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. DLSW02-003123-2013
Cr. Case 429238/2016
STATE Vs. KIRAN UPADHYAY
FIR No. 106/2012
P.S Kapashera
25.04.2023
JUDGMENT
Case No. : 429238/2016 Date of commission of offence : 13.06.2012
Date of institution of the case : 25.07.2013
Name of the complainant : Mrs. Sheela
Jaiswal
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 289/324 IPC Plea of the accused : Pleaded not guilty Final order : Acquitted Date of judgment : 25.04.2023 State Vs. Kiran Upadhyay Page No.1 / 14
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. 106/12.
2. It is the case of the prosecution that on 13.06.2012, at about 06.00 p.m, at H. No. 100A, Ambedkar Colony, Bijwasan, the accused knowingly or negligently omitted to take such order with respect to her dog which was in her possession as was sufficient to guard against any probable danger to human life and thereby caused hurt to Ms. Khushi who was bitten by her dog due to her negligent conduct and thereby committed an offence u/s 289 IPC. Further, on the abovesaid date, time and place the accused voluntarily caused simple injuries on the person of the complainant Mrs. Sheela Jaiswal with the help of her dog and thereby committed an offence u/s 324 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, charge for offence punishable u/s 289/324 of Indian Penal Code was framed qua the accused to which she pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
State Vs. Kiran Upadhyay Page No.2 / 144. The prosecution, in support of the present case has examined eight witnesses in total.
5. PW-1 was HC Rajpal, who deposed that on 22.06.2012, at about 1.25 PM, SI Jasbir brought one rukka for registration of FIR. Through him, FIR was exhibited as Ex. PW1/A (OSR) and endorsement on original rukka was exhibited as Ex. PW1/B.
6. PW-2 was Smt. Sheela, i.e., the complainant in the case, who deposed that on 13.06.2012, at about 6.00 PM, she was making tea in her house. In the meantime, she heard noise from the gali. Thereafter, she came down and went in the gali where she saw her daughter Khushi was crying and blood was oozing from her mouth. That, her neighbour namely Kamlesh told her that the dog of Kiran had bitten her daughter. When she went and talked to Kiran in this regard, Kiran told her that, "mere kutte ne teri beti to kata hai tuje to nahi or itna kehte hi usne apne kutte ko meri taraf ishara kar dia or Kiran ke kutte ne meri dahine pair me kaat liya". Thereafter, she called her husband and her husband called on 100 number. Thereafter, PCR reached at the spot and took her and her daughter to Safdarjung hospital. Through her, her statement was exhibited as Ex. PW2/A and photograph of the dog was exhibited as Ex. PW2/B.
7. PW3 was Smt. Kamlesh, who deposed that accused Kiran Upadhyay resides in her gali and she was her neighbour. That the house of accused was in front of her house. She used to walk with her dog in the said gali and sometime, left State Vs. Kiran Upadhyay Page No.3 / 14 the dog in the said gali alone. That, she and other neighbours had asked her many times to control and take care of her dog. The said PW further deposed that on 13.06.2012, at about 6.00 PM, when accused was walking with her dog, she could not control her dog and the dog bit the daughter of her neighbour Sheela. When Sheela went to the house of Kiran for complaining about the same, the said PW deposed, "Kiran ne apne kutte to Sheela ki taraf ishara kar dia aur uske kutte ne Sheela ko kaat liya".
8. PW-4 was W/Ct. Vikas, who deposed that on 22.06.2012, he joined the investigation of present case. Thereafter, the said PW deposed with respect to the investigation carried out by the IO in the present case. Through her, arrest memo of accused was exhibited as Ex. PW4/A.
9. PW-5 was Smt. Kalpana Devi, who deposed on similar lines as PW3.
10. PW-6 was Smt. Kalpana Devi, who deposed on similar lines as PW3 and PW5.
11. PW-7 was Dr. Aditi Khurana, who deposed that on 13.06.2012, Dr. Naushad Alam had examined the injured Baby Khushi, female, 3 years who was brought with alleged history of 'dog biting' and on the same day one other injured Sheela Jaiswal, female, aged about 34 years, was also brought with alleged history of 'dog biting'. That Dr. Naushad prepared the MLC of both the persons and the said PW countersigned and checked the same. Through her, MLC of baby Khushi was State Vs. Kiran Upadhyay Page No.4 / 14 exhibited as Ex. PW7/A and MLC of injured Sheela was exhibited as Ex. PW7/B.
12. PW-8 was SI Jasbir Singh, who was the IO in the present case and who deposed that on 13.06.2012, upon receiving DD no. 54B regarding quarrel at Bijwasan, he alongwith one Constable went to the spot i.e. H. No. 100A, Ambedkar Colony Bijwasan and there complainant Sheela Jaiswal met him and she told him that her neighbour's dog had bitten her son. That she did not give him anything in written and rather told him that she would settle the matter with the owner of the dog as the owner of the dog is her neighbour. That the said PW further deposed that on 22.06.2012, complainant Sheela Jaiswal again contacted him and the said PW went to the house of the complainant. He recorded her statement there. Thereafter, the said PW deposed with respect to the investigation carried out by him in the present case. Through him, rukka was exhibited as Ex. PW8/A, site plan was exhibited as Ex. PW8/B and DD no. 54B was exhibited as Ex. P-X1.
13. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
12. Statement of the accused u/s 281 Cr.P.C read with Section 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidence were put to her. The accused controverted and denied the allegations levelled State Vs. Kiran Upadhyay Page No.5 / 14 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:
13. 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 289/324 IPC has been proved beyond doubt.
14. 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:
15. Arguments adduced by Ld. APP for State and accused have been heard. The evidence and documents on record have been carefully perused.State Vs. Kiran Upadhyay Page No.6 / 14
16. 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 289/324 IPC. Section 289 IPC provides punishment for offence of knowingly or negligently omitting to take such order with any animal in possession of accused as is sufficient to guard against any probable danger to human life, or any probable danger of grievous hurt from such animal; and, 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.
18. 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.
19. 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 herself. However, a careful State Vs. Kiran Upadhyay Page No.7 / 14 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 hereinafter.
a). First and foremost, it is pertinent to note that there is a delay of about nine days in registration of FIR in the present matter. As per record, the incident in question is stated to have occurred on 13.06.2012, while the FIR came to be registered only on 22.06.2012, when the complainant gave her complaint with respect to the incident in question in writing to the police. No reason for the aforesaid delay in giving the complaint by the complainant and subsequent delay in registration of FIR in the case is forthcoming on behalf of the prosecution. During his testimony, PW8, that is the IO in the case, deposed that on 13.06.2012, he had received DD number 54 B, Ex. P-X1, regarding a quarrel at Bijwasan, consequent to which he along with one Constable had gone to the spot where he met the complainant, who told him that her neighbour's dog had bitten her son. That she did not give anything in writing at that time and instead stated that she would settle the matter with the owner of the dog as the owner of the dog was her neighbour. However, no such factum of settlement between the parties has surfaced on record either through testimony of the complainant or through any other document placed on record by the prosecution. In fact, the complainant has not even remotely whispered about any prior talks of settlement between the herself and the accused with respect to the incident in question. In such a scenario, the delay in registration of FIR in the case has remained unexplained on State Vs. Kiran Upadhyay Page No.8 / 14 behalf of the prosecution, causing a fatal dent to its case. At this juncture, it would be apposite to refer to the following observations of the Hon'ble Supreme Court in case titled as Dilawar Singh vs State Of Delhi (2007 SC):
"8. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case."
b). Moving on, there is incongruity with respect to the time of occurrence of incident of dog bite qua child Khushi and the body part upon which the dog had bitten her. As per the MLC of victim Khushi, Ex. PW7/A, at the time of medical examination, abrasions were observed over the left foot of the child, but there is no specific and conclusive observation of the doctor as regards any bite mark, let alone a dog bite mark, on any body part of the child. It has been merely mentioned in the MLC that the patient was brought to the hospital with an alleged history of dog bite by neighbour's dog. Now, notably, complainant/PW2 Sheila is not an eyewitness to the alleged dog bite incident as regards her daughter. It is her version that on 13.06.2012, at about 6 PM, when she was at her house, she heard noise from her street, after which she went down and saw her daughter Khushi crying and blood was oozing out from her mouth. It was her neighbour Kamlesh who told her that the dog State Vs. Kiran Upadhyay Page No.9 / 14 of the accused had bitten her daughter. In fact, during her cross- examination, PW2 specifically deposed that blood was coming from inside the mouth of the child and that the injury was at the inner lower lip of her daughter. However, later during her cross- examination and in stark contrast to her aforesaid statement, complainant/PW2 stated that the dog had bitten her daughter on her shoulder. Such incoherent testimony of the complainant has blemished the sanctity of her version and rendered her story dubious. Further, the aforesaid Kamlesh was examined as PW3 during trial who deposed that on the relevant day, the accused was walking her dog, whom she could not control and her dog bit her neighbour Sheela's daughter. As per Kamlesh, the incident occurred at about 4 PM, but she could not depose as regards the body part on which the dog had bitten the child of the complainant. Further, PW5 Kalpana Devi also deposed with respect to the alleged incident of dog bite qua child Khushi and stated that the dog had bitten her on her leg and that she had also seen the teeth/bite marks on the leg of the child. Furthermore, PW6 Kamla also deposed that she had seen the said incident but added that she did not know as to on what part of the body, the dog had bitten the child. Quite inconsistently vis-a-vis the other PWs, she deposed that the incident had occurred at about 11 AM. Not only this, in MLC Ex. PW7/A pertaining to child Khushi, the incident is stated to have occurred at 4:50 PM, while in MLC Ex. PW7/B of the complainant, the time of incident has been mentioned as 5:00 PM, both of which are inconsistent with respect to testimony of complainant on this aspect, who had stated that the incident had occurred at around 06:00 PM.
State Vs. Kiran Upadhyay Page No.10 / 14c). In addition to this there is also discrepancy in the version of the said PWs as regards the circumstances under which the dog had bitten child Khushi. PW3 and PW5 have deposed that when the incident occurred, the accused was walking her dog. While, PW3 deposed that the dog was chained at that time, PW5 deposed that the dog was not chained at the time of occurrence of incident. Deviating from this version, PW6, on the other hand deposed that the accused had opened the gate of her house and as soon as she moved her Scooty outside, her dog also came following behind outside and bit child Khushi, who was playing there. The said PW further testified that the dog had come outside on its own with the accused when she had opened the door, further adding that she never saw the accused walking her dog in the street. Thus, the testimonies of the three eye witnesses in the case, who had witnessed the dog of the accused bite child Khushi, are at extreme variance with one another, thus rendering their version incredulous and unworthy of credit.
d). In addition to the above, perusal of the MLC of complainant Sheela, Ex. PW7/B shows that at the time of her medical treatment, the doctor observed multiple abrasions over her both hands and abrasion over the right leg of the complainant. Akin to the MLC of victim Khushi, there is no specific and conclusive observation of the doctor here as well as regards any bite mark, let alone a dog bite mark, on any body part of the complainant. Again, the MLC of the complainant also only bears mention of the fact that the patient was brought to the hospital with an alleged history of dog bite by neighbour's dog.
State Vs. Kiran Upadhyay Page No.11 / 14Now, as per the complainant and also as evident from the medical advice given by the doctor in the aforesaid MLCs, injections were prescribed for treatment of the victims from the dog bite. However, other than the above said MLC, no other medical documents showing further treatment of victim Khushi or the complainant herself have been placed on record by the prosecution. During her cross-examination, the complainant also deposed that she had gone to Safdurjung hospital twice for her treatment. However, she vaguely added that she had given the receipt of her injections and subsequent treatment at Safdarjung hospital to the police persons. However no such documents have been placed on record. On one occasion, the complainant also deposed that her husband was in a position to state as regards the police person to whom the aforesaid receipt was given, but, the husband of the complainant was never examined by the prosecution during trial. There is also incertitude as regards the injury suffered by the complainant owing to the alleged dog bite. While she stated that the dog had bitten her on her right foot, it is unclear as to why or how the complainant had suffered abrasions over both her hands, as observed in her MLC Ex.PW7/B.
e). Further, credibility of the version of PW2/complainant is also rendered doubtful in light of her statement that there were blood stains spread over the clothes of her child Khushi, consequent to the dog bite. 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 State Vs. Kiran Upadhyay Page No.12 / 14 the MLC of child Khushi, Ex. PW7/A, wherein only abrasion has been reported on the left foot of the victim, with no mentioning of any bleeding whatsoever.
f). It is also imperative to note that after the complainant came to know about the incident qua her daughter Khushi, instead of immediately rushing her to the hospital/doctor for treatment of the alleged dog bite, the complaint first went on to confront the accused in this regard, subsequent to which the dog of the accused allegedly bit the complainant as well, and thereafter the husband of the complaint made a call at 100 number. It was only later when the PCR officials reached at the spot, did the complainant and her daughter go to Safdarjung hospital for treatment. In such a scenario, the act of the complainant in not rushing herself and her daughter to the hospital at the first opportunity, portrays an abnormal and an unreasonable conduct on her part, which in turn raises suspicion as regards the veracity of her version with respect to the alleged offence.
23. 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.13 / 1425. 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 289/324 IPC beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
26. Accordingly, this Court hereby accords the benefit of doubt to the accused for the offence u/s 289/324 IPC and holds the accused not guilty of commission of the said offence. Accused Kiran Upadhyay is thus, acquitted of offence u/s 289/324 IPC.
27. Copy of this judgment be given free of cost to the accused.
Digitally signedAnnounced in open court on APOORVA
by APOORVA
RANA
Date:
25.04.2023, in presence of accused RANA 2023.04.25
16:21:48
and Ld. Counsel for accused. +0530
(APOORVA RANA)
M.M-10/Dwarka Courts/25.04.2023
It is certified that this judgment contains 14 pages, Digitally signed all signed by the undersigned. APOORVA by RANA APOORVA RANA Date: 2023.04.25 16:21:56 +0530 (APOORVA RANA) M.M-10/Dwarka Courts/25.04.2023 State Vs. Kiran Upadhyay Page No.14 / 14