have any papers. Mohd. Jahid was therefore charged under Section 307 I.P.C. read with Section 3/5 A and Section 8 of the Act, 1955 and Section 11 of the Prevention of Cruelty To Animals Act, 1960. Raj Narayan Singh S.O. was examined as P.W.1 and he has proved the F.I.R. He also stated that two bulls had died and post mortem was conducted on them and the remaining bulls were released in the care and custody of local persons on 4.8.2003. The truck was seized and challaned under the Motor Vehicle Act. Post mortem of the dead bulls were conducted on 4.8.2003. In cross examination P.W.1 had stated that the incident did not occur at Ghazipur-Ballia Marg but on the Link road which connects Ghazipur-Ballia road. The Offending truck was coming from Link Road to Ballia road towards Ballia. The link road was about 5 kilometers from the main road. It joins the main Ballia road at Ladudih. This is the route for Bihar border and from there vehicles enter Chitbada village Bihar. Another road goes to Bihar via Mohamadabad. The distance from Ladhudih to Chitbara village is about 10 to 12 km. From Chitbara village to Bharauli the distance may be about 30-35 km. Bharauli falls in District Ballia. The witness could not answer whether Bharauli falls in Ballia District or not. He was not aware as to whether the distance from Bharauli to Bihar is 10 km. or not. He, however, stated that in Bharauli a cattle fair is held. The truck in question was sought to be stopped by the Constables near Unchadih Patepur crossing by indicating the torch light but the truck

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Driver sped away on seeing the torch light and was chased by the police. The truck dashed against a tree after covering a distance of about 1-1/2 km. from Unchadih Patepur crossing but after colliding with the branch of the tree, the truck did not stop and the driver continued to drive the truck upto Gandhi Nagar Inter College where it went off the road and got stuck in the mud which was due to rains and it could not move any further. The persons sitting in the truck got down and ran away towards the north east direction. They must have gone about 3035 steps when the police jeep reached the spot. The land around was open field and the police got down from the jeep and chased these persons which did not take even one minute. The witness further stated that the police may have hardly covered a distance of 15-20 yards when one of them challenged the police and opened fire with the intention to cause death. However nobody received any injuries. One of the persons was however caught but no country made pistol was recovered from his possession nor even bullets or empty cartridge were found. The firing had taken place from a distance of about 40-45 yards. There were four persons in the truck. One was caught and three ran away. The names of the persons were disclosed by the person who was caught. The witness also stated that F.I.R. was lodged against all the four accused. However, since no evidence was found against Jamal Sheikh, the trader or his associate Ibrar, therefore, they were not charged by the I.O. The witness further stated that it is incorrect to say that the cattle were being carried for sale to Bharauli Bazar, Ballia in the cattle fair. It is incorrect to say that bulls died as a result of the truck hitting the tree or due to falling on each other when the wheels of the truck got stuck in the mud. He further stated that it may be that bulls may have died due to colliding of the truck with the tree. P.W.2, Constable Hoti Lal has also supported the testimony of P.W.1. He also stated that the truck had collided with the tree and its branch broken off; that the back portion was covered with green tarpaulin and inside there were 16 bulls which were seriously injured and two had died. He also stated that police party was carrying rifles and the

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S.I. was carrying a revolver. The truck loaded with bulls was going to Bihar and from there to Bengal. It was not having any bill or receipt and in any case none was recovered from the spot or from the arrested persons. P.W.3 was Constable Pursuttoam Lal who had prepared the chick report as well as registered case crime no.823 of 2003, under Section 307 I.P.C. and Section 3, 5A of the Act, 1955 and Section 11 of the Prevention of Cruelty to Animals Act, 1960. P.W.4 S.I. Mohar Ram was examined and he has stated that one of the accused Israr surrendered before the Civil Judge, Mohmadabad on 8.8.2003. It was entered in the case diary. He has also stated that Israr had disclosed that he was the driver of the Truck No.U.P. H.2B 9794. On the date of incident he was taking the bulls to Ballia for sale and Mohd. Jahid, co-accused was his helper. The witness further stated that on the site of the incidence he did not find any cartridge of country made pistol or empty cartridge or even pellets nor even any papers. The specific site of the firing was not shown in the map. Nobody was injured. The accused Mohd. Jahid upon arrest disclosed the names of the other persons namely Ibrar and Jamal alias Fauji. Against these two persons no charge sheet has been submitted. No witness gave any statement that Israr was seen driving the truck and he was recognized. One Kishan Prasad Mishra, S.I. appeared in the trial as P.W.5. He was posted as Head Moharir who has made entries in the G.D. Dr. Narendra Upadhayay ,Veterinary Officer has appeared as P.W.6 and stated that he conducted the post mortem of the bulls in the police station itself. The post mortem on the first bull was conducted on 1.8.2003 at about 4. P. M. This bull was 8 years old. The body of one of the bulls was stained with blood and 1/4 part of the skin was completely missing. There was no stiffness in the body. There were abrasions all over the body, the bones of the chest had broken and blood was flowing from the mouth and nose. The digestive system was completely torn. Lungs and the windpipe were filled with blood. Spleen was also torn. He testified that the animal had died due to non functioning of windpipe due to compression of chest.

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The post mortem on the second bull was conducted on 1.8.2013. This bull was 8 and half years old. Its colour was white. The neck of the bulls was twisted. There was no stiffness. Skin was bruised. The bones of the knees were dislocated and some fluid was coming from its mouth and nose. The skin on the top was completely missing. He has also stated that bull may have died due to asphyxiation. He has stated that in his opinion cause of death of the bull was due to excessive loss of blood. The bulls were looking very weak and thin. Much stress has been laid by the learned counsel for the appellant that the two bulls had died due to falling upon each other when the truck tilted to one side and went off the roadside due to rash driving. However, none of the witnesses in their statement have stated that two bulls had died due to falling upon each other. It was also submitted that actual traders of the bulls namely Jamal Sheikh alias Baba alias Fauji and his associate Ibrar were not even chargesheeted. Only the driver Israr and helper Mohd. Jahid, coaccused herein were chargesheeted. In my opinion, merely because Jamal Sheikh and Ibrar were not chargesheed it would not weaken the prosecution case against the accused persons for the reason that the names of Jamal Sheikh and Ibrar were disclosed by the accused persons as being the trader and his associate and no evidence was found against them and therefore on the mere statement of the accused Mohd. Jahid and Israr the said Jamal Sheikh and Ibrar could not have been chargesheeted in the absence of evidence. However, so far as driver Israr and Mohd. Jahid, helper are concerned, Israr was the driver of the offending truck who later surrendered before the Civil Judge, Mohmadabad whereas Mohd. Jahid was arrested by the police on the spot while trying to made good his escape. Section 5-A of the Act, 1955 clearly provides that no person shall transport or offer for transport or cause to be transported any cow, or bull or bullock, the slaughter whereof in any place in Uttar Pradesh is punishable under this Act, from any place within the State to any place outside the State, except under a permit issued by an officer authorised

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by the State Government in this behalf by notified order and except in accordance with the terms and conditions of such permit. Section 5-A of the Act, 1955 reads as under:“5-A. Regulation on transport of cow, etc.-(1) No person person shall transport or offer for transport or cause to be transported any cow, or bull or bullock, the slaughter whereof in any place in Uttar Pradesh is punishable under this Act, from any place within the State to any place outside the State, except under a permit issued by an officer authorised by the State Government in this behalf by notified order and except in accordance with the terms and conditions of such permit.”

Sub Section (4) of Section 5-A of the Act, 1955 states that the form of permit, the form of application therefore and the procedure for disposal of such application shall be such as may be prescribed. The requisite form in this regard is From 'F' which is given in the Schedule to the Act itself and as per the provisions of Rule 12 of the U.P. Gowadh Nivwaran Niyamawali, 1964. Form 'F' reads as under:Form-'F' [See Rule 12] Licence to sell or transport beef and beef products for medicinal purposes. Book No............. Serial No............ Sri….........................son of Sri....................................... resident/proprietor of.................................................is permitted to sell or transport or offer for sale or transport or cause to be sold or transported beef and beef products within the limits of …................for medicinal purposes on the advice of a registered medical practitioner during the period up to December 31, 19. Signature and designation of Licensing Authority.

Date of Issue...................Renewed for the period up to................ Signature and designation of Licensing Authority.

Thus from reading of Section 5-A and the Form 'F' it is clear beyond doubt that transportation of cows, bulls or bullocks within the

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State of U.P. cannot be made from one place within the State or to any place out side the State except under a permission. Admittedly the two appellants Israr and Mohd. Jahid could not produce any papers to show before the police or even the court that they were transporting 16 bulls found in the truck under a valid permission issued by the Officer authorized to that effect and therefore, such transportation of 16 bulls on the face of it is in violation of Section 5- A of the Act, 1955. The learned counsel for the appellant has referred to the statement of Mohd. Zahid, co-accused and appellant in the connected Criminal Appeal no. 403 of 2005. All the questions which were put to him were denied by him. When asked as to why the case was instituted against him, he has stated 'ranjishan' (due to enmity). To question no. 21, when asked whether he wants to say anything further, he has stated that the bulls in question were purchased by the trader Jamal Shiekh @ fauji and were being taken to the cattle fair at Bharauli, District-Ballia for sale. The truck was being driven by Israr and because the road was bad, the truck hit a tree and a branch of it broke and the truck slipped off the roadside and got stuck in the mud due to which the bulls were injured. He also alleged that after receiving information, the police arrived and demanded Rs. 10,000/- from the driver and no payment was made and they instituted a case against him and Israr. The submission of the learned counsel for the appellant is that a false case has been leveled against the accused persons in view of the fact that the police party had demanded a sum of Rs. 10,000/- from them which they did not pay. However, in reply to question no.6, that at about 4.15 am in the morning, he was caught by the police and the other three accused persons taking advantage of the darkness had made good their escape, the reply was 'galat hai'. In reply to question no.7, on being asked to explain his statement to the police that the name of the truck driver was Israr Ahmad and that of the trader is Jamal Sheikh @ Babu @ Fauji and the name of his associate was Ibrar, the accused again stated 'galat hai'. These two replies of the accused in reply to question no. 6 and 7 when compared with his reply to question no.8 clearly exposes him and

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shows his statement under Section 313 Cr.P.C. to be a false statement because if, he says that it is wrong that the name of the trader is Jamal Shiekh @ fauji, then how did he account for his later statement that Jamal Shiekh @ Fauji had purchased the bulls and had sent them for sale in the cattle market at Bharauli, District-Ballia. Thus, the statement of the accused under Section 313 Cr.P.C. is

a wholly unreliable

statement. The learned Amicus Curiae next submitted that the bulls were injured due to the accident as the truck in which they were being carried was hit by the broken branch of the tree. This submission must necessarily be rejected for the simple reason that all the witnesses have stated that the truck was fully covered with a green tarpaulin and if the branch of the tree had hit the bulls who were inside the truck, the tarpaulin would have been torn or damaged which was not the case even of the accused persons in their defence testimony. The learned counsel for the appellant next submitted that the post mortem report does not bear the seal of the doctor concerned and therefore, cannot be relied upon. In my opinion, once the doctor concerned, namely, Dr. Narendra Upadhayay had appeared before the court and his testimony recorded and he has supported the post mortem report, the same cannot be ignored as being an unreliable document. The learned counsel for the appellant next submitted that in the bail order granted by the High Court at the time of admission of the criminal appeal, it has been mentioned that the remaining bulls were released in the custody of the trader and therefore, the trader was known to the police and yet he was not chargesheeted. I am of the view that this was not the finding recorded by the High Court while granting bail but it was actually a submission made by the counsel for the appellant which was recorded by the High Court in its order dated 31.01.2005 while admitting the appeal. However, during trial the evidence led on behalf of the prosecution, that the bulls had been released in the custody of the local people, has neither been denied nor explained by the accused. The learned counsel for the appellants next submitted that

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transportation of cows, bulls or bullocks itself does not constitute an offence under section 5 (A). In support of her contention, learned counsel has placed reliance upon a decision of this Court in (1991) Supplementary ACC 110 Babu Vs State of U.P.. In my opinion, the said judgment has absolutely no application to the facts of the present case as in that case, the bullocks were being transported in the trucks. The trucks were seized by the authorities under the Act, 1955 and there was nothing to show that the bullocks were injured or dead. An application had been filed by the owner of the bullock for release which had been refused by the authorities. This judgment was relied by another learned Single Judge of this court in the case of Asfaq Ahmad Vs State of U.P., 2008 Lawsuit (All) 1381 wherein it has been held that mere transportation does not constitute an offence but if while transporting or carrying the animals within the State of U.P., if any animal is killed or maimed or such physical injury is inflicted which in the ordinary course will cause death, then such act would be deemed 'slaughtering' within the meaning of Section 2(d) of Cow Slaughter Act, 1955. The judgment in Asfaq Ahmad (supra) on which most stress has been placed by learned counsel for the appellants also has no application to the facts of the present case as in the present case two bulls were found dead and others were injured. The bulls which were found dead had almost one-fourth of their skin missing, their lungs and windpipe were found filled with blood and the spleen was also found torned. The contention of the learned counsel for the appellant that this injury was caused due to the broken branch of the tree is thoroughly misconceived and misplaced as no broken pieces of branch or leaves were found inside the truck nor was it anybody's case that the tarpaulin which entirely covered the back portion of the truck was torned or damaged. The animals were injured, the skin of their body was peeled and two bulls were dead with one-fourth of their skin completely removed, one bullock had its neck completely twisted, therefore, in my opinion the judgement of Asfaq Ahmad (Supra) relied upon by the appellants does not support the case of the appellants at all but rather

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supports the case of the prosecution. The trial court on the evidence on record has found the two accused persons, the appellants herein, guilty of offence under Section 3, 5 and 8 of the Act, 1955 as well as Section 11 of the Prevention of Cruelty to Animals Act, 1960 and convicted them. However, the trial court has acquitted the appellants herein of the offence under Section 307 I.P.C. Towards the end, the learned counsel for the appellants vehemently contended that the accused may at the most be guilty of offence under Section 11 of the Prevention of Cruelty to Animals Act, 1960 but not under the Prevention of Cow Slaughter Act of 1955. In my opinion, in view of the findings recorded by the trial court and discussion hereinabove, this submission of the learned counsel has no merit and is accordingly rejected. From the discussions made above, I am of the opinion that the prosecution has successfully proved the involvement of the appellants in the crime under the Act, 1955 and 1960.

The Sessions Judge has

rightly held them guilty and I affirm the findings of conviction of the trial court. Both the appeals are dismissed. The appellant Israr of Jail Appeal No.5784 of 2007 has already completed his term of sentence and has also been released. However, the appellant Mohd. Zahid of Criminal Appeal No. 403 of 2005 was released on bail by this court by order dated 31.1.2005. His bail is cancelled. He shall be arrested and sent to jail to serve out the sentence awarded by the trial court and affirmed by me. Before concluding, this Court must put on record its appreciation of the efforts put in by the learned Amicus Curiae in providing valuable assistance to the Court. It is, therefore, directed that a sum of Rs. 10,000/- be paid to Ms Nishi Mehrotra, learned Amicus Curiae towards fees. The above amount be paid to Ms. Nishi Mehrotra, learned Amicus Curiae by the Registry of this Court within 15 days. Dated: 09th June, 2017 Asha/Kirti.