Dr. Sangita w/o Vijay Balkote vs State of Maharashtra

Heard.

Rule. Rule is made returnable forthwith. Heard finally with consent of learned counsel for the respective parties.

The criminal revision application filed by the applicant challenging the judgment and order dated 15.03.2021 passed by the 14^th Joint Judicial Magistrate First Class, Court No.1, Nagpur in Summary Criminal Case No.300090 of 2015, thereby convicting the applicant for the offence punishable under Sections 289 and 338 of the Indian Penal Code (for short “IPC”) and sentencing him to suffer simple imprisonment for six months for each offence. The applicant was further directed to pay compensation of Rs.50,000/-under Section 357(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) and in default thereof, to undergo simple imprisonment for six months. The compensation amount of Rs.50,000/- was directed to be paid to the informant, mother of the victim, namely Sonal Badkule.

The accused/applicant thereafter filed an appeal challenging the said judgment and order. The learned Appellate Court vide judgment and order dated 17.02.2023 in Criminal Appeal No.49 of 2021 was modified to the extent that the applicant was found to be guilty for the offence punishable under Sections 289 and 338 of the IPC. However, instead of sentencing her under Section 248(1) of the Cr.P.C., she was released on probation of good conduct for three years with solvent surety and personal bond of Rs.25,000/- each. The applicant was further directed to pay compensation of Rs.50,000/- immediately as per Section 5(1)(a) of the Probation of Offenders Act, 1958, in default, the compensation was directed to be recovered as a fine by following the procedure under Sections 421 and 422 of the Cr.P.C.

Mr. Jaltare, learned counsel for the applicant submits that the applicant was falsely convicted for the aforesaid offence. The prosecution has examined four witnesses however the said witnesses failed to prove the guilt of the present applicant beyond reasonable doubt. The date of the incident is 29.06.2014, whereas the First Information Report (for short “FIR”) came to be filed on 30.09.2014, which is almost after three months. There are admissions given by PW-1 Mrs. Sonal Badkule, complainant (mother of the victim), wherein she admitted that the investigating agency had recorded the statement of the victim on 29.06.2014 when they had visited the hospital. PW-1 has requested for the applicant to pay compensation and when the applicant refused to pay the compensation, the report came to be lodged at Police Station, Nandanvan.

The deposition of PW-3, who is the NMC employee, would show that the dogs were found sitting on the road in front of Balkote hospital and while making an attempt to catch these dogs, one of the dogs allegedly ran inside the hospital and the second one was caught. Subsequently, the dog which ran into the hospital was also caught. Both dogs were then brought to the centre. Thus, PW-3 had also admitted that when an attempt is made to catch a dog, it can run away in any way and enter anybody’s house. It was also admitted by PW-3 that the said dogs did not have any belt or registration badge affixed to their necks and therefore they were not owned by any person. It was also admitted by PW-3 that the said dogs were the stray dogs. Thus, the testimony of PW-3 itself is sufficient to demolish the case of the prosecution, however, the same had been relied upon by the trial Court to convict the applicant.

The learned counsel further submits that PW-4 Sairaj Khan, who was also an employee of the NMC and had caught those dogs, submits that he was the driver of the said vehicle and he was unable to prove that the dogs were owned by the applicant. The said witness further submits that he did not catch the dogs as he was only a driver of the dog catching vehicle. He further admits that his statement was recorded on 30.06.2014, however, the statement filed along with the chargesheet shows that the same was recorded on 07.11.2024. The learned counsel further submitted that the testimony of PW-4 is also not reliable and should have been discarded by the trial Court.

The witness PW-5 Pragati Badkule, who is daughter of the complainant also stated that the dog which had assaulted the victim, had a belt on its neck. However, the other two witnesses do not say that any belt was there on the dog which had assaulted the victim. Thus, the evidence of PW-5 would itself show that she is a got up witness and her testimony does not inspire confidence. The same therefore creates a material discrepancy, which is at variance with the other witnesses.

The learned counsel further submits that neighbouring witness PW-7 Mahesh Bharne had stated that the victim himself was in the habit of teasing and troubling the dogs by throwing stones on them and that he did not see the alleged incident of the victim being bitten by the said dogs. The said witness was not an eyewitness to the incident, and as such, his testimony could not have been relied upon by the trial Court to base the conviction.

PW-8 Mahadev Korape stated that he had received the Medico Legal Certificate (MLC) on 03.07.2014 and recorded the statement of the witness on the same day, however, the chargesheet does not show the statement of the victim was recorded on 03.07.2014. However, the chargesheet shows that the statement of complainant was recorded on 29.06.2014 and the other witnesses statements were recorded on 01.10.2014. The prosecution also did not examine the panch witnesses to prove the spot panchanama and the articles seized from the spot.

Defence Witness No.1, Rachana Verma has specifically stated that the victim boy had pelted stones on the dogs, which resulted in the incident. DW-2, Pankaj Lande also stated that there are many stray dogs in the vicinity, one of which had actually assaulted the victim and that the applicant did not own a dog. The said defence witness had also stated that the Article-A photograph of the dog are not the same dog sitting in front of the applicant’s nursing home. The defence witness No.3, Uday Golhar stated that the alleged dogs shown in the photograph were sitting in front of the house of Mrs. Dhime and that the victim had pelted stones at the dog from some distance, which resulted in the assault upon the victim.

The learned counsel thus submits that the conviction of the applicant under Sections 289 and 338 of the IPC is therefore misconceived. The offence under Sections 289 and 338 of the IPC cannot be said to be made out against the present applicant as the entire onus and burden to prove the ownership of the dogs is not established by the prosecution. The prosecution has grossly failed to prove that the applicant is the owner of the alleged stray dogs which had committed the assault upon the victim. The learned trial Court as well as the learned Appellate Court have committed an error in convicting the applicant for the alleged offence. The impugned judgment dated 15.03.2021 passed by the learned 14^th Joint Judicial Magistrate First Class, Court No.1, Nagpur and the Appellate Court judgment dated 17.02.2023 passed by the learned Additional Sessions Judge-12, Nagpur, needs to be set aside.

On the other hand, Mr. Ghogare, the learned A.P.P. strongly opposes the revision application and submits that the prosecution had examined eight witnesses to prove the guilt against the present applicant. Sonal Badkule (complainant), Aryaveer Badkule (victim) and the testimony of Kishor Shende and Sairaj Khan (employees of the Nagpur Municipal Corporation) had supported the case of the prosecution. Pragati Badkule (sister of the victim, Aryaveer) and Dr. Ninad Gawande proved the injuries sustained by the victim Aryaveer (PW-2). The other witness, namely Mahesh Bharne, who happened to be a chance witness, had also corroborated the version of the prosecution that the dog belonging to the present applicant had committed the assault upon the victim, resulting in grievous injuries of dog bite inflicted upon the victim Aryaveer.

The Investigating Officer had also proved the necessary circumstantial evidence relied upon by the trial Court to base the conviction under Sections 289 and 338 of the IPC. The judgment passed by the learned trial Court is a well reasoned judgment and is also upheld by the Revisional Court. The order passed by the learned trial Courts below does not call for any interference. The State has not filed an appeal reducing the sentence from six months to release the applicant on a probation of good conduct bond. The revision application is devoid of substance and merit and does not call for any interference of this Court and liable to be dismissed.

I have gone through the judgment dated 15.03.2021 passed by the learned trial Court as well as the judgment dated 17.02.2023 passed by learned Appellate Court and the deposition of the all witnesses wherein three defence witnesses were also examined by the accused. From the examination of PW-1, the applicant accused have been able to establish the admission on the point of the talks of compensation between the applicant and the complainant. The incident is dated 29.06.2014 whereas the FIR is filed on 30.09.2014 i.e. after three months of the incident. There is no explanation given by the PW-1 complainant Sonal Badkule for such huge delay in lodging FIR. The plausible defence put up by the applicant/accused in the cross-examination of PW-1 appears to be probable and hence, the submission that the entire case has been filed only with a view to wreak vengeance and to extract compensation from the applicant, appears to be probable. Further, scrutiny of the testimony of the victim and the other relevant witnesses would show that the prosecution has grossly failed to establish the ownership of the dogs which had actually assaulted the victim. P.W.-2 Aryaveer has stated in his cross-examination that the alleged dog was owned by the present applicant. The prosecution witness No.3 Kishor Shinde had also failed to show that the dog which was caught by him was owned by the present applicant. The said witness further admitted that when they had arrived on the spot to catch the dog, the said dog was sitting in front of the Balkote hospital and when they started catching the said dog, one of the dog ran into the hospital on such ground that it was assumed that the applicant was the owner of the dog. The admissions are extracted by the applicant through the cross-examination of not only P.W.-3, but also P.W.-4 Sairaj Khan. P.W.-4 is only the driver of the dog catching vehicle and does not know anything and straightaway refuses to identify which dog had assaulted the victim. P.W.-7 Mahesh Bharne also submitted that one big dog is owned by one Sawarkar who always sits near their house and at the time of incident, the said dog went running outside their house. The said witness had also admitted that the victim P.W. 2 Aryaveer was in the habit of assaulting the dog by throwing stones on them and the incident of assault upon the victim by the dog is the result of such teasing and troubling of the dogs by the victim Aryaveer. The said witness also, therefore, does not support the case of the prosecution, more particularly in establishing the ownership of the said dog.

The Investigating Officer P.W.-8, in his testimony, does not show any efforts undertaken by him to prove the ownership of the said dog. Rather, the statements of the said witness, though clearly states that he had received the MLC for the purpose of investigation on 03.07.2014, however, the statement of the complainant is claimed to have been recorded by P.W.-8 Karpe only on 29.06.2014 and the other statements were recorded on 01.10.2014. Thus, though the said witness P.W.-8 appears to have recorded the statement on 03.07.2014 in pursuance to the MLC received at the police station, however, the FIR is registered on 30.09.2014. Thus, there is no explanation as to why, once a cognizable offence is made out from the statement of the first informant, no efforts were taken to register the FIR immediately. The absence of any explanation given by the Investigating Officer casts serious doubt about the prosecution case. It is almost settled law that the prosecution has to establish its case beyond the reasonable doubt. Suspicion, however great, cannot take place of proof.

On the other hand, the defence witnesses examined by the accused/applicant herein, have brought the case within the realm of preponderance of probability. Taking into consideration the overall testimony of the prosecution witnesses as well as the defence witnesses examined by the accused, it appears that the prosecution has failed to establish its case beyond doubt. The impugned judgment of conviction is based upon assumptions and presumptions, which are not available in the present case. The prosecution has grossly failed to establish the ownership of the dog which had inflicted the dog bite injuries upon the victim P.W.-2 Aryaveer. Moreover, the delay caused in lodging of the FIR stands unexplained.

P.W.-1 Sonal Badkule had admitted in her cross-examination that a demand was made for payment of compensation and as no compensation was made by the applicant, the FIR appears to have been filed against the applicant. Thus, it appears that the learned Courts below have failed to take into consideration the aforesaid aspect of the matter and has convicted the applicant only relying upon the testimony of the prosecution witnesses without taking into consideration the cross-examination and the defence put up by the applicant in his 313 statement. The 313 statement of the applicant also shows that a particular defence has been taken by the applicant that an unknown dog had assaulted the victim and the mother P.W-1 Sonal had made a demand of compensation from the applicant and failure to pay the same had resulted in the false FIR being lodged against the applicant.

Thus, taking into consideration the admission given by P.W.-1, the defence appears to be probable. The learned trial Courts have failed to consider this aspect of the matter and have mechanically convicted the applicant/accused. The Appellate Court though had directed to release the applicant on a bond under the provisions of the Offenders Act, however, upheld the conviction of the applicant under Sections 338 and 289 of the IPC. The prosecution has grossly failed to prove that the animal was in possession of the applicant so as to prove the offence under Section 289 of the IPC. The prosecution appears to have also failed to prove that the applicant has deliberately caused any grievous hurt to any person, to the victim, so as to endanger his life or personal safety and has failed to establish the offence under Section 338 of the IPC. Therefore, the learned Courts below have thus committed an error in convicting the applicant and the same therefore calls for interference of this Court in its revisional jurisdiction. Hence, I am inclined to pass the following order :-

ii) The impugned judgment and order dated 15.03.2021 passed by the learned 14^th Joint Judicial Magistrate First Class, Court No.1, Nagpur in Summary Criminal Case No.300090 of 2015, as well as the judgment and order dated 17.02.2023 passed by the learned Additional Sessions Judge-12, Nagpur in Criminal Appeal No.49 of 2021, are hereby quashed and set aside.

iii) The applicant is acquitted for the offences punishable under Sections 289 and 338 of the Indian Penal Code.

iv) The bail bond, if any, executed by the applicant shall stand cancelled.

Rule is made absolute in above terms. No order as to costs.