Delhi District Court
Fir No. 149/08 vs Om Prakash on 22 March, 2014
IN THE COURT OF SH. VIJAY SHANKAR, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE ( SOUTH WEST ) ,
DWARKA COURTS, NEW DELHI
FIR No. 149/08
PS: Dwarka
U/s 289/338 IPC
State V. Om Prakash
Unique Case ID No. 02405R0427222009
Date of institution of the case : 30/01/2009
Date on which Judgment was reserved : 16/01/2014
JUDGMENT:
a) S. No. of the case : 220/13
b) Date of commission of offence : 28/02/2008
c) Name of the complainant : Smt. Alka Rai w/o Sh. Omkar Rai r/o C13, Vidyut Apratments, Plot No. 2, Sector12, Dwarka, New Delhi.
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d) Name of accused and address : Om Prakash
S/o Late Sh. Mathura Prasad
R/o B17, Vidyut Apartments,
Sector12, Dwarka, New Delhi.
e) Offence complained of : u/s 289/323/338 IPC
f) Plea of accused : Pleaded not guilty
g) Final order : Convicted
h) Date of such order : 22/03/2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1. Briefly stated the case of the prosecution is that on 28/02/2008 at about 8 PM at Vidyut Apratments, Plot No. 2, Sector12, Dwarka, New Delhi within the jurisdiction of Police Station Dwarka, accused Om Prakash knowingly or negligently omitted to took precautions regarding his dog which was in his possession as were sufficient to guard against any probable danger to human life or any probable danger of grievous hurt from the dog and while the dog was in FIR No. 149/08 State V. Om Prakash Page 2 of 14 the possession of the accused, the dog gave bite to Ms. Saumya Rai and she sustained grievous injury and the accused thereby committed offence punishable u/s 289/323/338 IPC.
2. Earlier, on the complaint of Smt. Alka Rai, a case was registered by the police of Police Station Dwarka. After registration of the case, it was investigated and on completion of the investigation, present charge sheet was submitted in the court for trial of the accused.
3. Copies of the challan were supplied to the accused in compliance of section 207 Cr. P. C. Finding a primafacie case against the accused, notice u/s 251 Cr. P. C. for the offence u/s 289/338 IPC was given to the accused to which he pleaded not guilty and claimed trial.
4. Prosecution was then called upon to substantiate its case by examining its witnesses. To do so, prosecution examined PW1 HC Pakheru Lal, PW2 Smt. Alka Rai, PW3 Dr. Uday Kumar Singh, PW4 Ms. Saumya Rai, PW5 HC Surender, PW6 Ct. Raj Singh and PW7 FIR No. 149/08 State V. Om Prakash Page 3 of 14 Retd. SI Ram Nath.
5. Separate statement of the accused was recorded u/s 313 Cr. P. C. wherein he denied the allegations against him and rebutted the prosecution evidence against him and claimed that he is innocent and has been falsely implicated in this case. It was also stated that he wants to led evidence in his defence.
6. Accused has led defence evidence and got examined himself as DW1.
7. This court heard the final arguments advanced by Ld. APP for the State and Ld. counsel for the accused and carefully perused the entire record including the testimonies on record.
8. PW1 who is the duty officer in the present case, proved on record the factum of registration of FIR Ex. PW1/A. PW2 in her testimony had deposed that on 28/02/2008 at about 8 PM she alongwith her daughter Saumya Rai was walking in the society premises. Om Prakash and his wife who were residents of their FIR No. 149/08 State V. Om Prakash Page 4 of 14 society came out alongwith their pet dog from the lift and all of sudden their dog attacked on her daughter Saumya. The dog attacked on the face of her daughter and broken her one of the teeth and blood was oozing from the mouth of her daughter. Number of times residents of the society requested the Om Prakash to remove his pet dog from the society and even in General Body Meeting of the society, it was decided that no resident would keep any dog in the society. The accused did not remove his dog despite repeated requests of the residents of the society. The dog had attacked on other children also but that were not so grave. Number of local residents gathered at the spot. After first aid, she made a call to the police and her statement Ex. PW2/A was recorded by the police. Her daughter was taken to DDU hospital for medical examination. The spot was shown by her to the police where this accident took place and police prepared the site plan.
PW2 was crossexamined by counsel for the accused. PW3 in his testimony deposed that he had been deputed by Medical Superintendent to depose in the court in place of Dr. Santosh, who already left the services of the hospital and his present FIR No. 149/08 State V. Om Prakash Page 5 of 14 whereabouts are not available. MLC Ex. PW3/A of patient Saumya Rai was prepared by Dr. Santosh. As per MLC, the patient was brought to the hospital with the alleged history of dog bite. According to MLC, the patient was referred to department of dental.
PW4 in her testimony had deposed that on 28/02/2008 at about 8 PM, she alongwith her mother was walking in the society premises. On that day, accused Om Prakash and his wife who were the residents of their society alongwith their pet dog came from the lift and came on the road in the society premises. At that time, the dog attacked on her face and broken her one teeth and dog also inflicted injuries on her lower lip by inserting legs on her face and blood was oozing out from her mouth. At the time of assault upon her by the dog, accused Om Prakash had lost his control from his dog and due to this, incident was occurred. After assault, she came into knowledge that dog belongs to the accused was not vaccinated. Her parents called the police to report the incident. She was got medically examined at DDU hospital, Delhi.
PW4 was crossexamined by the accused and his counsel. PW5 in his testimony had deposed that the file of the case FIR No. 149/08 State V. Om Prakash Page 6 of 14 was marked to him and during investigation, accused Om Prakash came in the PS on 25/05/2008 and after interrogating him, he had arrested him and he also obtained the result on the MLC of Somya Singh from the doctor. He had recorded the statements of the witnesses. After completing the investigation, he prepared the charge sheet and filed in the court.
PW5 was crossexamined by counsel for the accused. PW6 in his testimony had deposed that on 25/05/2008, he was assisting the IO in investigating the present case. On that day, IO had arrested accused Om Prakash.
PW6 was crossexamined by counsel for the accused. PW7 in his testimony had deposed that on 28/02/2008, he received DD No. 42B, thereafter he reached at the spot. At that time, complainant had not given statement. On the next day, on 29/02/2008, the complainant Alka Ray given her statement and same was recorded FIR No. 149/08 State V. Om Prakash Page 7 of 14 by him. Thereafter, victim was got medically examined at DDU Hospital. Thereafter, he prepared therir for the registration of the case and present case was got registered. Investigation of the case was assigned to him. During the investigation, he prepared site plan at the spot. Thereafter, he was transferred from the PS Dwarka, Sector23 and investigation was assigned to another police officer. He searched accused Om Prakash but he could not be found.
PW7 was crossexamined by counsel for the accused.
9. DW1 in his testimony had deposed that he alongwith his family shifted from Calcutta on transfer in May 2003. They were original allottee of the flat in the society. He alongwith his family moved with a pet dog in the flat in the year 2003. Seeing his pet, other society members started complaining and they wanted that no pet should be kept in the society. However, their dog was almost like a family member, therefore, it was not possible to abandon it. Seeing that he had not abandoned the dog, society in February 2006 passed circular MarkA that members and residents would not be permitted to keep dogs/pet animals in the society. In 2007, Ms. Alka Rai alongwith her FIR No. 149/08 State V. Om Prakash Page 8 of 14 family moved in the society. On 28/02/2008, in the evening around 07:30 PM, according to his usual routine went out with his dog on leash to took her for daily routine walk. He stayed on the fourth floor. He came out of the lift and alongwith the leash in one hand alongwith her wife he came on the walk way inside the society to go out from the back gate. When he walked almost 20 metres, on the walk way, he saw daughter of the complainant Ms. Saumya alongwith one of her friend was playing on the walk way. As she saw his dog she cried and ran away. Seeing that she was getting fearful he asked his wife to took back the dog into the flat and he went towards Saumya. Just by the side of the walk way there was parking where motorcycles, cycles and cars were parked and when Ms. Saumya was running she fell on a cycle and got injured. He picked her up and took her to her flat and rang the door bell. Her mother opened the door and he asked her to take care of Ms. Saumya. After that he came back to his flat. As his dog was always on leash first in his hand and later on in his wife's hand and went back to his flat she never came in contact with Ms. Saumya leave alone even touching her. The present complaint was used as a ploy to get rid of his pet dog.
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DW1 was crossexamined by Sub. APP for the State.
10. It is the case of the prosecution that on the relevant time, date and place accused Om Prakash knowingly or negligently omitted to took precautions regarding his dog which was in his possession as were sufficient to guard against any probable danger to human life or any probable danger of grievous hurt from the dog and while the dog was in the possession of the accused, the dog attacked on Ms. Saumya Rai and she sustained grievous injury.
The prosecution in support of its case had examined seven witnesses in the present case.
In order to bring home conviction the prosecution has to show on record an unbroken chain of events leading to commission of actual offence. Further, it is the duty of the prosecution to prove its case in such a manner so as to bring it outside the pale of any reasonable doubt.
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PW2 is the complainant and PW4 is the injured in the present case. PW2 and PW4 are main witnesses of the prosecution. PW2 and PW4 in their testimonies categorically, elaborately and graphically described as to how offence was committed. From the testimonies of PW2 and PW4, it is clear that accused knowingly or negligently omitted to took precautions regarding his dog and while the dog was in the possession of the accused, the dog attacked on Ms. Saumya Rai and she sustained grievous injury. The complainant/PW2 in her testimony had duly proved on record complaint Ex. PW2/A, on the basis of which, present case was registered. The contents of Ex. PW2/A have been duly corroborated by the testimonies of PW2, PW4 and other prosecution witnesses.
PW4 and PW5 during their testimonies had duly identified the accused. During the course of examination of PW2 and PW6, the identity of accused was not disputed. The accused and his counsel had not put any question in the crossexamination of the prosecution witnesses to dispute the identity of the accused. Hence, identity of the accused is duly established.
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In the present case, accused had examined himself as DW1. Accused in his testimony had admitted that on the day of incident, he was on daily routine walk alongwith his dog. Hence, on the date of incident, the presence of accused and his dog at the spot is not disputed. Accused in his testimony had also deposed that society in February, 2006, passed circular MarkA that members and residents would not be permitted to keep dogs/pet animals in the society. Accused in his crossexamination had also deposed that "at the time of the incidence only I had pet dog. I had no permission to keep pet dog in my residential house". From the testimony of accused, it is clear that accused had kept the dog with him despite circular MarkA of the society. It is the contention of the accused that on the date of incident injured Saumya Rai sustained the injuries as she fell on a cycle. There is nothing in the MLC Ex. PW3/A of injured Saumya Rai to suggest that she sustained the injury due to fall on a cycle.
PW3 was the medical witness who duly proved on the record, the MLC Ex. PW3/A of injured Saumya Rai. In the MLC of injured Saumya Rai, the nature of the injury has been opined as FIR No. 149/08 State V. Om Prakash Page 12 of 14 grievous. PW3 in his testimony had deposed that as per MLC, the patient was brought to the hospital with alleged history of dog bite. The counsel for the accused had not crossexamined PW3 to rebut his testimony. The accused had not led any evidence to disprove the MLC of injured Saumya Rai.
PW5 and PW7 were IO in the present case who deposed regarding investigation conducted by them and they duly proved on record the documents relating to the investigation conducted by them.
In the present case, the accused/counsel had not cross examined PW1 and PW3 to rebut and contradict their testimonies. The testimonies of PW1 and PW3 have gone unrebutted, un challenged and uncontroverted.
In the crossexamination of prosecution witnesses, no material inconsistency has been surfaced except some minor ones which are but natural.
The case of the prosecution is duly corroborated by the FIR No. 149/08 State V. Om Prakash Page 13 of 14 testimonies of the witnesses and documentary evidence and there is nothing on the record to disbelieve the version of the prosecution witnesses.
11. Applying a priori and a posteriori reasonings, this court is held that accused Om Prakash knowingly or negligently omitted to took precautions regarding his dog which was in his possession as were sufficient to guard against any probable danger to human life or any probable danger of grievous hurt from the dog and while the dog was in the possession of the accused, the dog attacked on Ms. Saumya Rai and she sustained grievous injury.
12. In view of the aforesaid discussion, this court is of considered opinion that the prosecution has been successful in establishing its case against the accused Om Prakash beyond the pale of reasonable doubt. This court is held that the accused has committed the offence punishable under section 289/338 IPC. Accordingly, accused Om Prakash is convicted for the offence under section 289/338 IPC.
Announced in the open (VIJAY SHANKAR)
court on 22/03/2014 Addl. Chief Metropolitan Magistrate
Dwarka Courts, New Delhi
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