Delhi District Court
State vs . Markhandey Kumar Shukla on 6 September, 2019
IN THE COURT OF SHRI HIMANSHU RAMAN SINGH:
METROPOLITAN MAGISTRATE - 04 (SOUTHWEST)
DWARKA DISTRICT COURTS: DELHI
FIR No.: 375/16
U/s: 289/337 IPC
P.S.: Dwarka South
State Vs. Markhandey Kumar Shukla
JUDGMENT
1. Reg. No. of the Case : 2799/17
2. Date of commission of offence : 20.06.2016
3. Date of institution of the case : 11.04.2017
4. Name of the complainant : Smt. Richa Ambastha
5. Name of accused, parentage & : Markhandey Kumar Shukla
S/o Sh. Akhalesh Kumar Shukla,
R/o E70, Evergreen Appt. Plot No. 9
Sec07, Dwarka, New Delhi.
6. Offence complained off : u/s 289/337 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : Not reserved
9. Final order : Convicted
10. Date of final order : 06.09.2019
Brief statement of reasons for decision :
1. The present chargesheet has been filed against the accused for his trial for the offence under section 289/337 of the Indian Penal Code. FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 1/10
2. Brief facts of the case are that on 20.06.2016, at about 03.00 pm, in front of flat no. E69/70, Plot no. 9, Sector7, Dwarka, New Delhi within the jurisdiction of Police Station Dwarka South, he knowingly or negligently omitted to take such order with a dog sufficient precaution as was sufficient to guard any probable danger to human life and thereby committed an offence punishable under section 289 Indian Penal Code.
3. Secondly, on the said date, time and place and while omitting to take such order with his pet dog, the dog bit the complainant and caused hurt to complainant Smt. Richa Ambastha and thereby committed an offence punishable under section 337 of Indian Penal Code.
4. After going through the chargesheet and entire material available on record, cognizance was taken and the accused was summoned. Copy of chargesheet was supplied to him and provisions of CrPC were complied with. On the basis of primafacie evidence on record, charge was framed against the accused for offences 289/337 of the IPC , to which he pleaded not guilty and claimed trial.
5. Prosecution filed the list of 06 witnesses and examined 04 FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 2/10 witnesses.
6. PW1 Ms. Richa Ambastha deposed that on 20.06.2016, at about 03:00 pm, she was at her house at D306, 1 st Floor, Evergreen Apartment. One courier guy came at her house as he had come to deliver a weighing machine. She opened the gate, on her left hand side, her daughter was standing and on the right hand side, around 5 years old son was standing. While she was receiving the courier, the gate of her neighbour Mr. Markhandey Kumar Shukla opened and who was present in court on that day (correctly identified by witness) and the dog of her neigbour bit her on her left thigh. She rushed inside her house after taking both her kids. When she checked her thigh she saw bruise mark.
7. Photographs of marks were given by the witness. Till 06.09.2019, she was having marks. She went to her neighbour's house and told the lady present in house that their dog had bitten her. She denied the allegations. Then the complainant made a call to her husband. Thereafter, she made a call at 100 no. PCR reached the spot and shifted her to Bhagat Chandra Hospital, where her medical examination was conducted. She does not remember whether the dog was loose open by the accused at the time of incident or not. Her statement was recorded by the police, Same is Ex. PW1/A. The dog belonged to accused FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 3/10 Markhandey, who was her neighbour. The breed of dog is Germen Shepard.
8. PW2 HC Sanjay deposed that on 20.06.2016, he received a call and he alongwith SI Nang Ram reached at spot. There, complainant Ms. Richa Ambastha did not meet them. They returned to the PS.
9. On 22.06.2016, he alongwith SI Nanag Ram went to the house of complainant and met her. She narrated the incident and the same was recorded. IO/SI Nang Ram prepared the rukka and handed it over to him for FIR registration. He got the FIR registered and returned back to the spot and handed over copy of FIR and original rukka to the IO. IO prepared the site plan as Ex. PW2/A.
10. PW3 SI Nanag Ram Meena deposed that on 20.06.2016 he received a DD No. 22A, Ex. PW3/A and thereafter, he alongwith HC Sanjay reached at the house of the complainant. There complainant Richa Ambastha did not meet them. They returned to the PS. He further deposed that on 22.06.2016, he alongwith HC Sanjay went to the house of complainant. She narrated the incident and same was recorded as Ex. PW1/A. He prepared the rukka (Ex.PW3/B) and handed over to HC Sanjay for registration of FIR Thereafter, HC Sanjay went to PS and got the present FIR registered. FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 4/10 Thereafter, HC Sanjay returned back at spot and handed over him copy of FIR and original rukka. He prepared site plan, already Ex. PW2/A. Further, on 14.12.2016, accused came at PS at about 04:00 pm. He formally arrested the accused, vide Ex. PW3/C. He recorded the statement of witnesses.
11. PW4 Dr. Solanki Roay Chowdhary, CMO Bhagat Chandra Hospital deposed that on 20.06.2016, he was discharging his duties in emergency of Bhagat Chandra Hospital. One patient namely Mrs. Richa Ambastha was brought to the emergency with alleged history of dog bite. He examined her and found teeth mark over anterior aspect of left thigh and bleeding was there and it was category three dog bite. Category three dog bite is the severest form of the dog bite, which was simple wound. He prepared the MLC No. 1118/16.
12. No other witness was examined by the prosecution. Thereafter, prosecution evidence was closed. Statement of the accused was recorded under section 313 Cr.P.C. The accused stated that he has been falsely implicated in the present case and chose to lead defence evidence and examined Smt. Sangeeta as DW1. Thereafter, final arguments were heard at length.
13. Ld. APP for the State argued that the prosecution has proved its FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 5/10 case against the accused beyond reasonable doubt. It is contended that the witnesses have given corroborative statements and the accused is liable to be convicted in this case. On the other hand, Ld. Counsel for accused stated that accused is innocent and he has not committed any offence. It is contended that the complainant did not place on record all the documents of the complete treatment by her as a number of injections are to be taken on dog bite. It has been contended that a simple bruise mark do not point out to the fact that the dog has actually bitten. It is contended that PW4 Dr. Solanki in his cross examination stated that he cannot conclusively say that the teeth mark on the person of the patient was of dog.
14. It is contended by the Ld. Counsel for accused that there are contradictions in the statements given by the witnesses and the prosecution has failed to prove its case beyond reasonable doubt.
15. Before proceeding further, it would be appropriate to go through the relevant provisions in this regard.
Section 289 reads as under:
"Negligent conduct with respect to animal: Whoever knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life, or any probable danger of grievous hurt from such animal, shall be punished with imprisonment of either description for a term which may extend to six months, FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 6/10 or with fine which may extend to one thousand rupees, or with both."
Section 337 reads as under:
"Causing hurt by act endangering life or personal safety of other: Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
16. In his defence, accused examined his wife Smt. Sangeeta as DW1.
She deposed that on the date of incident, her husband / accused was on leave. She further deposed that they have a dog and they take on walk on daily basis. They always take the dog for walks on leash. Further, on the day of incident, they put the leash of the dog as they wanted to take the dog for his regular walk. Further, they have two doors, one wooden and another of iron . His husband opened the door and the dog look outside from the iron door from the wire mesh, the dog started barking as somebody was standing outside the door. Thereafter, her husband closed the wooden door and came inside. During her cross examination she could not give satisfactory answers to the questions put to him by the Ld APP for the state. Suggestions were given to the witness that her husband had infact committed the offence to which she denied.
17. It has been contended by the counsel of the accused persons that the dog in the present case is duly vaccinated by the accused and has further FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 7/10 placed on record the vaccination record of their dog and there is no evidentiay proof that the bitten mark was done by the same dog or not. Further, It is also contended that no public witnesses have been joined in the investigation by the police.
18. Arguments of both the parties are heard. Considered. There is no reason to doubt the testimonies of the witnesses. Minor contradictions are bound to happen and the same cannot be a ground for throwing the case of the prosecution out of the window. Minor contractions in fact indicate that the witnesses have deposed in a natural manner. Further the lacunae in the investigation conducted by the police cannot be used to his advantage by the accused persons if otherwise the witnesses have supported the case of the prosecution.
19. Perusal of the MLC report no. 1118/16, Ex.PW4/A shows that injured Richa Anbastha was brought to the casualty with history of dog bite over the anterior aspect of Left Thigh. As per the MLC there is fresh wound having teeth mark over ant. aspect of left thigh and blood was present on the wound and it was also labelled as Category three dog bite. Moreover, in her evidence, PW4 had elaborated that on examination of the teeth mark, she had labelled the same as category three dog bite as the severest form of dog bite. FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 8/10 Hence, there is no contradiction on the point of injury which can create doubt on the testimony of witness. Hence, the prosecution has proved the injury of the complainant.
20. Hence, after going through the testimonies of witnesses and MLC on record, it is proved that accused Markhandey Kumar Shukla is liable for the conduct of the dog owned by him. Further, due to his failure to take such order with the dog in his possession, the complainant Richa Ambastha suffered injuries. Accordingly, the prosecution has proved the guilt of accused without any reasonable doubt.
21. This court is of the opinion that prosecution has been able to discharge the burden of proof cast upon it. There is no reason to doubt the testimony of the witnesses. Ingredients of Section 289 IPC and section 337 IPC have been duly proved by the prosecution.
22. In view of the detailed discussion above, accused Markhandey Kumar Shukla S/o Akhalesh Kumar Shukla is held guilty of the offence under sections 289/337 IPC in present case.
FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 9/10
23. Let the convict be heard on the point of sentence.
Digitally signed
HIMANSHU by HIMANSHU
RAMAN SINGH
RAMAN Date:
SINGH 2019.09.06
Announced in open court 17:07:55 +0530
on 06th September 2019 (Himanshu Raman Singh)
Metropolitan Magistrate04,
Dwarka, Delhi/06.09.2019
FIR No. 375/16 State Vs. Markhandey Kumar Shukla PS: Dwarka South 10/10