Delhi District Court
Fir No.275/14, Ps H. N. Din, State vs . Usha Wahi Page No.1/8 on 19 November, 2018
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
Presided by: Ms. Vasundhara Azad
State v. Usha Wahi
FIR No. 275/2014
Police Station : H.N. Din
Under Section: 289IPC
JUDGMENT
1
Cr Cases of the case : 91763/2016 . 2 Date of institution of the case : 16.12.2014 . 3 Date of commission of offence : 30.05.2014 . 4 Jitender Saini S/o Mahedner Name of the complainant : . Saini Smt. Usha Wahi 5 Name, parentage and address of the W/o Sh. Baldev Kumar Wahi : . accused R/o C-10, Jangpura Extn. New Delhi 6 Offence complained or proved : U/s. 289 IPC . 7 Plea of accused : Pleaded not guilty . 8 Final order : Convicted . 9 Date of final order : 19.11.2018 . FIR No.275/14, PS H. N. Din, State Vs. Usha Wahi Page No.1/8 BRIEF FACTS AND REASONS FOR THE DECISION
1. Briefly stated, it is the case of the prosecution that on 30.05.2014 at 8:30 PM in front of H.No. C-10, Jangpura Extension, accused knowingly/negligently omitted to take such order in respect to her dog named Tiffy as is sufficient to guard against any probable danger to human life, or any probable danger of grievous hurt from such animal and therefore accused is guilty of offence u/s. 289 IPC.
ACCUSATION AGAINST THE ACCUSED
2. For the above stated allegations of the prosecution, vide order dated 11.12.2015, ld. predecessor of this Court served notice u/s. 251 CrPC for commission of offence punishable under section 289 IPC to which the accused pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3. In order to support its case, the prosecution has examined a total number of 7 prosecution witnesses.
1. PW1 Jitender Saini has deposed that on 30.05.2014 at 8:30PM when he was going to Eros from Bhogal and reached H.No. C- 10, a white dog having red strips on its neck bit him on his left leg ankle and when PW1 shouted loudly, the dog entered H.No. C-10, Jungpura Extn and accused came outs and referred to the FIR No.275/14, PS H. N. Din, State Vs. Usha Wahi Page No.2/8 dog as Tiffi. Upon being asked by PW1 as to whether the said dog belongs to her, accused replied in affirmative and disclosed her name as Usha Wahi. PW1 in his testimony has proved his complaint as Ex.PW1/B and photographs of dog of accused as Ex.PH-1 to Ex.PH-3. Accused Usha Wahi was correctly identified by PW1 in the Court.
2. PW2 HC Rajeev has proved rukka Ex.PW2/A and has deposed that he handed over the original rukka and copy of FIR to IO after registration of FIR.
3. PW3 ASI Ramdhan has proved FIR registered by him as Ex.PW3/A.
4. PW 4 Sh. Sanjay Wahi has testified that the dog in question belongs to him and that the accused is his mother. PW4 has proved vaccination report of dog in question as Ex.PW4/A. PW4 has not disputed identity of dog in photographs Ex.PH-1 to Ex.PH-3.
5. PW5 SI Satish Chand has proved the arrest and personal search memo of accused as Ex.PW5/A and Ex.PW5/B alongwith vaccination chart taken into possession vide seizure memo Ex.PW5/C. PW5 has correctly identified accused in the Court.
6. PW6 SI Mamta Chauhan has testified that she had joined the FIR No.275/14, PS H. N. Din, State Vs. Usha Wahi Page No.3/8 investigation alongwith PW5 and has deposed with respect to arrest, personal search of accused and seizure memo preparation.
7. PW7 Dr. Sandeep has proved MLC of injured Jitender Saini as Ex.PW7/A and has testified that the injury sustained was best possible in the alleged circumstances to be dog bite.
Thereafter, prosecution evidence was closed.
STATEMENT / DEFENCE OF THE ACCUSED
4. Statement of accused was recorded under section 313 Cr. PC wherein when all the incriminating evidence/documents were put to her one by one, she denied all as incorrect and submitted that she is innocent. Accused did not lead any defence evidence in her favour.
ARGUMENTS
5.Learned APP for the State has argued that the testimonies of all prosecution witnesses have established guilt on the part of accused and that he be convicted for offence under Section 289 IPC. On the other hand, it has been argued by the learned counsel for accused that accused is innocent as there is no evidence, which will prove guilt of accused to the hilt. I have meticulously perused the evidence led on judicial record by prosecution and defence and also heard their rival submissions carefully.
FIR No.275/14, PS H. N. Din, State Vs. Usha Wahi Page No.4/8ANALYSIS
6. The main witness in this case to be considered is PW1 viz. Sh. Jitender Saini who is a natural witness being the injured himself. Thus, it is his testimony, which is to be examined for the purpose of determining the guilt of the accused. There is nothing on record to rule out the facts deposed by PW1. The presence of PW-1 at the spot also cannot be doubted in as much as he is himself the injured person who was allegedly bitten by the offending dog. Further, I do not find any reason for the PW1 to make such kinds of false allegations against the accused.
7. Reliance can be place upon the findings given by the Hon'ble Apex Court in Abdul Sayed vs. State of Madhya Pradesh VII (2010) SLT 724 wherein it was observed that: " 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." Further, in State of U.P. Vs. Kishan Chand, Appeal (crl.) 29 of 1999, Supreme Court observed that the testimony of an injured witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends supports to her testimony that she was present during the occurrence. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status FIR No.275/14, PS H. N. Din, State Vs. Usha Wahi Page No.5/8 in law. 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.
8. I would also like to refer to Kalu @ Amit and Ors. Vs State (Criminal Appeal no.868/2008, Supreme Court) wherein it was held by the Hon'ble Apex Court that it is well settled that conviction can be raised on the evidence of a sole eye witness if its evidence inspires confidence and in that case, the witness had meticulously narrated the accident and supported the prosecution case and therefore, he was found to be a reliable witness.
9. In the present case, PW1 has consistently deposed with regard to the offence committed by accused and his evidence remains unshaken during cross-examination. The testimony of PW1 is completely found reliable and sufficient for proving the commission of offence by the accused. It is well settled law that it is not the quantity but it is the quality of the testimony that weighs upon the consideration of the Court. Section 134 of the Evidence Act stipulates that no particular number of witnesses shall in any case be required for the proof of any fact. In State of Maharashtra Vs. Suresh Nivsutti, 1997 2 Crimes 257 (Bom), it was observed that the time honoured rule of appreciating evidence is that it has to be weighed and not counted. Thus the law that has developed over the time is that the testimony of a single witness is sufficient to base the conviction of the accused, if it is found to be cogent, reliable and consistent.
FIR No.275/14, PS H. N. Din, State Vs. Usha Wahi Page No.6/810. Evidence of witness cannot be brushed aside because of some minor contradictions. In so far as the inconsistencies and anomalies highlighted by Ld. Counsel for the accused are concerned, I am of the view that these inconsistencies are very minor in nature and are not sufficient to disclose the otherwise reliable version of the complainant/injured.
11. Further, PW7 Dr. Sandeep has proved MLC of injured Jitender Saini as Ex.PW7/A and has testified that the injury sustained was best possible in the alleged circumstances to be dog bite. PW7 was not cross-examined by the accused/defence counsel despite opportunity being given. The law is well settled that if a witness is not cross examined on a particular issue by the opposite party, the evidence of the witness ought to be accepted. The reliance is placed on the judgment of Sarwan Singh vs. State of Punjab (2003) 1SCC 240 wherein it was observed that "it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination it must follow that the evidence tendered on that issue ought to be accepted".
12. The testimony of all the prosecution has been consistent on all material points. There is nothing in their testimony from which this court may doubt the same or which may prompt this court to disbelieve the same. There appears to be no reason or occasion for PW-1 to falsely depose against the accused. The testimonies of the prosecution witnesses are trust worthy. From the testimony of the prosecution witnesses it stand established that the accused omitted to take such order with the dog in her possession as was sufficient to guard against any probable danger to FIR No.275/14, PS H. N. Din, State Vs. Usha Wahi Page No.7/8 human life or any probable danger of grievous hurt from such animal and as a result of the biting of dog of the accused, the complainant Jitender Saini suffered simple injuries on his ankle.
CONCLUSION
13. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has proved its case against accused Usha Wahi beyond all shadow of reasonable doubt. Accordingly, accused Usha Wahi is convicted for the offence u/s 289 IPC. Let the convict be heard on the quantum of sentence.
Copy of this judgment be given free of cost to the convict.
Let copy of this judgment be placed on the district court website.
Announced in open Court on 19.11.2018.
(VASUNDHARA AZAD) MM-03 (South-East), Saket Courts, New Delhi FIR No.275/14, PS H. N. Din, State Vs. Usha Wahi Page No.8/8