Delhi District Court
State vs . Kiran Upadhyay on 25 April, 2023
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-000378-2013
Cr. Case 424915/2016
STATE Vs. KIRAN UPADHYAY
FIR No. 163/2012
P.S Kapashera
25.04.2023
JUDGMENT
Case No. : 424915/2016 Date of commission of offence : 30.09.2012
Date of institution of the case : 25.07.2013
Name of the complainant : Sh. Manish Singh
Name of accused and address : Kiran Upadhyay
D/o Sh. K. P
Upadhyay
R/o H. No. C-101,
Ambedkar Colony,
VPO Bijwasan,
New Delhi.
Offence complained of or proved : U/s 324 IPC Plea of the accused : Pleaded not guilty Final order : Acquitted Date of judgment : 25.04.2023 State Vs. Kiran Upadhyay Page No.1 / 15 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused Kiran Upadhyay (hereinafter referred to as the accused), pursuant to charge sheet filed qua her under Section 289/324 of Indian Penal Code (hereinafter the referred to the accused) subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 163/12.
2. It is the case of the prosecution that on 30.09.2012, at about 12.00 p.m, in front of H. No. 96A, Ambedkar Colony, Bijwasan, the accused voluntarily caused simple injuries on the person of the complainant Sh. Manish Singh with the help of her dog and thereby committed the alleged offence.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, charge for offence punishable u/s 324 of Indian Penal Code was framed qua the accused to which she pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined twelve witnesses in total.
5. PW-1 was Ct. Anand, who deposed that on 30.09.2012, IO/SI Satbir received DD no. 23B. Thereafter, he alongwith IO went to the spot i.e. in front of H. No. 96A, State Vs. Kiran Upadhyay Page No.2 / 15 Ambedkar Colony, Bijwasan, Delhi where they came to know that the dog of the accused had bitten a boy who was taken by his family member to Deepan Hospital. Thereafter, they went to hospital where they came to know that the said boy was referred to Safdarjung hospital. Thereafter, they went to Safdarjung hospital where one boy namely Manish who was stated to be bitten by a dog, met them. Thereafter, the said PW deposed with respect to the investigation carried out by the IO in the present case. Through him, arrest memo of accused was exhibited as Ex. PW1/A.
6. PW-2 was Sh. Manish Singh, who was the complainant in the matter and who deposed that on 30.09.2012, at about 12.00 Noon, he was playing cricket in front of his house in their gali with his friends Ayush Yadav, Durgesh and Nitin. That their another friend Harsh who was watching their game from his balcony told them Kiran is coming there alongwith her dog. Thereafter, accused Kiran came to them with her dog from his back side and shouted at them. Thereafter, watching the dog, all his friends ran away and as he was standing near her, he could not escape. Thereafter, Kiran shouted on him for playing cricket in the gali and the said PW further added, "itna kehte hi usne apne kutte ko meri taraf ishara kar dia or Kiran ke kutte ne muje kaat liya or weh apne kutte ko le kar chali gai". Thereafter, he went to his house and told the whole story to his parents. Thereafter, he alongwith his father came out from his house and his father called accused Kiran and asked about the incident. Thereafter, Kiran started quarreling with his father and told that, "agar ye gali me khelenge to yuhi katwaungi, apne bache ko State Vs. Kiran Upadhyay Page No.3 / 15 ghar me rakha karo". Thereafter, his father called on 100 number and took him to Deepan hospital from where he was shifted from Safdarjung hospital. Through him, his statement was exhibited as Ex. PW2/A and photograph of the dog alongwith accused was exhibited as Ex. PW2/B.
7. PW3 was Smt. Tribhuwan Singh, who deposed that on 30.09.2012, he was present at his home and further deposed on similar lines as PW2.
8. PW-4 was Sh. Ayush Yadav, who deposed on similar lines as PW2 and PW3 and further deposed that they came outside and asked Manish as to what had happened. Manish told them that the dog of accused had bitten him.
9. PW-5 was Sh. Sanjay Kumar, who deposed that on 30.09.2012, he was present at outside of his house and further deposed on the similar lines as PW2, PW3 and PW4.
10. PW-6 was Sh. Harsh Pandey, who deposed on similar lines as PW2, PW3, PW4 and PW5.
11. PW-7 was Sh. Shankar, who deposed that on 30.09.2012, he was sitting in the balcony of his house and the children were playing cricket in the gali. At about 12.00 Noon, when Kiran opened the door, her dog was not tied with any chain and her dog came out and bit one boy Manish on his buttock. Thereafter, many people gathered there. The said PW further deposed on similar lines as PW2, PW3, PW4, PW5 and PW6.
State Vs. Kiran Upadhyay Page No.4 / 15Thereafter, Ld. APP for the State cross-examined the said PW as he was resiling from his previous statement.
12. PW-8 was Sh. Virender Dixit, who deposed that in the year 2012, at about 12.00 Noon, kids namely Ayush, Manish, Nitin & Ors were playing cricket in the street. Thereafter, the dog of the accused came out of the house of the accused and suddenly rushed towards one of the kids and bit him. That the dog used to bite any person whoever came in front of it. Thereafter, Ld. APP for the State cross-examined the said PW as he was resiling from his previous statement.
13. PW-9 was SI Jagdish (inadvertently mentioned as PW8), who deposed that on 30.09.2012, at about 05.15 PM, Ct Anand brought one rukka for registration of FIR which was sent by SI Satyveer. Thereafter, the said PW deposed with respect to the investigation carried out by IO in the present case after he reached at the spot. Through him, FIR was exhibited as Ex. PW8/A and endorsement on original rukka was exhibited as Ex. PW8/B.
14. PW-10 was W/Ct. Arti Sharma (inadvertently mentioned as PW9), who deposed that on 30.09.2012, she was on duty as Women Help Desk. That, DO informed her to report to SI Satyavir regarding apprehension of a woman accused. Thereafter, she alongwith Ct. Anand went to the Ambedkar Colony, Bijwasan, where SI Satyvir had arrested accused Kiran. Thereafter, the said PW deposed with respect to the investigation carried out by IO in the present case qua the accused.
State Vs. Kiran Upadhyay Page No.5 / 1515. PW-11 was Inspector Satyavir Singh (inadvertently mentioned as PW10), who deposed that on 30.09.2012, on receiving DD no. 23B regarding one fight, he alongwith Ct. Anand reached Ambedkar Colony, Bijwasan and after reaching there came to know that one dog had bitten one child and his family members had taken the child to Deepan Hospital. Thereafter, the said PW deposed with respect to the investigation carried out by him in the present case after he reached at the spot. Through him, rukka was exhibited as Ex. PW10/A, site plan was exhibited as Ex. PW10/B, police bail of accused was exhibited as Ex. PW10/C and charge sheet in the present matter was exhibited as Ex. PW10/D.
16. PW-12 was W/Ct. Arti Sharma (inadvertently mentioned as PW11), who deposed that he was working at Safdarjung hospital since 2009. That, during his tenure he had also worked with Dr. Naveed Gulshan, who used to work at Safdarjung hospital as Junior Resident. He further deposed that during his tenure he had seen Dr. Naveed Gulshan signing on various documents on various occasions. Through him, MLC was exhibited as Ex. PW11/A.
17. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
18. Statement of the accused u/s 281 Cr.P.C read with Section 313 Cr.P.C. was recorded separately in which all the State Vs. Kiran Upadhyay Page No.6 / 15 incriminating circumstances appearing in evidence were put to her. The accused controverted and denied the allegations levelled against her and inter alia stated that she has been falsely implicated in the case. Accused further opted to not lead evidence in her defence. Hence, defence evidence was closed.
FINAL ARGUMENTS:
19. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 324 IPC has been proved beyond doubt.
20. Per contra, Ld. Counsel for accused argued that the accused has been falsely implicated in the present case and that there is no evidence against her showing her liability in the present case and thus, she is entitled to be acquitted in the present case. It has also been argued that there are material contradictions and lacunae/inconsistencies in the version of the prosecution due to which the prosecution has not been able to prove its case beyond reasonable doubt against the accused.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
21. Arguments adduced by Ld. APP for State and accused have been heard. The evidence and documents on record State Vs. Kiran Upadhyay Page No.7 / 15 have been carefully perused.
22. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Kiran Upadhyay has been indicted for offence u/s 324 IPC. Section 324 IPC provides punishment for voluntarily causing hurt to any person by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal.
23. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
24. Adverting to the facts of the present case, it may be noted at the every outset that in order to prove the alleged offence, prosecution had examined various public witnesses, including the complainant/victim himself. However, a careful reading of their testimonies, alongwith testimony of the IO and other prosecution witnesses, brings to light certain glaring inconsistencies and lacunae in the prosecution case, as discussed State Vs. Kiran Upadhyay Page No.8 / 15 hereinafter.
a). Discrepancies in the testimonies of the victim and his father: First and foremost, various discrepancies have surfaced in the testimony of the victim/PW2 Manish Singh on several aspects, as discussed hereinafter. During his cross-
examination, PW2 deposed that the dog had bitten him on his right hip and that there was also bleeding on the hip. However, neither such clothes were seized by the IO in the case, nor is the same reflected through the testimony of any other public witness or police witness examined on behalf of the prosecution. Further, the same is also not in consonance with the observation made in the MLC of the victim Ex. PW11/A, wherein only small abrasion/bite mark on the right buttock has been observed by the examining doctor, with no mentioning of any bleeding whatsoever. In fact, it has not been conclusively opined by the concerned doctor that the said injury was certainly a dog bite and the doctor has instead remarked the same being a small abrasion '/' bite mark. Moreover, during his cross-examination, PW1 Ct. Anand Kumar who had gone to the spot upon receipt of the PCR call, also stated that he had seen the boy personally but did not see any sign of either a dog bite or if any body part of the victim had bandage or if there was blood spot(s) on his clothes. In addition to this, PW2 deposed when he went to the hospital after the incident in question, he was given injection and medicines at Safdarjung Hospital only and that he did not receive any treatment at Deepan hospital on that day. In contrast to this, PW3, that is, the father of the victim Manish deposed that his son was given first aid at Deepan hospital, subsequent to which he had State Vs. Kiran Upadhyay Page No.9 / 15 gone to Safdarjung Hospital. Not only this, victim/PW2 also deposed that they did not go to Safdurjang hospital again and instead went to Deepan hospital as it was in proximity to their house. He also stated that injections were given subsequently at Deepan hospital, of which he did not have the record and stated that the record of the same would be with his father. In this regard, father of the victim appearing as PW3 during trial, deposed that he had taken his son to Deepan hospital as well as Safdarjung hospital only once and that as per the prescription of Safdarjung hospital, he had gotten the victim injected at a hospital at Mahipalpur. However, other than the above said MLC pertaining to Safdarjung hospital, no other medical documents showing further treatment of victim have been brought on record to corroborate the said version. No explanation is forthcoming as to why further treatment documents of the victim were not placed on record and only the MLC of the victim has been brought on record by the prosecution. The above-said incongruities and omission give rise to suspicion with respect to the veracity of the complainant as well as the overall case of the prosecution.
b). Disparity in the testimonies of other public witnesses: Moving on, there are inconsistencies in the version of various PWs/eye witnesses with respect to the circumstances existing immediately prior to and after the occurrence of the alleged incident. At the very outset, it may be noted that it is the consistent version of all the PWs that on the day of the incident in question, victim Manish was playing in the street along with his friends namely Aayush (examined as PW4), Durgesh and Nitin. That, one of their other friends, namely Harsh (examined State Vs. Kiran Upadhyay Page No.10 / 15 as PW6), was also watching them play from the balcony of his house. Evidently, apart from victim Manish, his friends Aayush, Durgesh and Nitin had not witnessed the occurrence of the incident as they had run away from the spot upon seeing the dog and only the victim Manish was left behind. The aforesaid Aayush, has specifically stated that when he ran away after seeing the dog, he entered into the house and closed the door of the house and further deposed that he could not see anything after the door was closed. In fact, during his examination in chief, the said PW deposed that after they came out of hiding, they had asked Manish as to what had happened, who told them that the dog of the accused had bitten him. The other two friends namely Durgesh and Nitin have not been examined by the prosecution. Now, one Sanjay Kumar, who appeared as PW5 during trial, deposed that he was present outside his house when the incident in question occurred. Notably, it is the version of the PW2, PW4 and PW6 that when the children were playing in the street, their friend Harsh told them that the accused was coming there along with her dog after which, all the friends of the victim ran away from the spot while the victim Manish remained there. It was after this that the accused allegedly indicated to her dog towards Manish and that the dog of the accused bit the said victim. However, in discordance with this version, testimony of PW5 Sanjay Kumar highlights that the accused was talking to all the boys and had indicated her dog towards all the boys, consequent to which the dog bit the victim, as other boys succeeded in running away from the spot. In addition to this, one person namely Shankar was also examined on behalf of the prosecution as PW7 as an eyewitness in the case who deposed that on State Vs. Kiran Upadhyay Page No.11 / 15 30.09.12, he was sitting in the balcony of his house and that some children were playing in the gali when, at about 12 noon, the accused opened the door of her house after which her dog came out and bit one boy namely Manish on his buttock. The said PW altered his testimony when he was recalled again on 28.11.2016 during trial wherein, inter alia, the said PW deposed during his further examination in chief that all children had succeeded in running away from the spot except Manish as the gate of the house of victim Manish was locked at that time and thus, the dog bit him. In fact, during his cross-examination by Ld. APP for the State, the said PW deposed that he could not say whether the accused had given any indication to her to bite Manish. Likewise, meandering from the otherwise version of the prosecution, PW8 Virender Dixit also deposed that the dog of the accused came out of the house of the accused and suddenly rushed towards one of the kids and bit him. During his cross-examination by Ld. APP for the State, the said PW denied the suggestion that the accused had instructed her dog to bite Manish. Moving on, it is the version of the victim Manish and his father that when the incident in question occurred, Manish had gone to his house and narrated about the incident to his parents after which, he along with his father came out from their house and called the accused outside her house to enquire about the same. As opposed to this, PW6 deposed that he was also present at the time when Manish had gone to narrate the incident to his father and that the accused was called at the house of Manish by his father and that the accused had gone to his house alone. These variations in the version of various PWs on material aspects concerning the circumstances existing around the time of occurrence of incident State Vs. Kiran Upadhyay Page No.12 / 15 in question, render their version unworthy of credit, thereby diminishing their trustworthiness.
c). In addition to the above, there is also inconsonance in the version of the victim vis-a-vis that of the police officials examined during trial by the prosecution. On one hand, PW2 deposed that the police had recorded his statement Ex. PW2/A, at his house and also deposed that no police person had ever taken him to the place of incident. Contrary to this, PW 10 IO Inspector Satyavir Singh deposed that after the victim was discharged from Safdarjung Hospital, he had taken him to the spot where he recorded his statement Ex.PW2/A. Akin to the statement of the IO, PW1 Ct. Anand Kumar also deposed that the statements of the victim and his father were recorded at the place of incident. These inconsistencies in the version of the aforesaid PWs have remained unexplained.
d). It is also imperative to note that after the father of the victim/complainant came to know about the incident in question, instead of immediately rushing the victim to the hospital/doctor for treatment of the alleged dog bite, he first went on to confront the accused in this regard, and thereafter made a call at 100 number. It was after this, that he had taken his son to Deepan hospital for treatment. As per the version of the victim, there was bleeding as well at the site of injury. In such a scenario, the act of the father of the complainant in not rushing his injured son to the hospital at the first opportunity, portrays an abnormal and an unreasonable conduct on his part, which in turn raises suspicion as regards the veracity of their version with respect to State Vs. Kiran Upadhyay Page No.13 / 15 the alleged offence.
e). Moreover, MLC of the victim indicates that he had been brought to the Safdurjung hospital by his uncle Narender. However, there is no mention of the said relative of the victim anywhere on record. In fact, there is discordance in the version of the victim as well as that of his father as to the person(s) who had escorted the victim to hospital for treatment. Victim/PW2 Manish deposed during his cross examination that he was taken to the hospital by his father and did not mention the name of any other person who had accompanied him there. Even the initial complaint Ex. PW2/A does not mention the fact that Narender had accompanied Manish to the hospital along with his father. However, PW3 i.e., the father of the victim deposed that he and his cousin brother had taken Manish to Safdarjung hospital. Even the police officials who had gone to the hospital upon receipt of information regarding the incident in question did not mention about the presence of the aforesaid Narender, i.e., the uncle of victim at Safdarjung hospital.
25. It has been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
State Vs. Kiran Upadhyay Page No.14 / 1526. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence u/s 324 IPC beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
27. Accordingly, this Court hereby accords the benefit of doubt to the accused for the offence u/s 324 IPC and holds the accused not guilty of commission of the said offence. Accused Kiran Upadhyay is thus, acquitted of the offence u/s 324 IPC.
28. Copy of this judgment be given free of cost to the accused.
Announced in open court Digitally signed
on 25.04.2023, in presence of APOORVA
by APOORVA
RANA
accused and Ld. Counsel for RANA
Date:
2023.04.25
16:22:26
accused. +0530
(APOORVA RANA)
M.M-10/Dwarka Courts/25.04.2023
It is certified that this judgment contains 15 pages, all signed by the undersigned.
Digitally signed by APOORVA RANAAPOORVA Date:
RANA 2023.04.25
16:22:32
+0530
(APOORVA RANA)
M.M-10/Dwarka Courts/25.04.2023
State Vs. Kiran Upadhyay Page No.15 / 15