Legal experts have punched holes in the judgement, claiming that the court’s reasoning is not as per law.
TCN Correspondent
NEW DELHI — Apparently based on “presumption”, a court in Gujarat sentenced 22-year-old Mohammad Ameen to rigorous life imprisonment for “illegally transporting cows for the purpose of slaughter”. Ironically, there is no provision for a life term for unauthorised transportation of bovines in Gujarat’s anti-cow slaughter law.
The latest amendment, which was brought in 2017 in the 1954 legislation (the principal Act), provides for a maximum punishment of 10 years with a fine that may extend to Rs 5 lakh but shall not be less than Rs 1 lakh for the offence of transporting bovines without requisite papers.
Sessions Judge Samir Vinodchandra Vyas — presiding over the District Court at Vyara in Tapi — found him guilty of violating sections 5, 6 and 7 of the Gujarat Animal Preservation Act, 1954 read with Gujarat Animal Preservation Act, 2011 and sections 6 (a)(1) and 8 (2) of the Gujarat Animal Preservation (Amendment) Act, 2017. Apart from rigorous punishment to life, he has also been slapped with a fine of Rs 5 lakh.
“If he fails to pay the fine, he will have to undergo rigorous punishment of five more years,” the court ruled.
But legal experts punch holes in the judgement, claiming the court reasoning is “not as per law”, appreciation of evidence is “against the established principle of the Evidence Act” and presumption of the act is “against the criminal jurisprudence”.
They also said the lawyer provided to the accused by the legal aid of the state government failed to perform what was expected from him as a defence counsellor — effectively rebutting the assumption or argument made by the prosecution despite the fact that he was given complete liberty to offer arguments and proceed with means of cross-examination.
No single witness, they alleged, was produced by the defence and not any reassignment or certification was obtained — which is highlighted all over the 24-page order.
Brief details of the case
From the facts of the case, the accused — a truck driver from Malegaon in Maharashtra’s Nashik district — was transporting 12 cows and four bullocks from Gujarat to Maharashtra through a vehicle, which was beyond its capacity to carry 16 cattle at a time.
On July 18, 2020, the truck was making its way through a road between Nava (in Tapi district) and Ashrava (in Banas Kantha district) villages. It was stopped by a police team near a trisection at 3:45 a.m. on July 18 last year for routine checking.
The night patrol police team comprised Head Constable Bipinbhai Rustambhai Chaudhari from Nirjhar police station and Narendrabhai Rajeshbhai and Jigneshbhai Ravindrabhai from the Home Guard. The police vehicle was being driven by one Dineshbhai Gangaram.
Upon not getting satisfactory answers to his questions, the cop with his two subordinates went to the rear side of the truck to examine it. In the meantime, the driver — taking advantage of the darkness of dawn — allegedly fled the spot.
He was later arrested on August 27, 2020.
It was alleged that the truck was comparatively smaller than the required size, which ensures each cattle has at least two square meters of space for them to move and be comfortable. It did not have any proper arrangements for transportation with regard to the comfort of food and water.
The cattle were allegedly packed tightly within the truck space, and they were tied with a small rope that restricted their movement — leading to several instances of criminality against the dumb animals.
Due to the alleged prevailing circumstances, one bullock and one cow were also found dead during the investigation.
The driver allegedly did not have the certification issued by concerned competent authorities as required under the law of the state of Gujarat.
Due to the alleged lack of evidence or any proper documentation regarding the transportation of the cattle, the court presumed that such an illegal attempt of transportation was being made for the sake of slaughtering and thereby the accused was subjected to such a harsh punishment.
Accused wrongly framed?
Firstly, the public prosecutor of the state resigned a long time ago. No new appointment was made by the government since then, and thereby the accused was left in jail for over two years without any initiation of arguments on the side of the plaintiff. Justice is already delayed.
As per the oral evidence by Bipinbhai Rustambhai Chaudhari, who was on duty at Nijhar police station as an unarmed head constable at the time of the commission of the crime, the witness (Chaudhari himself) along with three others stopped the vehicle for investigation, and the driver was not giving proper replies to the question. When they went to the rear side of the truck, the driver slipped into the darkness.
Upon the cross-examination of the witness by the defence, the witness assured that he has seen the accused in light as he was asked to get down from the vehicle and that he has rightly identified the accused.
“But the fact that the police constable on duty failed to take notice that the accused had fled away due to darkness, there is less assurance of the truth asserted by the witness. When it was so dark to even see the driver fleeing the spot, it makes the credibility of the identification of the accused by the witness questionable,” Advocate Mobashshir Aneeq, a lawyer associated with the Association for Protection of Civil Rights (APCR) that deals with such matters, told TwoCircles.net.
It is very uncommon for the driver — he said — to step down the vehicle before the search has been made.
“The fact that the driver, who might or might not be the accused, was made to get down from the vehicle was also not asserted by any other witness; hence, the credibility of testimony should have been challenged by the defence,” he pointed out.
Ahmedabad-based criminal lawyer Bilal Kagzi too finds the prosecution’s case “doubtful”. “The police, as per the case file, did not call panch (independent witnesses) and prepare a panchnama (seizer memo) at the place of the incident. The panch witnesses were called at the police station where the memo was prepared. It made the recovery of animals doubtful,” he added.
Alleging that it might be a case of framing, he said, “Not conducting an identification parade of the accused makes the veracity of Ameen (the alleged driver) really being the accused doubtful.”
Veterinary Officer Ravibhai Bhandasbhai Gondaliya, in his oral submission, purportedly made a statement of having seen the animals (12 cows and 4 bullocks) being taken off the vehicle. He allegedly asserted that nine cows and three bullocks were in a “weak condition” and that three cows and one bullock were found dead, on whom he performed the postmortem.
The statements made by the officer — alleged Aneeq — are in “contravention of the evidence found and the statement made by the other officers that asserted the death of only two cattle”.
He said Gondaliya pointed out the death of four animals, but the defence failed to cross-examine him adequately to identify the discrepancy made in his statements. “There was a requirement on the part of counsel to bring up the data and assert the contravention. The defence yet again has failed to do the required minimum,” he added.
The prosecution brought Balrajbhai Bhaidasbhai Gulale as one of the independent witnesses who among other panchs was called to the police station and a memo of the physical condition of the accused was made in their presence.
The prosecution also brought on record the oral submission of witness Raj Sang Hirabhai Loh, a police inspector. He at the time of the commission of the crime was discharging his duty at Nijhar police station, and the police station officer had declared the facts of the case to him. He was the in-charge of the investigations, and he was suspended for reasons independent of this case.
Their cross-examinations revealed that the witness was not present when the accused was found carrying the animals in the vehicle. The fact that the accused could not be arrested from the spot was maintained by him. A test identification parade of the accused was also not conducted.
“These facts are again inconsistent with the requirement of the law. The court has accepted that the investigation was made as per the law, although the cross-examination revealed otherwise. The defence was required to act by the law and bring a challenge to the testimony. There is also some inclusion of hearsay evidence, as the facts were conveyed to the officer, which may not be the best form of evidence and the same needs to be proved in strict guidelines,” said Advocate Aneeq.
He added the defence has let the lacunae and shortcomings of the witness testimony and did not pay heed despite the fact that there is enough space and ground on part of the defence to bring in different facts of the case and decide upon the credibility of evidence produced by the prosecution.
Advocate Kagzi said there are many contradictions between the prosecution complaint and the panch witness dispositions.
“Looking at the case, there is no allegation of these animals were taken to the slaughterhouse. In a criminal trial, the prosecution has to prove the ingredients of sections which are invoked against the accused. In the instant case, the prosecution failed to prove the charge of transportation of animals for slaughter without reasonable doubt,” he told TwoCircles.net.
The lawyer alleged that the court’s reasoning in the judgement is “not as per law”, appreciation of evidence is “against the established principle of the Evidence Act” and the presumption of this Act is “against the criminal jurisprudence”.
“Based on the presumption, the court cannot convict any person. The presumption can not become a law. It is contrary to criminal jurisprudence,” he added.
‘Ineffective’ defence
The court, while holding the accused guilty of violating the Gujarat Animal Preservation Act, 1954 and its amendments, observed that the “defence has not been able to bring on record any facts so as to give convincing reasons to doubt the evidence”.
Therefore, said the judge, he believes that “the evidence submitted by the plaintiff proves the case against the accused without any doubt”.
Notably, the accused was represented by the state’s legal aid counsel. “It is a classic example of the quality and competence of a legal aid scheme,” said both the advocates quoted above.
They said the defence failed to make attempts to further cross-examine and ask about the facts he observed at the time when he first saw the driver. “There are points that could have been rebutted by the defence counsel, but he apparently chose to accept the testimonies,” they alleged.
Advocate Aneeq said the defence could have brought forward the contention that animals were not tied with short rope as there was no evidence to prove any marks on the neck of the animals other than one animal having a vertebral fracture which could have been caused by the hustle and tussle amongst the animals or it could be during the journey.
“It would have helped in reducing the sentence and fine upon the accused as it diminishes the assertion of cruelty against the animals,” he said.
Though Kagzi found no evidence of animals were taken to slaughter, Aneeq said the driver could not produce any required permit for the transportation of the animals; the evidence of possession of the cattle could not be found; and therefore, the accused was presumed to be the owner of animals that were being transported at that time.
“Since the defence failed to bring about the evidence of any proper certification of the competent authority which authorized the transportation of the animals; hence, the court presumed that such transportation was taking place so that the animals could be slaughtered. The defence did not make any attempt to rebut the presumption; and therefore, the accused was held liable under Section 6 (a) of the Gujarat Animal Preservation Act, 1954,” he explained.
However, he said there is a possibility of infringement of several rights in this procedure. “The case may be framed, but the credibility of evidence given by witnesses is challenge worthy and should not have been upheld to form the criminality of the accused,” he concluded.
Life term without provision in law?
The Gujarat assembly in March 2017 toughened (in fact toughest in the country) its anti-cow slaughter legislation by making the offence made non-bailable and punishable with a life sentence.
The Gujarat Animal Preservation (Amendment) Act, 2017, was passed amid the suspension of the Opposition, the Congress, and legislators from the house for the entire day and with the visitors’ gallery of the House packed with saffron-clad Hindu priests.
The amendment in the 1954 law (the principal Act) provides for a maximum punishment of up to life imprisonment and a fine of up to Rs 5 lakh if one is held guilty of slaughtering cows, calves, bulls and bullocks.
Notably, sections 6A and 6B of the amended Act ban the transportation of the livestock animals without any requisite permission and have a provision of “imprisonment for a term which may extend to 10 years but shall not be less than seven years and with a fine which may extend to Rs 5 lakh but shall not be less than Rs 1 lakh”.
Earlier, the maximum punishment for the same was three years.
The law also provides for permanent forfeiture of vehicles involved in the illegal transportation of progeny of cows and beef. It has put curbs on the transportation of cows in the state during night hours. Even legal, licensed movement is not be allowed between 7 pm and 5 am.
“As per the 2017 amendment, the maximum sentence for unauthorised transportation is 10 years. The court, without any substantial evidence on record, presumed that the animals were transported for slaughter and sentenced the accused to rigorous life imprisonment even before the commission of the alleged crime,” said Advocate Kagzi, adding that mere “presumption” cannot be the basis of such a harsh punishment.