Delhi District Court
State vs Bajrang on 3 January, 2026
IN THE COURT OF SH. ABHINAV AHLAWAT JUDICIAL
MAGISTRATE FIRST CLASS-09 (SOUTH-WEST) DWARKA
COURTS: DELHI
State Vs. : Bajrang etc.
FIR No : 116/2019
U/s : 379/427/448 IPC
P.S. : Jafarpur Kalan
1. CNR No. of the Case : DLSW020609842019
2. Date of commission of offence : 19.07.2019
3. Date of institution of the case : 04.12.2019
4. Name of the complainant : Dinesh
5. Name of accused, parentage & : 1. Bajrang
address S/o Subhash
R/o Daurala, New
Delhi.
2. Sarvesh
W/o Satbir
R/o Daurala, New
Delhi
6. Offence complained of : 379/427/448 IPC
7. Plea of the accused : Pleaded not guilty
: Convicted under
section 448/427 IPC.
8. Final order
Acquitted under
section 379 IPC.
9. Date of final order : 03.01.2026
Argued by:-
Mr. Parvez Alam, Ld. APP for the State, assisted by
Sh. Sandeep Shokeen, Ld. Counsel for complainant.
Mr. R. K. Lamba, Ld. counsel for accused persons.
Digitally signed
by ABHINAV
ABHINAV AHLAWAT
FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 1 of 35
Date:
AHLAWAT 2026.01.03
16:37:28
+0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE
DECISION:
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 19.07.2019 between 08:40 am to 09:40 am at Village Daurala, New Delhi, accused Bajrang alongwith co-accused Sarvesh trespassed into the plot belonging to one Mohinder Yadav in Khasra no.40 village Daurala by breaking open the lock of the gate and the gate itself and thereby stealing the dung cakes, woods, construction material etc., belonging to owner of the plot namely Mohinder Singh, which was in the care of complainant Dinesh being the manager of the above plot and thereby accused persons are accused of committing the offences punishable under Sections 448/427/379 IPC, for which FIR no.116/2019 was registered at the police station Jafarpur Kalan, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed. The Ld. Predecessor of this Court took the cognizance against the accused persons and summons were issued to the accused persons. On their appearance, a copy of the chargesheet was supplied to them in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Sections 379/427/448 IPC was Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 2 of 35 Date:
AHLAWAT 2026.01.03 16:37:24 +0530 framed against them on 11.04.2022. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused persons to prove its case beyond reasonable doubt:-
ORAL EVIDENCE Prosecution Name of witness Description witness no.
PW-1 Dinesh Subject property care
taker
PW-2 Rakesh Also subject property
care taker
PW-3 ASI Suresh Kumar Duty Officer
PW-4 HC Narender Duty Officer
PW-5 SI Onkar Singh Investigating Officer
PW-6 Mohinder Yadav Owner in possession of
subject property
DOCUMENTARY EVIDENCE
Ex.PW1/A Statement of complainant
Ex.PW1/B Site plan
Ex.PW1/C Seizure memo qua pendrive containing
CCTV footage
Ex.PW1/D Certificate under Section 65B of Indian
Evidence Act qua said CCTV footage
Ex.PW1/E Pen drive
Ex.PW3/A FIR
Ex.PW5/A Rukka
Ex.PW5/B Notice u/S 41A Cr. P. C. served upon
accused Sarvesh
Ex.PW5/C Notice u/S 41A Cr. P. C. served upon
accused Bajrang
Ex.PW5/D Disclosure statement of accused Bajrang
Ex.PW5/E Disclosure statement of accused Sarvesh
Ex.PW6/A Sale deed alongwith its translation from Urdu
to Hindi
Ex.PW6/B Order of SDM
Ex.PW6/C Complaint u/S 145 Cr. P. C.
Digitally signed
by ABHINAV
ABHINAV AHLAWAT
FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 3 of 35
Date:
AHLAWAT 2026.01.03
16:37:32
+0530
4. To prove its case, prosecution examined the following witnesses, the same are as follows:
PW1 Dinesh deposed that he was caretaker of the property of Mr. Mohinder Yadav situated at village Daurala, Khasra no.40, admeasuring 700 sq. yards and there were CCTV cameras installed at the said property and the same were connected to his mobile phone. He further stated that on 19.07.2019 at about 08:40 am to 09:50 am at Village Daurala, one lady and one male person came to the said plot and broke open the gate and its lock and entered the said property and thereafter, stole wooden logs, upplas/cowdung cakes and construction material from the said plot. He further stated that he saw the said incident via CCTV cameras and at about 9:00 am one Rakesh S/o Sh. Rajender who was also resident of village Daurala and worked as the caretaker of the said plot in his absence called him and told him about the incident that one Smt. Sarvesh and Mr. Bajrang had broke open the locks and cut open the gate of the said plot and stolen the aforesaid articles from the plot. He further stated that the aforesaid accused persons belonged to the group of Krishan Kumar, Bhim Singh, Hari Om, Pradeep and Vinod and they had previously quarreled with their workers regarding which one FIR no.32/19 was registered at PS J.P. Kalan. Thereafter, he went to the said plot and saw that the gate was in a broken condition and the articles have been stolen from the said plot. He further stated that he called the owner Mr. Mahendra Yadav and informed him about the incident and upon his instruction, he went to the PS and got his statement Ex.PW1/A recorded, upon which the present FIR was registered and the investigation was handed over to ASI Omkar.Digitally signed by ABHINAV
ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 4 of 35 Date:
AHLAWAT 2026.01.03 16:37:18 +0530 He further stated that he along with ASI Omkar went to the spot and they look for the accused persons but the accused persons had already fled away from the spot. He further stated that IO prepared the site plan at his instance Ex.PW1/B and recorded his statement. He further stated that he handed over to IO the CCTV footage of the incident in a 8GB pen drive which was seized by the IO vide seizure memo Ex.PW1/C. Thereafter, he went to his home. He further stated that later on, he also gave a certificate U/s 65B of Indian Evidence Act to the IO regarding the CCTV footage in the pen drive Ex.PW1/D. He further stated that he also handed over to IO the documents qua the property in question. The witness correctly identified the accused persons present in the Court, the spot of incident through photographs Ex.PW1/P1 (colly) and pen drive Ex.PW1/E. Upon playing the pen drive, one woman and one man were seen breaking/removing the iron gate at the plot and thereafter, they were entering into the plot. The witness stated that the woman therein was accused Sarvesh and the man therein was accused Bajrang. The woman was seen picking up the logs of wood kept in the said plot and the man was seen keeping the broken gate by the wall of the plot. As PW1 did not support the case of prosecution on certain facts, the Ld, APP was granted permission to put him questions in the nature of cross-examination, wherein he stated that the IO had searched for the accused persons at their house but they were not found there. In the cross- examination, he stated that he was caretaker of the property of Mohinder Yadav and looking after his all the properties situated at Village Daurala for last more that 15 years. He further stated that he was not aware about the civil suit filed by the husband of accused Sarvesh against his owner and the said fact may be within the knowledge of his owner only. He further stated that the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 5 of 35 Date:
AHLAWAT 2026.01.03 16:37:22 +0530 documents pertaining to the plot were handed over to the police by him but he did not remember whether he had given the order of SDM dated 25.06.2014 to the police, which was a part of charge- sheet. He further stated that he did not know whether the fact that Mohinder Yadav had been shown to be the owner of 410 sq. yards in the documents as given by him to the police. He further stated that he knew both the accused persons before the incident in question but he did not remember whether his employer had filed a complaint before SDM u/S 145 read with 133 Cr. P. C. He further stated that he was not aware of the fact whether the SDM directed the husband and other relatives of accused persons to remove cow dung, mud heaps/ material, minor wooden structure, cattles etc. He further stated that he had also filed one more case against the accused persons which was an NCR, which was based upon the life threats as given by the accused persons to him.
5. PW2 Rakesh deposed that on 19.07.2019, he had gone to the plot of Mohinder Yadav for the purpose of care taking of his plot which he usually did, where he saw that the gate and lock on the gate of the said plot was broken. He further stated that he went inside the plot and saw that the cow dung cakes, timber and tools and articles of masonry were missing. He further stated that there was CCTV camera installed on neighbour Rakesh's house and on checking the CCTV footage, he found that accused Sarvesh W/o Satbir and accused Bajrang had broken upon the lock as well as gate of the plot of Mohinder Yadav and gone inside the plot and then he came out of the plot along with aforesaid articles. Thereafter, he called Dinesh who was the care taker of the said plot and in whose absence, he was looking after the plot, regarding the theft by Bajrang and Sarvesh. Thereafter, criminal proceedings were Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 6 of 35 Date:
AHLAWAT 2026.01.03 16:37:19 +0530 initiated. The witness correctly identified the accused persons present in the Court. In the cross-examination, he stated that his statement was recorded by the police on 19.07.2019. He again said, he did not remember the date when police recorded his statement but the incident pertains to 19.07.2019. He further stated that he himself had not seen accused persons while breaking the lock and he had seen the said fact in camera. He further stated that the CCTV cameras were not controlled from his house, however, the same were installed at the house of Rakesh S/o Late Bijender Singh. He further stated that on 20.07.2019, he checked the CCTV footage of the cameras installed near the said plot and he had access of the footage of the CCTV in his mobile phone. He further stated that he did not hand over the CCTV footage to the police and he informed PW1 Dinesh, who handed over the CCTV footage to police officials. He further stated that he had checked the CCTV footage through his mobile app. on the next date of incident in question and he might have got it written in his complaint. He further stated that since they were supporter of Mohinder Yadav and due to said reason, they had differences with accused persons.
6. PW3 ASI Suresh deposed regarding lodging of FIR Ex.PW3/A.
7. PW4 HC Narender deposed that on 19.07.2019, Duty Officer handed over to him computerized copy of FIR no.116/19 and original tehrir and he left the PS and reached the spot and handed over the same to the IO.
8. PW5 SI Onkar Singh deposed that on 19.07.2019, complainant Dinesh came at PS and lodged a complaint against accused Bajrang and Sarvesh. He further stated that he recorded the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 7 of 35 Date:
AHLAWAT 2026.01.03 16:37:23 +0530 statement of complainant and on the basis of which, he prepared rukka Ex.PW5/A and got the FIR registered through Duty Officer. He further stated that during investigation on 19.07.2019, he reached at the spot alongwith complainant and Ct. Ravinder and after reaching there, at the instance of complainant, he prepared the site plan. He further stated that complainant Dinesh handed over to him CCTV footage in a pen drive and he seized the same and complainant also handed over certificate u/S 65B of IEA. He further stated that on 17.08.2019, he served notice u/S 41A Cr. P. C. upon accused Sarvesh and Bajrang Ex.PW5/B and Ex.PW5/C and recorded disclosure statement of accused Bajrang and Sarvesh Ex.PW5/D and Ex.PW5/E. He further stated that complainant also handed over to him photographs of the spot/ wall and certain documents of Sub-registrar Basai Darapur. He further stated that he recorded statement of witnesses u/S 161 Cr. P. C. and after completion of investigation, he submitted the charge-sheet before the concerned Court. The witness correctly identified both the accused persons present in the Court. In the cross-examination, he stated that he was not present at the spot when the alleged incident occurred and the complainant came at the PS to lodge the complaint at about 04:00 pm. He further stated that public persons were present at the spot when he prepared the site plan at the instance of complainant but he did not obtain the signatures of the public persons on the site plan and also did not record the statement of abovesaid public persons. He further stated that he did not seize the CDR and also not obtain the ownership of the property where the camera was installed. He further stated that complainant had handed over to him photographs of the spot but he did not hand over to him certificate u/S 65B of IEA regarding the same. He further stated that he did not verify the documents Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 8 of 35 Date:
AHLAWAT 2026.01.03 16:37:26 +0530 from the concerned department and he recorded the statement of witness Rakesh and Ct. Ravinder u/S 161 Cr. P. C. at the spot.
9. PW6 Mohinder Yadav deposed that in the year 1970, he had purchased agricultural land in Village Daurala alongwith a plot mearsuring 700 sq. yards in Lal Dora/ kitwar area in village Daurala and he proved copy of the sale deed alongwith its translation from Urdu to Hindi Ex.PW6/A (colly). He further stated that in the year 2019, one wall of the said plot had collapsed and he sent his caretaker namely Dinesh for repairment of the same. He further stated that on 16.03.2019 at about 12:00 pm, when he alongwith Dinesh reached at the spot, he saw some persons at his abovementioned plot started objecting to their presence over there and also started assaulting him. He further stated that he remember the names of few persons who were present there namely Krishan, Hari Om, Vinod, Bhim and some other persons. Thereafter, he filed his complaint at PS J. P. Kalan upon which a separate FIR was registered and subsequently, he filed a complaint before concerned SDM against the abovementioned same persons who were obstructing him from going to his said plot. He further stated that he got the possession of the abovementioned plot through the order of SDM Ex.PW6/B. Thereafter, he repaired the four walls on the said plot and also got affixed one gate at the said plot and he also got affixed some CCTV cameras on one of the neighbour house namely Rakesh overlooking his plot. He further stated that the CCTV feed of the said camera was managed by Dinesh through his mobile phone and another Rakesh, who used to take care of his agricultural fields. He further stated that in July 2019, Dinesh informed him that after he had gone through the CCTV footage some of the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 9 of 35 Date:
AHLAWAT 2026.01.03 16:37:24 +0530 persons had broken the lock of his gate and also stolen some articles i.e. wooden locks, cow dung and other miscellaneous items from his plot. He further stated that he told Dinesh to move a formal complaint before PS and further proceed with the matter. In the cross-examination, he stated that police had never inquired about the present case from him and he had never given any complaint to the PS regarding the present case. He further stated that a complaint u/S 145 Cr. P.C. was submitted by him before the Court of Ld. SDM, Kapashera but he never mentioned about collapse of wall in his said complaint. He further stated that he had placed on record documents regarding the subject land admeasuring 406 sq. yards only and not 700 sq. yards. He voluntarily stated that right from purchase, he was having possession of 700 sq. yards. He further stated that he was not having the title document for remaining land other than 406 sq. yards of the subject property and he proved certified copy of complaint u/S 145 Cr. P. C. as filed by him before SDM Ex.PW6/C. He further stated that the plot in question is situated in old lal dora abadi of village Daurala.
10. On account of admission of accused u/s 294 Cr.P.C, remaining in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined; hence, PE was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
11. Thereafter, before the start of defence evidence in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 10 of 35 Date:
AHLAWAT 2026.01.03 16:37:18 +0530 of the accused persons was recorded on 19.12.2023 and their additional statements was recorded on 07.10.2024 without oath under section 281 r/w 313 Cr.PC, wherein they have stated that they were innocent and falsely implicated in the present case. They further stated that no such incident ever happened and complainant has falsely filed the present case against them and the plot in question is an ancestral property and currently in their possession. They further stated that the documents as tendered by PW6 were false and fabricated and the order as passed by the SDM Court was wrong. They further stated that they want to lead defence evidence.
ORAL EVIDENCE
DW-1 Sudhir Dabas
12. DW1 Sudhir Dabas brought the summoned record i.e. case file of CS SCJ no.588/19 titled as Krishan and others Vs. Mohinder Singh Yadav and another. As per the abovesaid case, vide order dated 05.07.2019 application under Order 39 Rules 1 and 2 CPC was partly allowed and he proved copy of the said order is Ex.DW1/A. Further, the order dated 05.07.2019 was challenged before the Appellate Court which was decided vide order dated 02.09.2019 and he proved copy of said order as Ex.DW1/B. Thereafter, DE was closed and the matter was taken up for final arguments.
FINAL ARGUMENTS
13. I have heard the Ld. APP for the State assisted by the counsel for complainant and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 11 of 35 Date:
AHLAWAT 2026.01.03 16:37:29 +0530
14. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offences. Further, Ld. Counsel for complainant who had assisted Ld. APP has placed on record copy of criminal revision dismissed vide order dated 08.01.2020 by Ld. ASJ/ Special Judge NDPS, Dwarka Court, New Delhi.
15. Per contra, the Ld. Counsel for the accused persons has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. Defence counsel further argued that complainant has not been able to establish his possession over the subject property and accordingly no case against is made out. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused persons be acquitted for the said offence. Ld. Counsel for accused persons has also relied upon following judgments:
1. Ram Akbal Rai and others Vs. Jaldhari Pandey, AIR 1972 SC
949. Digitally signed by ABHINAV
ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 12 of 35 Date:
AHLAWAT 2026.01.03 16:37:26 +0530 INGREDIENTS OF THE OFFENCE
16. The allegations levelled against the accused persons are segregated into two parts:
Firstly, that accused Bajrang and Sarvesh tresspassed into the plot belonging to Mohinder Yadav (PW6) and thereby committing the offence under Section 448 IPC.
Secondly, that accused persons after committing criminal trespass, damaged the lock of the gate and the gate itself and stole woods, construction material and dung cakes etc, kept in the said plot and thereby committing the offence under sections 427/379 IPC.
17. Let us deal with the first set of allegations against accused u/S 448/341 IPC. The provision of 448 IPC provides as under:
Section 442 IPC defines house trespass punishable under section 448 IPC which is as under-
Whoever commits criminal trespass by 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, is said to commit "house trespass".
Explanation- The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house- trespass.
Section 441 IPC defines criminal trespass as under:
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 therewith intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
18. Thus, it is necessary for an offence punishable u/s 448 IPC that essential ingredients of criminal trespass and house trespass must Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 13 of 35 Date:
AHLAWAT 2026.01.03 16:37:25 +0530 be fulfilled. For commission of criminal trespass three essential ingredients have to be fulfilled which are as follows:
(1) Entry into or upon property in possession of another.
(2) If such entry is lawful then unlawfully remaining upon such property.
(3) Such entry or unlawful remaining must be with intent:
(i) to commit of offence or
(ii) to intimidate, insult or annoy the person in possession of the property.
19. Thus, it is important that the property trespassed must be in actual possession of some person other than the alleged trespasser. It is necessary for the prosecution to prove the exclusive possession of the complainant upon the property trespassed. It is also settled law that the question of title is not to be raised on a plea of possession as the offence is against possession and not against ownership of property.
Furthermore, it is to be noted that a simple and even unintentional entry upon another's land constitutes injuria, and is actionable. But a civil suit lies for this, not a criminal prosecution. But if entry is affected with the mens rea mentioned in Sec. 441, then alone a criminal prosecution will lie. In criminal trespass, intention to commit an offence is an essential ingredient. The causing of an offence, intimidation, etc. must be the main aim of the entry. Therefore, mere occupation, even if it is illegal, without such intent, cannot amount to criminal trespass as held in Kanwal Sood v Nawal Kishore, 1983 CrLJ 173 (SC). It is important to note that the use of criminal force is not a necessary ingredient. Further, knowledge of likelihood, in place of intention, will not make an offence under Sec. 441.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 14 of 35 Date:
AHLAWAT 2026.01.03 16:37:21 +0530 APPRECIATION OF EVIDENCE
20. The first ingredient which needs to be proved to prove an offence u/s 448 IPC is that the accused gained entry into or upon property in possession of another with intention to commit an offence or to intimidate, insult or annoy any person in possession.
In the instance case, prosecution examined the following witnesses in prosecution evidence to establish the factum of possession of PW1 of the subject property that is complainant/ PW1 Dinesh who was working as caretaker at the said plot, PW2 Rakesh who allegedly saw the broken lock, PW6 Mohinder Yadav who is stated to be owner of the said plot while the other witnesses are not the witness of incident but part of the investigation.
21. PW1 stated that he was working as care taker at the property of Mohinder Yadav (PW6) and that he had been taking care of said property which is of 700 sq. yards where they had also installed CCTV cameras which is accessible through his mobile phone. PW1 specifically stated that on 19.07.2019 at about 08:40 am to 09:50 am, one lady and one male person came to the spot and broke open the gate and its lock and entered the said property whereafter, they stole wooden logs, dung cakes and construction material from there. PW1 specifically stated that he saw the said incident via CCTV cameras. PW1 further stated that at about 09:00 am, one Rakesh (examined as PW2) who was also working as caretaker in the said plot in his absence, told him about the incident that one Sarvesh and Bajrang had broke open the locks and stole the aforesaid articles. PW1 specifically stated that both the accused persons belonged to the group of Krishan Kumar, Bhim Singh, Hari Om, Pradeep and Vinod, who had previously also quarreled Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 15 of 35 Date:
AHLAWAT 2026.01.03 16:37:22 +0530 with their workers which is subject matter of FIR no.32/19 registered at PS J.P. Kalan. PW1 further stated that after seeing the said footage, he went to the said plot and found broken articles whereupon he called his owner Mohinder Yadav and upon his instruction, he got his statement Ex.PW1/A recorded.
22. Similarly, PW2 Rakesh stated the same fact that on 19.07.2019, he had gone to the plot as he usually did, where he saw the gate and lock being broken and the articles from the plot being missing. PW2 further stated that upon checking the CCTV footage, he found that accused Sarvesh and Bajrang had done the said act whereafter he called Dinesh. Furthermore, prosecution examined PW6 Mohinder Yadav who stated that he purchased the agricultural land in village Daurala in 1970 along with plot measuring 700 sq. yards in Lal Dora/ kitwar area in village Daurala and he tendered copy of the sale deed Ex.PW6/A (colly). PW6 further stated that in the year 2019, one wall of the said plot had collapsed and thereafter, he sent his caretaker namely Dinesh for repairment and on 16.03.2019 at about 12:00 pm, when he alongwith Dinesh reached at the spot, he saw some persons objecting to their presence whereafter he filed the complaint at PS J. P. Kalan whereupon the FIR was registered and he consequently, filed a complaint before concerned SDM and got the possession of the abovementioned plot by the order of concerned SDM Ex.PW6/B. PW6 further stated that after repairing the four walls he got affixed one gate at the said plot and also got affixed some CCTV cameras on the neighbor's house namely Rakesh while the CCTV footage feed was managed through its caretaker phone. PW6 further stated that in July 2019, caretaker informed him about Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 16 of 35 Date:
AHLAWAT 2026.01.03 16:37:19 +0530 the present incident and he instructed his caretaker to move formal complaint before police.
23. Before evaluating the testimony of prosecution witnesses, it is relevant to mention that Ld. counsel for accused persons has vehemently argued that the sale deed as tendered by PW6 is only for the area of 400 sq. yards and not for 700 sq. yards. and that presence of the accused persons have not be established by the prosecution and as such the subject property is the ancestral property of the accused persons, thereby accused persons are entitled to benefit of doubt as no such incident happened as alleged by the complainant.
24. For establishing the fact that complainant PW1 being the care taker of the property owned by PW6 was in possession of the said property, prosecution examined PW6 Mohinder Yadav, who tendered copy of sale deed Ex.PW6/A(colly) and one copy of the order as passed by the concerned SDM dated 25.06.2019 Ex.PW6/B. Furthermore, during the final arguments, Ld. counsel for complainant placed on record order of the Ld. Sessions Judge as passed in the criminal revision no.318/19 dated 08.01.2020.
25. Prosecution in order to prove the factum that complainant being the care taker of the subject property owned by PW6 was in possession on of the subject property got examined PW6 who tendered the copy of the sale deed Ex.PW6/A in his testimony. Perusal of the same reveals that the same was executed by one Smt. Phool Bai and Santra Bai in favour of PW6/Mohinder S/o Kishan Chand vide sale deed dated 08.06.1970. In order to further buttress the fact that PW6 being the owner of subject land continued to remain in its possession, PW6 tendered one order Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 17 of 35 Date:
AHLAWAT 2026.01.03 16:37:30 +0530 passed by concerned SDM dated 25.06.2019 vide which exercising its power u/S 145 Cr. P.C. concerned SDM declared PW6 Mohinder Yadav to be in possession of plot / gitwar situated in Abadi Lal Dora of Village Daurala. The relevant para of the said order is reproduced herein as under:
(a) Complainant is declared to be in possession of the said "Gitwar"/plot of land, situated in the abadi/laldora of village Daurala[Devrala], P.S. Jaffarpur Kalan, District South West, New Delhi and it is held that the Complainant is entitled to retain possession of the said land until evicted therefrom in due course of law;
(b) Respondents are restrained from interfering in the peaceful possession, enjoyment, ingress and egress of the Complainant in respect of the said "Gitwar"/plot of land, situated in the abadi/laldora of village Daurala [Devrala], P.S. Jaffarpur Kalan, District South West, New Delhi and causing any interference in the Complainant raising construction/boundary wall/gates etc over the said plot of land;
(c) SHO Jaffarpur Kalan, District South West in directed to provide protection to complainant, in case the Respondents cause any interference in the construction to be raised by Complainant over the said plot of land or interfere in the peaceful possession of the property by the Complainant.
(d) Respondents are directed to remove obstruction from the public passage and any dung, mud heaps/material, minor wooden structures, farming machines, cattle etc, if any, from the said land of the Complainant. SHO Jaffarpur Kalan, District South West is directed to assist the Complainant in removal of any obstruction by Respondents from the public passage and the said land.
26. Now, here it is to be specifically mentioned that the present complaint of the complaint is for an incident dated 19.07.2019 whereas the SDM order qua the subject land of the complainant was passed on 25.06.2019 which is about one month prior to the alleged incident of trespassing.
27. It is vehemently argued by Ld. counsel for accused that the findings by the concerned SDM are not binding, being an executive Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 18 of 35 Date:
AHLAWAT 2026.01.03 16:37:25 +0530 authority and the same should not be relied upon as the same were not the findings given by any Civil Court. Ld. counsel for accused has relied upon the judgment of Ram Akbal Rai and others Vs. Jal Dhari Pandey AIR 1972 SC 949 in support of his argument.
28. It is pertinent to mention that the order of the concerned SDM as passed in favour of PW6 Mohinder Yadav (complainant in the above-mentioned proceeding before the concerned SDM) was challenged by the respondent before the Ld. Sessions Court which was dismissed being devoid of any merits vide order dated 08.01.2020. It is profitable to reproduce the finding of the Revisional Court which is as under:
"7. From the perusal of record, it is observed that arrangement made by Ld. SDM in impugned order is only temporary and the findings of Civil Court will be applicable upon the parties and also upon property in question as and when some findings are given by Ld. Trial Court and not the direction passed by Ld. SDM as same is not permanent arrangement.
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12. The counsel for respondent No. 2 has relied upon judgment passed by Hon'ble Supreme Courttitled as Jhunamal Vs. State of Madhya Pradesh, 1988 Lawsuit (SC) 503 wherein in para No. 7, the Hon'ble Supreme Courthas held that "We fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer's Case. The ratio of the said decision is that a party should not be permitted to litigate before the criminal Court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under S. 145 Cr. P. C. made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil Court. An order made under S. 145 Cr. P. C. deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the dispute property. The order is subject to decision of the civil Court. The unsuccessful party therefore must get relief. Only in the civil Court. He may move the civil Court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The Civil Court has jurisdiction to give a finding different from that which the Magistrate has reached".Digitally signed by ABHINAV
ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 19 of 35 Date:
AHLAWAT 2026.01.03 16:37:27 +0530
13. Reliance is also placed by both the parties upon judgment passed by Hon'ble Supreme Courtin case titled as Amresh Tiwari Vs. Lalta Prasad Dubey, 2000 Lawsuit (SC) 715 wherein Hon'ble Supreme Courtheld that "In our view on the facts of the present case, the ratio laid down in Ram Sumer's Case fully applies. We clarify that we are not stating that in every case where a civil suit is filed. Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil Court that proceedings under Section 145 should not be allowed to continue. This is because the civil Court is competent to decide the question of title as well as possession between the parties and the orders of the civil could would be binding on the Magistrate".
14. The above findings are fully applicable to the facts of the present case because in present proceedings also, the suit filed by petitioners herein was for injunction only and not for possession and declaration of title in respect of property in question and thus proceedings U/s 145 Cr.
P. C. were rightly initiated by Ld. SDM in his domain and rather same was warranted to maintain peace between the parties. Furthermore, as per inquiry report filed by police, the possession of respondent No. 2 herein over the plot in question has been reascertained. It has come on record that respondent No. 2 purchased the land but no documents to the contrary have been placed on record by petitioner and till the time those documents in favour of respondent No. 2 are set aside or not declared to be null and void, the presumption of purchasing the property by respondent No. 2 herein is deemed to be correct."
29. Perusal of the above finding reveals that the Ld. Revisional Court did not find any illegality in the order of the SDM dated 25.06.2019 thereby affirming the fact that PW6 Mohinder Yadav being the owner of the said land continued to remain in possession of the subject land.
`Section 145 CrPC is primarily intended to prevent breaches of peace arising out of disputes relating to immovable property by ensuring that the existing possession is protected until rights are finally adjudicated by a competent Civil Court. The provision empowers the Executive Magistrate/concerned SDM to determine who was in actual possession on the date of the preliminary order and to maintain that status quo, so that no party takes law into their own hands or disturbs peaceful possession. Its Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 20 of 35 Date:
AHLAWAT 2026.01.03 16:37:22 +0530 objective is not to decide title, but to provide an immediate, preventive remedy to maintain public order by safeguarding the party in settled possession until the civil rights are resolved.
30. In the present case, accused persons also led defence evidence and summoned Ahlmad of the Court of Civil Judge wherein he brought a case file of case titled as Krishan and others Vs. Mohinder Yadav & others, case bearing no. CS SCJ no.588/2019, wherein one order was passed by the Civil Court which is Ex.DW1/A. Perusal of the said order dated 05.07.2019 reveals that the application under Order 39 Rule 1and 2 CPC as preferred by said complainant Krishan Kumar against Mohinder Yadav (present PW6) was decided and it is important to reproduce the findings of the said order which is as under:
"I have considered the submissions of both the parties and perused the record. During arguments, it is not disputed by the parties that at present the possession of the suit property is with the defendant no.1 in furtherance of order of the SDM dated 25.06.2019.
Although both parties are claiming their ownership qua the suit property, but none of them have placed on record any documentary proof regarding their earlier possession or ownership qua the suit property. As per the plaintiffs, at the time of filing of the suit, they were in possession of the suit property and they used to put their agricultural equipments, cow dunk etc. in the suit property; however, after filing of the suit, the concerned SDM has passed an injunction order against the plaintiffs dated 25.06.2019 in a proceedings u/s 145 Cr.P.C. arbitrarily and under the garb of that order, the defendant no.1 had taken forcible possession of the suit property.
According to Ld. Counsel for plaintiffs, the concerned SDM has passed the order dated 25.06.2019 deciding the possession despite pendency of the civil suit before this Court regarding the question of possession. Ld. Counsel for plaintiffs has referred a case law in this regard of Hon'ble Supreme Courtof India in Amresh Tiwari Vs. Lalta Prasad Dubey 2000 LawSuit(SC) 715 in which it has been observed by Hon'ble Apex Court while discussing its earlier decision in case of Ram Sumer Puri Mahant Vs. State of U.P. AIR 1985 SC 472, in its para no.12 as "When a civil litigation is pending for the property wherein the question Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 21 of 35 Date:
AHLAWAT 2026.01.03 16:37:31 +0530 of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil Court is binding on the criminal Court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the even of a decree of the civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil Court and parties are in a position to approach the Civil Court for interim orders such a injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be waster over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue." According to the Ld. Counsel for plaintiffs they are entitled for the relief of interim protection because the plaintiffs are dispossessed from the suit property under the garb of an arbitrary order passed by the Ld. SDM. However, at this stage, this Court is not going into the merits or legality of the order dated 25.06.2019 passed by the Ld. SDM as the same may be challenged by the plaintiff, if aggrieved, before the appropriate forum.
Regarding the present matter, SI Rambhaj who appeared on behalf of defendant no.2 i.e. concerned SHO as shown in photograph in which some agricultural equipment are seen and admittedly the same belongs to the plaintiffs. It is further stated on behalf of defendant no.2 that earlier the agricultural equipments, cow dunk etc. were used to put by the plaintiffs, but same were removed in furtherance of the order passed by Ld. SDM after filing of the present suit by the plaintiff.
Therefore, it is not disputed that at present, the possession at the suit property is of the defendant no.1, but the possession at the time of filing of the suit is not clear. The interim relief sought by the plaintiff regarding restraining the defendants from dispossessing him from the suit property becomes infructuous.
Other interim relief sought by the plaintiffs are restraining the defendants from raising illegal construction and from creating third party interest in the suit property. As there are already existing laws/rules/bye-laws etc. for raising any construction and nobody can be allowed to raise any illegal construction without obtaining necessary sanction/permission from the concerned authority.
At this stage, as both parties are claiming their possession and ownership over the suit property, if defendant is allowed to raise illegal construction over the suit property or to create third party interest in the suit property then, it may amount an irreparable loss to the plaintiffs. On the other hand, it is not stated by the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 22 of 35 Date:
AHLAWAT 2026.01.03 16:37:20 +0530 defendant no.1 that if he will not do illegal construction upon the suit property or he will not be allowed to create any third party interest in the suit property, then he will suffer with any irreparable loss.
Therefore, in view of the facts & circumstances, defendant no.1 is hereby restrained from raising illegal construction upon the suit property and from creating any third party interest in the suit property i.e. area measuring 700 Sq. Yards situated at the Village Daraula, New Delhi as shown in red in site plan, during pendency of the suit. The interim application u/O XXXIX R 1 & 2 CPC is partly allowed and disposed off accordingly. It is clarified that anything mentioned in this order shall not effect the merits of the case.
Put up for filing WS with advance copy to opposite party and for further proceedings on 27/08/2019 i.e. the date already fixed.
Copy of order be given dasti, at request."
31. Thus, it is evident that in the civil suit as preferred by the plaintiff (in the above mentioned civil suit) against present PW6, the concerned Civil Court gave findings that the defendant ( present complainant/PW1 through the owner who deposed as PW6) was in possession of the suit property but it was not clear as to who was in possession at the time of filing of the said civil suit and further directions were issued upon the defendant (present complainant/PW6) from raising any illegal construction upon the said property or from creating any third party interest in the suit property i.e. area measuring 700 sq. yards.
32. Here, the dates of orders as passed by various authorities are to be highlighted, as the concerned SDM order disposing off proceedings under Section 145 Cr. P. C. declaring complainant/PW6 to be in possession of gitwar/plot, village Daurala is dated 25.06.2019 while the Civil Court decided the application under Order 39 Rule 1 and 2 CPC observing the defendant (present PW6) to be in possession of the suit property is Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 23 of 35 Date:
AHLAWAT 2026.01.03 16:37:20 +0530 dated 05.07.2019 while the present criminal allegations of trespass is dated 19.07.2019.
Thereby, it is evident that complainant PW1 being the caretaker of property of PW6 were in possession of the suit property on 19.07.2019 and as affirmed by the Ld. Revisional Court order dated 08.01.2020 that there was no illegality in the order passed by concerned SDM which affirms the fact that PW6 was the owner in possession of the subject property.
33. There are no merits in the arguments of Ld. counsel for accused that finding of the SDM qua the possession of the party concerned should not be given any value as the same was not the finding of any Civil Court. Even, if both the parties have dispute regarding the ownership and possession qua the subject plot the same is to be decided by the appropriate civil forum which as per the record brought by both the parties shows that the same is under consideration by the concerned Civil Court. The fact that concerned SDM passed the order finding PW6 to be in possession does not make the same illegal as order made under Section 145 Cr. P. C. deals only with the factum of possession of the party on a particular date and it confers no title to remain in possession of the disputed property. Such order by the concerned Executive Magistrate under the provisions of Cr. P. C. are subject to decision of the Civil Court. Proceedings u/S 145 Cr. P. C. empowers the concerned Executive Magistrate to determine who was actually in possession on the date of dispute so that appropriate orders could be passed to maintain status quo so as to prevent breaches of peace arising due to dispute relating to immovable property. Such orders are passed so that no party takes law in their hands and ultimately Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 24 of 35 Date:
AHLAWAT 2026.01.03 16:37:29 +0530 its objective is that party concerned approaches the Civil Court for adjudication of their issues.
34. As observed in the preceding paragraphs, on the date of incident i.e. 19.07.2019, owner/PW6 was in possession of the subject property as there is no other order by any authority giving a contrary finding accordingly, it stands established that PW6 through his caretaker PW1 was in possession of the subject property.
Also, the argument raised by the defence counsel regarding the area of the subject property is wholly immaterial, particularly when the accused persons have not led any evidence to establish that they were entitled to or in lawful possession of the said portion of the property. On the contrary, a subsisting order of the Civil Court duly recognises the possession of PW-6 over the subject property. In the face of such judicial recognition and in the absence of any contrary evidence from the accused, the defence contention lacks merit and is liable to be rejected.
35. For the offence under section 448 IPC, the property trespassed must be in actual possession of some person other than the alleged trespasser. Prosecution in the present case has established exclusive possession of the complainant/PW1 being the care taker of the property owned by PW6 upon the property trespassed by both the accused persons. It is also settled law that the question of title is not to be raised on a plea of possession as the offence is against possession and not against ownership of property. As such, accused persons apart from bare averments that the subject property is their ancestral property has not produced any other cogent material to substantiate their version., Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 25 of 35 Date:
AHLAWAT 2026.01.03 16:37:29 +0530 Analysis of the CCTV Footage
36. Furthermore, dduring the course of investigation, IO PW5 seized the CCTV footage in pen drive as provided to him by PW1 Dinesh vide seizure memo Ex.PW1/C alongwith certificate u/S 65B of Indian Evidence Act Ex. PW1/D. The CCTV footage in the pen drive which was opened in the testimony of PW1 Ex.PW1/A1 was played which was found containing two videos that is of 2019-07- 19 at 12.02.23 PM and of 2019-07-19 at 12.02.24 PM. The footage was played during the testimony of PW1 and the Court observation was also recorded in the testimony of PW1 which is reproduced as under:
"Upon playing the pen drive, one woman and one man can be seen breaking/removing the iron gate at the plot and thereafter, they can be seen entering into the plot. The witness states that the woman therein is accused Sarvesh and the man therein is accused Bajrang. The woman can be seen picking up the logs of wood kept in the said plot. The man can be seen keeping the broken gate by the wall of the plot."
It is evident that one woman and a man are seen removing/ breaking one side of the iron gate and thereafter entering into the plot. The female was identified as Sarvesh and male was identified as Bajrang and upon entering the said plot, woman can be seen picking up the wooden logs kept in the said plot while man can be seen keeping the broken gate by the wall of the said plot.
37. It has been vehemently argued by the Ld. counsel for accused persons that the certificate under Section 65 B of Indian Evidence Act has not been procured as per law as the same has not been issued by the person who was the owner of the said CCTV cameras.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 26 of 35 Date:
AHLAWAT 2026.01.03 16:37:30 +0530 As per the prosecution evidence, PW2 Rakesh who stated in his testimony that the CCTV camera was installed on his neighbour Rakesh's house and he admitted in his cross- examination that CCTV camera are not controlled from his house while the same are installed at the house of Rakesh S/o Late Bijender Singh. PW2 further stated in his cross-examination that on 20.07.2019, he checked footage of the said camera as he had the access of said camera in his mobile phone and thereafter, he informed PW1 Dinesh who handed over the CCTV footage to police. IO PW5 had obtained the certificate u/S 65B of Indian Evidence Act as issued by complainant PW1 Dinesh and the certificate is Ex.PW1/D. As per the said certificate, PW1 Dinesh had stated that contents of video recording which was recorded via camera affixed at the house no.14 Village Daurala which is retained in its original form in the magnetic disc.
38. Before proceeding ahead, it is worthwhile to mention the law regarding the admissibility of electronic evidence. Under Section 65 B of the Indian Evidence Act, 1872, any information contained in an electronic record, including CCTV footage produced from a computer output, is deemed a document and admissible in evidence without further proof if accompanied by a certificate under sub-section (4), which must be signed by a person occupying a responsible official position in relation to the operation of the relevant device or management of the relevant activities, confirming the accuracy, production manner, and device condition as per the prescribed format. Also, The Hon'ble Supreme Courtheld in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. AIR 2020 Supreme Court 4908, that the Section 65B(4) certificate constitutes a condition precedent for the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 27 of 35 Date:
AHLAWAT 2026.01.03 16:37:17 +0530 admissibility of electronic evidence, mandatory in all cases and not dispensable by oral evidence, thereby providing the authoritative framework for its strict enforcement.
39. Now, coming back to the present case, the question is whether the said certificate as issued by the complainant/PW1 is as per law laid down u/S 65B of Indian Evidence Act. It is the prosecution version which came in the testimony of PW6(plot owner) that he had got affixed CCTV cameras on one of the neighbours house namely Rakesh s/o Late Bijender Singh overlooking his plot and that the CCTV feed of camera were being managed by his caretaker Dinesh via his mobile phone. Although the property owner i.e. neighbor Rakesh s/o Late Bijender Singh, on whose house the said cameras were got affixed was never examined in the prosecution evidence however the IO PW5 seized the CCTV footage from PW1 when he provided the same in a pen drive alogwith the certificate Ex.PW1/D.
40. At this stage, it is profitable to reproduce the content of the certificate issued by PW1 under section 65B Indian Evidence Act which is Ex. PW1/D, which is as under, " CERTIFICATE under 65B Indian Evidence Act 1, Dinesh So Virender Singh aged about 32 years R/o House No 10, Village Rasulpur Post Office Rani Khera New Delhi-110081, do hereby certify in supersession of certificate given on 31-07-2019 = A. Hereby produced are the video recordings in, 8GB pendrive red and black in colour: Make Sandisk, which show the gate of the plot of Shri Mohinder Yadav in Village Devrala being broken down and valuable wood/firewood, ooples/ cow dung etc kept on site being stolen on 19-07-2019. The said gate was installed in compliance of Order No F/SDM/KPH/Courtcase/2019/40615 Hon'ble Court of SDM Kapashera dated 25-06-2019 in Case ID: 21765 Case No 49/42/2019 and Case ID:21834 Case No 49/49/2019 under Section 145 of Criminal Procedure Code.Digitally signed by ABHINAV
ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 28 of 35 Date:
AHLAWAT 2026.01.03 16:37:21 +0530 B. I further confirm that the contents of the video recording are identical to the original video recording which was recorded on cameras connected to magnetic disk on 19-07-2018 at House No 14 Village Devrala. The original video recording is retained in its original form in the said magnetic disk sans any distortion whatsoever, and I undertake to make the original available as and when required for the purpose of investigation of this case.
(Dinesh) 02-08-2019."
41. Here, it needs to be highlighted that sufficiency of certificate declaring custody of original device concerning the electronic evidence was delt in detail in the landmark judgment of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, AIR 2020 SUPREME COURT4908, wherein the Hon'ble Supreme Court stated as following, "15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 29 of 35 Date:
AHLAWAT 2026.01.03 16:37:18 +0530 source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence."
42. Therefore, as per the above cited judgment, the certificate as per section 65(4)B IE Act must be issued by a person who had lawful control over the device and the certificate need not follow a rigid format, so long as it substantially complies with Section 65B(4).
A declaration that the original device is in the custody or control of the certifying person satisfies the statutory requirement. Thus, where the certificate states that the original CCTV system mobile device is with the person issuing the certificate, and that the copy was produced from such original, the requirement of Section 65B stands fulfilled.
In the instant case, certificate Ex.PW1/D mentions the factum that original video recording is retained in its original form in the magnetic disk and the certificate issuer that is PW1 undertook to make the original available as and when required for the purpose of investigation. It is well settled now, that CCTV footage, constitutes electronic evidence within the meaning of the Evidence Act and is admissible in law, provided the same is tendered along with a valid certificate under Section 65B of the Indian Evidence Act. Where such certificate is issued by the person who was operating and had control over the CCTV cameras and the mobile device on which the footage was recorded and stored, the statutory requirements of Section 65B stand duly complied with, rendering the electronic record admissible in evidence.
43. Also, there is also no material on record to suggest that the said CCTV cameras were not within the power to use by the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 30 of 35 Date:
AHLAWAT 2026.01.03 16:37:31 +0530 complainant PW1. As evident from the testimony of PW6 that he got the said CCTV cameras affixed on the neighbor's house overlooking his plot after there was an incident on 16.03.2019 which is subject matter of other case FIR and that after the said incident, the CCTV cameras were got affixed overlooking the subject plot in question.
44. Furthermore, both the accused persons are clearly identifiable in the CCTV footage and they both never challenged their identity as visible in the CCTV footage during trial or in their statements recorded under Section 313 CrPC; instead, they expressly admitted their presence at the scene stating that no such incident happened and that the plot in question is their ancestral property and currently in their possession. The footage clearly shows the accused persons entering the property after breaking the locks affixed on the gate and the gate itself, which itself indicates that they had no direct or free access to the said property. Even if, for the sake of argument, it is assumed that the accused persons were the owners of the plot in question, they have failed to offer any explanation whatsoever as to why they resorted to breaking open the gate in order to gain access to the property. Such conduct is wholly inconsistent with lawful possession or bona fide ownership and clearly reflects a deliberate and unlawful intent. The absence of any plausible justification for forcibly entering the premises strongly indicates the ill intention of the accused.
45. The CCTV footage placed on record qua the incident in question, coupled with the prosecution evidence establishing the possession of PW1(care taker of plot) and PW6 (plot owner) over the subject property in question, clearly demonstrates that the accused persons entered the property without consent. The said electronic evidence, Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 31 of 35 Date:
AHLAWAT 2026.01.03 16:37:28 +0530 along with the oral testimony of PW1 and PW6, remains consistent and unshaken and inspires confidence when considered with the civil authorities order as brought on record, thereby satisfying the essential ingredients of the offence of house trespass under Section 448 IPC.
46. The second set of allegations levelled against accused persons is that they committed mischief by breaking open the lock of the gate and the gate itself affixed at the plot owner by PW6 and also stealing the dung cakes, woods, construction material etc., kept therein and thereby he committed the offence punishable under section 380/427IPC. The key ingredients of Section 427 IPC are as follows:
i) Intention of knowledge of accused for causing loss or damage.
ii) Loss or damage by the direct action of accused.
iii) Diminishing the value of property by the acts of accused.
Mens rea or the mental state of the accused is a crucial element in establishing the offence under Section 427 IPC. Accused must either intent to cause wrongful loss or damage or possess knowledge that his actions are likely to result in such consequences.
47. In the present case, as already established in the preceding paragraphs, that accused persons affected entry into the subject property by breaking open the lock of the gates and the gates itself affixed at the plot in question. The said fact is duly proved by the CCTV footage and as discussed in the preceding paragraphs the fact that action of the accused person in damaging the lock and gate affixed at the subject plot is duly proved whereby accused Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 32 of 35 Date:
AHLAWAT 2026.01.03 16:37:26 +0530 persons secured entry into subject. There is no explanation as to why a person who is in possession of his own property would break the gate of a property to secure entry in the said property. Even the point no. D of the order of concerned SDM dated 25.06.2019 Ex.PW6/B which directed the respondent to remove any dung, material, farming machine from the subject land of the complainant which same was to be done with the assistance of SHO PS J. P. Kalan. However, the respondents never did so and the present accused persons have not given any reason whatsoever as to why they gained entry in the said plot by breaking open the gate affixed at the plot which is almost 24 days after the order of SDM was passed dated 25.06.2019 from the present incident dated 19.07.2019.
There is no explanation whatsoever from the defence as to why the accused persons acted in the manner alleged or under whose directions such acts were carried out, particularly when a specific order had been passed by the concerned Executive Magistrate/SDM clearly prescribing the manner in which the articles lying on the plot were to be removed. The accused having chosen to act in disregard to the said order, without offering any justification, shows their conduct having mala fide intention and a conscious disregard for the due process of law. Accordingly, prosecution has been able to establish that accused persons has caused intentionally such act which caused damage to the locks and gate affixed at the plot in question of PW6 being taken care by PW1 and thereby prosecution has proved its case against the accused persons under Section 427 IPC.
48. Furthermore, accused persons are also charged for offence under section 379 IPC. The key ingredients of Section 378 IPC which defines the offence of theft are as under:
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 33 of 35 Date:
AHLAWAT 2026.01.03 16:37:27 +0530
i) Dishonest intention to take the property.
ii) The property must be movable property belonging to another person.
iii) The property must be taken out of the possession of another without consent.
iv) There must be movement of the property in order to effect such taking.
49. Upon careful pursuing the contents of both the CCTV footage Ex.PW1/E, which only records the factum of both the accused persons entering in the subject property while part of the footage which could have recorded both the accused exiting the plot has not been brought on record for the reasons best known to complainant and IO thereby it is not clear whether both the accused persons had taken away any article kept in the plot alongwith them while exiting from the said plot. Therefore, in the absence of any such incriminating material showcasing accused persons taking away articles kept in the subject plot, prosecution has failed to establish the basic ingredients of offence of theft.
CONCLUSION
50. From the above discussion, and the surrounding circumstances in which the accused persons entered the premises without consent and caused damage thereto, the prosecution has been able to prove beyond reasonable doubt the commission of the offence of criminal trespass punishable under Section 448 IPC as well as the offence of mischief punishable under Section 427 IPC.
However, in the absence of any incriminating material to establish dishonest taking or removal of movable property, the offence under Section 379 IPC is not proved against the accused persons.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 34 of 35 Date:
AHLAWAT 2026.01.03 16:37:23 +0530
51. Resultantly, accused Bajrang S/o Subhash and accused Sarvesh W/o Satbir are thus, convicted of the offence u/s 448/427 IPC while acquitted for offence under section 379 IPC.
Let the convicts be heard separately on the quantum of sentence.
Copy of this judgment be given free of cost to the convicts.
Digitally signed Announced in the open Court by ABHINAV
ABHINAV AHLAWAT
on 03.01.2026 in the presence Date:
AHLAWAT 2026.01.03
16:38:42
of the accused. +0530
(Abhinav Ahlawat)
Judicial Magistrate First Class-09,
Dwarka, Delhi/03.01.2026
Note:- This judgment contains 35 pages and each page has been Digitally signed signed by me. ABHINAV by ABHINAV AHLAWAT Date: AHLAWAT 2026.01.03 16:38:49 +0530 (Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/03.01.2026 FIR No. 116/2019, PS Jafarpur Kalan State vs. Bajrang etc. Page 35 of 35