IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.46 of 1993 Decided on : January 2, 2008 Baldev Raj and another …Appellants. Versus Satish Kumar and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Raman Sethi, Advocate. For the Respondents : Mr. Janesh Gupta, Advocate, vice Mr. Neeraj Gupta, Advocate. Surjit Singh, Judge( Oral ) Heard and gone through the record. 2. This appeal by the injured was admitted vide order dated 22nd March, 1993, after leave to appeal was granted. When the matter was taken up for hearing, we noticed that the case was instituted against the respondents on police report, under Section 173 of the Code of Criminal Procedure, and, therefore, the appeal by private persons, i.e. the present appellants, was not competent, even though leave had been granted by this Court. Learned counsel took adjournment for answering our query. Today, he is present. He concedes that the appeal is not competent, but he prays that the same, having been admitted, be treated as a Revision Petition. In view of the judgment of the Apex Court in Jagbir and another versus State of Punjab, (1998) 6 Supreme Court Cases 629, we accede to the request of the learned counsel. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. It is submitted by the learned counsel that the trial Court has ignored very material and relevant evidence, while passing the order of acquittal. It is also his submission that the evidence has not been appreciated correctly. 4. Respondents were sent up for trial for offences, punishable under Sections 147, 148, 324, 326 and 506, all read with Section 149 IPC, by the police at the instance of the present petitioners. It was alleged that the respondents and the petitioners are joint owners in possession of certain piece of land and on 7th December, 1987, when the petitioners were raising a Dhara (temporary structure) on a portion of the said piece of land, respondents went there armed with Darat, sickles and sword and attacked the petitioners. Respondent Vijay Sheel was reported to have given a blow of sword aiming at the neck of petitioner Baldev Raj, PW-1, which he warded off by raising his left arm and in the process his arm sustained not only a bleeding cut injury but also fracture of the underlying bone. PW-2 Pushpa Devi was alleged to have received minor injuries. 5. Learned counsel submits that the statement of doctor, namely PW-5 Dr. R.P. Sharma, proves that the injury on the arm of PW-1 Baldev Raj was caused by means of sword. 6. We have perused the statement of the doctor. Doctor’s opinion is that the injury could have been sustained as a result of hitting by sword or as a result of fall on tin sheets, which are used for laying roof. As a matter of fact, the ocular version of the incident, as narrated by PW-1 Baldev Raj, does not inspire confidence. His testimony before the Magistrate, as PW-1, is contradicted by the earliest version given by him to the police. As per earliest version Ex. …3… PW-1/A, it was respondent Vijay Sheel who was carrying the sword and who aimed the blow on his neck therewith, but he (the witness) warded off the blow by raising his left arm, as a result of which he sustained the bleeding injury and the fracture, but while in the witness-box, he stated that it was respondent Anil Kumar and not respondent Vijay Sheel who caused the injury by means of sword on his arm. He was duly confronted with the earliest version but he could offer no satisfactory explanation. Anil Kumar is not even named in the FIR as an accused. One more respondent Madan Mohan is also not named in the FIR. 7. It has come in the evidence that civil litigation between the parties had been going on, at the relevant time, with regard to the partition of property. The parties were admittedly in joint ownership and possession of the piece of land, in question. The petitioners had no right to change the nature of any portion of the joint property, without the consent of the respondents. Respondents placed on record a copy of decree, Ex. DY, per which the civil litigation had ultimately been decided in their favour. The respondents had the right of private defence of property and to use mild force in exercise of the said right, to prevent the change of user of the joint property, till it was partitioned. 8. Under these circumstances, we see no reason to interfere with the judgment of acquittal recorded by the trial Magistrate. Hence, the petition is dismissed. ( Surjit Singh ), J January 2, 2008(sd) ( Surinder Singh ), J