Delhi District Court
Kishan Lal Wadhwa vs Rattan Lal on 20 August, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW
DELHI.
CC No.: 427835/2016
PS: Najafgarh
U/s: 279/304A IPC
Case no. 6068/2021
Sh. Kishan Lal Wadhwa
S/o Late Behari Lal
R/o shop No. 43-44, Main Bazar,
Najafgarh, New Delhi-43. ............ Complainant
versus
Sh. Rattan Lal,
S/o Late Behari Lal,
R/o H. No. 1336, Gali Sunnarowali,
Najafgarh, New Delhi. ............ Accused
S. No. of the case : 427835/2016
The date of offence : 07.06.2020
The name of the complainant : Kamal Kumar
The name of the accused : Balbir Singh
The offence complained : 327/448 IPC
The plea of the accused : Pleaded not guilty
Argument heard on : 20.08.2024
The date of order : 20.08.2024
The final order : Acquittal for offence u/s 448 IPC and
conviction for offence u/s 323 IPC
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Brief Facts
1. Tersely put, it is the case of the complainant that on the 2 nd day of February of the year 2004, he was sitting in his shop No 44, 44A and 43 and at around 5 pm both his brothers i.e. accused person namely Shyam Lal and Rattan Lal came and demanded Rs 10,000/- from him. That on his refusal to give the same they gave him beatings by entering the shop and he suffered injuries on his face, eye and ear. That he made a call at 100 number and PCR van came and took him along with both the accused to the PS. That he was then taken to Surya Nursing home and from there he was referred to Mata Chanan Devi Hospital where he was discharged on 10.02.2004.
2. The complainant led his pre-summoning evidence. He examined himself as CW 1 on 02.08.2006, Smt Varsha as CW 2 on 05.10.2006, Sh Manoj Dhingra as CW 3 and Sh. Suresh Kumar was CW 4 on 20.02.2007.
3. The accused persons Shyam Lal and Rattan Lal were then summoned vide order dated 01.06.2007 for offences punishable under Section 327/448/406/34 IPC. Accused Ratan Lal got expired and proceedings against him stood abated vide order dated 03.07.2008.
4. Since the offence for which the accused persons were summoned were warrant case instituted otherwise than on police report, the present case was proceeded at the stage of pre-charge evidence in terms of Sunil Mehta & Anr vs State of Gujarat & Anr AIR Online 2013 SC 381.
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5. The complainant led his pre-charge evidence. He examined himself as CW 1 and was examined in chief on 19.09.2011, further examined in chief, cross examined and discharged on 14.05.2012 and 04.08.2016. Smt Varsha was examined in chief, cross-examined and discharged on 05.09.2016. Sh Manoj Dhingra was examined in chief as CW 3 on 09.05.2011 and Sh Suresh Kumar was examined in chief as CW 4 on 09.05.2011. Repeated opportunities were granted to the accused to cross examine CW 3 and CW4, however, the same was not availed by the accused, thus, his right to cross-examine CW 3 and CW4 was thereby closed.
6. The pre-charge evidence stood closed vide order dated 03.01.2017 and vide order dated 27.02.2017 Charges under Section 327/448 IPC were framed against the accused Shyam Lal.
7. The complainant, thereafter, led his post-charge evidence. Inadvertently, during the course of trial at the stage of post charge evidence, the complainant as well as Manoj Dhingra were noted as CW1. Thus, for clarity and to avoid any confusion qua the testimonies of complainant witnesses, complainant is CW1 and Manoj Dhingra is CW 4. Smt. Varsha was examined as CW 2 and Suresh Kumar as CW 3.
8. CW 1 i.e. complainant, in his examination in chief dated 22.07.2017 stated that on 02.02.2004 he was sitting at his shop No 44,44A and 43 at around 5 pm, both the brothers namely Shyam Lal and Rattan Lal came and demanded Rs 10,000/- from him. There were three other persons with them. He refused to given them the amount of Rs 10,000/-. On his refusal, they started threatening him and also started giving him beatings by entering the counter. They pulled him from his collar. He received injuries on his face, hand, chest and on head. They threw him on the staircase outside the shop. He made a call at 100 number and at around 5.45 pm CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 3 of 30 PCR van came. He and his both brothers were taken to PS. He became unconscious in the PS and thereafter was taken to Surya Nursing Home. There his wife and brother-in-law came. From there he was referred to Mata Chanan Devi Hospital. He was discharged on the next day in the evening on 10.02.2002. On 12.02.2004 he again felt uneasiness and thereafter he went to Rao Tula Ram Hospital Jaffapur in emergency and was discharged on the same day in the evening.
9. The CW 1 was cross examined on 22.07.2017 and 05.08.2017.
10. In his cross-examination CW 1 dated 22.07.2017, stated that they are four brothers and three sisters. His two brothers have expired namely Roshan Lal and Rattan Lal. Rattan Lal was suffering from cancer. But he cannot say how Roshan Lal had expired. One civil suit was filed by the accused which was dismissed. (Voluntarily. An application has been filed by the accused for reopening.) One more other civil suit is pending between them. He cannot say whether Roshan Lal expired because of burn injuries. Shop No 44 & 44A were purchased in the year 1998. He denied the suggestion that the accused had 75% share in the shop No 44 & 44A. His father had vegetable shop and both the brothers used to sit on that shop. The civil disputes are pending since 2004. As per his knowledge the civil suit has been filed for demolishing the shop. On the day of incident, he was sitting in Shop No 44. There is no basement in Shop No 43. He denied the suggestion that there is basement in Shop No 43. (Vol. The date of incident is 09.02.2004.) There are two steps/stairs inside Shop NO 43. The stairs are after 12 feet. He do not remember whether on 09.02.2004 he had made any written complaint to the police. In the PS only him and his two brothers had gone. They reached the PS within 5 minutes. His wife had told him that he is admitted in Surya Nursing Home.
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11. He further stated that police had taken him to Surya Nursing Home in PCR Van. He remained in Surya Nursing Home for 1 to 1.5 hrs. Thereafter, he was taken to Mata Chanan Devi Hospital in Police van. Again said, in Ambulance. He did not make any written complaint as he was admitted in Chanan Devi Hospital. He was discharged on 10.02.2004 in the evening. He do not know whether his sister in law works in Rao Tula Ram Hospital, Jaffarpur. He is not having visiting terms with her since the beginning. He cannot say whether she was working in the year 2004. He denied the suggestion that he is deliberately not giving answer that his sister in law was working in Rao Tula Ram Hospital.
12. In his cross examination dated 05.08.2017, CW 1 stated that he do not know what is valentine day, but it is celebrated on 14 th February. He never celebrated Valentine Day. He do not know whether accused had ever celebrated Valentine Day. He have never given money for Valentine Day prior to the incident. Vol. They used to take money from him but for what purpose they used to take. He was born in 1959 and accused was born in 1963 and rattan lal was born in 1961. The age of his children was 11 yr and 10 yrs in the year 2004. He do not remember the age of children of Rattan Lal in the year 2004. He denied that children of Rattan Lal were of the same age as the age of his children in 2004. Prior to 2004, litigation between them was not started. He do not know whether any family settlement took place with respect to the shop. He had transferred Shop No 44 and 44A in 2004 in the name of his brothers. The shop was got by him in forced circumstances. He had never made any complaint regarding the forced transfer. He affirmed that transfer was effected through a valid transfer document. He also affirmed that he have not challenged such transfer. He denied that pursuant to any alleged family settlement the transfer took place. He also denied that accused had not demanded sum of CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 5 of 30 Rs 10,000/- for the celebration of Valentine Day. He do not know whether Ratan lal was weighing 100 kgs. Vol. He was about 80 kg and heavy weight.
13. He further affirmed that shops are located in busy locality of Najafgarh. He made call to the police at around 5 pm through his mobile phone. He do not know from whom the inquiry was made. Vol. When police came accused were beating him and two/three accomplices of accused ran away. He had seen those two/three accomplices only for the first time. He had made police complaint against those two/three persons. Again said. He had not made any complaint against those two/three persons. Vol. He had told to the police about two/three persons at the spot, thereafter, he went to PS where he became unconscious. He do not remember whether he had given any written complaint against those two/three persons. He do not remember when he had given complaint in writing against his two brothers to police. He cannot admit or deny whether till date he had not given any written complaint against his brothers and against two/three persons.
14. CW 2 Smt Varsha adopted her pre-charge evidence recorded on 05.09.2016 wherein she stated that on 09.02.2004 at about 5/5.15 pm he went on the shop No 43 & 44 to give tea to her husband where quarrel had taken place between Kishan Lal, Shyam Lal, Rattan Lal and two/three more persons. Shyam Lal and Rattan Lal were beating her husband, Kishan Lal. Along with them one or two more persons were also beating. Her husband made a call at 100 number. These persons had thrown his husband from the counter because of which her husband became unconscious. PCR Van came and they called the officials of PS Najafgarh and they took her husband, Shyam Lal and Rattan Lal to PS. Those unknown persons ran away from the spot. She reached at Surya Nursing Home along with his brother as huer husbands health had deteriorated in the PS. Her husband CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 6 of 30 was referred to Mata Chanan Devi Hospital. He regained consciousness on 10.02.2004 and was discharged in the evening of 10.02.2004. He was kept in emergency during his stay. On 12.02.2004 the health of her husband again deteriorated and he again took him to RTR Hospital and was discharged in the evening.
15. In her post-charge cross examination CW-2 stated that she do not remember the exact time when her husband made call at 100 number but he made the call at the time of quarrel. At the time of incident there were counters at the shop of her husband as well as at the shop of her brother in law. Counters were towards the entry of the shop (on the road side). At the time of the incident no stairs were required to enter the shop. She affirmed that the location of the counter was inside the shop at the time of the alleged incident. She affirmed that Rattan Lal was heavier in weight from both complainant and Shyam Lal. She do not know whether rattan lal was having heart problem and could not walk properly. Her husband regained conscious at the shop itself. She had not gone to the PS. She do not know how many people had gone to the PS, therefore, she cannot tell as to how they had gone. She was present when her husband was referred to Mata Channa Devi Hospital. She do not remember as to who all had accompanied her in Surya Kiran Nursing Home because of the commotion. She had gone in rickshaw to Surya Kiran Nursing Home. She affirmed that her sister is working in RTR hospital but she do not remember at what post she was working at that time. On 12.02.2004 they had gone to RTR Hospital. She had not told regarding the identity of two persons who had run away as she do not know them. She never went to the PS. She denied that no such incident happened.
16. CW 2 further in her cross examination stated that Sho No 43 and 44 were of Krishan Lal Wadhwa on the date of the alleged incident. She do not CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 7 of 30 remember to whom shop no. 44A belonged on the date of incident. She affirmed that Krishan Lal Wadhwa, Rattan Lal Wadhwa and Shyam Lal Wadhwa used to jointly own and run the operations of all these shops i.e. Shop no 43, 44 and 44A. She do not remember whether any compromise took place regarding Shop No 5 Bhagat Singh Market near Health Centre. She do not have any knowledge whether all the three brothers entered into compromise regarding their properties. She do not remember what was she doing in the evening of 09.02.2004. She do not remember whether she met her brother Manoj Dhingra on the date of incident i.e. 09.02.2004. She denied that complaint given by her husband on 09.02.2004 is completely false and frivolous. She affirmed that she had seen this incident. She do not remember what she did when the alleged incident was happening. She denied that she did not do anything as she was not present at the place of incident.
17. Sh. Suresh Kumar was examined in chief and cross examined as CW 4 on 30.10.2018. He stated that in month of February 2004 a quarrel took place , he was going in the front of the shop of Krishan Lal Wadhwa. He saw three to four persons were beating Krishan Lal Wadhwa, out of them two were his brothers. Matter was reported to the police. His shop is also near the shop of Krishan Lal Wadhwa. Thereafter, he left the spot.
18. In his cross-examination CW 3 stated that he is 12 th pass. He is running shop of garments. The distance between his shop and shop of complainant is about 500-700 mts. The shop of the complainant is situated at Jawahar Chowk (at the very corner). He knew the complainant for the last around 30 yrs. They used to visit each other shop. He knew that the complainant and the accused are brothers. He do not know whether any civil dispute is pending between them. The incident took place on 9 th Feb 2004. The time was about 5-6 pm. At the time of incident he was going to his home from CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 8 of 30 the shop. He used to open his shop daily at 9 am and used to close at about 9 pm. His children used to sit at the shop with him. He affirmed that quarrel was happening inside the shop. Again said, at the gate of the shop. Again said, the incident happened between the road and gate of the shop. He affirmed that quarrel was happening between the complainant and the accused. At the time of incident, there were 25-30 people gathered. He left the spot during the quarrel itself. He is not aware what was the reason of the quarrel. He did not see any police official at the spot. There were four persons beating the complainant. Vol. two of them were brother of the complainant and two were unknown person. He affirmed that shop of the accused was adjoining with the shop of the complainant. He did not see any family member of the complainant at the time of quarrel. He used to go to his shop from home by entering Delhi Darwaja. Again said, he used to go to his shop to home via Jawahar Chowk. He affirmed that he used to go to his house via Delhi Darwaja. His shop is on the way after Jawahar chowk. He affirmed that he have come to depose before the court with the complainant in his car. He denied that complainant told him what to depose before the court. He denied that prior today, several time the complainant told him about the facts to depose before the Court. He affirmed that to remember the year of incident, same has been written by him on his hand today itself. Vol. The same is written in his diary. He was standing in front of the shop of the complainant. He was ahead of people gathered there at that time. He denied that he had not seen any such incident or that no such quarrel ever took place in his presence.
19. Sh. Manoj Dhingra was examined as CW 4. He adopted his examination in chief dated 09.05.2011 in his post charge evidence. In his examination in chief he stated that on 09.02.2004 at about 5.30 pm, he was crossing the Jawahar Chawk Main Market Najafgarh and at one of the shop at Jawahar CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 9 of 30 Chowk, namely, Wadhwa Garments which belongs to the complainant, he was a big gathering where he had seen that accused no 1 and 2 and two other persons threw the complainant on the stair/floor of the shop. They had caught the complainant from his neck and legs. Complainant became unconscious and PCR came at the spot after about 10 minutes. In the meantime, two other persons ran away from the spot. The police then took the complainant and accused no 1 and 2 to the PS Najafgarh where again the complainant felt unconscious. He was then taken to Surya Kiran Hospital Najafgarh. After administering the first aid, the complainant was referred to Mata Chanan Devi Hospital where he was admitted in emergency. He was discharged after 1 ½ days on 10.02.2004 when he regained his consciousness.
20. In his cross examination CW 4 stated that complainant is his brother in law. He was having business of tyres. Shyam Lal is brother of accused. He do not remember the exact date when the brother of the complainant and accused had expired. He had expired prior to the marriage of his sister. He cannot say since when complainant has been residing separately from his brothers. He also cannot say the year since when the complainant is residing separately. He denied that they were residing separately since 2004. He denied that he is deliberately not telling the Court since when his brother in law is residing separately. He denied that for the last 10-15 years his brother-in-law is residing separately. He cannot say whether the mother of the accused was residing with him till the time of her death. Vol. there were separate rooms in which all of them were residing separately. The house was consisting of 4 to 5 rooms. He do not know when he had visited the said house lastly. His brother in law as well as the accused are having shop of garments. Earlier they were having shops in the same premises till 2004. They separated after the incident. He do not know why the quarrel CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 10 of 30 had taken place as it is their family matter. He affirmed that settlement was arrived at after the incident. He do not know anything about the settlement arrived at between the complainant and the accused. He came to know later on that the shop in which the complainant was doing business was in the joint names of three brothers. He do not know that on 06.05.1988 one shop was purchased jointly in the name of the accused and his brother in law and another shop was also purchased in the name of Rattan Lal. Accused and complainant have three sisters. He do not know whether the civil suits are pending between the complainant and the accused with respect to the wall of the shop since 2004. He is a graduate. At the time of the incident he was residing at 839 Najafgarh and was doing the business of tyres at Jharoda Bus Stand. He do not remember when he had visited the shop of the complainant as well as the accused prior to the accident.
21. CW 4 further stated that the accused shop is situated at Jawahar Chowk. He knew lot many people from the market. He do not know anybody who is having the shops adjacent to the shops of the complainant as well as the accused. If they are standing at Jawahar Chowk, then the first shop which is visible is of the complainant. He denied that the first shop from Jawahar Chowk is not of the complainant. The distance between Jawahar Chowk and the shop is about 10 mtrs. He affirmed that for going from his house in Najafgarh to his shop it was not required to go through the Jawahar Chowk. Vol. As the shop and house are located close by. If they had to go to the market, they had to cross Jawahar Chowk/Shop of his brother-in- law. At the time of the incident, if they are standing on the stairs the floor of the shop was visible. There were only one/two stairs to enter the shop. At the time of incident, there was only one shop in which his brother in law used to sit. He do not know whether at the time of incident accused Shyam Lal was doing business from a different shop or not. He cannot CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 11 of 30 admit or deny whether accused Shyam Lal was doing business from a different shop at the time of incident. He was on foot when he was crossing the shop. There were about 25/30 people. As per his understanding/knowledge till today he know that his brother in law had made a call at 100 number. He affirmed that he had not made call at 100 number. He had gone to PS on 09.02.2004. PCR van had taken his brother in law to PS and thereafter he was taken to Surya Kiran Nursing Home. He remained in PS for about 10/15 minutes. Before they went to Hospital, he did not make any written complaint. He also accompanied the police officials and went to hospital either on his bike or car as he do not recollect. Complainant was referred to Mata Chanan Devi Hospital. He also went to that hospital. He was kept in emergency. On that day he was not taken to any other hospital. He was discharged on 10.02.2024. He do not know how many times he has visited the hospital after 10.02.2004. He do not know in which hospital one of his sister namely Geeta was working at the time of incident. He affirmed that his sister Geeta was working in Govt Hospital. He denied that he is deliberately not telling the Court that his sister Geeta was working in RTR Hospital as nursing Assistant. He do not remember who all accompanied his brother in law in PCR Van. Police had taken all two brothers Rattan lal and Shyam lal to PS.
22. CW 4 further stated that he do not know whether any kalandra was prepared by the police officials of Najafgarh with regard to the incident dated 09.02.2004. He do not know whether any Kalandra was prepared by police officials pursuant to various complaints made by his brother in law and accused. He do not remember whether anybody else had accompanied him in his car to the Hospital. He do not know whether any complaint in writing was made by his brother in law in the PS with regard to incident in question. He do not know whether any FIR was registered against the CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 12 of 30 accused persons with regard to the incident in question. He had personally not made any complaint in the PS regarding the incident. His brother in law was unconscious in the PS and his health deteriorated in PS. In his presence police officials had not recorded the details of public persons who were present at the spot. He denied that from Jawahar Chowk if any quarrel takes place at the shop of his brother in law, the same would not be visible. He affirmed that there were lot of public persons near the shop. Vol. There are more persons at the time of season. He affirmed that shop is situated in a very old market. He denied that because of projections, he was not able to witness the incident. He affirmed that Ex CW1/DX1 is photograph of the shop but he cannot say whether on the date of incident the shop was in the same condition as shown in the photograph. He affirmed that Ex CW1/DX2 is the photograph of the shops of complainant and accused but the conditions of the shop were not the same in the year 2004. He denied that he is deposing falsely as he is the brother-in-law of the complainant. He denied that the incident never happened in his presence or that he did not visit the PS or the hospital.
23. The complainant, thereafter, closed his post charge evidence. Statement of Accused under Section 313 CRPC and Defence Evidence
24. Statement of the accused under Section 313 CRPC was recorded on 10.12.2018 in which he denied the allegations levelled against him and stated that he is innocent and the witnesses are interested witnesses. The accused Shyam Lal opted to lead defence evidence and examined himself as DW 1, Monika Wadhwa as DW 2 and Sh Naresh as DW 3.
25. In his examination in chief as DW 1, the accused stated that the complainant is his real brother. In the year 2003 his mother expelled the complainant from her house. Thereafter, the complainant used to regularly argue and fight with him i.e. he and his brother Ratan Lal. He, the CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 13 of 30 complainant and brother Rattan Lal was having common property which the complainant told that he wanted to take sole possession and ownership. The complainant used to regularly fight and argue with him with respect to the three properties situated at Nangloi road, Naya Bazaar, two shops at Jawahar Chowk and always used to tell that he will not allow them any share in the said properties and will become sole owner. The complainant used to regularly fight with them regarding the abovesaid property. On 09.02.2004, the complainant locked both the shops at Jawahar Chowk from inside. After few days panchayat took place and then the complainant forcefully by creating pressure transferred the ownership of the three properties i.e. at Nangloi Road, Naya Bazaar and one shop at Jawahar Chowk in his name through them. The complainant repeatedly used to harass them regarding the space between the two shops at Jawahar Chowk. That on 09.02.2004, he was at home which he went for taking lunch at around 2 pm and at that time his relatives were also present at his home for the purpose of discussing the conduct of the complainant regarding his claim in the properties. There were two fufaji and one jijaji. At around 5 to 5.30 pm, one boy from the shop came to them and informed that the complainant is fighting and using abusive language against Rattan Lal. Then they reached the spot and when they tried to intervene between them, the complainant pushed him. He got pain in his stomach after which he went to Najafgarh Health Centre along with is Jijaji. Thereafter after getting treatment, the police officials came and took him to Jaffarpur Hospital.
26. In his cross examination DW 1 stated that he do not have any document to substantiate that his mother had expelled complainant from her house in the year 2003. Vol. his mother may have it. The house from which he have stated that his mother had expelled the complainant was in the name of his CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 14 of 30 deceased father bearing no 1336 Gali Sunaro Wali, Najafgarh, New Delhi. His brother Kishan Lal Wadhwa used to argue and fight with him and his deceased brother Rattan Lal since the year 2003 till 2004. He and deceased Rattan Lal never filed any complaint with the police authorities during the year 2003-2004. He denied that since Kishan Lal Wadhwa never argued and fight with him and Rattan Lal, hence, they did not file any police complaint. That the said properties comprises of one shop bearing no 44 and 44A, Jawahar Chowk, Main Bazar, Najafgarh, New Delhi. Vol. Apart from the said shops, he , Kishan Lal Wadhwa and Rattan Lal were also joint owners of plot measuring 365 sq yards situated near Nangloi Bus Stand, Najfgarh. He do not remember its exact number. Apart from that, he and deceased Rattan Lal had also contributed in purchase of shop no 43 Jawahar Chowk, Main Bazar, Najafgarh.
27. He further stated that as on date he do not have any document to show that the plot measuring 365 yards was purchased by him and Rattan Lal along with Kishan Lal. Vol. They are joint owners. He and Rattan Lal had handed over documents pertaining to said plot to Kishan Lal at the time of transfer of their share in the name of Kishan Lal at the time of settlement in March 2004. He denied that since he and Rattan Lal had not contributed any money in the purchase of the said plot and title documents in respect to said property were never executed in their favour. Vol. 365 Sq Yards was divided into two parts i.e. 240 sq yards and 125 sq yards. 240 sq yards was in the name of Rattan Lal and Kishan Lal and 125 sq yards was in the name of Rattan Lal, Kishan lal and Shyam Lal.
28. He do not have any document to show that he and rattan lal contributed in purchase price of shop no 43. Vol. at that time there was a common understanding since they were working together and they never kept track of any payments. He do not remember the exact date of purchase of shop CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 15 of 30 no 43. Vol. to the best of his recollection, it was purchased in the year 1996-1998. He affirmed that the sale deed of the shop no 43 was executed in the name of Kishan Lal. Vol. although it was executed in the name of Kishan Lal, there was an understanding between all of them that it belongs to all the three. He denied that since the shop no 43 was purchased by Kishan Lal individually out of his own hard earned money that is why the sale deed was executed in the name of Kishan Lal. He have not made any complaint to the police on 09.02.2004, however, police did came but he do not know who made the complaint. He denied that police officials came on 09.02.2004 at the complaint of Kishan Lal. He denied that Kishan Lal never locked the shops on 09.02.2004. He also denied that he and rattan lal along with 3-4 people assaulted Kishan Lal while he was sitting in the shop. He do not remember as to when Panchayat took place as stated in his chief. Vol. to best of his recollection, it happened in Feb-March 2004 when they arrived at a compromise. He denied that no such payment ever took place. In Panchayat, Girdhari Lal Saini and other were there and one document was also executed.
29. DW 1 further stated that he do not have original documents Mark CW1/D3. Vol. the same is with panchayat members who participated at the said settlement dated 21.03.2004 namely Girdhari Lal Saini, Vijay Kalra, Mulakraj Prithi, Vijay Gumber, Hari Chand Chhabra, Devi Das Thakkar, Tapan Rishi and Shaym Chug. He cannot bring original of document Mark CW-1/D3 from said persons as they will not give it to him. At the relevant time, original of document Mark CW-1/D3 was in possession of Vijay Kalra (now deceased). He denied that since no settlement took place on 21.03.2004 and no settlement was arrived at vide Mark CW-1/D3, hence he cannot bring the original of said document. He do not remember the name of person who allegedly informed him about alleged fight and CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 16 of 30 abused by complainant to Ratan Lal. The said person was a local vendor in the market. He denied that he is not able to tell name and details of the person who informed him about said alleged fight because he was not at home and no such person informed him.
30. Ld Counsel for complainant put the following question to DW 1: In your examination in chief dated 05.10.2023, you have stated that a boy from your shop informed you about alleged fight between complainant and deceased Ratan Lal but today you have stated that the said informer was a local vendor in the market. Which of the two statements is correct? DW 1 stated that he do not remember.
31. Ld Counsel for the complainant further put the following question to DW 1: Do you have any document to show that you were treated at Najafgarh Health Center and Jaffarpur Hospital on 09.02.2004? DW 1 stated that he have document pertaining to treatment at Jaffarpur Hospital. Vol., He was accompanied there by police officials. He can bring the same.
32. He denied that since he was not treated at Health Centre Najafgarh on 09.02.2004, so he do not have any document pertaining to same. He denied that complainant never used to harass them or fight with them. He denied that ownership of three properties i.e. at Nangloi road, Naya Bazar and shop no. 43 at Jawahar Chowk were never transferred by him under pressure. He denied that on 09.02.2004, there was no meeting scheduled for discussing conduct of complainant regarding his claims in properties. He denied that two fufaji and one jijaji were not present for the said purpose. He denied that he and Ratan Lal did not fight with complainant as stated by him in the present case.
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33. DW 1 further stated that he have brought the medical records, the same is Ex. DW-1/1 (OSR). On 09.02.2004, when he reached at shop No. 44, 44A and 43, at around 06:00 PM, several people had gathered who were witness to alleged fight, quarrel and abuses by complainant with deceased Rattan Lal and were trying to intervene. Ld Counsel for the complainant put the question: Do you know the persons who were witness to the alleged fight, quarrel and abuses by complainant? DW 1 stated that he do know the person who were witness but at present he no longer remember their names since the incident was of the year 2004. He denied that he is not disclosing names of alleged witnesses as no such quarrel took place. He denied that he is deposing falsely.
34. Monika Wadhwa was examined as DW 2. She stated that her husband expired in the year 2008 and the present case is false. Because of this, her husband got into depression and later on got expired. She is not aware of the incident in the present matter. No cross examination was carried by complainant despite opportunity.
35. Sh Naresh was examined as DW 3. He stated that he used to put up a stall (patri) at Jawahar Chowk, Najafgarh, New Delhi of teddy bears/toys. One day, complainant herein came to the shop and started using abusive languages and claimed that the shop belongs to him. At that time, accused no. 2 namely Shyam Lal was not present at the shop. At that time, Sh. Rattan Lal was sitting at the shop. Kishan Lal told Rattan Lal to vacate the shop. Kishan lal came alone at that time and no one was accompanying him. After some time, Shyam Lal came and tried to reason out with Kishan Lal. Thereafter, Shyam Lal went away. The relatives of Shyam Lal also came to reason out with Kishan Lal but Kishan lal kept on using abusive languages and creating ruckus. Thereafter he also left the spot.
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36. In his cross examination DW 3 stated that he had started the work of teddy bears and toys since the year 2000. He used to put his stall near the stair case of jawahar murti. He had put the stall of teddy bears till the year 2022. He do not have any document to show that he was ever running the said stall of teddy bears/toys at Jawahar Chowk since the year 2000 till 2022. Kishan Lal visited the shop of Rattan Lal on 09.02.2004. He do not know the shop number of Rattan Lal. He know the said shop belongs to Rattan Lal as he used to run the same. He have not seen any ownership documents of the said shop. The shop of Rattan Lal is approximately 10 steps away from his alleged stall. There are two separate shops of complainant Kishan Lal, deceased Rattan Lal and accused no. 2 Shyam Lal. He do not know as to in whose names the said shops are. On 09.02.2004 also there were only two shops in the names of Kishan Lal, deceased Rattan Lal and accused no. 2 Shyam Lal. The incident stated by him happened at around 06:00 PM-07:00 PM. He denied that at the time of alleged incident, Kishan Lal was sitting at the shop and deceased Rattan Lal and accused no. 2 along with 4-5 persons came at the shop and started quarrelling with Kishan Lal or had hurt him. He do not know the relatives of Kishan Lal, Deceased Rattan Lal and accused no. 2 Shyam Lal who allegedly visited on 09.02.2004 to reason out with Kishan Lal. He denied that the person who came to spot were not relatives of Kishan Lal, deceased Rattan Lal and Shyam Lal but were only known to deceased Rattan Lal and Shyam Lal. He denied that on 09.02.2004, two shops as stated above were not one unit. He do not know whether there was any partition wall between shops of Kishan Lal, deceased Rattan Lal and Shyam Lal. He denied that he is deposing falsely at the behest of accused no. 2. He further denied that he was not running toys stall Near Jawahar Chowk in the year 2004. He had started toys stall near Jawahar Chowk since 2002-2003. In the year 2004, CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 19 of 30 he was residing at H. No. 56, Old Roshan Pura, Najafgarh, New Delhi. He denied that he had worked under accused no. 1 and 2 since the year 2016- 17 till 2021-22. He denied that the toy stall which was run by him in the year 2002-02 did not belong to him but to one son of Sh. Bhagwan.
37. Defence evidence was thereafter closed.
Final Arguments
38. Final arguments were heard in detail on behalf of both the parties.
39. Ld Counsel for the complainant stated that the complainant through his and his witnesses' testimonies has been able to prove the offences with which the accused Shyam Lal has been charged with. The Ld Counsel for the complainant further submits that the complainant has established the essential ingredients of the offences invoked and has proved his case beyond reasonable doubt.
40. The Ld Counsel for the accused submits that the present case is totally false and is premised on narration which is entirely flimsy, full of exaggerations and holds no truth. The Ld Counsel for the accused submits that the complainant has given criminal colour to the civil dispute pertaining to their properties which is existing between the parties who are real brothers. The Ld Counsel for the accused further asserts that the accused has not been able to establish and prove any injuries and also failed to examine the Doctor of the Hospital to prove the MLC. The Ld Counsel for the accused further stated that no such incident ever occurred between the complainant and the accused persons.
CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 20 of 30 Analysis & Discussion
41. In the present matter initially, there were two accused namely, Shayam Lal and Rattan Lal. Accused Shaym lal got expired and thus proceedings against his stood abated. The matter has then been proceeded against accused Shyam Lal. The accused Shyam Lal has been chargesheeted u/s 327/448 IPC.
42. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution, herein the complainant. The burden of proof on the complainant is heavy, constant and does not shift. The case of the complainant, in the present matter, needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the complainant has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
Section 327 IPC
43. The essential conditions of section 327 IPC are as under:
i. There must be voluntarily causing of hurt to the victim. ii. The hurt has been caused for the purpose of extorting from the sufferer, etc. any property or valuable security.
44. Section 383 defines "Extortion" thus:
i. Intentionally putting any person in fear of injury, ii. Dishonestly inducing person so put in fear to deliver any property or valuable security.
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45. The crux of the matter in the present case on which the allegations have been raised by the complainant is that on 09.02.2004, the alleged accused persons Shaym Lal and Rattan Lal came to the shop of the complainant i.e. shop no. 44, 44A and 43 at around 05:00 PM and demanded Rs. 10,000/- from him. It has been further alleged by the complainant that on refusal to give the amount of Rs. 10,000/-, the accused person threatened him and gave him beatings. It is an admitted position of both the parties that the complainant and the alleged accused persons are real brothers and there is a pre-existing property dispute regarding the properties between them.
46. On the perusal of the testimony of CW-1, his witnesses as well as the evidence which has been led by the accused, it stands proved that disputes regarding multiple properties, being the family properties, did exist between both the parties. Furthermore, it is also an admitted position of the parties that civil cases regarding the properties are also pending between them. What needs to be, thus, looked into is whether the accused persons did in fact demanded Rs. 10,000/- from the complainant or whether the altercation between the parties occurred as a result of a pre-existing dispute regarding the properties including shop no. 44, 44A and 43, which is the place of incident and the pre-existing property dispute between the parties have been given a criminal colour.
47. Perusal of the testimony of CW-1 and on reading of his cross examination, it has been categorically admitted by the complainant that he was sitting at shop no. 44 and further that the accused persons used to take money from him. It has further been admitted by the complainant in his cross examination dated 05.08.2024 that he had transferred the shop no. 44, 44A in the year 2004 in the name of his brothers. He had further affirmed that the transfer was affected through a valid transfer document. Although the complainant also examined CW-2, CW-3 and CW-4, however, so far as the CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 22 of 30 allegations of demanding Rs. 10,000/- is concerned, none of the remaining witnesses was witness to such demand and all of them came only after the scuffle broke out between the complainant and the accused persons. Most of the cross examination which has been carried out by the accused primarily governs the property i.e. the shop no. 44, 44A and 43. From the perusal of the testimony of CW-1 along with the documents placed on record, it stands proved that scuffle did take place between the parties and in furtherance of such scuffle, the complainant sustained certain injuries. However, so far as the claim of extortion of Rs. 10,000/- is concerned, the only testimony is that of the complainant. Although, the complainant is the injured person and this court is also conscious that much weightage has to be attached to the injured witness, however, in the facts and circumstances of the case, this court is also aware that the complainant as well as the accused are real brothers and there already existed a property dispute regarding the shop in which the incident took place and therefore, it cannot be ruled out that the fact of demanding Rs. 10,000/- might have been added only to aggravate the scuffle which had taken place between the complainant and the accused. If the claim for demanding Rs. 10,000/- not been made by the complainant, only section 323 IPC of simple hurt would have been made out which is not only compoundable but is also punishable with an imprisonment of extendable to one year whereas the offence with which the accused has been charged i.e. section 327 IPC carries an imprisonment which may extend to 10 years and is much graver. The testimony of the complainant has to be scrutinised specifically on the ground that both the parties are already embroiled in a property dispute.
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48. The complainant in his testimony claims that he was sitting in his shop when both the accused came and demanded Rs 10,000/- from him. It is not the case of the complainant that on earlier occasions the accused persons, who are his real brothers, used to extort money from him. In fact, the complainant himself in his testimony stated that the accused persons used to take money from him. This act of taking money on earlier occasion has to be appreciated in the context i.e. the complainant and accused persons are real brothers and were running the family shops jointly. The fact that all the three brothers i.e. Krishan Lal Wadhwa, Shyam Lal and Rattan lal used to jointly operate and carry out the family businesses through the shops where the alleged incident took place has also been affirmed by CW 2 who is the wife of the complainant. There is no plausible explanation on the reading of the testimony of the complainant as to what caused the accused persons to demand Rs 10,000/- from the complainant. It remains unclear from the perusal of the testimony of the complainant as to what was the caused the accused persons to demand Rs 10,000/- from the complainant. Considering the fact that the complainant and the accused are real brothers and a civil dispute regarding their common property are already in existence and further, even as per the case of the complainant, there existed on earlier occasions a regular transactions of given and take, it cannot be ruled out that the scuffle between the complainant and the accused occurred on account of the property dispute and not on the claim as made by the complainant, that is, the accused persons tried to extort Rs 10,000/- from him and on his refusal gave him beatings. Rather on a wholesome reading of the evidences which has been led on behalf of both the parties it appears that the arguments and scuffle arose due to the property dispute which was on foot among them. It can also be said that the said scuffle and altercation was the culmination of the friction brewing between both the CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 24 of 30 complainant and the accused persons, the genesis of which can be traced to their respective assertions and claims for the share in family properties including the shops. Thus, the complainant has not been able to prove beyond reasonable doubt that the accused persons attempted to extort Rs 10,000/- and in furtherance of the same voluntarily caused hurt to the complainant.
49. At this juncture, however, attention is invited to Section 222 of CRPC which runs as under:
When offence proved included in offence charged. -- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied
50. Section 222 of CRPC prescribes that when a person is charged with an offence and the facts are proved which reduce it to a minor offence, then, he may be convicted of the minor offence, although he is not charged with it.
51. In continuation of Section 222 CRPC, it is stated that although the complainant has failed to establish the factum of demand of Rs 10,000/-, CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 25 of 30 analysis does mandates on whether the accused persons caused voluntary hurt to the complainant so as to merits their conviction under the minor offence of Section 323 IPC.
52. At this stage it is imperative to take note of Section 323 IPC:
323. Punishment for voluntarily causing hurt. --Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
53. At this stage it is also imperative to note the following definitions given:
319. Hurt. --Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
54. Thus, in order to prove the commission of the offense under Section 323 of the Indian Penal Code, 1860 by the accused persons, it must be proved that
(a) the accused caused either bodily pain or disease or infirmity to the injured; (b) such bodily pain or disease or infirmity was caused by the accused (i) intentionally, or (ii) with the knowledge that his act shall cause such hurt.
55. It is important to note that complainant in his testimony stated that he was beaten by the accused persons and thereafter he was taken to Surya Nursing Home and then to Mata Chanan Devi Hospital from where he was discharged. Thus, the onus was on the complainant to prove that hurt was caused to him by the complainant and he was actually taken to Surya Nursing Home and from there he was referred to Mata Chanan Devi Hospital where he was given treatment and was discharged. Reliance has been placed by the complainant in Ex CW1/1 i.e. Discharge slip of Mata Chanan Devi Hospital and Ex CW ½ i.e. Surya Nursing Home. Perusal of both the exhibits reflects that the complainant was given treatment, however, the declaration of nature of injury is absent in the exhibits.
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56. Ld Counsel for the accused had argued that the complainant has not been able to prove the abovesaid exhibits since he never examined the doctors who created the said documents and thus the abovesaid medical documents remains unproved.
57. In case of simple hurt when the hurt is caused by fist and blows then there is no need of MLC and the simple hurt can be proved by the testimony of the injured. The law is well settled that in order to establish offence under Section 323 IPC the production of injury report is not sine qua non (Lakshman Singh vs State of Bihar 2021 INSC 352). Nothing has come on record from the defense side which have rebut the allegations of the complainant regarding non causing of the hurt. So far as causing of simple hurt is concerned the perusal of the testimony of complainant does not create doubts so as to throw out Section 323 IPC. From the perusal of the testimony of the complainant as well as the witnesses, it stands proved that scuffle and fight did take place between the complainant and the accused persons. Apparently, the said scuffle between them seems to be a culmination of the conflict and friction brewing between them regarding a pre-existing dispute for their respective share in the family properties including the shops in question where the incident occurred. Accordingly, the accused Shyam Lal have committed an offence under Section 323 IPC i.e. voluntarily causing hurt.
Section 448 IPC
58. Section 448 IPC prescribes punishment for "house trespass" stating that whoever commits house trespass shall be punished with imprisonment of either description for a term which may extend to 1 year or with fine which may extend to one thousand rupees or with both.
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59. Section 442 defines "House trespass". In order to commit house-trespass the person has:
a. to commit "criminal trespass"
by b. entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property.
60. Section 441 defines "Criminal trespass". In order to commit "Criminal trespass" the person has to enter into or upon property in the possession of another:
a. with intent to commit an offence, or b. to intimidate, insult or annoy any person in possession of such property, or c. 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.
61. In the facts of the present case the complainant has to prove that the accused persons, first, lawfully entered into the shops and then unlawfully remained there with intent to intimidate, insult and annoy him. The complainant in his cross examination categorically stated that the incident occurred in their shop i.e. Shop No 44 and 44A. It is indisputable as has been an admitted position of both the parties that the said shops are part of common family property at the time of incident. Further, based on the testimonies of both the parties, it also stands proved that as on the date of incident there exists no formal partition of the property including the shops between both the parties. It is proven that as on date of the incident both the parties were claiming and asserting their respective rights and shares over different properties including the shops in question and for which a CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 28 of 30 civil dispute was also pending between them. Thus, as on the date of incident, it can be safely stated that both the parties had equal right to access the said shops i.e. Shop No 44 and 44A. Either of the parties could not have stopped or restrained the other from accessing the shops sans an order from Court/Competent authority. Further the complainant in his cross examination stated that he had transferred Shop No 44 and 44A in 2004 in the name of his brothers. He also affirmed that transfer was affected through a valid transfer document. He also affirmed that he has not challenged such transfer.
62. Thus, at the time of incident there existed no occasion for the accused persons not to enter into the shops or for the complainant to restrain their entrance. The accused persons were within their right to enter and have access the said shop since at the time and date of the incident, both the parties were having their share in the said shops. Therefore, the accused persons cannot be said to be unlawfully remaining in the said shops as it was within their rights to remain in the shop and the complainant cannot claim that the accused persons unlawfully remained in Shop No 44 and 44A. Furthermore, the said Shops No 44, , 43, and 44A are part of the same common shop.
63. Although the accused in his defence attempted to establish that he was never present at the time of incident and was actually at his home along with his two foofaji and one jijaji and that on being informed by a person that complainant and accused Rattan Lal (now deceased) are having argument, late ron reached there However, perusal of his cross examination reflects that he is not able to state the name of the person who informed him that complainant and Rattan lal were arguing. Further the accused never examine any of his relatives i.e. two foofaji and one jijaji.
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64. Be that as it may, the complainant has not been able to establish one of the essential ingredients of "Criminal Trespass" i.e. having lawfully entered into or upon such property, and unlawfully remaining there. Therefore, the complainant has failed to establish offence under Section 448 IPC and accused stands acquitted for the offence under Section 448 IPC. Conclusion/Findings
65. In view of the aforesaid, this court is of the considered opinion:
a. The complainant has not proved the charge under 327 of the Indian Penal Code, 1860 beyond reasonable doubt against the accused person Shyam Lal. However, the complainant has been able to establish offence under Section 323 IPC and in view of Section 222 CRPC, the accused Shyam Lal is guilty and convicted for committing offence under Section 323 IPC. b. The complainant has failed to establish the charge under Section 448 IPC beyond reasonable doubt. Accordingly, the accused Shyam Lal stands acquitted for the offence under Section 448 of Indian Penal Code.
66. Be heard on quantum of sentence. Digitally signed by HARSHAL HARSHAL NEGI NEGI Date:
2024.08.20 Announced in the open court on 20.08.2024. 21:11:20 +0530 (Harshal Negi) JMFC-02/Dwarka Court, New Delhi, 20.08.2024 It is certified that the present judgment runs into 30 pages and each page bears my signature. HARSHAL Digitally signed by HARSHAL NEGI NEGI Date: 2024.08.20 21:11:27 +0530 (Harshal Negi) JMFC-02/DwarkaCourt, New Delhi, 20.08.2024 CC No. 427835/2016 Kishan Lal Wadhwa versus Rattan Lal Page No. 30 of 30