Delhi District Court
State vs Hari Shankar on 25 August, 2023
IN THE COURT OF SH. ANUBHAV JAIN,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
SHAHDARA DISTRICT, DELHI
State Vs. Hari Shankar
FIR No.: 199/2014
PS: Anand Vihar
JUDGMENT
A Case Identification 84122 / 2016
Number
B Name of the Smt. Anju Gupta
Complainant W/o Sh. Alok Kumar Gupta
R/o 90 Jagriti Enclave,
Anand Vihar, Delhi.
C Name of the accused Hari Shankar
persons & their S/o Sh. Chander Pal
parentages and address R/o H. No. 575, Gali no. 3, Karkar village,
PS Sahibabad, District Ghaziabad, U.P.
D Date of commission of 30.03.2014
the offence
E Date of Institution of the 03.06.2015
case
F Offence Charged Offence u/s 289/338 IPC
G Plea of accused Pleaded not guilty
H Order Reserved on 18.08.2023
I Date of Pronouncement 25.08.2023
of judgment
J Final Order Accused is convicted for the offences u/s
289/338 IPC.
K State represented by Sh. Arun Kumar Mavi, Ld. APP for the
State.
FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 1 of 29
Brief statement of reasons for decision
1. Present accused produced before the court to stand trial for the offence punishable u/s 289/338 IPC.
2. In brief, facts of the case as per the prosecution are that on 30.03.2014, upon receiving of DD No.15A, ASI J. P. Sharma reached at House no.90, Jagriti Enclave, Anand Vihar, wherein he was informed that the injured namely Anju has been shifted to Hedgewar Hospital. Upon the same, IO reached at Hedgewar Hospital, wherein he collected the MLC of injured, as per which, the injured has received injuries due to dog bite. Further, injured could not be found at the hospital and it was informed that injured has shifted to some private hospital and IO contacted the injured telephonically, who informed the IO that she will get her complaint registered after getting medical treatment.
It is further stated that, thereafter, injured reached at police station and handed over a complaint wherein she stated that she is residing at House no. 90 Jagriti enclave, Delhi, along with her family and one Pankaj Madan is residing at house no. 20, Jagriti Enclave, Delhi-92. It is further stated that Pankaj Madan is owner of a huge pet dog and that some time, servant of Pankaj Madan used to bring the said dog in the service lane and she & her husband have informed Pankaj Madan several times to ask their servant to not to bring the said dog at service lane behind their house. It is further stated that said dog was left free for roaming around in service lane and the said dog is very aggressive and ferocious. It is further stated that she has several times complained to Pankaj Madan to kept the said dog FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 2 of 29 in behavior. It is further stated that on 30.03.2014 at about 12.15 pm, while the complainant was standing on back side service lane road, the servant of Pankaj Madan came there along with the dog roaming freely in the lane when suddenly the said dog attacked the complainant and bite her left hand tearing away her fingers. It is further stated that her finger bower got broken and her nail came out and part of her finger was cut away. She further stated that she called PCR van who took her to Hedgewar Hospital for treatment and after initial treatment, she went to Fortis Hospital, Noida, for further treatment. It is further stated that the dog owner Pankaj Madan was negligent and careless and that a legal action be taken against him.
Upon the said complaint, IO got the FIR registered for the offences u/s 289/337 IPC. During the course of investigation, IO prepared the site plan and recorded the statements of the witnesses. Further, IO collected the MLC of the victim Anju Gupta for Fortis hospital, as per which, the nature of injury received upon her person was grievous in nature. After completion of investigation IO filed the charge-sheet against accused Hari Shankar (servant of Pankaj Madan) for the offences punishable u/s 289/338 IPC.
3. Upon filing of charge-sheet, Ld. Predecessor Court vide order dt. 03.06.2015, took the cognizance for the offence u/s 289/338 IPC. Accused appeared before the court and copy of the charge-sheet was supplied to the accused in terms of Section 207 Cr.PC.
4. Thereafter, vide order dt. 01.05.2017, Ld. Predecessor court charged accused for the offence u/s 289/338 IPC, to which accused pleaded not guilty and claimed trial. Matter was further listed for prosecution evidence.
FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 3 of 29
5. Prosecution in order to prove its case has examined the following witnesses:
PW1 / Anju Gupta, who is the complainant, deposed that on 30.03.2014, she was residing at H. No.90, Jagariti Enclave, Delhi and Mr. Pankaj Madan was residing at H. No. 20, Jagariti Enclave, Delhi. She deposed that Mr. Pankaj was having two pet dogs i.e. one huge German Shepperd and other medium built dog. She further deposed that a service lane was situated behind their house and said Pankaj Madan or his servant used to bring their dog at the said service lane on daily basis. She further deposed that she & her husband Sh. Alok Kr. Gupta many times asked Mr. Pankaj and his servant Hari Shankar not to bring the dogs there and further, had visited the house of Mr. Pankaj in this regard and requested him as well as his family not to bring the dogs at service lane behind her house.
She further deposed that some times, they used to leave the chain of their dog and said dog used to roam freely at the service lane and further Pankaj Madan or his servant did not use mouth guard on the mouth of their dog. She further deposed that the huge German Shephered dog was very aggressive and ferocious and they asked Mr. Pankaj Madan and his servant to keep the dog in control.
She further deposed that at that time constructions/repair work was going on at her house and she asked Hari Shankar not to bring abovesaid dog behind her house as it can bite the children of laborers working at her house but accused Hari Shankar did not pay any heed to the same. She further deposed that she has also complained in this regard Mr. Pankaj Madan but of no avail.
She further deposed that on 30.03.2014 at about 12:15 PM, she was standing in the back side service lane door of her house, when accused Hari Shankar, servant of Mr. Pankaj Madan, came there along with FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 4 of 29 abovesaid huge dog & he was having the chain of said dog in his hand. She further deposed that accused Hari Shankar was holding chain of said dog loosely at that time and she asked accused Hari Shankar to take away the dog from there and thereafter she tried to turn but in the meantime, said dog caught her left hand in his jaws and pulled her, due to which she fell down in the rain water drainage situated there. She further deposed that after felling down in the said drainage, she saw that her hand was in the jaws of said dog and she started crying and shouting and asked accused Hari Shankar to got released her hand from the jaws of said dog but Hari Shankar laughed at her.
She further deposed that after hearing her shouting, her husband and laborer working there came there from inside her house and they asked accused Hari Shankar to remove her hand from the jaws of dog and her husband tried to lift her. She further deposed that accused Hari Shankar pulled the chain of dog and after pulling the chain, he ran towards the house of Mr.Pankaj Madan with the dog. She further deposed that due to the bite of the dog of Mr. Pankaj Madan, she sustained sever injuries on her left hand and her left hand middle finger got severely damaged. She further deposed that some one made a call to the police & police reached at the spot and police officials had taken her to Hedgewar Hospital for treatment where she received first aid, from where, she was taken to Fortis Hospital, Noida, for further treatment. She further deposed that after about 1-2 days of present incident, police official reached at her house and she gave a written complaint to the police which is Ex.PW1/A. She further deposed that her complaint Ex.PW1/A is in the handwriting of her husband Sh. Alok Kumar Gupta and he wrote this complaint on her dictation. Witness further correctly identified accused in the Court.
PW2 / Alok Kumar Gupta, has deposed that on 30.03.2014 FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 5 of 29 at about 12.00 noon, he was present at his house and he heard noise of his wife Smt. Anju Gupta from the back side service lane gate of his house and he immediately rushed towards that side of his house and saw that hand of his wife was inside the mouth of dog. He further deposed that at that time, his wife was lying in the rain water drain of the service lane. It is further stated that accused Hari Shankar, who was the care taker of the said dog was also standing nearby & laughing and did not make any effort to remove the dog. Witness further deposed that he shouted and the labour in his house also came and that accused ran away with the dog from there. It is further stated that witness followed the accused to the house of Pankaj Madan but he closed the door and did not respond. Thereafter, he called the police and took his wife to Hedgewar Hospital and from there to Fortis Hospital. It is further stated that his wife's hand was also bleeding. Witness further stated that said dog belong to Mr. Pankaj Madan, who residing at the T-point of above service lane. Witness correctly identified accused in the court.
PW3 / ASI Surender Kumar was the duty officer and he has proved the registration of present case FIR vide Ex.PW3/A, endorsement of the rukka made by him vide Ex.PW3/B. PW4 / Ct. Budh Ram has deposed that on 01.04.2014, he had taken copy of the FIR & original rukka from the duty officer and handed over the same to ASI Jai Prakash at the spot.
PW5 / SI Geeta has deposed that on 30.03.2014, she has proved DD no. 15A regarding quarrel.
PW6 / Dr. Ritesh Ranjan, Medical Officer, Hedgewar FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 6 of 29 Hospital, has proved MLC no. 1006/14 of the complainant Anju Gupta vide Ex.PW6/A. PW7 / Dr. Manoj Kumar Johar, Director & Head of the Department of Plastic Surgery, Max Hospital, has proved his report pertaining to the complainant Anju Gupta vide Ex.PW7/A. PW8 / SI J. P. Sharma, who was the Investigating Officer, has deposed that on 30.03.2014, he received a PCR call vide DD no. 15A, upon which he along with one constable reached at house no.90, Jagriti Enclave, Anand Vihar, Delhi, where he came to know that injured has been taken to Hedgewar Hospital. Witness further deposed that he went to the hospital and received MLC of injured Anju Gupta and on further inquiry, he came to know that injured has left for some private hospital and he kept the DD number pending. It is further stated that on 01.04.2014, complainant / injured came to PS and handed over her complaint Ex.PW1/A, on the basis of which, he prepared rukka Ex.PW8/A and handed over the same to duty officer. Witness further deposed that he went to the spot along with the injured and prepared site plan Ex.PW8/B and also recorded supplementary statement of the complainant u/s 161 Cr.PC. It is further stated that on 16.04.2014, he recorded statement of PW Alok Kumar Gupta & Ct. Neetu and also arrested accused Hari Shankar vide Ex.PW2/A & conducted his personal search vide memo Ex.PW2/B. It is further stated that he received the MLC of the injured Anju and after completion of investigation, he filed the charge-sheet before the court. Witness correctly identified accused in the court.
6. That, thereafter, since all the prosecution witnesses were FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 7 of 29 examined, PE was closed vide order dated 10.07.2023 and matter was listed for recording of statement of accused u/s 313 Cr.PC.
7. In the statement u/s 313 Cr.PC recorded on 27.07.2023, accused beside denying the story of the prosecution, stated that he has been falsely implicated in the present case. It is further stated by accused that he is a washer at Chankaya Enclave and having work of iron (press) over there. It is further stated that there was some dispute with the complainant with regard to money, due to which, complainant get the present false case registered against him.
He further did not avail the opportunity to lead defence evidence and the matter was fixed for final arguments.
8. It is argued by Ld. APP for the State that injured Anju Gupta as well as her husband Alok Gupta have supported the case of the prosecution. It is further argued that both the witnesses have correctly identified the accused as the servant of Pankaj Madan, who was roaming the said dog of Pankaj Madan on the said date. It is further argued that further from the testimony of concerned doctor, it proved by the prosecution that injuries were received upon the person of victim due to dog bite, therefore, the prosecution was able to prove its case beyond reasonable doubt and the accused be convicted for the offence he is charged for.
9. On the other hand, it is contended by Ld. Counsel for accused that the entire complaint so moved by the complainant is against Pankaj Madan. Further, name of the accused Hari Shankar is no where mentioned in the complaint. It is further argued that although the arresting memo of FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 8 of 29 accused Hari Shankar bears signature of husband of complainant, however, he denied arrest of accused Hari Shankar in his presence and as such, it is not clear on whose identification the accused Hari Shankar was arrested. It is further argued that there is contradiction in the testimony of witnesses Alok Kumar Gupta (husband of the complainant) with regard to recording of statement. It is further argued that although as per the statement u/s 161 Cr.PC of witness Alok Kumar Gupta same was recorded on 01.03.2015, however witness Alok Kumar Gupta denied recording of such statement in the year 2015 and stated that his statement was recorded only once. It is further argued that the statement of Pankaj Madan was recorded after one year of incident and same is vague. It is further argued that there is no document placed on record with regard that accused Hari Shankar was employed with Pankaj Madan. It is further pointed out that not a single photograph of said dog is placed on record by the IO.
It is further argued that prosecution has failed to prove its case beyond reasonable doubt and the accused may be acquitted in the present case.
10. I have heard the arguments of the Ld. APP for the State and Ld. Counsel for accused and perused the file carefully.
11. It is settled proposition of criminal law that burden lies upon prosecution to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit from the weaknesses, if any, in the defence of the accused.
FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 9 of 29
12. It is the case of the prosecution that on 30.03.2014, accused Hari Shankar who was employed with Pankaj Madan, was roaming the dog of Pankaj Madan at the back side of the house of the complainant and the accused knowingly and negligently omits to take sufficient guard against any probable danger, due to which, the said dog of Pankaj Madan attacked the complainant thereby biting / removing of her finger of her left hand, resulting into grievous injuries. It is further the case of the prosecution that complainant and her husband, on previous occasions, repeatedly informed Pankaj Madan to take care of said dog, however, he failed to pay any heed to upon the same.
13. In order to prove its case, the prosecution has examined the complainant Anju Gupta and her husband Alok Gupta, both of whom during the course of their examination have deposed that accused Hari Shankar was roaming the dog of Pankaj Madan on the said date when he attacked the complainant and bite of her fingers. Prosecution has further examined Dr. Ritesh Ranjan & Dr. Manoj Kumar Johar in order to prove the nature of injuries upon the person of the complainant.
14. On the other hand, Ld. Counsel for accused argued that the prosecution has failed to prove its case due to following reasons :
a. That the initial complaint so moved by the complainant before the police no where mentioned the name of accused Hari Shankar and the same is merely lodged against Pankaj Madan. b. That the entire charge-sheet so filed by the IO does not reflects the name and role of accused Hari Shankar.
c. That there is no evidence placed on record by the IO that accused Hari Shankar was employee of Pankaj Madan.
FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 10 of 29 d. That Pankaj Madan never stepped into witness box to prove that Hari Shankar was engaged by him to roam around his dog. e. That no investigation has been conducted with regard to Pankaj Madan despite the fact that complaint was moved against him by the complainant.
f. That the statement u/s 161 Cr.PC of Pankaj Madan so recorded is completely vague in nature.
g. That the statement u/s 161 Cr.PC of husband of the complainant was recorded after the lapse of more than one year by the IO. h. That no photograph or any other evidence of the said dog, who stated to have bitten the complainant is placed on record. i. That there are several contradictions in the testimonies of the prosecution witnesses with regard to alleged incident. j. That although the arrest memo bears the signature of husband of complainant namely Alok Gupta, however, during the course of his cross-examination, said witness stated that accused Hari Shankar was not arrested in his presence.
LAPSES IN INVESTIGATION
15. In the present case in hand, perusal of record reveals that undoubtedly there is faulty investigation on the part of the IO. The entire charge-sheet so submitted by the IO does not disclose the name and role of accused Hari Shankar.
Furthermore, although the entire complaint so lodged by the complainant was against the owner of said dog namely Pankaj Madan, however, for the reasons best known to the IO himself, has not impleaded Pankaj Madan as accused in the present case nor has taken any appropriate FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 11 of 29 action against him.
Furthermore, the IO again for the resaons best known to him, has not placed on record even a single photograph of said dog nor has got verified about the registration of the same from the MCD.
Furthermore, from the perusal of record it is clear that the statement of main witnesses i.e. husband of the complainant namely Alok Gupta was recorded by the IO after the lapse of about one year.
16. As such, from the above said observation, the moot question which arise is the effect of the said faulty investigation of the IO on the case of the prosecution. In this regard, Hon'ble Apex Court in Dhanaj Singh @ Shera And Ors vs State of Punjab, 2004(2) SCR 938, observed as follows :
"In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh vs State of M.P. :
1995CriLJ4173 ).
6. In Paras Yadav and Ors. v. State of Bihar: 1999CriLJ1122 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v. State of Bihar and Ors. : 1998CriLJ2515 if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view as again re-
iterated in Amar Singh v. Balwinder Singh and Ors., :
2003CriLJ1282 . As noted in Amar Singh's case (supra) it would FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 12 of 29 have been certainly better if the fire arms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence on part of the IO cannot affect credibility of the prosecution version."
In the law discussed above, it is categorically observed by Hon'ble Apex Court that it would not be correct approach to acquit the accused on the basis of faulty investigation and court has to evaluate the evidence on record.
17. In light of the law discussed above, coming to the present case in hand, both the injured Smt. Anju Gupta and her husband namely Alok Kumar Gupta have deposed that accused Hari Shankar was roaming the said dog of Pankaj Madan on the said day without reasonable precautions and the said dog attacked the complainant Anju Gupta thereby crushing her fingers, resulting into grievous injuries upon her person. Both the said witnesses also correctly identified accused Hari Shankar in the Court.
18. Although in his statement u/s 313 Cr.PC, it is alleged by the accused that he has some altercation with the complainant with regard to money and thereby he has been falsely implicated in the present case, however, accused Hari Shankar has not brought forth any evidence in this regard nor has stepped into witness box to prove his defence.
19. The accused herein has solely relied upon the faulty investigation by the IO and further contradictions in the statements of prosecution witnesses.
FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 13 of 29
20. Coming upon the further arguments so led by Ld. Counsel for accused that name of accused Hari Shankar has no where mentioned in the complaint which was moved by the complainant before the IO and further, role of Hari Shankar was no where defined in the charge-sheet and further that there is no documentary proof that accused Hari Shankar was employed with Pankaj Madan, it is pertinent to state in here that in the complaint dt. 01.04.2014 so moved by the complainant it is specifically mentioned that on the alleged date, servant of Pankaj Madan came along with his dog roaming freely in the lane. Further, both the complainant as well as her husband correctly identified accused Hari Shankar as the person who was roaming around the dog of Pankaj Madan on the alleged date of incident.
21. Further with regard to the argument that there is no evidence to s how that accused Hari Shankar was employee of Pankaj Madan, it is pertinent to state in here that although there is lapse on the part of IO to investigate in this regard and further that Pankaj Madan never stepped into witness box to prove the same, however, even if for the sake of argument it is believe that accused Hari Shankar was not employee of Pankaj Madan, same does not in any manner effect the case of the prosecution, since as per the prosecution, it was accused Hari Shankar (who was correctly identified by the complainant and her husband) who was roaming the dog in negligent manner thereby causing injury upon the complainant.
CREDIBILITY OF TESTIMONY OF VICTIM
22. Since whole of the prosecution case is relied upon testimony of injured / complainant and her husband, this court deems it appropriate to FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 14 of 29 discuss in her law with regard to evidentiary value attached to testimony of injured and discrepancies in the testimony of injured persons. For the same, I may gainfully refer to observation made by Hon'ble Apex Court in Mano Dutt v. State of U.P., (2012) 4 SCC 79 : (2012) 2 SCC (Cri) 226 wherein Hon'ble Supreme Court observes as follows:
30. Salik Ram was examined as PW 2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution.
However, the other injured witness, Nankoo, was not examined. In our view non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.
31. We may merely refer to Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] where this Court held as under: (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881 : 1973 SCC (Cri) 563] , Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919] , Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] , Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559] , Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113] , Bhag Singh [Bhag Singh v. State of Punjab, (1997) 7 SCC 712 : 1997 SCC (Cri) 1163] , Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472] , Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 15 of 29 SCC (Cri) 302] , Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-
29) '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2013] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
To the similar effect is the judgment of this Court in Balraje [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] .
FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 16 of 29 Further, Hon'ble High Court of Delhi in Mukesh Singh v. State 2014 SCC OnLine Del 912, observed as follows:
17. The testimony of an injured eye witness must be placed at a higher pedestal, as such witness is not only an eye witness of the crime but he himself is a victim of crime and therefore, he is expected to give a truthful version of the entire scene of crime and also with regard to the description of the persons who are the perpetrators of the crime. The witness who himself receives injuries of serious nature during assault would not normally let go the real culprits until and unless the defence succeeds to establish that there was a strong motive on the part of such a witness to save the real culprits and falsely implicate the innocent persons. It is also a settled legal position that minor omissions, discrepancies or improvements in the testimony of an eye witness cannot discredit his testimony unless the same militates against the core or heart of the prosecution case.
It was further observed that :
20. Minor contradictions/improvements cannot render an injured witness's deposition untrustworthy. The law on this aspect has been detailed in the judgment 'State of Uttar Pradesh v. Naresh', : (2011) 4 SCC 324 as under:
27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.
The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.) FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 17 of 29
23. In the present case in hand, during the course of her testimony, it has been specifically stated by the complainant that :
"......On 30.03.2014 at about 12:15 PM, it was Sunday and I was standing in the back side service lane door of my house. In the meantime Hari Shankar servant of Mr. Pankaj Madan came there along with abovesaid huge dog & he was having the chain of said dog in his hand. However, Hari Shankar was holding chain of said dog loosely at that time. I asked Hari Shankar to take away the dog from there and thereafter I tried to turn but in the meantime, said dog caught my left hand in his jaws and pulled me due to which I fell down in the rain water drainage situated there. After felling down in the said drainage, I saw that my hand was in the jaws of said dog. I became shocked and started crying and shouting and asked Hari Shankar to got released my hand from the jaws of said dog but Hari Shankar laughed at me. After hearing my shouting my husband and laborer working there came there from inside our house and they asked Hari Shankar to remove my hand from the jaws of dog and my husband tried to lift me. Thereafter, Hari Shankar pulled the chain of dog and after pulling the chain he ran towards the house of Mr.Pankaj Madan with the dog...."
Furthermore, the husband of the complainant namely Alok Kumar Gupta during the course of his testimony deposed as under :
"........On that day at about 12 noon, I was present at my above said house. I had heard voice of my wife Smt. Anju Gupta from the back side service lane gate of my house. I immediately rushed towards said gate of my house and saw that hand of my wife was inside the mouth of dog. At that time my wife was lying in the rain water drain of the service lane. Hari Shankar, who was care taker of the above said dog at that time was standing nearby and laughing and did not make any effort to remove the dog away from the hand of my wife. I shouted at him and the labour in my house also came. Then only he ran away with the dog. I followed him to the house of Pankaj Madan but he closed the door and did not respond. ..."
As such, both the said witnesses not only correctly identified the accused in the Court as the person who was roaming around the dog of Pankaj Madan on the alleged date, but have also deposed with regard to the conduct of the accused of not taking proper care of the dog so as to guard FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 18 of 29 against any probable danger to human life. Both the said witnesses have categorically stated that they have already several times lodged complaints with Pankaj Madan regarding their dog and further stated that even on the said date of incidence when the dog bite the complainant, accused Hari Shankar keep on watching and further laughed at victim.
CONTRADICTION IN TESTIMONY OF WITNESSES
24. Ld. Counsel for accused further pointed out towards the following contradictions in the testimonies of the witnesses :
a. That although in her complaint before the police, it is stated by complainant Anju Gupta that Pankaj Madan owns one huge dog, however, in her examination, it is stated that Mr. Pankaj was having two dogs. b. Although in her examination, it is stated by complainant Anju Gupta that when the dog caught her left hand, she fell down in the rain water drainage, however, the said fact is no where mentioned by her in her complaint.
c. Although in her examination, it is stated by complainant Anju Gupta that she shouted and her husband & labourers came there, however, the said fact is no where mentioned by her in her complaint. d. That there are improvements in the testimony of witness with regard to conduct of accused Hari Shankar.
e. That although statement of Sh. Alok Gupta i.e. husband of complainant u/s 161 Cr.PC was recorded on 30.03.2015, however, during the course of his cross-examination, it is stated by the witness that his statement was only recorded once i.e. on 01/02.04.2014 at the PS. f. That although the arrest memo of accused Hari Shankar bears the FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 19 of 29 signature of Sh. Alok Kumar Gupta, however, during the course of his cross-examination, it is stated by the witness that the police did not arrest the accused in his presence.
g. That Alok Kumar Gupta failed to depose with regard to the complete incident at the time of his examination before the Court and he can only state the complete facts once leading questions are put by Ld. APP for the State.
25. It is settled proposition of law that contradictions in the testimonies of prosecution witnesses can be fatal to its case only if contradictions are material enough so as to go into the root of the case. For the same, I may gainfully refer to the observations made by Hon'ble Apex Court in Kishan Singh Rawat vs State, CRL.A. 7/2006, as follows :
In the case of Shyamal Ghosh v. State of West Bengal, reported at 2012 (7) SCC 646, it has been held by the Apex Court that while considering contradictions the Courts must read the testimonies of the witnesses as a whole and only consider those aspects, which go to the root of the matter and no further contradiction would affect the case of the prosecution. Relevant portion of the judgment reads as under:
"46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW 8, PW 17 and PW 19. Similarly, there is some variation in the statement of PW 7,W 9 and PW 11. Certain variations are also pointed out in the statements of PW 2, PW 4 and PW 6 as to the motive of the accused for commission of the crime. Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.
47. xxxx FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 20 of 29
48. xxxx
49. It is a settled principle of law that the Court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.
xxxxx
68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contra-distinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution.
69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes I may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, suchstatement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 21 of 29
70. In terms of the explanation to Section 162 Cr.P.C. which deals with an omission to state a fact or circumstance in the statement referred to in sub-section (1), such omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether there is any omission which amounts to contradiction in particular context shall be a question of fact. A bare reading of this explanation reveals that if a significant omission is made in a statement of a witness under Section 161 Cr.P.C., the same may amount to contradiction and the question whether it so amounts is a question of fact in each case. (Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 and Subhash v. State of Haryana (2011) 2 SCC 715.
In the present case in hand, the contradiction / improvement so pointed out in the testimonies of the complainant and her husband cannot be considered to be material contradiction which goes to the core of the case of the prosecution. All the said contradictions so pointed out are merely minor contradictions. Further, it is settled law that the statement of the complainant or any witness cannot be read in isolation and has to be read as whole. The complete reading of testimony of the complainant and that of her husband goes to show that accused Hari Shankar were roaming the dog of Pankaj Madan when the said dog attacked the complainant resulting into grievous injury upon her person. The accused was correctly identified by both the witnesses in the Court and further the injury upon the person of the complainant was proved by the deposition of doctors. As such, the contradiction, if any, in the testimonies of the witnesses cannot be considererd as material enough so as to effect the case of the prosecution.
FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 22 of 29 DELAY IN RECORDING OF STATEMENTS OF WITNESSES
26. With regard to the arguments so led by Ld. Counsel for accused the statement u/s 161 Cr.PC of both Pankaj Madan as well as of Alok Kumar Gupta was recorded on 30.03.2015 i.e. after the lapse of about one year from the date of incident, it is pertinent to state in here that merely because statements of witnesses is recorded by police officials with delay does not hamper the case of the prosecution unless the IO is cross- examined with regard to the point of delay in recording of statements. For the same, I may gainfully refer to the observations made by the Hon'ble Apex Court in Abuthagir & Ors vs State, CRIMINAL APPEAL NO. 26 OF 2007, as under :
"The prosecution version has to be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the Court must be integrated and not truncated or isolated. The Court has to appreciate in reaching the conclusion about the guilt of the accused, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of the witnesses. Much emphasis has been led by learned counsel for the appellants on the alleged delayed examination of the witnesses. It is well settled that delay in examination of the prosecution witnesses by the police during the course of investigation ipso facto may not be a ground to create a doubt regarding the veracity of the prosecution's case. So far as the delay in recording a statement of the witnesses is concerned no question was put to the investigating officer specifically as to why there was delay in recording the statement. Unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for delayed examination is plausible and possible and the Court accepts the same as plausible there is no reason to interfere with the FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 23 of 29 conclusion. (See Ranbir and Ors. v. State of Punjab (AIR 1973 SC 1409), Bodhraj @ Bodha and ors.v. State of Jammu and Kashmir (2002 (8) SCC 45), Banti @ Guddu v. State of M.P. (2004 (1) SCC 414) and State of U.P. v. Satish (AIR 1004 SC 261). ........."
Further, Hon'ble Apex Court in State Of U.P vs Satish, Appeal (crl.) 256-257 of 2005, observed as follows :
"As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating officer is categorcially asked as to why there was delay in examination for the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that it there is any delay in examination of a particular witness the prosecution version become suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion [See Ranbir and Ors. v. State of Punjab, AIR (1973) SC 1409, Bodhraj @ Rodha and Ors. v. State of Jammu and Kashmir, [2002] 8 SCC 45 and Banti @ Guddu v. State of M.P., [2004] 1 SCC 414.] The High Court has placed reliance on a decision of this Court in Ganesh Bhayan Patel and Anr. v. State of Maharashtra, [1978] 4 SCC 371. A bare reading of the fact situation of that case shows that the delayed examination by I.O. was not the only factor which was considered to be determinative. On the contrary it was held that there were catena of factors which when taken together with the delayed examination provided basis for acquittal."
27. Ld. Counsel for accused draw the attention of this Court towards the cross-examination of the IO conducted on 09.05.2023 with regard to the alleged statement of Alok Kumar Gupta recorded on 04.03.2015. Relevant portion of the said cross-examination is being reproduced as under :
".... The husband of the complainant also came at the spot on 16.04.2014 and I recorded statement of husband of complainant on 16.04.2014 and he met first time to me on the said day i.e. on 16.04.2014. Complainant FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 24 of 29 came at PS 2-3 times and met me after 01.04.2014, but I do not remember exact date when she came at PS. The husband of the complainant also came at PS 2-3 times and met me after 16.04.2014, but I do not remember exact date when she came at PS. I did not recorded the statement of the husband of the complainant after 16.04.2014. I recorded only one time the statement u/s 161 Cr.PC of the husband of the complainant. I recorded supplementary statement of the complainant at two times.
At this stage, witness is confronted with judicial file and which only one supplementary statement of the complainant is placed on record. Witness said that he had recorded supplementary statement of the complainant only one time.
It is wrong to suggest that the statement of Alok Kumar Gupta who is husband of the complainant was recorded on 30.03.2015 is recorded on my own version. Witness again said that he had recorded the statement of Alok Kumar Gupta on 30.03.2015 and he forget this fact due to lapse of long time...."
28. In the said cross-examination, although there is contradiction in the testimony of IO with regard to recording of statement of Alok Kumar Gupta on 30.03.2015, however, the IO subsequently clarified with regard to the same by alleging that due to long lapse of time, he forget about the same. Furthermore, the witness was never cross-examined with regard to as to why he recorded the statement of Alok Kumar Gupta after a lapse of about one year.
As such, considering the law and facts discussed above, although there is delay in recording of supplementary statement of the witness Alok Kumar Gupta, the same does not goes to create any doubt in the story of the prosecution.
29. With regard to the arguments so led by Ld. Counsel for accused that the IO has not placed on record any photograph of the said dog, nor has verified with the MCD qua the registration of said dog, it is FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 25 of 29 pertinent to state in here that although same tantamount to lapse on the part of investigating officer, however, the benefit of the same cannot be extended to accused, since considering the evidence so led by the prosecution, in totality, i.e. statement of complainant, her husband and MLC so placed on record, the prosecution has shown that the injury upon the person of the complainant was received by biting of dog.
30. Ld. Counsel for accused further argued that there is no material evidence placed on record by the prosecution that the injury so received upon the person of the complainant was due to the dog bite. Ld. Counsel for accused further relied upon the examination of the complainant, which is reproduced as under :
"....I am a law graduate. It is within my knowledge that a person need to take vaccination/injection for dog bite. I do not remember whether concerned doctor at Hedgewar hospital had given me vaccination in relation to rabies. I do not remember whether I had given my treatment papers in relation to above said dog bite to IO. Vol. I might have given treatment papers of Fortis Hospital to IO. I received treatment at Fortis Hospital in relation to dog bite for about three months.
Que: it is suggested to you that you have not given any treatment papers to IO in relation to above said dog bite of Hedgewar Hospital or of Fortis Hospital as you did not receive any dog bite.
Ans.: I received above said dog bite. I received treatment from Hedgewar and Fortis Hospital but I do not remember whether I had given treatment papers to IO or not...."
31. In this regard, prosecution has placed on record of victim Anju by Hedgewar Hospital, as per which, the injuries could be caused by dog bite. Further, the complainant at the very first instance, has informed the doctor that injuries are received due to dog bite of a neighbour. Furthermore, the complainant has informed to Department of Plastic Surgery, Fortis Hospital, injuries were received upon her person due to dog FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 26 of 29 bite. Further, as per the discharge summary of the complainant by Fortis Hospital, she was diagnosed with having dog bite.
32. Both the said MLCs were proved by PW6 & PW7 respectively. Further, PW7 i.e. Dr. Manoj Kumar Johar, Director & Head of Department of Plastic Surgery, Max Hospital, Patparganj, Vaishali, stated in his report that the injuries are grievous in nature, resulting in permanent loss of patient' left ring finger.
33. It is further pertinent to state in here that although accused has denied in his statement u/s 313 Cr.PC that he has been falsely implicated in the present case, however, accused has admitted to the fact that he knows the complainant. The defence so raised by accused in his statement u/s 313 Cr.PC was that there was some money dispute of Rs. 260/- with the complainant, due to which, the complainant has falsely implicated him in the present case, however, the said defence of the accused was never put accrosed with the complainant or her husband during the course of their cross-examination as a question or as a suggestion. Furthermore, as discussed above, the accused for the reasons best known to him, has never brought forth any evidence to prove the same or has stepped into the witness box to prove his defence.
34. Since it is duly proved by the prosecution that accused Hari Shankar was roaming dog when the same attacked the complainant, the question which is required to be dealt with whether accused Hari Shankar was negligent in his conduct so as to take sufficient guard against any probable danger to human life. In this regard, it is pertinent to state in here FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 27 of 29 that both the complainant as well as her husband have consistently stated that the said dog was aggressive and ferocious and that they have already requested Pankaj Madan and his servant to take due care and not to bring the said dog behind their house. The complainant in her testimony before the Court have stated that on the said date accused Hari Shankar was loosely holding the chain of the said dog when he attacked her. It is further stated that accused Hari Shankar instead of removing the dog started laughing at her. It is further stated by the complainant that accused never used to put any mouth guard on the said dog. It is pertinent to note in here that there is no evidence that it was the complainant who provoked the said dog in any manner or that any of the act or conduct of the complainant result into the dog attacking her. In absence of any such evidence, it can be held that it was because of the negligence of the accused to take proper care in handling of the said dog that the said dog attacked the complainant thereby causing grievous injury upon her.
35. Considering the testimony of both the complainant Anju Gupta and her husband Alok Kumar Gupta that despite repeated request, Pankaj Madan or has servant failed to take reasonable precaution with regard to their dog and further on the date of incident, due to the negligence of the accused, the said dog of Pankaj Madan caused grievous injuries upon the person of the complainant by amputing her finger in left hand, the accused is stated to have committted the offences punishable u/s 289/338 IPC. In view of the same, accused Hari Shankar stands convicted for the offence u/s 289/338 IPC.
36. Before parting with the present judgment, this court deems it FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 28 of 29 appropriate to record in here the callous manner in which the investigation of the present case was conducted by the IO. The IO herein has, for the reason best known to him, has never taken any appropriate steps against the owner of said dog namely Pankaj Madan. Further, IO has never placed on record any photograph of said dog, who has caused injury upon the person of the complainant, nor the IO has investigated with regard to as to whether the said dog was registered with MCD or not.
In view of the same, let a copy of judgment be sent to DCP concerned for information purposes and further action, if any.
Announced in the Open Court (ANUBHAV JAIN)
on dated 25th August, 2023 ACMM/SHD/ KKD COURTS/
DELHI/25.08.2023
Present judgment consisted of 29-pages and each page bears my signatures.
(ANUBHAV JAIN) ACMM/SHD/ KKD COURTS/ DELHI/25.08.2023 FIR NO. 199/2014 PS : Anand Vihar State Vs. Hari Shankar Page no. 29 of 29