IN THE HIGH COURT OF HIMACHAL RADESH SHIMLA Cr.M.P (M) No. 472/2011 Date of decision: 10. 8. 2011 Prem Singh alias Devi Dass ….Petitioner Versus Shiv Dayal and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Petitioner: Mr. Ajay Kumar Dhiman, Advocate. For the respondent : None. Surinder Singh, J. (Oral) By means of the present petition, the complainant/petitioner has sought leave to appeal as the respondents stand acquitted by the learned trial court in private compliant No. 2-I of 2005 decided on 25.4.2011 for the offences punishable under Section 447, 323 and 506 read with Section 34 Indian Penal Code. 2. Record of the learned trial Court was sent for which has been received and perused. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - 3. Heard the learned counsel for the petitioner. 4. The petitioner filed a private complaint against the respondents. Precisely his case has been that on 19.11.2004 at about 5.30 p.m. he along with his sons Pawan Kumar and Parveen Kumar had cut one ‘Bil’ tree from their own land for their personal use. In the meantime, respondents came armed with lathis and sickle and attacked upon them and also threatened them with dire consequences. They were beaten up mercilessly with the result the complainant as well as his son sustained various injuries. To retaliate the attack, they also offered resistance which caused injury on the person of the respondents. This incident was allegedly witnessed by Mast Ram and Sunder but none of them were examined to substantiate the charges against the respondents during the trial of the case. The case only hinges upon the statement of CW 3 complainant and his son Pawan Kumar as the injured persons having been examined to substantiate the charge beside examining the doctor. They claimed the ‘Bil’ tree to be their own whereas respondents claimed that the tree fell in their boundary and they used to lop it but it was - 3 - being cut by the complainant party. They resisted the act. When respondents objected to it, they were given beatings badly with the result Amar Singh respondent sustained grievous injuries on his head as well as other parts of the body. Consequently, FIR was lodged. The complainant party was arrested for the offences punishable under Section 326 and 307 Indian Penal Code and remained in Jail for one and a half month. 5. Factually, the complainant did not get the demarcation of the land in order to prove that the tree in question which was cut by them, fell in their possession. There is only a vague statement that the said tree was standing on their land as per jamabandi which contain three khasra numbers. The complainant party failed to point out in which khasra number the said tree was standing and that the respondents had no right to interfere with it. 6. Shri Ajay Kumar Dhiman, Advocate, for the petitioner submitted that the demarcation was got conducted by the police during the investigation of the criminal case, which was withheld but the complainant party did not get it demarcated. Therefore, withholding of demarcation report which is supposed to be with the police will - 4 - not prove the case of the complainant. Even they could have summoned and proved it in accordance with law. 7. In fact, it is the complainant party who has to prove their case beyond doubt and the respondents are not required to prove the case against them. Since there is no demarcation report with respect to the location of the tree in question and also the fact that the case was on the complainant party with respect to the attempted murder of Amar Singh, the private complaint appears to have been filed by them in retaliation. 8. Since there is nothing on record to conclude even prima facie to substantiate the version of the complainant and the grounds of acquittal are reasonable and based upon the evidence on record, the leave to appeal cannot be granted and is accordingly rejected. 9. Record of the learned trial Court be returned. The matter stands disposed of. August 10, 2011 (Surinder Singh), (cm) Judge