Delhi District Court
State vs . Sunil Kumar Gupta on 30 January, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE04, PATIALA HOUSE
COURTS, NEW DELHI.
Presided by: Ms. Vijeta Singh
State Vs. Sunil Kumar Gupta
FIR No. 79/99
U/S 289//337324 IPC
JUDGMENT
1. Case ID No. of the case. :02403R0001241999
2. The date of commission :10.02.1999
of the offence.
3. Name & address of complainant :Sh. Jitender S/o Kesar Ram
R/o H. No. 131, Old G
Point, Kalibari Marg, New Delhi
4. Name & address of accused :Sunil Kumar Gupta S/o Sh.
Siya Ram Gupta, R/o H. No.
122, Old GPoint, Kalibari
Marg, New Delhi.
5. Offence complained :U/s 289/337/324 IPC
6. The plea of the accused and :Not guilty.
his examination.
7. The final order. :Convicted u/s 289/337/323 IPC
8. The date of such order. :30.01.2013
9. Date of institution. :06.04.1999
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FIR No. 79/99
10. Date on which the judgment :19.01.2013
has been reserved.
BRIEF FACTS/ STATEMENTS OF THE REASONS FOR THE DECISION.
1. It is the case of the prosecution that on 10.02.1999 at about 08.20 pm near Quarter no. 122, Pocket G, Kalibari Marg, Delhi falling within the jurisdiction of PS Mandir Marg, the accused knowingly or negligently omitted to take proper care with his pet dog in his possession as was sufficient to safeguard against any probable danger to human life or any probable danger of grevious hurt and consequent to it, his pet dog bit the complainant Jitender and his brother Narender thereby causing hurt to them. Thus the accused is alleged to have committed offence u/s 289/337 of Indian Penal Code (hereinafter referred to as "the Code"). Further, that on the aforesaid date, time and place, the accused also verbally and physically abused and caused hurt to the complainant and thereby also committed offence u/s 324 of the Code.
2. On completion of investigation, charge sheet was filed against the accused for offences u/s 289/337/324 of the Code. Documents in compliance of Section 207 Cr.P.C were furnished to the accused.
3. Since Ld. Predecessor of this Court was of the prima facie opinion that offences punishable u/s 289/337/324 of the Code were made out, State Vs. Sunil Kumar Gupta Page 2/10 FIR No. 79/99 charge u/s 240 Cr.P.C was framed under the aforesaid sections on 08.01.2002 The charge was read over and explained to the accused. The accused did not plead guilty to the charge framed and claimed trial.
4. Thereafter, prosecution examined the following witnesses in support of its case.
I. PW1 Complainant/ Sh. Jitender who interalia deposed that on 10.02.1999 at about 08.20 pm he was present at his house when altercation had taken place with the accused; that a quarrel had occurred between his relatives upon which accused started laughing and when objected to by his relatives, the accused abused the relatives and the witness; that the accused beat up the complainant and his brother in law/Sher Singh/PW4; that the accused released his dog upon the witness that the bit the witness on his right leg and and brother Narinder/PW2 and that the accused slapped the witness's sister Vidya/PW3.
II. PW2 Narinder who inter alia deposed that on 10.02.1999 at about 08.20 pm an altercation was going on between PW3 and PW4; that house of accused and of the witness was on the same lane; when the witness returned from office, the accused was sitting in the said lane outside his house and abused the witness; that the accused released his dog on the witness and his brother/PW1 which bit the witness on his thigh's and his brother on his leg; that the accused also beat them up; State Vs. Sunil Kumar Gupta Page 3/10 FIR No. 79/99 that the accused was carrying rod on his hand and was under the influence of alcohol. He was duly cross examined. III. PW3 Smt. Vidya Devi who inter alia deposed that on 10.02.199 at about 08.20 pm, a hot altercation had ensued between her and her husband/PW4 at her house; that the accused was standing outside the house and was laughing; that PW3 and PW4 objected to it; that the accused was drinking liquor and threatened them of implication in false case; that accused was having a rod; that accused released his dog on PW1 and PW2; that accused beat up PW4, PW1 and PW2; that the dog bit PW1 and PW2 on their leg's. She was duly cross examined. IV. PW4 Sher Singh who inter alia deposed that on 10.02.199 at about 08.20 pm a hot altercation had ensued between him and his wife upon which accused was laughing and on being objected, the accused abused PW3 and PW4; that the accused was drinking liquor; that PW1and PW2 also reached at the spot and questioned the accused for his behaviour, the accused then threatened them of false implication in criminal case; that accused released his dog on PW1 and PW2 which bit them on their legs and also beat them up.
V. PW5 Dr. Veena who proved MLCs No. 12943/99 and 12940/99 of PW2 and PW1 respectively. The same are Ex. PW5/A and Ex. PW5/B respectively. She was not cross examined despite opportunity. State Vs. Sunil Kumar Gupta Page 4/10 FIR No. 79/99 VI. PW6 HC Surender/Duty Officer who proved registration of FIR Ex. PW6/A. He was not cross examined despite opportunity. VII. PW7 Ct. Vijay Pal of Delhi Homeguard who inter alia deposed that on the fateful day, he joined the IO in investigation on receipt of DD No. 18A and went to Quarter no. 122 and 131, G. Point Kalibari where he came to know that injured were taken to Dr. RML Hospital; that they thereafter, went to the hospital where MLC of PW1 and PW2 was obtained, that statement of PW1 was recorded, rukka prepared and was taken by the witness for registration of FIR. He was duly cross examined.
VIII. PW8/SI (Retd.) Ranbir Singh who testified as regards the stages of investigation undertaken by him. He also relied upon Ex. PW1/A, Ex. PW8/A (tehrir), Ex. PW8/B (site plan), Ex. PW8/C (personal search memo of accused) and Ex. PW8/D (arrest memo of accused). He was duly cross examined.
5. Prosecution evidence was closed vide order dated 30.08.2006 as all witnesses were examined.
6. Thereafter, the accused was examined by the Ld. Predecessor of this Court on 20.11.2006 u/s 313 Cr.P.C. read with Section 281 Cr.P.C. State Vs. Sunil Kumar Gupta Page 5/10 FIR No. 79/99 The accused denied that the allegations and declined to lead defence evidence.
7. Final arguments were heard by this Court on behalf of prosecution on 09.01.2013. Despite opportunity, no final final arguments were led by the accused.
8. It has been argued by Sh. Neeraj Madhup, Ld. APP for the State that the prosecution had discharged the burden of proving the guilt beyond reasonable doubt and accused is liable to be convicted. It was urged that PW1 to PW4 supported the case of prosecution and their testimonies are duly corroborated. It was also argued that injury upon PW1 and PW2 was duly proved by testimony of PW5 and that the various stages of investigation was duly proved by testimonies of PW7 and PW8.
9. To secure conviction u/s 289 of the Code, the prosecution was required to prove the following ingredients:
a. The accused knowingly/negligently omits to take order with any animal in his possession.
b. Such order is sufficient to guard against any probable danger to human life/of grevious hurt from such animal.
10. Further, to secure conviction u/s 337 IPC, the prosecution is State Vs. Sunil Kumar Gupta Page 6/10 FIR No. 79/99 required to beyond reasonable doubt that aforesaid rash and negligent act of the accused caused hurt to the victim.
11. Section 324 requires that the prosecution should establish beyond reasonable doubt that accused a. Voluntarily (except in cases provided for by Section 334 of the Code), caused hurt to the victim.
b. With an instrument which when used as a weapon of offence is likely to cause hurt or by means of an animal.
12. The Ld. Counsel for accused has urged that the accused has been falsely implicated. Before proceeding to appreciate the evidence led and arguments advanced, it is imperative to make a reference to a cross FIR bearing no. 80/99, PS, M. Marg which was registered against the complainant on a complaint by the accused herein with relation to same incident. It was alleged that the complainant had committed offences u/s 324 read with Section 34 of the Code along with PW2 to PW4 and had caused injury to the complainant by sharp edged weapon. The aforesaid case is also listed for judgment for today. A cross FIR bearing no. 80/99, P.S. Mandir Marg is suggestive of the fact that on the fateful date and place of occurrence, the complainant /victims and the accused had a quarrel. This goes on to show that plea of false implication is not well founded and hence is not acceptable.
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13. PW1 to PW4 have corroborated the statement of each other as regards quarrel having occurred between PW3 and PW4 which was belittled by the accused leading him to let his pet dog attack PW1 and PW2 causing injuries to them. All the witnesses aforementioned have asserted that the accused had a pet dog and had denied that injuries were caused by some street dog. MLC Ex PW5/A and Ex PW5/B show that the patients PW2 and PW1 were administered anti rabies treatment and both of them had injuries on their thighs. However, as per MLC Ex. PW5/A, the kind of weapon used is reported to be blunt which is in contradiction to what has been reported in Ex. PW5/B. If injury has been caused by a dog bite as alleged, it should have been by way of a sharp object and not blunt. Hence, the accused is given benefit of doubt as regards having caused injury to victim Narender as envisaged u/s 289/337 IPC. Be that as it may, the allegations of dog bite to complainant has been consistent in the testimonies of PW1 to PW4 and has been duly corroborated by MLC Ex. PW5/B . During examination under Section 313 Cr.P.C, the accused took the plea that he did not have any dog and he had been falsely implicated. However, no credible defence evidence was led by him to substantiate his claim. Thus, the accused failed to raise doubts on the prosecution evidence. Hence, this court is of the view that essential ingredients of offence under Section 289 of the Code have been proved beyond reasonable doubt . This court is also of the view that the prosecution has been able to prove culpability of the accused under Section 337 IPC as pursuant to his act under State Vs. Sunil Kumar Gupta Page 8/10 FIR No. 79/99 Section 289 IPC, PW1 sustained simple injuries.
14. However, it has also been alleged that accused voluntarily gave beatings to PW1 and PW2, having committed offence also punishable under Section 324 of the Code. PW1/A has been perused. As per the same, the accused had also caused injuries to PW1 by an iron rod on his hand and legs. During deposition before the court, PW1 did not state that the accused was armed with iron rod and caused injury to him with it. PW4 has also only alleged about voluntarily beating but did not mention that the accused was armed with iron rod and caused injury to PW1 with it. PW2 and PW3 stated that accused was armed with iron rod at the time of incident. Statement of PW4 u/s 161 Cr.P.C has been perused. As per the same, it has not been recorded that iron rod was used to cause injury. It is only recorded that accused came to fight laced with an iron rod. Thus, in the considered view of this Court, it cannot be said that the prosecution has established beyond reasonable doubt that the accused caused injury to the victim by an iron rod and thus committed offence u/s 324 IPC. Hence, the accused is acquitted of offence u/s 324 IPC.
15. Be that as it may, Section 222 (2) Cr.P.C empowers this Court to consider whether a minor offence has been proved against accused. PW2 to PW4 have alleged that accused gave beatings to complainant and his brother. Though, PW3 and PW4 have also alleged that accused State Vs. Sunil Kumar Gupta Page 9/10 FIR No. 79/99 gave voluntary beatings to PW4 as well. None of the witnesses aforementioned have been cross examined on the said aspect that voluntary beatings were given by the accused. Hence, the testimonies on the said aspect have remained unchallenged. Even MLC Ex. PW5/A stipulates that injury has been caused to accused Narender by some blunt object and he had suffered abrasions. In these facts and circumstances, offence u/s 323 of the Code has been proved against accused. He is therefore convicted of offence punishable u/s 323 IPC.
16. List for arguments on sentence on 22.02.2013.
17. Copy of judgment be given dasti to convict.
Announced in the open Court (Ms. VIJETA SINGH)
on 30.01.2013 MM04/Patiala House Courts
New Delhi.
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FIR No. 79/99