IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 739/2002. Date of Decision: 10.7.2009. _______________________________________________ State of H. P. ….Appellant. Versus Subhash Chand and others. ….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting1? No. For the appellant : Mr. Vikas Rathore, Deputy Advocate General. For the respondent : Mr.Vikas Bhardwaj, Advocate. ____________________________________________ SURINDER SINGH,j(ORAL) Heard and gone through the record. The State has challenged the acquittal of the respondents passed by the learned trial Court for the offences punishable under Sections 447,427,147, 149,323 and 325 of the Indian Penal Code on law and facts. In short the prosecution case may be summed up thus. On 28.12.2000 at about 11.45 a.m. in village Tangroti complainant-Smt.Leela Devi and her husband Punnu Ram were supervising the construction work on their land. It is alleged that the respondents unlawfully assembled and in prosecution of their common object Whether reporters of the Local papers are allowed to see the judgment?Yes . 2 committed criminal trespass into the land of the complainant and dismantled the construction whatever was done by that time. When the complainant and her husband resisted the said act, they were given beatings by the respondents with the result the complainant party sustained injuries. The matter was reported to the police which culminating into F.I.R. under the aforesaid Sections. The complainant and her husband were got medically examined. There was a fracture of mandible bone of Sh. Punnu Ram. The demarcation of the land was also got done. After the completion of the investigation, the challan was presented in the Court for the trial of the respondents for the aforesaid offences. The respondents were chargesheeted to which they denied and claimed tried. To prove its case the prosecution examined its witness. The respondents were also examined under Section 313 Cr.P.C. They denied the incriminating circumstances which were put to them. The respondents raised defence that the complainant party had encroached upon their land comprised of Khasra No. 236 regarding which civil litigation was pending inter se the parties and the stay orders were issued by the Court. At the end of the trial, the respondents were acquitted by giving them the benefit of doubt and their acquittal has been assailed in this appeal. 3 Khasra No.236 is claimed by the respondents and other co-sharers regarding which a civil suit was filed against Shakuntala and an ad-interim injunction was issued on 6.5.2000, restraining her. Said Shakuntala Devi is the wife of Shri Ramesh Chand son of the complainant Leela Devi. The interim was made absolute on 20.12.2000 (Ext.D1). It was clearly mentioned therein that the complainant Smt.Shakuntala Devi, the daughter-in-law of the complainant shall not from raise any construction over Khasra No. 236. PW1 Smt. Leela Devi complainant has admitted this fact and also that the civil court had appointed the Local Commissioner who demarcated the land in dispute in her presence. She also admitted that she had encroached upon the land of the respondents for which she paid Rs.3,000/-. Even this fact has been admitted by PW2 her husband Sh.Punnu Ram. PW3 Thakur Dass has categorically admitted that the respondents had been visiting the spot during the time of the construction and had been warning them not to raise any construction over their land. Against the above background, the respondent party has been proved to be in the settled possession of the land comprising Khasra No. 236 a portion of which was encroached upon by the complainant party and the respondents had already warned the complainant party not 4 to raise any construction over the portion of their land. Though, during the investigation of this case the area was got demarcated but no demarcation report is on record. On the day of the alleged incident, the respondents are alleged to have visited the spot and as already stated above by PW3 Thakur Dass that the respondents had been warning them not to raise the construction over the land but despite that they continued doing so. According to PW4 Dharam Chand the complainant party was also having ‘Lathies’ in their hands and it also stand proved that the respondents had sustained injuries and their injuries have not been explained. After the alleged incident, the respondents had also reported the matter to the police and they clearly stated that they were given beatings by the complainant party and this story was repeated by them not only to the police but also before the Medical Officer. In view of the fact that there was a boundary dispute, the demarcation report is not on record, the complainant party was having ‘lathies’ in their hands, despite the warning given by the respondents they did not stop the construction of the house over a portion of their land comprising khasra No. 236 regarding which the stay was issued and the civil litigation was pending and also the 5 fact that the respondents had sustained injury which were not explained by the prosecution, who was the aggressor is not known. Therefore all these factors throw substantial doubt on the probity of the prosecution case. Thus the prosecution case is not proved beyond reasonable doubt. The complainant party was fully aware of the fact that they were constructing the house over a portion of the disputed land belonging to the respondents. The respondents were within their right to protect the possession of their land. True facts appear to have been suppressed like an iceberg. For the foregoing reasons, I find no infirmity in the impugned judgment of acquittal, as such the appeal is without any merit and is accordingly dismissed. The respondents are discharged of their bail bonds entered upon by them at any point during the proceeding of the case. (Surinder Singh), Judge. July 10, 2009(R)