Delhi District Court
State vs Mahender Singh Etc on 20 May, 2025
IN THE COURT OF Ms. DIVYA ARORA:
JUDICIAL MAGISTRATE FIRST CLASS-04: NORTH-WEST
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 212/2010
PS Kanjhawala
State Vs. Mahender Singh etc.
Date of Institution: 22.01.2011
Date of Judgment: 20.05.2025
JUDGMENT
(a) Serial Number of the case : 527480/2016
(b) Date of commission of offence : 11.11.2010
(c) Name of the complainant : Sh. Sant Kumar
(d) Name of Accused, his : (1) Mahender Singh S/o Ratan Singh,
parentage & residence R/o: VPO Ghevra, Delhi.
(2) Sumer Singh S/o Ratan Singh
R/o: VPO Ghevra, Delhi.
(3) Kuldeep S/o Roop Chand,
R/o: VPO Ghevra, Delhi.
(4) Ranvir S/o Roop Chand,
R/o: VPO Ghevra, Delhi.
(5) Kawal Singh S/o Ratan Singh,
R/o: VPO Ghevra, Delhi.
(6) Balwant S/o Abhay Singh
(Already Expired)
(e) Offence complained of : U/s: 447/34 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final order : Acquitted
FIR No. 212/2010 (PS Kanjhawala)
U/s 447/34 IPC
State Vs . Mahender Singh etc. Page No. 1 of 12
DIVYA Digitally signed by
DIVYA ARORA
ARORA Date: 2025.05.20
17:25:43 +0530
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The present case arises out of allegations that the accused persons, who are recorded owners or occupants of land bearing Khasra Nos. 587, 588, and 589, had unlawfully encroached upon a portion of land measuring approximately 12 feet situated on the southern side of their property, which allegedly falls within Khasra No. 264 - recorded as a pond and a part of Gram Sabha land.
2) The prosecution's case was set into motion on the complaint of one Jai Virender, which was forwarded with endorsement by then BDO B.M. Mishra. Acting on this complaint, the Block Development Office directed a demarcation through the revenue department, upon which it was allegedly found that the accused persons had made encroachment into Khasra No. 264. One prosecution witness, examined from the office of the BDO, deposed to this effect and relied upon the demarcation report which has been exhibited on record as Ex.PW2/A. It is on the basis of this demarcation that the prosecution seeks to establish the offence under Section 447 IPC.
3) After completion of the investigation, chargesheet was filed in Court, cognizance of the offences was taken, the abovesaid accused persons were summoned and after that, they entered appearance, copy of the chargesheet alongwith the documents was supplied to them in compliance of Section 207 of the Code of Criminal Procedure.
4) Notice was then framed against the accused persons namely Mahender Singh, Balwant, Sumer Singh, Kuldeep, Ranvir and Kanwal Singh on FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 2 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:25:50 +0530 04.09.2012 for the commission of offences under Section 447/34 IPC against the accused persons, to which accused persons pleaded not guilty and claimed trial, and matter was fixed for prosecution evidence.
5) To prove its case, the prosecution examined 06 witnesses.
6) PW-1 ASI Ashok Kumar deposed that on 12.11.2010, he was posted at PS Kanjhawala and working as Duty Officer and on that day at about 6.45 pm, he received a rukka from SHO and on the basis of the same he recorded the present case FIR. Print out of the said FIR was handed over to the IO SI Naresh Kumar. The print out of the said FIR is Ex.PW1/A. Endorsement on rukka is Ex.PW1/B.
7) PW-2 Sh. Sant Kumar, Extension Assistant, Agriculture, BDO Office, Kanjhawala deposed that in the year 2010, he was posted as Senior Village Level Worker (N/W) Alipur, Delhi and on 11.11.2010, the demarcation in respect in Khasra No. 587, 588 and 589 was conducted by the officials of Revenue Department. As per the demarcation, the owner of Khasra No. 587 i.e. Mahender Singh Toman Singh and Sarmer Singh and the owner of Khasra No. 588 namely Balwant Singh and owners of Khasra No. 589 namely Kartar Singh, Kuldeep and Ranbir, all R/o:
Village Ghevra have encroached upon the land of Gram Sabha. As per demarcation report, all the aforesaid accused persons have encroached the land of 12 Feet each towards the Southern side i.e. in Khasra No. 264 as per the revenue record a pond belonging to Gram Sabha. On the basis of demarcation report Ex.PW2/A and on the basis of the complaint lodged by Jai Virender to the Block Development Officer, the concerned BDO Dr. FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 3 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:25:55 +0530 B.M. Mishra has made an endorsement for registration of FIR. Copy of complaint lodged by Jai Virender is Ex.PW2/B. Carbon copy of the letter dated 09.11.2010 written by Sh. B.M. Mishra, the then SDM Narela is Ex.PW2/C (OSR). He further depose that on 11.11.2010, he lodged a complaint to SHO PS Kanjhawala and which is Ex.PW2/D, and on the basis of the same, police got the FIR registered.
8) PW-3 Sh. Shakti Singh, Patwari, SDM Office, Saraswati Vihar, Delhi deposed that on 11.11.2010, he was posted as Patwari at Halka Ghevra, SDM Saraswati Vihar, Kanjhawala Office and on that day, Field Kanoongo Sh. Sukhbir Singh conducted a demarcation in respect of land situated at Khasra No. 587, 588 and 589 in his presence and in the presence of other officials, and after conducting demarcation, field Kanoongo Sh. Sukhbir Singh prepared a demarcation report which is Ex.PW2/A.
9) PW-4 HC Hari Om deposed that on 20.11.2010, he was posted as constable at PS Kanjhawala and on that day, he joined the investigation of the present cae with SI Naresh Kumar and thereafter, IO arrested the accused persons vide arrest memo Ex.PW4/A, Ex.PW4/B, Ex.PW4/C, Ex.PW4/D, Ex.PW4/E, Ex.PW4/F and Ex.PW4/G. Accused persons were personally searched vide memo Ex.PW4/H, Ex.PW4/I, Ex.PW4/J, Ex.PW4/K, Ex.PW4/L, Ex.PW4/M and Ex.PW4/N. He identified the four accused persons in the Court. The identity of the accused Kanwal Singh was not disputed by the Ld. counsel for the accused.
10) PW-5 SI Naresh Kumar deposed that on 12.11.2010, he was posted at PS FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 4 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:25:59 +0530 Kanjhawala as sub-Inspector and on that day, the present case was marked to him for investigation. He examined the documents of the present case and found that owner of Khasra No. 587, 588 and 589, Village Ghevra, Delhi have encroached the land of Gram Sabha. The accused persons have encroached the land of 12 feet each towards the South direction i.e. Pond of Gram Sabha. Thereafter, he called complainant Sant Kumar alongwith other witnesses and at their instance, he prepared site plan which is Ex.PW5/A. Thereafter, he had taken pictures of the place in question and after that, he called all the accused persons to PS and interrogated them and after that he arrested the accused persons namely Mahender Singh, Kanwal Singh, Sumer Singh, Balwant Singh (since deceased), Kartar Singh (since deceased), Kudeep and Ranvir vide arrest memos which are Ex.PW4/A, Ex.PW4/B, Ex.PW4/C, Ex.PW4/D, Ex.PW4/E, Ex.PW4/F and Ex.PW4/G respectively. He also conducted their personal search vide personal search memos Ex.PW4/H, Ex.PW4/I, Ex.PW4/J, Ex.PW4/K, Ex.PW4/L, Ex.PW4/M and Ex.PW4/N respectively. Thereafter, he prepared the chargesheet, and filed the same before the Court. He identify the accused persons namely Kuldeep Singh, Mahender Singh, Sumer Singh and Ranbir Singh in the Court. He also identified four photographs, out of which in two photographs, encroachment is shown towards the pond of Khasra No. 264, and stated that the accused persons have encroached 12 feet towards pond in Khasra No. 264. The said two photographs are marked as Mark-X1 and Mark-X2. He also identified the other two photographs and same are Mark-X3 and Mark-X4.
11) PW-6 Sh. Surender Kumar Vashisht, Retd. Kanoongo, SDM Office, Kanjhawala, Delhi deposed that in the year 2009, he was posted as a FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 5 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:26:03 +0530 Record Keeper / Office Kanoongo. He know Sukhbir Singh (since deceased) who was working as Field Kanoongo. However, he cannot identify his signature as they have never worked together.
12) Thereafter, the prosecution evidence was closed and the statement of accused was recorded under Section 281 read with Section 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to the accused persons who maintained their innocence.
Accused persons stated that "They have no knowledge about the posting of PW2 Sant Kumar in the capacity stated by him in his evidence. They have also no knowledge about the complaint filed by him or about the demarcation Ex.PW2/A since the same has not been done in my presence. They say that the complaint is false and no encroachment is done by them in the area of Khasra No. 264 (pond). The aforesaid purported demarcation report Ex.PW2/A is false and is contrary to the true and correct demarcation of Khasra No. 264 (pond) through TSM Machine proved on record as Ex.PW2/D1 which shows no encroachment by either of the plot No. 587 or 588 or 589. I have no knowledge since no such demarcation was done. Except the evidence of arrest as well as filling of charge sheet, which is matter of record, no other steps/action were taken by PW-5 SI Naresh in the presence of accused persons. IO had not prepared any site plan of the spot nor had taken the photographs of the spot. IO had mechanically filed the charge sheet without seeking the due demarcation. The purported demarcation report Ex PW2/A relied by IO is false and is contrary to the true and correct demarcation of Khasra No. 264 (pond) through TSM Machine proved on record as Ex PW2/D1 which shows no encroachment by either of the plot 587 or 588 or 589. They FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 6 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:26:08 +0530 have been falsely implicated since there is no encroachment of any portion of Khasra no. 264 (Pond), by the accused persons. The complaint based on purported demarcation report. Ex.PW2/A is false and is contrary to the true and correct demarcation of Khasra No. 264 (pond) through TSM Machine proved on record as Ex.PW2/D1 which shows no encroachment by either of the plot 587,588 and 589." Further accused persons have chosen to lead defence evidence. However, no defence witness was examined by the accused.
13) Final arguments as advanced by the Ld APP for the State and by Ld. counsel for the accused have been carefully considered along with the evidence on record.
14) It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
15) Section 447 IPC penalizes criminal trespass, which is defined under Section 441 IPC. For an offence under Section 447 IPC to be made out, it must be proved that the accused entered into or upon property in the possession of another with intent to commit an offence or to intimidate, insult, or annoy the person in possession, or, having lawfully entered, unlawfully remained there with such intent. Thus, the essential ingredients FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 7 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:26:12 +0530 to be proved are: (i) unauthorized entry, (ii) into the possession of another, and (iii) requisite intent.
16) The prosecution examined two key witnesses - PW2 Sant Kumar and PW3 Shakti Singh - in support of its case that the accused persons had encroached upon Gram Sabha land falling under Khasra No. 264. A close scrutiny of their testimonies, however, reveals material deficiencies and contradictions which render the prosecution's case unreliable.
17) PW2 Sant Kumar, a witness associated with the office of the BDO, admitted during cross-examination that the then SDM Dr. B.M. Mishra, who was holding additional charge of BDO, had ordered the Tehsildar to conduct demarcation only of Gram Sabha land comprising the rasta and nala adjoining to Khasra Nos. 587, 588, and 589. Crucially, he admitted that there was no order to demarcate the lands comprised in Khasra Nos. 587, 588, and 589 themselves. He further stated that the demarcation was carried out only for the said khasras and not for the Gram Sabha land, rasta, or nala for which the order had originally been issued. Thus, it becomes evident from PW2's own testimony that the demarcation was not done in accordance with the specific terms of the direction given by the competent authority. Rather, it appears that the actual demarcation exceeded or deviated from the scope of the original instruction, thereby casting serious doubt on its procedural validity.
18) PW3 Shakti Singh, the then Patwari, deposed that the demarcation was carried out by the then field Kanungo, Sh. Sukhbir, in his presence and that the demarcation report Ex. PW2/A bears his signature at point A. FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 8 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:26:17 +0530 However, in his cross-examination, he categorically stated that he could not say whether any encroachment had occurred on Gram Sabha land, nor could he explain the nature of the demarcation exercise. He clarified that only the field Kanungo who had prepared the report would be in a position to explain it. This statement effectively diminishes the evidentiary value of Ex. PW2/A because the Patwari, who was merely a signatory, disclaimed any knowledge of the contents or conclusions of the report. The most vital link in the chain of evidence - the field Kanungo, Sukhbir Singh - was not examined as he had passed away prior to trial. Notably, no witness has identified his signature on the report during trial, leaving the authorship and authenticity of Ex.PW2/A unverified.
19) The prosecution's case is further weakened by the testimony of the Investigating Officer, PW5 SI Narender Kumar, who admitted in his examination that no substantial investigation was conducted by him. He confirmed that he had merely acted on the complaint and the demarcation report by arresting the accused persons, without making any independent inquiry or verification on site. There is no indication that he attempted to examine any other independent witnesses, collect corroborative material, or confirm the accuracy of the demarcation. His failure to investigate raises serious questions about the fairness, adequacy, and impartiality of the prosecution's case.
20) Taken together, the testimonies of PW2 and PW3 do not establish beyond reasonable doubt that any encroachment was committed by the accused upon Gram Sabha land. The demarcation report, which is the foundation of the prosecution's case, stands on an unsteady footing - unauthorised in FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 9 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:26:22 +0530 scope, unsupported by the examining witness, and unverified through any competent official. In the absence of reliable and conclusive evidence, and with the investigative process itself appearing perfunctory, it would be unsafe to base a conviction solely on such material.
21) The entire case of the prosecution hinges on the demarcation conducted allegedly by revenue authorities. However, a fundamental issue raised by the defence counsel, and not denied by the prosecution, is that the demarcation was not conducted pursuant to an order by the Tehsildar - who is the competent authority to order and supervise demarcation of agricultural or rural land as per the land revenue laws in force. The demarcation appears to have been conducted at the direction of the BDO, who, while being a development officer under the Panchayati Raj framework, does not hold the statutory authority to order revenue demarcation.
22) In the absence of a proper demarcation order by a competent revenue official and without any corroboration from technical witnesses such as the Patwari, Kanungo or Tehsildar who are ordinarily expected to carry out and attest to such demarcation exercises, the authenticity and evidentiary value of Ex.PW2/A stand materially weakened. Furthermore, the prosecution has not led evidence to show the methodology of demarcation, presence of parties, or any opportunity of hearing provided to the accused during the exercise. No independent site map or photographs have been placed on record to establish the encroachment as alleged.
FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 10 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:26:26 +0530
23) It is well-settled that in criminal jurisprudence, the prosecution must establish its case beyond reasonable doubt. In the case of Raghunath vs. State of Haryana, 2008 SCC OnLine P&H 1235, the Hon'ble Punjab & Haryana High Court held that in the absence of a legally sanctioned demarcation and corroboration by official records and witnesses, conviction under Section 447 IPC could not be sustained. Similarly, in State of Rajasthan vs. Dhool Singh, 1991 Cri LJ 1607 (Raj.), it was held that demarcation without notice or proper authority cannot be relied upon as conclusive proof of encroachment. This precedent underscores the necessity for the prosecution to establish its case beyond reasonable doubt, especially in matters involving allegations of encroachment or unauthorized occupation of land. It highlights that mere allegations without concrete evidence, such as properly authorized demarcation reports and corroborative testimonies, are insufficient for conviction.
24) Applying the above legal principles to the present case, it is evident that the prosecution has not produced legally admissible and conclusive evidence to prove that the accused persons encroached upon Gram Sabha land falling under Khasra No. 264. There is no proof of possession being with the Gram Sabha, nor any specific evidence demonstrating the accused's intent to insult, intimidate or annoy the Gram Sabha or any individual. The demarcation, not having been conducted or ordered by the competent revenue authority, cannot be the sole basis for criminal liability.
25)In criminal law, suspicion, no matter how strong, cannot substitute proof.
The accused are entitled to the benefit of doubt in the absence of clear, cogent and admissible evidence.
FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 11 of 12 DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:26:31 +0530 Decision:
26) Accordingly, the accused persons namely (1) Mahender Singh S/o Ratan Singh, (2) Sumer Singh S/o Ratan Singh, (3) Kuldeep S/o Roop Chand, (4) Ranvir S/o Roop Chand, and (5) Kawal Singh S/o Ratan Singh are hereby acquitted for the offence u/s 447/34 IPC in the present case.
27)Accused persons are directed to furnish bail bond and personal bond in the sum of Rs. 10,000/- each under section 437(A) of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon them.
28)File be consigned to Record Room after due compliance.
Announced in the open court on 20.05.2025.
DIVYA Digitally signed by DIVYA ARORA ARORA Date: 2025.05.20 17:26:39 +0530 (DIVYA AORA) Judicial Magistrate First Class-04/ North West Rohini District Court/New Delhi Certified that this judgment contains 12 pages and each page bears my signature.
DIVYA Digitally signed by
DIVYA ARORA
ARORA Date: 2025.05.20
17:26:43 +0530
(DIVYA AORA)
Judicial Magistrate First Class-04/ North West Rohini District Court/New Delhi FIR No. 212/2010 (PS Kanjhawala) U/s 447/34 IPC State Vs . Mahender Singh etc. Page No. 12 of 12