Madhya Pradesh High Court
Ansar vs The State Of Madhya Pradesh on 23 April, 2025
Author: Anuradha Shukla
Bench: Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:18454
1 CRA-10083-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 23rd OF APRIL, 2025
CRIMINAL APPEAL No. 10083 of 2023
ANSAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vikash Chouksey - Advocate for the appellant.
Shri Ajeet Rawat - Government Advocate for the State.
WITH
CRIMINAL APPEAL No. 10121 of 2023
FAJALU AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sanjay Gupta - Advocate for the appellants.
Shri Ajeet Rawat - Government Advocate for the State.
Reserved on : 02.04.2025
Pronounced on: 23.04.2025
JUDGMENT
These two appeals arise out of a common judgment delivered on 31.07.2023 by Sessions Judge, Burhanpur in Sessions Trial No.15/2018 whereby appellant Ansar of Criminal Appeal No. 10083/2023 and appellants Fazlu, Mohsin, Mukhtiyar, Navinoor and Sabir of Criminal Appeal No.10121/2023 were all convicted of the offence of Section 11(d) of Prevention of Cruelty to Animals Act, 1960, Section 6A read with Section Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43 NEUTRAL CITATION NO. 2025:MPHC-JBP:18454 2 CRA-10083-2023 9(2) of the Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam read with Section 34 IPC, Section 420 read with Section 511 IPC and Section 429 IPC and were sentenced to fine of Rs.50/- for the offence of Section 11(d) of Prevention of Cruelty to Animals Act, 1960, 3 years rigorous imprisonment for rest of the offence proved. They were also sentenced to fine of Rs.7000/-, Rs.5000/- and Rs.5000/- respectively for the last three offences mentioned above with a default clause.
2. On perusal of record, it becomes pertinent to mention here that vide order dated 05.08.2024, Criminal Appeal No.10121/2023 has already been dismissed qua appellants Fazlu, Mohsin and Mukhtiyaar as they did not surrender before the trial Court by that date and were also not given the benefit of suspension of sentence, therefore, their appeal was found to be "as not maintainable" and dismissed. In the light of this fact, Criminal Appeal No.10083/2023 is being decided qua appellant Ansar and Criminal Appeal No.10121/2023 is being decided only in reference to appellants Navinoor (A4) and Sabir (A5).
3. Brief facts relevant for the decision of these criminal appeals are that on 07.02.2018, at around 15:35 p.m., a container-vehicle bearing registration no. HR-55-K-7798 was intercepted on Indore-Icchapur road in the jurisdiction of Police Station Shahpur, district Burhanpur; on search 63 cow progeny were found inside the container, which were being transported for the purpose of slaughter; they were stifling in the container and were not able to move; for these reasons, two of them died in their journey; further, a fake number plate was used by hiding the original number plate with an intent to deceive the police on check-post barrier. According to prosecution, appellant Navinoor Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43 NEUTRAL CITATION NO. 2025:MPHC-JBP:18454 3 CRA-10083-2023 was the driver of this vehicle while other two appellants, namely Ansar and Sabir, were present in the vehicle; it is also claimed that a Swift Dezire car bearing registration No. MP-09-CP-3122 was piloting this container for the purpose of doing reiki and co-convict Fazlu, Mohsin and Mukhtiyaar were travelling in that car, however, their appeal is not pending before this Court; after interception, the container was unloaded and the cattle were medically examined; mobile phones, number plates, documents of vehicles etc. were seized and for care/protection, the cattle were handed over in temporary custody of Gaushala. FIR at Crime No.79/2018 was registered and the matter was investigated. After conclusion of investigation, the charge-sheet was filed and trial was held against six persons while Mohsin, son of Rashid, aged 19 years, was declared absconding by the trial Court. Under the impugned judgment all the six persons facing trial were convicted and sentenced as aforesaid and were acquitted of the charge of Sections 467/34, 468/34 and 471/34 of IPC.
4. Grounds raised in both the appeals are more or less same, therefore, they are being discussed under this common para; it is claimed that the impugned judgment is bad in law and against the facts; it was ignored that independent witnesses Bharat (PW-1) and Kishore (PW-8) have given statements contradictory to each other; even the police witness Assistant Sub-Inspector Surendra Singh (PW-7) has not supported the case of prosecution in its entirety and had to be declared hostile; there is contradiction in the statements of Sub-Inspector Ram Asre Yadav (PW-10) and Ram Babu (PW-
11) on the fact who amongst them had prepared the documents; no evidence regarding tower location and call details record (CDR) was produced by Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43 NEUTRAL CITATION NO. 2025:MPHC-JBP:18454 4 CRA-10083-2023 prosecution; a false case was prepared as the illegal demand of police was not fulfilled. It is submitted that the learned trial Court failed to appreciate the evidence cumulatively and ignored the material infirmities in the prosecution case, therefore the appeals deserve to be allowed and the appellants should be acquitted.
5. Learned counsel for the State has opposed the appeals by submitting that from the prosecution evidence, guilt of appellants is clearly proved and, therefore, the trial court did not commit any error in holding the appellants convicted for the aforesaid offence. A prayer for rejection of the appeals was accordingly made.
6. Counsel for both the parties have been heard and the record has been perused.
7. Prosecution has claimed that appellants Ansar, Nabinoor and Sabir were present in the container in which 63 cattle were being transported; it is claimed that Nabinoor was driving the vehicle while the other two were sitting inside it. It is further claimed that the cattle were cruelly stowed in the container and on account of these cruel conditions, two of them died; the cattle were being transported for the purpose of slaughter and for this, the appellants did not have any permit of transportation; a fake number plate was being used on that container with a dishonest intention to deceive the police on check-post barrier. The charges of Sections 467, 468 and 471 read with Section 34 IPC were also framed for allegedly using a fake number plate by fixing it on the container with a dishonest intention to deceive but the trial Court acquitted the appellants of these charges by citing the decision of Indore Bench of M.P. High Court passed in the case of Ismail Khan vs. State Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43 NEUTRAL CITATION NO. 2025:MPHC-JBP:18454 5 CRA-10083-2023 of Madhya Pradesh (Criminal Revision No.36/2017 decision date 07.04.2017). The said acquittal is not under challenge here.
8. In the backdrop of aforesaid facts, it would be appropriate to first examine whether any offence of Section 420/511 is made out against appellants while they are already acquitted by the trial Court of making/using fake number plate for the purpose of cheating. The reasoning for this finding is primarily discussed in para 96 of impugned judgment. It says that fake number plate on the container was used to ensure that container may get a safe passage through the boundaries of the State. According to prosecution, the fake number plate was having the registration number of State of Haryana, while the vehicle was actually registered in State of Uttar Pradesh. It is not explained anywhere, how the registration number of Haryana instead of one of Uttar Pradesh would have facilitated the easy passage through the boundaries of State of Madhya Pradesh to the State of Maharashtra. It appears that trial Court acted on assumptions only and no explanation is available on record to reach to this assumption.
9. From the evidence, it appears that the container in question was having the number plate of HR-55-K-7798 at the time of preparation of seizure memo (Ex.P-8) but the photograph of Ex.D-2, which was filed on record by prosecution but exhibited in evidence by defence, is a photograph of container in question showing registration number on plate as UP-21-BN- 4022 fixed on the lower part of the body of this vehicle. Although prosecution too has relied upon some photographs, marked as Articles A-10 to A-63, but the persons taking out the prints of these photographs has not submitted any certificate under Section 65B of Indian Evidence Act.
Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43NEUTRAL CITATION NO. 2025:MPHC-JBP:18454 6 CRA-10083-2023 Certificate under that provision issued by R. S. Yadav (PW-10) barely makes these secondary pieces of evidence admissible, as his statements clarify that he was not involved in preparation of these photographs and he merely took photos on mobile phone. Taking photographs is one thing and taking their printouts for evidence is an altogether different thing. Thus, the certificate of Section 65B of Indian Evidence Act given by the person taking a photograph would not be sufficient for making the secondary kind of evidence, i.e., the printouts of these photos, admissible in evidence.
10. It can be argued here that due to negligence or ignorance of technicalities, the required certificate for preparing the photographs of Articles A-10 to A-63, was not produced in evidence, but that excuse cannot make an inadmissible piece of evidence admissible. Further, there is no explanation why the alleged fake number plate was not produced in evidence. The photograph of Ex.D-2 clearly shows that at the time of taking this photograph, the container was not having any fake number plate. It is not disclosed if the fake number plate was removed from the container then where was it kept. Articles A-1 and A-2 are the two number plates bearing registration no.UP-21-BN-4022, but their production in evidence cannot by itself establish that the container in question was plying with a fake number plate.
11. Incidentally, there is no evidence to show that the engine number and the chassis number of container in question were ever traced. It is also not disclosed whether the engine number and the chassis number of the vehicle registered as UP-21-BN-4022 were matching with the engine and chassis numbers of container in question. Further, no efforts were made to examine Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43 NEUTRAL CITATION NO. 2025:MPHC-JBP:18454 7 CRA-10083-2023 any witness from the concerned RTO to verify the actual registration number of the vehicle seized on the basis of its engine number and the chassis number.
12. In the terms of aforesaid infirmities, it is held that the learned trial Court erred in holding the appellants guilty of the offence of Section 420 read with Section 511 IPC, an attempt to cheat by fixing fake number plate on the container. Accordingly, they are acquitted of this charge.
13. To prove its case regarding illicit transportation of cow progeny by cruelly stashing them in a container and regarding congestive conditions resulting into death of two cows, the prosecution has relied upon the testimony of seizure officer Sub-Inspector R.A. Yadav (PW-10), Assistant Sub-Inspector Surendra Singh Rajput (PW-7), Constable Bharat Deshmukh (PW-2) and Constable Sachin Mishra (PW-9). They all were the members of search party and had intercepted the container in question in which all the three appellants were found present along with cow progeny.
14. Bharat (PW-1), Ravindra (PW-6), Kishore (PW-8) and Ketan Sharma (PW-12) are the independent witnesses who have claimed to have been on the spot at the time of interception and search of the container. Although these witnesses have been declared hostile on some facts, but their testimony establishes beyond reasonable doubt that all the three appellants were in the same container which was transporting 63 cow progeny illegally and no permit or licence to validate this transportation was produced at the time of search. Merely for the reason that some witnesses have claimed that they had signed the documents in police station, the reliability and the validity of seizure proceedings are not compromised. The statements of seizure officer Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43 NEUTRAL CITATION NO. 2025:MPHC-JBP:18454 8 CRA-10083-2023 R. A. Yadav (PW-10) are stable and consistent on this point and no reason has been assigned by the appellants in their defence for disbelieving the testimony of this witness. Minor contradictions or improvements are normal and obvious. Incident is of the month of February 2018 and the last witness was examined before the trial Court on 14.03.2023. This span of five years is quite significant and cannot be ignored while evaluating the testimony of witnesses.
15. Defence has raised the objection on the medical evidence produced in the case. Dr. Pranay Tiwari (PW-3) had done the MLC examination of 61 cow progeny and post-mortem examination of two dead cows. In post- mortem report (Ex.P-2), it is mentioned that the examination was done on 22.01.2017 while the container was intercepted on 08.02.2018. Dr. Pranay Tiwari (PW-3) has explained in para 5 of his cross-examination that the date of post-mortem examination is wrongly mentioned as 22.1.2017 in his report Ex.P-2. If we go through this document, it is explicit that this report was dispatched on 09.02.2018 along with the MLC report, marked as Ex.P-1. The FIR itself speaks that two cows were already dead when the container was intercepted, while 61 were alive. MLC report of ExP-1 is having same number of alive cow progeny which were medically examined by Dr. Pranay Tiwari on 08.02.2018. These facts cumulatively reflect that in post-mortem report the date of examination is wrongly mentioned as 22.01.2017 while in the light of statements of Dr. Pranay Tiwari before the trial Court, it is established that only on 08.02.2018, he had done the post-mortem examination of deceased cow progeny. Thus, no benefit can be given to defence on the basis of wrong description of date.
Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43NEUTRAL CITATION NO. 2025:MPHC-JBP:18454 9 CRA-10083-2023
16. From the medical evidence, it is established that out of 61 alive cow progeny, 3 were found in injured condition and, as discussed earlier, two others were already dead when the container was intercepted. According to post-mortem report, the cause assigned for their death was that they might have died due to shock and asphyxia on account of rough handling during transportation. These facts establish that the cattle were treated with cruelty when they were being transported illegally in the container in question.
17. From the aforesaid discussion, it is established that all the three appellants who were responsible for the transportation of 63 cow progeny, in the container in question, are accountable for the cruelty committed to the animals. It is also established that appellants were not having any permit for transporting these cow progeny under the M.P. Gowansh Vadh Pratished Adhiniyam, 2004. Section 13A of the said Adhiniyam provides that "where any person is prosecuted for an offence under the provisions of this Act, the burden of proof that he had not committed the offence under the provisions of this Act shall be on him, if the prosecution is in a position to produce the prima facie evidence against him at the first instance." Admittedly, no evidence has been led by appellants in their defence in rebuttal of prosecution evidence which evidently is much beyond the prima facie evidence in this case and is sufficient to establish the offence of Section 6A of Govansh Vadh Pratishedh Adhiniyam, 2004. Committing the offence of mischief by killing cow progeny punishable under Section 429 IPC is also established in the light of facts established on record.
18. In view of above and for the reasons already stated, the conviction of appellants for the offence of Section 11(d) of Prevention of Cruelty to Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43 NEUTRAL CITATION NO. 2025:MPHC-JBP:18454 10 CRA-10083-2023 Animals Act, Section 6A read with Section 9(2) of the M.P. Govansh Vadh Pratishedh Adhiniyam, 2004 and Section 429 IPC is upheld, however, partially allowing these appeals, their conviction for the offence of Section 420 read with Section 511 of IPC is hereby set aside.
19. From the record, it is clear that appellants were in custody for different periods during trial, but they all are in custody since the date of judgment. Their period of incarceration during trial was from 60 days to 100 days and now they are in custody since 31.7.2023. Therefore, their total custody period is close to approximately two years. Accordingly, for the offence of Section 11(d) of Prevention of Cruelty to Animals Act their sentence of fine of Rs.50/- is upheld, while the sentence for the offence of Section 6A read with Section 9(2) of the M.P. Govansh Vadh Pratishedh Adhiniyam, 2004 and Section 429 IPC shall be treated to be the one already undergone by them. The fine amount awarded by the trial Court shall remain unaltered with the same default stipulations.
20. With the aforesaid observations, the appeals are allowed in part. The appellants are in custody. They be released forthwith, if not wanted in any other case.
21. Let a copy of this judgment along with its record be send to the trial Court for information and compliance.
(ANURADHA SHUKLA) JUDGE ps Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 23-04-2025 14:42:43