JUDGMENT - IPC 289 - DOG BITE - CONVICTED - METROPOLITAN MAGISTRATE DWARKA COURTS, NEW DELHI

IN THE COURT OF Dr. JAGMINDER SINGH: METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI

FIR No. 994/03
PS: Dabri
U/s 289 IPC
State V. Abhijeet etc.

Date of institution of the case : 24.12.2004

Date on which Judgment was reserved : 25.05.2012

JUDGMENT
a)   S. No. of the case : 280/2

b)   Date of commission of offence : 25.12.2003

c)   Name of the Complainant : Smt. Neha Mehta, W/o Sh.
                                                                                         Praveen Mehta, R/o RZ-III D
                                                                                         Opp. Universal School
                                                                                         Mandirwali Gali Mahavir
                                                                                         Enclave, N. Delhi.

d)   Name of accused and address : Abhijeet Niyogi @ Pintoo
                                                                                         S/o Sh. Bishwanath Niyogi,
                                                                                         R/o RZG-114 B, Opp.
                                                                                         Universal School Mandir Wali
                                                                                         Gali, Mahavir Enclave, New
                                                                                         Delhi
                                 

e)   Offence complained of : u/s 289 IPC

f)   Plea of accused : Pleaded not guilty

g)   Final order : Convicted

h)   Date of such order : 25.05.2012

BRIEF STATEMENT OF THE REASONS FOR THE DECISION :-

1. The present case was registered against the accused on the complaint of complainant Smt. Neha Mehta in which she stated that on 25.12.2003 at about 7.15 pm when she was going outside her home in the street at opposite house no. RZ-111 D, Mahavir Enclave, New Delhi, then dog of accused Abhijit @ Pintoo was also roaming in the street, who bite her at her leg. She also stated that earlier also the said dog had bitten one/ two children and they already complained in this regard to the accused but despite that accused used to set free his dog in the street. At her complaint, the present FIR was registered against the accused and after completion of investigation, charge sheet was filed for the offence u/s 289 IPC.

2. After taking cognizance, accused was summoned and copy of the charge sheet supplied to him and thereafter, on the basis of prima facie evidence, notice for the offence U/s 289 IPC was served upon him to which he pleaded not guilty and claimed trial.

3. Prosecution has filed list of eight witnesses but examined only seveb witnesses.

4. PW-1 Asha Sharma stated that she knows the accused as her neighbour. Accused had a pet dog. On 25.12.2003, the said dog had bitten the complainant Smt. Neha Mehta, who is also her beighbour in the gali. The said dog in the past also attacked Neha and other persons were also bitten by it. Police met her after the incident.

5. PW-2 Dinesh Kumar stated that 26.12.2003 he joined the investigation with IO and IO arrested the accused vide memo Ex. PW2/A and took his personal search vide memo Ex. PW2/B. Accused was inquired by the 4 State vs. Abhijeet FIR no. 994/03 IO and accused handed over photo of the dog which was taken into possession and the said photo is Ex. PW1/A.

6. PW-3 Manmohan Brahmi stated that on 25.12.2003 the dog of accused gave a bite to Smt. Neha Mehta. Earlier also that dog had bitten many persons and complaint Ex. PW3/A was given to the police signed by all the residents of the area. Accused was negligent in taking due care for the dog which usually came out and gave bite to public persons. He also identified the dog through its photographs Ex. PW1/A.

7. PW-4 ASI Rajender Singh deposed that on 25.12.2003 on receiving of DD NO 40 B he along with Ct. Kirti went to the spot and recorded statement of Smt. Neha Mehta and made endorsement Ex. PW4/A and got the case registered through Ct. Kirti. He prepared the site plan Ex. PW4/B. Injured Neha Mehta was medically examined. He arrested the accused vide memo Ex. PW2/B and realsed him on bail. He recorded disclosure statement of accused Ex. PW4/D and photographs of the dog Ex. PW1/A was also taken. He identified the accused. He also identified the dog through its photographs 5 State vs. Abhijeet FIR no. 994/03 Ex. PW1/A.

8. PW-5 Dr. Aruna CMO DDU Hospital stated that on 25.12.2003 she examined patient Neha Mehta vide MLC Ex. PW5/A . The patient was brought with alleged history of dog bite by the neighbourer's dog.

9. PW-6 (recorded as PW-5) retired SI Ram Chander stated that on 04.06.96, he had endorsement on the complaint of R. Prasad. His endorsement is Ex. PW-5/A. He had got the case registered.

10. PW-6 ASI Mohd. Yamin is the Duty Officer registered the FIR of the present case. On 25.12.2003 at about 10.15 pm on receiving rukka from Ct. Kirti. Copy of FIR is Ex. PW6/A and his endorsement on rukka in this regard is Ex. PW6/B.

11. PW-7 Ms. Neha Mehta stated that accused Abhijit was living inf front of their house having dog. Request was made to accused to control his dog but he did not do it. It was 31st December but he did not remember the 6 State vs. Abhijeet FIR no. 994/03 year as it was the matter of 8-9 year old. She had gone to the house of accused where the dog of the accused had bitten her. In gali also her baby was caught hold by the dog and on that account request was made to the accused. She identified the photographs of the dog Ex. PW1/A.

12. No other witness examined by the prosecution and then P.E. Closed. Statement of accused is recorded U/s 313 CrPC, in which he denied all the allegations against him. Accused further submitted that he does not want to lead any defence evidence. Then the matter fixed for final arguments.

13. I have heard the arguments of both the parties. Ld. APP for the State has argued that the case is totally proved against the accused. Accused had not taken due care and caution to control his pet dog because of which it has bitten the complainant. Therefore, accused deserves maximum punishment. On the other hand, Ld. Counsel for accused stated that accused has committed nothing wrong. Witnesses of the prosecution had given false statement. The case of the prosecution is based on concocted story and accused is falsely implicated. I have gone through the statement of witnesses 7 State vs. Abhijeet FIR no. 994/03 and documents placed on record.

14. It is a settled principle of criminal law that to establish its case the prosecution has to prove the case against the accused beyond any reasonable doubts. Statement of witnesses must be corroborated and supported by documentary evidence to become authentic and chain of evidence must be completed.

15. In the present case, three eye witnesses are examined by the prosecution including one the complainant herself. PW-1 Asha Sharma also narrated the incident that on the day of occurrence the dog of accused gave bite to the complainant. In her cross examination by Ld. Counsel for accused she specifically stated that there were other people also present besides her when the dog of the accused bite the complainant.

16. PW-3 Manmohan Brahmi have also gave the corroborated statement of PW-1. He also stated in his cross examination that accused was having dog since last 5-6 years. He also proved the earlier complaints given to 8 State vs. Abhijeet FIR no. 994/03 the police against the accused by him along with other residents Ex. PW3/A regarding the problem of dog. It is also a corroborated evidence to the prosecution story. In his cross examination, he specifically denied the suggestion that it was the stray dog who bite the complainant.

17. The complainant who appeared before the court as PW-7 although not stated the same version as of her complaint but she narrated the fact that on the day of occurrence she was beaten by the dog of accused. She also stated that earlier also her baby was caught hold by the dog and on this account request was made to the accused. When she resile from her version of complaint, she was cross examined by Ld. APP but she could not tell the exact date of the incident. She admitted that she had made the complaint Ex. PW7/PX-1. Thereafter, when she was cross examined by Ld. Defence counsel, she denied the suggestion that dog of the accused had not bitten her. Although this witness resile up to some extent but in material substance that dog of the accused had bitten her, she supported the prosecution version. Therefore, only because of the fact that she turned hostile to some extent, her whole statement can not be discarded. It is also observed by Hon'ble 9 State vs. Abhijeet FIR no. 994/03 Supreme Court of India in Gagan Kanojia vs. State of Punjab (2006) 13 SCC 516 that statement of hostile witness can be believed for certain purposes.

18. PW-5 is also a material witness who is concerned Doctor and who proved the MLC Ex. PW5/A. In the MLC the alleged history stated by the complainant as bite by neighbouring dog. Her admission's date is 25.12.2003 and time is 8.55 pm which is also a material corroborative evidence to the prosecution story and in the said MLC it is also mentioned by the concerned Doctor regarding her injury that there were teeth mark on her left thigh.

19. PW-4 is the IO, who proved the procedure of formalities as arrest of accused, making of site plan and taking of photographs of the dog from the accused. The fact that accused was having a dog also nowhere denied by the accused.

20. PW-1 and PW-3 are public witnesses and her neighbourers of the accused as well as complainant. Their testimony is also of great importance as 10 State vs. Abhijeet FIR no. 994/03 they are independent public witnesses having no special connection with any of the party. Therefore, there is no reason to disbelieve their testimony.

21. It is correct that there are some minor contradictions in the statement of witnesses regarding the exact time and place of occurrence but the material fact is that dog of accused had bitten the complainant is stated by all the eye witnesses undisputedly. It is also established through the statement of witnesses that at that time accused had not taken proper care and caution over his dog to control it from any probable danger likely to be created from the said dog. It is held by Hon'ble Supreme Court in Rakesh and anothers Vs. State of Madhya Pradesh, 2011 X AD SC 271 as under:

"1 9. Even if there are minor discrepancies between the narrations of witnesses when they speak on details, unless such contradictions are of material dimensions, the same should not be used to discard the evidence in its entirety. The trivial discrepancy ought not to obliterate the otherwise acceptable evidence."

22. Section 289 IPC prescribed as " negligent conduct with respect to 11 State vs. Abhijeet FIR no. 994/03 animal- whoever knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life, or any probable danger of grievous hurt from such animal, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".

23. After analysis of all the documentary as well as oral evidence placed on record by the prosecution, court comes at the conclusion that the prosecution successfully established all the essential ingredients of the offence u/s 289 IPC against the accused beyond reasonable doubts. Hence, accused Abhijeet Niyogi @ Pintoo, S/o Sh. Bishwanath Niyogi is convicted for the offence u/s 289 IPC in present case FIR No. 994/03, PS Dabri.

24. Let the convict be heard on the point of sentence. Announced in the open court on this 25th May, 2012 this Judgment contains 11 pages and each page signed by me.
(Dr. JAGMINDER SINGH)
METROPOLITAN MAGISTRATE
DWARKA COURTS/DELHI

FIR No. 994/03
PS: Dabri
U/s 289 IPC
State V. Abhijeet.

25. 05.2012
Present: APP for the State.
Accused on bail with Ld. Counsel.

Vide separate judgment of even date pronounced and dictated in the open court, accused Abhijeet Niyogi @ Pintoo, S/o Sh. Bishwanath Niyogi is convicted for the offence u/s 289 IPC in present case FIR No. 994/03, PS Dabri.

Convicted be heard on the point of sentence on 28.05.2012.

(Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI

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