IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 435 of 2001. Date of decision:8.9.2008. State of H.P. .. ..Appellant Versus Uttam Singh and others .. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the Appellant: Mr.Rajesh Mandhotra, Dy.A.G. For the respondents:Mr.Anand Sharma, Advocate. _____________________________________________________ Deepak Gupta, J.(oral) This Appeal is directed against the judgment of the learned Chief Judicial Magistrate, Kullu dated 23rd April, 2001 whereby he has acquitted the accused of having committed offences punishable under Sections 147, 323, 427, 447 and 506 IPC. The prosecution version, in brief, is that all the accused persons formed an unlawful assembly and being members of an unlawful assembly committed the offence of rioting and that they criminally trespassed into the land of Smt.Roop Dassi and also committed mischief by damaging her property and uprooting her apple plants and barbed wire fencing. The undisputed facts are that the land in question is jointly owned by Tejaswi Ram husband of Roop Dassi and some of the accused persons. According to Roop Dassi PW-2, after getting demarcation of the land done she had got her fields fenced with a barbed wire. …2… Thereupon, the accused had come and uprooted the barbed wire and gave her beating and uprooted her apple plants. She informed her son-in-law Suresh Kumar about the incident who in turn lodged a complaint with the police. PW-3 Sh.Tejaswi Ram has also stated that the land in question was earlier a joint holding. He got the land partitioned and thereafter he fenced his share of land with barbed wire which was uprooted by the accused persons. When his wife objected to the uprooting of the barbed wire she was beaten. He also stated that 5 apple plants have been uprooted by the accused. It is important to note that both Tejaswi Ram and Roop Dassi admit that the land in question was joint. According to them the same had been partitioned and after partition they got the land demarcated. On demarcation of the land they had fenced their portion of land with barbed wire. The prosecution has failed to lead any evidence whatsoever to show that the land had been partitioned prior to the date when the incident took place. Even if the partition be presumed, there is nothing on record to show that the demarcation had taken place and the land had been partitioned by metes and bounds. Though Roop Dassi and Tejaswi Ram have claimed that the land had been demarcated prior to the incident taking place on 1.7.1996, PW-5 Budh Ram who carried out the demarcation stated that he had demarcated the land …3… only on 8.11.1996. In the absence of any proof of partition or demarcation Roop Dassi or her husband had no right to erect the barbed wire fencing on the joint holding. Therefore, the accused were protecting their rights on the land. This destroys the very root of the case of the prosecution. There is also no evidence to show that the apple plants which were stated to be uprooted were actually uprooted from the land which fell to the share of Tejaswi Ram. Neither Roop Dassi nor the other witness Lachhami Devi have clearly identified which of the accused persons gave beatings to her. Keeping in view the aforesaid facts, there is no error in the judgment of the trial Court. The appeal is without any merit and is accordingly rejected. Bail bonds, if any, furnished by the accused are discharged. September 8, 2008. ( Deepak Gupta ), PV Judge