1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Brij Mohan Sharma Vs. State of Rajasthan & Anr. (S.B. Criminal Revision Petition No.316/2008) S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. Date of Order :- 04th November, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Ajay Gupta, for the petitioner. Ms.Alka Bhatnagar, public prosecutor. Mr.Hursh Saini, for the respondent No.2. The petitioner has challenged the order dated 23.07.2007 passed by the Additional Chief Judicial Magistrate whereby the learned Magistrate has acquitted the respondent No.2, Daya Ram for offence under Section 447 IPC. Mr. Ajay Gupta, the learned counsel for the petitioner, has contended that according to the petitioner, Brij Mohan, his land was situated on the Shahapura road, in front of the Electricity Board, in Khasra No.104. The petitioner has alleged that the respondent No.2 had committed criminal trespass by parking his thresher in Khasra No.104. Instead of appreciating the petitioner's testimony, the learned Magistrate has erred in concluding that the land in dispute was in Khasra No.362 and the said land is in the possession of respondent No.2 himself. On the other hand, Mr. Harsh Saini, the learned counsel for the respondent No.2, has contended that the petitioner has not 2 submitted any documentary evidence to prove the fact that Khasra No.104 actually belonged to him. Not only the ownership, but the possession of the land has to be proven before a case can be made out for criminal trespass. The learned Magistrate has clearly stated that the complainant has failed to produce any documentary evidence to prove the fact that the land belonged to him. Therefore, the learned Magistrate was justified in acquitting the respondent No.2 for offence under Section 447 IPC. Heard the learned counsel for the parties and perused the impugned order. Section 441 IPC defines the term “criminal trespass” as under :- Section 441. Criminal trespass :- 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 there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass". Section 447 IPC prescribes the punishment for having committed criminal trespass. The first ingredients that is required to be proven under Section 447 for criminal trespass is that the party who claims that someone has committed trespass on the land, should prove the possession of that land. Mere statement given in the Court has to be corroborated by documentary evidence. Although the petitioner has stated in his examination-in-chief that his land falls under Khasra No.104, but he has not produced any documentary 3 evidence to corroborate this statement. It is, indeed, a settled principle of law that a fact averred by a party has to be proven by the said party. However, in the present case, no documentary evidence has been produced to show the fact that the Khasra No.104 was in the petitioner's possession. Therefore, the learned trial court was certainly justified in holding that the petitioner has failed to prove his possession of the land in dispute. Moreover, in a criminal case the fact has to be proven beyond a reasonable doubt. Since a criminal case is not based on probabilities, the onous lies on the shoulder of the complainant to establish his case. However, in the present case, the said onous has not been discharged by the prosecution. In this view of the matter, there is neither any illegality, nor any perversity in the impugned order. This petition is devoid of any merit. It is, hereby, dismissed. (R.S.CHAUHAN)J. Manoj Solanki-