Delhi District Court
State vs Santosh Gautam on 9 April, 2025
IN THE COURT OF SH. AMAN KUMAR SHARMA, JUDICIAL
MAGISTRATE FIRST CLASS-05, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
CNR No. DLST02-000411-2011
IN THE MATTER OF:
State Vs. Santosh Gautam
FIR no. 669/2009
PS Mehrauli
JUDGMENT
A) Sl. No. of the case : CR Cases 2035324/2016
B) The date of commission of : 02.11.2009
offence
C) The name of the complainant : Sh. Pushpanand Gautam, S/o Sh.
Amichand, R/o H. No. 124/2,
Sector-I, Pushp Vihar, New Delhi.
D) The name and address of : 1) Santosh Gautam, W/o Late Sh.
accused Mahender Gautam, 2) Sohan Lal,
S/o Sh. Ram Dayal, 3) Ram
Dayal, S/o Sh. Govind Ram
having common address i.e. R/o
H. No. 26, Gali no. 1, Harijan
Basti, Neb Sarai, New Delhi
E) Offence complained of : 323/341/452/506/34 IPC
F) The plea of accused : Not Guilty
G) Final Order : Convicted for the offence u/s
323/341/506-II/34 IPC
H) The date of such Order : 09.04.2025
CT Cases 2035324/2016 PS Mehrauli Page No.1 of 30
AMAN Digitally signed
by AMAN
KUMAR KUMAR SHARMA
Date: 2025.04.09
SHARMA 16:55:49 +0530
DATE OF INSTITUTION : 29.04.2011
DATE OF FINAL ARGUMENTS : 19.03.2025
DATE OF JUDGMENT : 09.04.2025
BRIEF FACTS
1. The present case has originated from the charge-sheet filed by the State under Sections 323/341/452/506/34 IPC, against accused persons namely 1) Santosh Gautam, W/o Late Sh. Mahinder Gautam, 2) Sohan Lal, S/o Sh. Ram Dayal and 3) Ram Dayal, S/o Sh. Govind Ram. As per charge-sheet, on 02.11.2009 at about 06.00 PM at H. No. 26, Gali no. 1, Neb Sarai i.e. within the jurisdiction of PS Mehrauli, accused persons in furtherance of their common intention, voluntarily obstructed the complainant Pushpanand Gautam and prevented him from proceeding in any direction in which he had a right to proceed, committed house trespass by entering into the property of the complainant Pushpanand Gautam after making preparations for causing hurt, gave beatings to the complainant, as a result of which the complainant sustained simple hurt and threatened to kill him and his children with the intent to cause alarm to them and thereby accused persons committed offences punishable u/s 323/342/452/506/34 IPC.
2. Based on the charge-sheet, the Court took cognizance of the offence on 03.04.2013 and accused persons were supplied with copy of chargesheet and documents in compliance of Section 207 Cr.P.C. Court framed the charge against the accused persons for offence punishable under Sections 323/342/452/506/34 IPC. Charges were read over and explained to them to which they pleaded not guilty and claimed trial.
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3. To prove its case, the prosecution has examined the following six witnesses:
(i) PW1 was Sh. Pushpanand;
(ii) PW2 was Inspector Umesh Malik;
(iii) PW3 was ASI Jaswant Singh;
(iv) PW4 was SI Satyavir Singh;
(v) PW5 was Smt. Savitri Devi; and
(vi) PW6 was Smt. Gayatri.
4. PW-1 Sh. Pushpanand deposed that on 31.10.2009, he along with his family was residing at House No. 26, Gali no.1, Neb Sarai, New Delhi. On that day, he had met with an accident and due to which, he had sustained injury on his right shoulder. On the next day i.e. 01.11.2009 at about 5.00 PM, accused Santosh, Ram Dayal and Sohan Lal (who were correctly identified by the witness) along with two ladies whose name he does not know, came to his house. He deposed that at that time, main gate of his house was opened, and he was lying on the bed which was situated in front of the door. As soon as he saw the accused persons at the door of his house, he requested them not to enter in his house. But the accused persons did not pay attention to his request and forcibly entered in his house. PW-1 Sh. Pushpanand further deposed that the accused Sohan Lal had pushed him while the accused Santosh had abused him. Due to the push extended by the accused Sohan Lal, he dashed against the wall.
5. PW-1 Sh. Pushpanand further deposed that the accused Ram Dayal was also accompanied by two accused persons and all the accused persons had threatened CT Cases 2035324/2016 PS Mehrauli Page No.3 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA SHARMA Date: 2025.04.09 16:55:57 +0530 him by uttering "Tu kal ka suraj nahi dekh payega aur tumhare poore khandan ka satyanash kar dunga". He further deposed that the accused persons also threatened him that they will reside in the same premises, and nobody can throw them out from this premises. Witness deposed that he became afraid and left his house along with his two children at the same time at about 8.00 PM. Witness further deposed that accused Sohan Lal followed him till their arrival at the main road and returned when he hired auto-rickshaw for Madangir, New Delhi. PW-1 Sh. Pushpanand further deposed that he went to P.S. Mehrauli the next day and had informed about the incident to the police. Police officials refuse to take any action against accused persons and told him that they do not want to interfere being a family matter. He had further deposed that the accused, Santosh is the widow of his younger brother, late Sh. Mahinder Singh and accused no. 2 and 3 are the father-in-law and brother- in-law of late Mahinder Singh.
6. PW-1 Sh. Pushpanand further deposed that he had moved a complaint addressed to P.S. Mehrauli, DCP South and CP Delhi etc. but no action was taken against the accused persons and the complaint is Ex. PW1/A. He had further deposed that the police had enquired about the matter from him. On 02.11.2009, his children attended their schools from Madangir. At about 12.30 PM, he received a call from the school of his daughter that the maternal uncle of his daughter had come to school to take her back from the school. He further deposed that on this information, he requested the said schoolteacher not to send his daughter along with anybody else unless he informs otherwise. Thereafter, he had contacted his elder brother B.R. Gautam and requested him to take back his daughter from the school. Witness had further deposed that he had contacted the concerned teacher CT Cases 2035324/2016 PS Mehrauli Page No.4 of 30 AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:56:01 +0530 and informed him that his brother B.R. Gautam bring his daughter back from the school. PW-1 Sh. Pushpanand further deposed that after this incident, he along with his children were residing in a rented accommodation and all the accused persons have been residing in his own house.
7. When PW-1 Sh. Pushpanand was cross examined by Ld. defence counsel, he had deposed that his wife Sunita Gautam had expired on 22.07.2007 and has two children born out of the aforesaid wedlock. He had further deposed that he had never resided with the accused Santosh Gautam. Witness had denied the suggestion that after the death of his first wife Sunita, he re-married accused Santosh Gautam and started to reside with her as husband and wife. He had further deposed that he had married one Mrs. Rajni in the year 2010 at Arya Samaj Mandir in Delhi. Witness had stated that he does not remember if whether he had mentioned the fact in his complaint, Ex.PW1/A that the accused persons had threatened him by saying "tu kal ka suraj nahi dekh payega aur tumhare poore khandan ka satyanash kar dunga" or not. When the attention of PW-1 Sh. Pushpanand was drawn towards the contents of the complaint Ex.PW1/A and he had stated that this fact was not mentioned in the complaint, Ex. PW1/A. He had voluntarily deposed that the accused persons had threatened to kill him. He did not call at 100 number when the accused persons entered his house as he became afraid. The incident had happened on 02.11.2009 and he had lodged a complaint with the police after about 1 or 2 days of the incident. Witness had again stated that he had lodged a complaint with the police on 08.11.2009. PW-1 Sh. Pushpanand had denied the suggestion that he had lodged a false complaint against the accused persons just to wriggle them out from the property.
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9. PW-1 Sh. Pushpanand further denied the suggestion that he had filed the present complaint against the accused persons after an order was passed against him by a court situated at Aligarh. He had further deposed that he had sustained an injury on his collar bone and was medically examined but has not attached the same with his complaint due to some disturbance. He got medically examined at AIIMS Trauma Centre on 31.10.2009. Witness again denied the suggestion that he did not sustain any type of injury. PW1, Pushpanand had admitted that the accused Santosh Gautam had filed a petition under Section 125 CrPC against him.
10. PW-2 Inspector Umesh Malik deposed that in the year 2009, he was posted at PS Mehrauli as Sub-Inspector. He had deposed that a complaint case was filed under Section 156(3) Cr.PC by Pushpanand Gautam and he had conducted an inquiry upon the directions passed by the concerned court in case No.246/9. After inquiry, he had submitted an Action Taken Report on 07.12.2009 before the concerned court. He had further deposed that upon the directions of Ms. Kiran Bansal, Ld. ACMM (South), an FIR was registered. He had further deposed that he had endorsed on the complaint of the complainant exhibited as Ex. PW1/A for registration of FIR. He had further deposed that during the course of investigation, accused Santosh Gautam was granted anticipatory bail by Ld. ASJ. PW-2 Inspector Umesh Malik had made inquiries from the witnesses and after his transfer in the month of September 2010, he had handed over the case file to MHCR Mehrauli and till that time, the complainant had not joined the investigation. Cross-examination of PW-2 Inspector Umesh Malik was recorded as nil despite of opportunity given to Ld. defence counsel.
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11. PW-3 ASI Jaswant Singh had deposed that on 24.12.2009, he was the duty officer at PS Mehrauli. On that day, his duty hours were from 12.00 A.M. to 8.00 A.M. He had further deposed that on that day, at about 12.05 A.M., SI Umesh Malik handed over a rukka on the complaint, Ex.PW-1/A for registration of an FIR. He had further deposed that based on the rukka, he had registered the FIR No.669/09 PS Mehrauli (OSR) which is Ex.PW3/A. He had further deposed that he had made an endorsement on rukka which is Ex.PW3/B. Cross-examination of PW- 3 ASI Jaswant was recorded as nil despite opportunity given to Ld. defence counsel.
12. PW-4 SI Satyavir Singh deposed that on 02.03.2011, complainant Pushpa Nand Gautam came to PS Mehrauli and had recorded his supplementary statement. He had further deposed that he along with Ct. Raj Kumar went to H. No. 26, Gali No. 1, Harijan Basti, Neb Sarai. He had met accused Santosh Gautam, who had produced the copy of the court order vide which she was granted anticipatory bail. He had further deposed that he had enquired from her and formally arrested her. PW-4 SI Satyavir Singh prepared her arrest memo Ex.PW-4/A. Accused Santosh furnished the bail bonds as per court orders. PW SI Satyavir Singh recorded the statement of Ct. Raj Kumar u/s 161 Cr.P.C and came back to the police station. Subsequently, he had filed the charge sheet. Witness had correctly identified the accused in the court. He had deposed that he does not know about the other accused persons and cannot identify them.
13. When PW-4 SI Satyavir Singh was cross examined by Ld. defence counsel, he had deposed that he does not know who all were present at the spot. He had CT Cases 2035324/2016 PS Mehrauli Page No.7 of 30 AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:56:14 +0530 voluntarily deposed that he was the 3 rd IO of this case. He had further deposed that he did not arrest anyone else except accused Santosh Gautam. He does not know the names of the other accused in the present case. Witness could not say whether the other accused persons in this case were present at the spot or not.
14. PW-5 Smt. Savitri Devi deposed that she is a housewife and an illiterate. She had further deposed that around 9 years ago in the first week of November, she went to the house of her brother namely Pushpanand Gautam, who was residing at Neb Sarai at that point of time. She had deposed that the accused Santosh i.e. widow of her younger brother namely Mahender along with some other persons came to the house of Pushpanand Gautam in the evening time. She had further deposed that the accused Santosh was trying to come inside the house of her brother Pushpanand Gautam but her brother Pushpanand did not allow them to enter inside the house. Witness deposed that accused Santosh along with her brother forcefully entered inside the house.
15. PW-5 Smt. Savitri Devi had further deposed that the accused Santosh held the collar of her brother Pushpanand, slapped him and threatened her brother that if he will not leave the house with his children then she will kill her brother Pushpanand and his family. PW-5 Smt. Savitri had further deposed that her brother Pushpanand along with his children had left the house on that very evening itself. PW-5 had correctly identified the accused persons namely Santosh, Sohan Lal and Ram Dayal in the court.
16. When PW-5 Smt. Savitri was cross examined by Ld. defence counsel, she had deposed that she resides at Hapur and on 1st November, she had come from CT Cases 2035324/2016 PS Mehrauli Page No.8 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:56:21 +0530 Hapur to see her brother Pushpanand, who had suffered injury. She returned to Hapur on the second day of the incident. She had further deposed that her two daughters accompanied her to Delhi from Hapur. Her brother and his two sons were present at that time. Witness does not remember whether any police complaint was lodged and further due to lapse of time she does not remember if any call was made at 100 number. She was present at the time of quarrel. She deposed that she did not sustain any injury. She did not try to intervene in the quarrel. PW-5 Smt. Savitri denied the suggestion that no quarrel took place or that matter relates to property. She again denied the suggestion that she was deposing falsely as she was not present at the time of quarrel. She further deposed that police did not make any inquiry in her presence and no police official came to her.
17. PW-6 Smt. Gayatri deposed that on 30.11.2009, her brother Pushpanand met with an accident. She deposed that on 02.12.2009, she went to see her brother at his residence near Khanpur, however, she does not remember the house number. In the evening time at about 05.00-06.00 PM, accused Santosh (who was correctly identified by the witness in the court) came to her brother's house. PW-6 Smt. Gayatri further deposed that she banged the door and her brother opened it. She pushed her brother and tried to enter the house. Her brother fell down. She further deposed that accused gave beatings to her brother and entered the house. PW-6 further deposed that she was inside the house. She deposed that accused threatened her brother to leave the house otherwise she will kill him. She further deposed that her brother left the house and she also returned at her house at Ghaziabad. Witness deposed that accused Santosh is the wife of her brother Mahender Gautam. Permission was sought by the Ld. APP for the state to put certain leading questions CT Cases 2035324/2016 PS Mehrauli Page No.9 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA SHARMA Date: 2025.04.09 16:56:25 +0530 to the witness as he did not disclose the complete facts. The same was allowed. She had deposed that the accused had come to the house of the complainant along with her family members. She had further stated that his brother might have objected, when the accused had tried entering into the house. She had admitted that the accused was trying to enter the house forcibly. She had further admitted as correct that the accused caught hold of her brother's neck and had slapped him. She had further admitted as correct that the accused had threatened his brother to kill him and his children.
18. When PW-6 Smt. Gayatri was cross examined by Ld. defence counsel. During her cross-examination, she had deposed as correct that accused Santosh came to house of her brother along with her other family members. She deposed that when accused was trying to enter the house, her brother might have objected. Witness deposed as correct that she was entering the house forcibly. PW-6 further deposed that accused had caught hold of her brother from neck (gireban). She stated that accused had slapped her brother and had threatened her brother to kill him and his children.
19. When PW-6 Smt. Gayatri was cross-examined by Ld. defence counsel, she had deposed that the accused Santosh was riding at her parental house at the time of the incident. She had denied the suggestion that the accused was residing on the first floor of the same property at the time of incident. She deposed that her brother was in moving condition after the accident, and she does not remember whether her statement was recorded by the police due to lapse of time. She had further deposed that the police did not come to her and she does not know whether any case was CT Cases 2035324/2016 PS Mehrauli Page No.10 of 30 AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:56:30 +0530 filed between the husband of accused i.e. her brother Mahender and her brother Pushpanand in respect of property. PW-6 Smt. Gayatri had further deposed that her brother Mahender had expired in the month of December, but she does not remember the exact date and year.
20. PW-6 Smt. Gayatri, in her cross-examination had further deposed that at the time of incident, her brother and his children were present. Witness again said that her sister was also present. PW-6 Smt. Gayatri further deposed that her sister also arrived at the house of brother on the same day when she arrived. She deposed that she and her sister left on 3rd November. PW-6 Smt. Gayatri further deposed that her sister had come alone to her brother's house. She deposed that there was no function or festival for their arrival at her brother's house. PW-6 denied the suggestion that the accused, and her brother Pushpanand were living as husband and wife. Witness again denied the suggestion that she did not visit the house of her brother Pushpanand. PW-6 Smt. Gayatri had further deposed that she had tried to intervene between the quarrel and she did not sustain any injury. She further deposed that her brother sustained injury however he did not go to any doctor in her presence. She did not make a call at 100 no. She also deposed that she did not lodge any complaint in PS. Witness further deposed that she returned on the same day to her house after 10-15 minutes of the incident. PW-6 Smt. Gayatri denied the suggestion that no incident as alleged took place. She had also deposed that she did not see where her brother had sustained the injury.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE
21. Upon conclusion of prosecution evidence, statements of accused persons CT Cases 2035324/2016 PS Mehrauli Page No.11 of 30 Digitally signed by AMAN AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:56:35 +0530 Santosh Gautam, Ram Dayal and Sohan Lal were recorded under Section 313 Cr.P.C. in which all incriminating material was put to them. Accused persons pleaded innocence and claimed to have been falsely implicated. Despite opportunity, accused persons chose not to lead any evidence in their defence. However, on 23.07.2024, an application u/s 311 CrPC r/w Section 315 CrPC was filed on behalf of accused Santosh Gautam and the same was allowed by this Court. Accused Santosh was examined as DW-1.
22. DW-1 Santosh had deposed that she was married to one Mahender Gautam. He had expired on 23.12.2006. She had further deposed that she had two children with Sh. Mahender Gautam. The complainant Pushpanand was a widower himself. DW-1 deposed that the wife of the complainant had expired on 22.07.2007. She had deposed that the complainant was blessed with two children with his first wife as well. Witness deposed that the complainant Pushpanand was her Jeth. DW-1 Santosh further deposed that it was increasingly becoming difficult for her as well as her jeth to raise their children. Hence, her father-in-law and mother in law along with the remaining family got her married with her jeth Pushpanand. DW-1 Santosh further deposed that her marriage with Pushpanand was solemnized on 02.12.2007. The marriage was solemnized as per the customs of the village. The Pradhan of the village, her family members and some villagers were also present when the marriage was solemnized.
23. DW-1 Ms. Santosh further deposed that she started residing and cohabiting with Pushpanand in the same manner as husband and wife. On 30.10.2009, Pushpanand met with an accident. She deposed that at that point of time, she along CT Cases 2035324/2016 PS Mehrauli Page No.12 of 30 AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:56:39 +0530 with Pushpanand and the family used to stay at New Delhi i.e. Neb Sarai. Witness further deposed that on 01.11.2009, her mausi along with her brother visited their house. One woman namely Rajni also visited the house. DW-1 further deposed that after her marriage with Pushpanand, talks were ongoing qua the proposed marriage of Rajni with Pushpanand. DW-1 further deposed that the marriage of Rajni with Pushpanand was stopped by her as she was already married to him.
24. DW-1 Ms. Santosh had further deposed that she had filed a case before the court for the purpose of stopping the marriage of Pushpanand with Rajni. The said case was filed before the court at Aligarh, UP. The case was dismissed and she went in appeal. She had deposed that the District Court declared her marriage with Pushpanand to be valid. The judgment of the District Court, Aligarh is Ex. DW- 1/A. Thereafter, she had filed a case u/s 125 CrPC against Pushpanand. She had further deposed that she had obtained a favourable order in the case filed u/s 125 CrPC. The certified copy of the judgment obtained under proceedings u/s 125 CrPC is Ex. DW-1/B. DW-1 Ms. Santosh further deposed that she did not used to receive any maintenance from Pushpanand and aggrieved therein, she had filed an execution petition against Pushpanand and started receiving the maintenance through the court.
25. DW-1 Ms. Santosh further deposed that on 01.11.2009, no beating was given to the complainant nor any other criminal act had taken place. She had further deposed that only her brother and her mausi came to her house for knowing the health of Pushpanand after his accident. She had further deposed that Pushpanand had left the house on that day and did not return. She had made a phone call at 100 CT Cases 2035324/2016 PS Mehrauli Page No.13 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA SHARMA Date: 2025.04.09 16:56:44 +0530 number after he left the house. She had further deposed that she had been staying alone at that house ever since that day.
26. When DW-1 Ms. Santosh was cross-examined by Ld. APP for the State, she had deposed that on 02.11.2009, she was present at her house at Neb Sarai. She had denied the suggestion that she had stopped the way of the complainant Pushpanand or of any other family member. Witness again denied the suggestion that she had beaten up the complainant Pushpanand or any other family member on that day. She further denied the suggestion that she had forced Pushpanand to leave the house. Witness again denied the suggestion that Pushpanand did not leave the house voluntarily. DW-1 Ms. Santosh further denied the suggestion that she had threatened to kill the complainant on 02.11.2009. She further denied the suggestion that she was not the legally wedded wife of the complainant.
27. DW-1 Ms. Santosh, in her cross-examination, deposed as correct that she was continuously residing at the House no. 26, Gali no. 1, Neb Sarai even before the date of the incident i.e. 02.11.2009. She had voluntarily deposed that her children also used to reside at the above-mentioned address before the incident with her. She further deposed that she was residing in the above-mentioned address since 2003. Witness denied the suggestion that she was not residing at the above-mentioned address before 01.11.2009. Witness again denied the suggestion that she came at the above-mentioned address on 01.11.2009 along-with two ladies, her father namely Ram Dayal and brother namely Sohan Lal.
28. DW-1 Ms. Santosh Gautam had further denied the suggestion that she along- with her brother had threatened the complainant by saying "Tu Kal ka suraj nahi CT Cases 2035324/2016 PS Mehrauli Page No.14 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA SHARMA Date: 2025.04.09 16:56:48 +0530 dekh payega aur tumhare poore khandan ka satyanash kar dunga" . She cannot bring any photograph of her wedding with Pushpanand. The witness is shown the photocopy of FIR dt. 20.11.2009, PS Jewar which is exhibited as Mark DW-1/PX1. Witness deposed as correct that she had filed the said FIR dt. 20.11.2009 at PS Jewar against complainant u/s 420/504/506 IPC in which the name of her husband is mentioned as Mahender. Witness denied the suggestion that she never married the complainant that is why she had mentioned the name of her husband as Mahender in the said FIR.
FINAL ARGUMENTS
29. Final arguments were heard at length from Ld. counsel for accused and Ld. APP for the State. Ld. Counsel for the accused has vehemently argued that the prosecution has not substantiated its case. It has further been argued that testimonies of PW1, PW5 and PW6 are not reliable as they indicate significant improvements to the version provided in the original complaint made by the complainant. It is argued that there are several material inconsistencies in the prosecution version. It is thus prayed that the accused be acquitted as he has been falsely implicated in the case.
30. On the contrary, Ld. APP for the State has strongly argued that this is a fit case for conviction as the prosecution has proved the case beyond reasonable doubt. Ld. APP for the State has argued that the testimonies of PW-1, PW-5 and PW-6 are consistent. She has accordingly prayed that the accused persons be convicted for the offences.
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31. Before appreciating the evidence, this Court deems it fit to reproduce and discuss the relevant provisions under the IPC which have been attracted in the present case as per the chargesheet:
(a) The accused persons have been firstly charged with the offence under Section 452 IPC i.e. the offence of 'house-trespass after preparation for hurt, assault or wrongful restraint'. A person is said to have committed house-trespass when he commits 'criminal trespass' by entering into or remaining in any building, tent or vessel used as a human dwelling or in any building which is used as a place for custody of property (Section 442 IPC). This offence is in turn defined in terms of the offence of 'Criminal trespass' that is provided for under Section 441 IPC.
Section 441 IPC is reproduced hereunder for the ease of reference:
"441. Criminal trespass.- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
(b) Secondly, the accused persons have been charged with the offence under Section 323 IPC, which prescribes the punishment for the offence of 'voluntarily causing hurt'. The offence of 'voluntarily causing hurt' has been defined u/s 321 IPC which reads as below:
"321. Voluntarily causing hurt. - Whoever does any act CT Cases 2035324/2016 PS Mehrauli Page No.16 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:56:56 +0530 with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said voluntarily to cause hurt."
(c) Additionally, the accused has been charged with section 341 IPC which prescribes the punishment for wrongful restraint. The offence of 'wrongful restraint' is defined u/s 339 IPC which reads as below:
"339. Wrongful restraint. - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person."
32. The offence u/s 452 IPC has been defined in terms of offence under Section 442 IPC. In order to constitute an offence under Section 452 IPC, it needs to be necessarily determined whether: (i) the property in question was in the possession of the complainant/victim; (ii) whether such property in possession was a building, tent or vessel used as a human dwelling or a place of worship or a place used for the custody of property; (iii) whether the accused persons entered into such property or remained in such property; (iv) whether the accused persons did so with an intent to intimidate, insult or annoy the complainant/victim or to commit any offence; (v) whether the accused persons did so having made preparation for causing hurt to any person / assaulting any person / wrongfully restraining any person /putting any person in fear of hurt, assault or wrongful restraint. All the aforesaid ingredients must be met for constituting the offence under Section 452 IPC.
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33. The genesis of this case was the filing of a criminal complaint u/s 200 CrPC r/w Section 156(3) CrPC by the complainant against the accused persons i.e. Ex. PW-1/A. In the complaint, the complainant has stated that the accused persons forcibly entered his house on 02.11.2009 at about 06.00 PM and beat him with 'kicks and blows'.
34. Upon a bare perusal of testimonies of PW1 / Pushpanand, PW5 / Savitri Devi and PW6 / Gayatri, it is noted that all the witnesses have consistently deposed that PW1 / complainant was residing at House No. 26, Gali no. 1, Neb Sarai, New Delhi as on 31.10.2009. In fact, when accused Santosh Gautam deposed before the court as DW1, she admitted that: "On 30.10.2009, Pushpanand met with an accident. That point of time, I along-with Pushpanand and the family used to stay at New Delhi i.e. Neb Sarai". She had further deposed that: "On 01.11.2009, no beating up of the complainant or any other criminal act took place. Only my brother and my mausi came to my house for knowing about the health of Pushpanand after his accident. Pushpanand had left the house on that day and did not return. I had made a phone call at 100 number after he left the house. I have been staying at that house ever since that day." Hence, the factum of possession of the complainant at the aforesaid H. No. 26 as on the date of the incident i.e. stands confirmed, not just based on the testimony of prosecution witnesses, but also based on the admission of the accused Santosh herself.
35. PW1 / Pushpanand has stated in his deposition dated 24.03.2014 that: " On next day i.e. 01.11.2009 at about 5.00 PM accused Santosh, Ram, Dayal, Sohan Lal (present in court today, correctly identified) along with two ladies whose name I do CT Cases 2035324/2016 PS Mehrauli Page No.18 of 30 AMAN Digitally signed by AMAN KUMAR SHARMA KUMAR Date: 2025.04.09 SHARMA 16:57:06 +0530 not know came at my house. At that time main gate of my house my opened and I was lying on the bed which was situated in front of the door. As soon as I saw the accused at the door of my house, I requested them not to enter in my house. But the accused persons did not pay attention to my request and forcibly enter in my house. Accused Sohan Lal pushed me and accused Santosh abused me. Due to push by the accused Sohan Lal, I myself dashed against the wall. Accused Ram Dayal also accompanied with two accused persons. All the accused persons threatened me that "tu kal ka suraj nahi dekh payega aur tumhare poore khandan ka satyansah kar dunga". It is noted that PW1 / complainant has correctly identified all three accused persons in open court.
36. PW5 / Savitri Devi has stated in her deposition that: "Santosh i.e. widow of my younger brother namely Mahender along with some other persons came to the house of Pushpanand Gautam it was evening hours. Santosh was trying to come inside the house of my brother Pushpanand Gautam. But my brother Pushpanand did not allow them to enter inside. But accused Santosh along with her brother forcefully entered inside. Accused Santosh held collar of my brother Pushpanand and slapped him and threatened my brother that if he will not leave the house with his children then she will kill my brother Pushpanand and his family ." PW5 has corroborated the version of PW1 and correctly identified the accused persons.
37. PW6 / Gayatri has stated in her deposition that: " In the evening time at about 5-6 pm, accused Santosh (accused present in court today, correctly identified by the witness) came to my brother's house. She banged the door and my brother opened it. She pushed my brother and tried to enter. My brother fell down. Accused gave CT Cases 2035324/2016 PS Mehrauli Page No.19 of 30 AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:57:10 +0530 beatings to my brother and entered the house. I was inside the house. " When Ld. APP for the State cross examined PW6, she revealed that accused Santosh came to the house of the complainant along-with other family members including the co- accused persons.
38. It is, thus, the case of the State as discernible from the testimony of PW 1 and corroborated by the testimony of PW 5 and PW6 that the three accused persons (along-with some other unknown persons) had jointly entered the house of the complainant in an aggressive and forceful manner after having made preparation for causing hurt to the complainant / assaulting the complainant.
39. Statement of the accused Santosh Gautam was recorded under section 313 CrPC wherein she had stated: "I was married to Pushpanad Gautam and I am his second wife. His first wife Sunita Gautam had expired on 22.07.2007 and I married Pushpanand Gautam in the same year and I have been residing at the aforementioned house since my marriage, and I am residing at the same house till date. He married for the third time during subsistence of my marriage with him in the year 2009 and I had filed a case against him for injunction against the third marriage. He went against my wishes and got married for the third time with his third wife namely Rajni. He met with an accident in 2009 and I was at my in-laws house at Jewar but hearing about his accident, I came back. Rajni was at my matrimonial home in Neb Sarai and no incident as has been reported in the present FIR had occurred and me, my brother and father have been falsely implicated in this case by husband Pushpanand Gautam due to his own insecurities."
40. Statement of the accused Ram Dayal was recorded under section 313 CrPC CT Cases 2035324/2016 PS Mehrauli Page No.20 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:57:14 +0530 wherein he had stated: "My daughter Santosh Gautam is married to Pushpanand Gautam and he married for the third time during the subsistence of his marriage with my daughter and to their matrimonial disputes, me, my daughter and my son have been falsely implicated in this case."
41. Statement of the accused Sohan Lal was recorded under section 313 CrPC wherein he had stated: "My sister Santosh Gautam is married to Pushpanand Gautam, and he married for the third time during the subsistence of his marriage with my sister and to their matrimonial disputes, me, my sister and my father have been falsely implicated in this case."
42. It is thus case of the accused persons that the accused, Santosh Gautam got married to the complainant in the year 2007 and had been residing with him since. In 2009, the complainant had met with an accident, while she was at her in-law's house at Jewar but hearing about the incident, she came back. She has further stated that no offence as alleged by the complainant had ever occurred.
43. The accused Santosh Gautam also got herself examined as DW1 during defence evidence. She has stated that she was married to one Mahender Gautam and the present complainant was her Jeth. Mahender Gautam expired on 23.12.2006 and wife of complainant Pushpanand also expired on 22.07.2007. Since both Santosh and Pushpanand had children born out of wedlock with their respective deceased spouses, it became increasingly difficult for them to raise their children. Hence, it is stated, the family members got the accused married with complainant Pushpanand. She has further deposed that her marriage with Pushpanand was solemnized as per village customs on 02.12.2007, after which she CT Cases 2035324/2016 PS Mehrauli Page No.21 of 30 AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:57:18 +0530 started residing and cohabiting with Pushpanand in the same manner as husband and wife. She stated that at that point of time, she along with Pushpanand used to stay at New Delhi i.e. at Neb Sarai. DW1 / Santosh has further stated that there were talks in the family of Pushpanand qua proposed marriage of the complainant with one Rajani. It has been deposed that accused Santosh filed a case before a court at Aligarh for stopping the marriage of Pushpanand with Rajani which was dismissed.
44. DW1 has however stated that upon dismissal, she went in appeal to the District Court at Aligarh wherein the District Court declared her marriage with Pushpanand to be valid. For this purpose, the accused has placed on record the judgment of the Ld. Additional District Judge-02, Aligarh dated 14.08.2013 and the same has been exhibited as Ex. DW1/A. The said judgment dated 14.08.2013 has been perused. From the judgment itself, it can be noted that address of the plaintiff therein (i.e. DW1/ accused herein) has been provided as: 'Nagla Kalar, Bank Colony, Nayi Abadi, Shahar Kol, Aligarh'. Ld. Additional District Judge-02 has noted in the judgment that the plaintiff/accused no. 1 herein has been staying with her brother ever since she was ousted by her alleged husband i.e. the present complainant around 15 days back prior to the filing of the present suit. It is thus clear from a conjoint reading of the statement of the accused, Santosh Gautam recorded under section 313 CrPC and the observations of the Ld. Additional District Judge-02 in the judgment, Ex. DW1/A as regards the possession of accused at the property in question that as on the date of the incident i.e. 02.11.2009 she was not residing at the property immediately prior to it.
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Digitally signed by
AMAN AMAN KUMAR
KUMAR SHARMA
Date: 2025.04.09
SHARMA 16:57:23 +0530
45. To establish the offence of criminal trespass, it must be established by the prosecution that the entry into the property by the accused was with an intention to commit an offence, or insult, intimidate or annoy the occupant. Vide the said judgment dated 14.08.2013, Ex. DW1/A Ld. Additional District Judge-02, Aligarh has finally set aside the earlier judgment/ decree dated 31.01.2013 and declared the marriage between the complainant and Rajani as null and void. Vide the same judgment, the complainant was restrained by the Ld. Additional District Judge-02 from marrying again while remaining legally married to accused Santosh. It has thus been contended by the defence that the accused was well within her right to enter the house of the complainant, being his legally wedded wife. Section 17 of the Protection of Women from Domestic Violence Act, 2005 provides that every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she had any right, title or beneficial interest in the same. The status of the accused, Santosh Gautam as legally married wife of the complainant has been declared by a court of competent civil jurisdiction vide judgement, Ex. DW1/A, which is relevant under section 41 of the Indian Evidence Act, 1872. Further perusal of the judgment, Ex. DW1/A reflects that the Ld. Appellate court at page 15 of the judgment has categorically observed that the plaintiff / accused, Santosh Gautam herein has been able to establish that she was residing at the complainant's house situated at Neb Sarai along with her children. Having regard to the findings given by the Ld. Additional District Judge-02, Aligarh Civil Appeal bearing no. 22/2013 as regards the prior possession of the accused, Satosh Gautam at the complainant's house situated at Neb Sarai, Delhi, this court finds that the intention of the accused, Santosh Gautam while entering the CT Cases 2035324/2016 PS Mehrauli Page No.23 of 30 AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:57:27 +0530 house of the complainant on 02.11.2009 was with an intent to commit an offence, or insult, intimidate or annoy the occupant therein cannot be imputed. The backdrop of the aforesaid finding is that the accused, Santosh Gautam had entered the complainant's house under the Bonafide belief that she is his legally married wife, and the legal status finds force from the judgement, Ex. DW1/A exhibited in evidence by her. Further, the charge of criminal trespass as against the other accused persons namely, Sohan Lal and Ram Dayal who are also stated to have entered the property of the complainant not with an intention to commit an offene or insult or intimidate him but under the Bonafide belief that they are his brother- in-law and father-in-law, respectively, therefore the offence of criminal trespass does not stand prove. Accused persons are accordingly acquitted for the offence under Section 452 IPC.
46. The second offence with which the accused persons have been charged with is Section 323 IPC, which prescribes the punishment for the offence of 'voluntarily causing hurt'. At the outset, an offence under Section 323 IPC is invoked when a person voluntarily causes hurt to another, i.e. he does any such act with the intention of causing hurt or with the knowledge that he is likely to cause hurt. The other person is said to have been 'hurt' when the act of the first person causes bodily pain, disease or infirmity to the other person. Hence, it is required to be proved in the present case that the accused persons voluntarily caused hurt to the complainant on 02.11.2009.
47. In the complaint, the complainant has stated that the accused persons forcibly entered his house on 02.11.2009 at about 06.00 PM and when he had tried to stop CT Cases 2035324/2016 PS Mehrauli Page No.24 of 30 AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:57:32 +0530 them, accused no. 2 and 3, Sh. Ram Dayal and Sohan Lal had caught him and beat him with 'kicks and blows'. In his examination in chief, the complainant / PW1 had stated that the accused Sohan Lal had pushed him in a manner that he got dashed against the wall. It was in the cross-examination of the complainant / PW1 that a specific question was put to him by the Ld. defence counsel, to which PW1 responded clearly by stating that he had sustained injury on his collar bone. He explained in the cross examination that he was indeed medically examined after the incident but could not attach the MLC on the record due to some disturbance. He has clarified that he was medically examined at the AIIMS Trauma Centre on 31.10.2009. At this stage, it is pertinent to observe that the date of incident as alleged by the complainant is 02.11.2009, therefore, his statement that he got his medical examination done on 31.10.2009 at AIIMS in relation to an injury suffered on his collar bone does not have bearing in this case as the same is related to the date of the incident.
48. The other eyewitnesses of the incident are PW5 / Savitri and PW6 / Gayatri. PW5 has unequivocally testified: "Accused Santosh held collar of my brother Pushpanand and slapped him..". PW6 has also confirmed and corroborated that the accused persons pushed her brother and gave beatings to her brother (i.e. the complainant). When Ld. APP cross examined the witness PW6, she confirmed that the accused had caught hold of the gireban /neck of her brother and slapped her brother.
49. For the purpose of proving an offence under Section 323 IPC, it merely needs to be shown that the accused persons have voluntarily caused hurt to the CT Cases 2035324/2016 PS Mehrauli Page No.25 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA SHARMA Date: 2025.04.09 16:57:36 +0530 victim i.e. caused bodily pain, disease or infirmity to the victim. In the present case, the testimonies of PW1, PW5 and PW6 are consistent and corroborative qua the beating up / pushing around of the complainant by the accused persons. The offence under Section 323 IPC thus stands proved and the accused persons are convicted of the offence u/s 323/34 IPC.
50. The remaining offences with which the accused persons have been charged are offences under Section 341 IPC i.e. 'wrongful restraint' and the offence u/s 506- II of IPC i.e. the offence of 'Criminal Intimidation'. Section 503 IPC defines the offence of 'Criminal Intimidation' and Section 506 IPC provides the punishment for the offence in the following manner -
503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intim- idation. Explanation. --A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
506. Punishment for criminal intimidation.--Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
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51. Upon considering the bare provisions of IPC, it is also pertinent to give due regard to the judicial pronouncements covering the offence of criminal intimidation. In the judgment rendered in ' Dr. Subramanian Swamy v. C. Pushpraj , 1988', the Hon. Madras High Court has delineated the essential ingredient of 'criminal intimidation' in the following manner-
"Part II of Sec. 506, IPC is attracted if the criminal intimidation includes threat to cause death or grievous hurt. Mere outburst is not sufficient to hold that it would fall within the mischief of Sec. 506, IPC. In the instant case, the averment in the complaint and the statements in the depositions, if taken together, there are no allegations in the whole complaint that the petitioner ever made any attempt or did any act in pursuance of his alleged expression. So also, the actual words used or supposed to have been used by the petitioner is not stated either in the complaint or in the depositions. Regarding criminal intimidation to whom it was intended, whether alarm was caused, it so, what are the actual words employed are not stated either in the complaint or in the depositions. In the absence of these averments touching the ingredients, mere mentioning of sections and putting a person to face the trial is nothing but the abuse of the process of the Court." (emphasis supplied)
52. Thus, causing of an alarm is an essential ingredient in constitution of an offence of criminal intimidation and the same must be seen in the light of the actual words that are employed. Such words must be stated by the complainant in the complaint or in the depositions. A mere use of words or a mere threat would not constitute an offence under the purview of Section 506, IPC and the actual causation of 'alarm' must be proved. The aforesaid view has been supported by judgment of Hon. High Court of Delhi in 'Kanshi Ram v. State, 2000 (86) DLT
609.
53. In the case in hand, the complainant had stated in the original complaint Ex. CT Cases 2035324/2016 PS Mehrauli Page No.27 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA SHARMA Date: 2025.04.09 16:57:45 +0530 PW1/A that all accused persons forcibly entered his house. When complainant tried to stop them, they 'caught hold of the complainant' and then abused him by stating:
"Kameene tu hamein rokega, teri to haddi pasli ek kar denge ". It is stated that they also threatened the complainant that they shall kill him and his children. When the complainant was examined before the court, he reiterated that accused persons threatened him by stating: "tu kal ka suraj nahi dekh payega aur tumhare poore khandan ka satyanash kar dunga". PW5/ Savitri Devi has corroborated that accused held the collar of her brother (i.e. the complainant) and slapped him. PW5 and PW6 / Gaytri have both confirmed and corroborated that the accused persons threatened the complainant that if he does not leave the house, they will kill him and his children.
54. The causation of alarm to the complainant can be gauged by the fact that he was forced to flee his house immediately after the incident out of fear of the accused persons. PW1/ complainant has categorically stated: "I became afraid and left my house alongwith my two children at the same time at about 8:00 PM. Accused Sohan Lal followed me till our arrival at the main road and returned back when I hired auto-rickshaw for Madangir, New Delhi." On the very next day, he approached the police for reporting the crimes.
55. PW5 has stated in her deposition: "Then my brother Pushpanand alongwith his children left the house on that very evening itself. " PW6 has also confirmed in her deposition that her brother (i.e. the complainant) left the house. In fact, accused Santosh/ DW1 has also admitted in her own deposition that the complainant had left the house on the very same day upon which she made a complaint before the CT Cases 2035324/2016 PS Mehrauli Page No.28 of 30 Digitally signed AMAN by AMAN KUMAR KUMAR SHARMA SHARMA Date: 2025.04.09 16:57:50 +0530 police. There is overwhelming evidence available on record which proves that the accused persons held up the complainant and then threatened him and his children with their lives, as a result of which he was forced to flee the house alongwith his children. The accused persons are therefore convicted for the offences under Sections 341/506(II)/34 IPC as well.
56. Ld. counsel for accused persons had raised an issue with respect to the delay in filing the complaint by the complainant as regards the incident in issue. As per the complaint, the complainant had written a written complaint to SHO, PS Mehrauli, DCP, South and Commissioner of Police on 08.11.2009 i.e. 6 days after the date of incident. The complainant as PW1 had deposed that : he became afraid and had left his house alongwith his two children at about 8:00 PM which has been corroborated by the testimony of PW5 and PW6. The complainant was thus terrified with the incident in issue and that possibly explains the delay in filing the present complaint. Moreover, the delay in initiation of the criminal prosecution by the complainant is not exorbitant.
56. It is the cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. However, once all the ingredients constituting an offence have been duly proved and the chain of incriminating evidence is made complete, the guilt of the accused is established and CT Cases 2035324/2016 PS Mehrauli Page No.29 of 30 AMAN Digitally signed by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:57:54 +0530 he may be convicted for the offence.
57. In view of the observations and discussions undertaken above and in light of the appreciation of evidence available on record, this Court is of the conclusion that the prosecution has been successful in proving the offences under Sections 323/341/506(II)/34 against the accused persons. Accordingly, the accused persons Santosh Gautam, Sohan Lal and Ram Dayal are convicted of the offences under Sections 323/341/506(II)/34 IPC.
58. Let the accused persons be heard on the point of sentence on the NDOH.
Digitally signed by AMAN AMAN KUMAR
KUMAR SHARMA
Date: 2025.04.09
SHARMA 16:57:57 +0530
Announced in Open Court (AMAN KUMAR SHARMA)
on 09.04.2025 JMFC-05, South District/09.04.2025
Certified that this judgment contains 30 pages and bears my signatures at each page.
Digitally signedAMAN by AMAN KUMAR KUMAR SHARMA Date: 2025.04.09 SHARMA 16:58:01 +0530 (AMAN KUMAR SHARMA) JMFC-05, South District/09.04.2025 CT Cases 2035324/2016 PS Mehrauli Page No.30 of 30