JUDGMENT R.L. Khurana, J.—The State of Himachal Pradesh, has directed the present appeal against the judgment dated 6.7.1993, passed by the learned Chief Judicial Magistrate, Chamba, in Criminal Case No. 60-II of 1990, where by the sixteen respondents have been acquitted of the offences under Sections 147, 323, 447, 427, 435 and 506, read with Section 149, Indian Penal Code, arising out of F.I.R. No. 53/84 of Police Station, Dalhousie. 2. Briefly stated, the prosecution story is this. Radha Soami Satsang, hereinafter referred to as the Satsang, is a society registered under the Societies Registration Act, 1860. The satsang owns property known as Holy Lodge Annexe, Kozy Nook and Ellis Mere at Moti Tibba, within the local limits of Municipal Committee, Dalhousie. There is a Government High School at Moti Tibba, which is functioning in the main building of Holy Lodge. There exists a vacant area of land in front of the school, which was being used by the school as a play-ground for the last 30 to 40 years. A dispute arose regarding the demarcation of the said land. Consequently, on the application of the satsang demarcation of this land, hereinafter, referred to as the land in dispute, was carried out a on 19.10.1981 by PW 6, Parkash Chand, the then Naib Tehsildar, Dalhousie, assisted by PW 16, Prabh Dyal, the then Field Kanungo, Dalhousie. The land in dispute was found to be 0-3590 Acres. The same was denoted by Khasra No. 423/399/169/3 in the Aks Tatima, Ex PW 16/A. The Satsang by claiming the land in dispute to be belonging to it, represented to the Education Department to get back its possession. On 30.7.1983, Shri B.L. Handa, the then Director, Education, vide communication, PW 20/A, directed the then Principal, Shri Sudesh Raj Malhotra (respondent No. 9) of the Government High School to handover the possession of the land measuring 0-3590, comprising of Khasra No. 423/339/169/2, which was being used as play ground by the school, to the owner-Satsang. In compliance with the said directions, respondent No. 9, Shri S.R. Malhotra, is alleged to have delivered the possession of this land to the Satsang through its Executive Member, Madan Gopal Singh (PW 12) on 8.8.1983, vide Ex. PW 12/A. After obtaining the possession, the satsang is alleged to have enclosed the land by raising barbed wire fencing. In compliance with the said directions, respondent No. 9, Shri S.R. Malhotra, is alleged to have delivered the possession of this land to the Satsang through its Executive Member, Madan Gopal Singh (PW 12) on 8.8.1983, vide Ex. PW 12/A. After obtaining the possession, the satsang is alleged to have enclosed the land by raising barbed wire fencing. The Satsang wanted to construct a Satsang Hall in such land for the purpose of holding its weekly prayers. The plans therefor were approved and sanctioned by the Municipal Committee, Dalhousie, on 5.1.1984. When construction work was started by the Satsang, respondent No. 1, Shri Y.V. Mehra, instituted some proceedings against the Satsang before the Sub-Divisional Magistrate, Dalhousie. The learned Magistrate passed a restraint order against the Satsang restraining it from raising any construction over the land in dispute. Such restraint order was assailed by the Satsang before this court by way of a writ petition being CWP No. 216 of 1984. This writ petition was allowed on 20.5.1984 and the restraint order of the learned Magistrate was set aside. The work of construction was then restarted by the Satsang. As on 3.7.1984, substantial construction stood completed and only also was to be laid. 3. It is alleged that on 3.7.1984, at about 3.45 p.m., all the sixteen respondents after having formed an unlawful assembly in furtherance of their common intention to commit rioting, after having trespassed into the land in dispute, started pelting stones at the work force of the Satsang. Due to pelting of stones the members of the work force had to abandon the work and leave the site of construction. Thereafter, all the respondents started demolishing the super-structure raised in the land in dispute by the Satsang. They collected the wooden construction material and had set the same on fire. The main buildings Ellismere and Kozynook belonging to the Satsang were also damaged by the respondents. Due to pelting of stones multiple injuries were sustained by some members of the work force of the satsang. Slogans were alleged to have been raised against the Satsang by the respondents, who are alleged to have remained at the spot till about 6 p.m. 4. Due to pelting of stones multiple injuries were sustained by some members of the work force of the satsang. Slogans were alleged to have been raised against the Satsang by the respondents, who are alleged to have remained at the spot till about 6 p.m. 4. PW 2, Tara Singh, who at the relevant time was the Secretary of the Satsang at Dalhousie and the incharge of its properties, telephonically informed the local police at Dalhousie as well as PW 17, Shri K.L. Chopra, the then Deputy Superintendent of Police, Chamba, about the occurrence. On receipt of such information, PW 21, Hira Lal, the then Station House Officer of Police Station, Dalhousie arrived at the spot and while he was carrying out local inspection and investigation PW 17, Shri K.L. Chopra, Deputy Superintendent of Police, also arrived at the spot at about 8.30 p.m. from Chamba. 5. While the two police officers, namely, PW 17, Shri K.L. Chopra, and PW 21, Shri Hira Lal, were carrying out local inspection at the spot, all the respondents had again trespassed into the land in dispute. They collected the remaining wooden construction material of the Satsang and had set the same on fire. The respondents had then forcibly entered the accommodation meant for labourers and the chowkidar and had removed and taken away the tools, equipment and goods belonging to the labourers. Car No. CHA-4 belonging to the Satsang, was also damaged by the respondents. When the respondents were out to set the main building Eillsmere of the Satsang on fire, they were threatened by PW 17 Shri K.L. Chopra, Deputy Superintendent of Police that in case they did not stop committing mischief and rioting, he would order firing by the police. The respondents did not bother to the threats of PW 17, Shri K.L. Chopra, and they continued proceedings towards the main building with a view to set the same on fire. However, in the meanwhile, the Sub-Divisional Magistrate happen to arrive at the spot and on seeing him the respondents managed to escape. The respondents are alleged to have caused damage/ loss to the tune of about Rs. 2.5 lacs to the Satsang. 6. On the basis of the report made to the police by PW 2, Tara Singh, a case came to be registered vide FIR No. 53/84 at about 9.30 p.m. on 3.7.1984 against the respondents. The respondents are alleged to have caused damage/ loss to the tune of about Rs. 2.5 lacs to the Satsang. 6. On the basis of the report made to the police by PW 2, Tara Singh, a case came to be registered vide FIR No. 53/84 at about 9.30 p.m. on 3.7.1984 against the respondents. After necessary investigation all the respondents were arrested, challaned and sent up for trial. All the respondents, upon having been charged for the offences under Sections 147 and 323, 447, 427, 435 and 506, read with Section 149, Indian Penal Code, pleaded not guilty and claimed trial. In order to bring home the offences against each of the sixteen respondents, the prosecution examined as many as twenty-one witnesses, besides placing on record a number of documents. The respondents in their statements recorded under Section 313, Code of Criminal Procedure, denied the entire prosecution story. They pleaded false implication. No defence was led by them. 7. The learned Chief Judicial Magistrate, upon consideration of the evidence led before him, acquitted all the respondents of the offences charged against them. 8. I have heard the learned Counsel for the parties and have also gone through the record of the case. 9. The learned Assistant Advocate-General, at the very outset, while assailing the findings of the learned Magistrate in respect of the offence under Section 447, Indian Penal Code, has contended that two fallacies have been committed by the learned Magistrate while acquitting the respondents of such offence, namely:— (i) The definition of criminal trespass as contained in Section 441, Indian Penal Code, has been overlooked; and (ii) Facts and circumstances after the date of occurrence, that is, 3.7.1984, have been taken into consideration by the learned Magistrate. A perusal of the impugned judgment shows that the learned Magistrate in recording the acquittal of the respondents was greatly influenced by the facts that the demarcation of the land in dispute which was alleged to have been taken on 19.10.1981 by PW 6 Parkash Chand, Naib Tehsildar, was subsequently set aside by the Financial Commissioner, on 17.1.1985 and a fresh demarcation was ordered. Such fresh demarcation was carried out on 23.5.1985, according to which the land in dispute was found to be a part of the play-ground of the school and owned by the State. Such fresh demarcation was carried out on 23.5.1985, according to which the land in dispute was found to be a part of the play-ground of the school and owned by the State. Though such subsequent demarcation was assailed by the Satsang, the same appears to have been upheld right upto the level of Financial Commissioner. Relying on this fact, the learned Magistrate came to the conclusion that the Satsang failed to prove its ownership qua the land in dispute. Section 441, Indian Penal Code, defines Criminal trespass, as under:— "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." 10. Section 441 is aimed to protect the possession and not the ownership. Therefore, the question of title of the person in possession is alien to the offence under this section. What is required to be proved is that the complainant was in actual possession of the property either by himself or through his wife, servant, agent, licensee or other person. While dealing with the offence under this section, the court is obliged to confine its inquiry only to the fact of possession of the complainant. Therefore, the primary question to be determined is whether the prosecution has been able to prove the establish actual possession of the Satsang over the land in dispute as on 3.7.1984, the date of alleged occurrence. 11. Admittedly, the land in dispute was earlier in possession of the school and was being used as a play-ground for the last 30/40 years. According to the Satsang, the land in dispute after having been demarcated on 19.10.1981, under the directions of the Director of Education as contained in Ex. PW 20/A, was handed over to the Satsang by respondent No. 9, the then Principal of the Government High School, vide writing, Ex. PW 12/A. The possession of the land in dispute is alleged to have been delivered by respondent No. 9 to PW 12 Madan Gopal Singh for and on behalf of the Satsang. The writing Ex. PW 20/A, was handed over to the Satsang by respondent No. 9, the then Principal of the Government High School, vide writing, Ex. PW 12/A. The possession of the land in dispute is alleged to have been delivered by respondent No. 9 to PW 12 Madan Gopal Singh for and on behalf of the Satsang. The writing Ex. PW 12/A is shown to have been signed by respondent No. 9 and PW 12. 12. It is significant to note that during the course of examination of the respondents, under Section 313, Code of Criminal Procedure, the incriminating circumstance as to delivery of possession by respondent No. 9 on 8.8.1983 to PW 6 Madan Gopal Singh for and on behalf of the Satsang, never came to be put to any of the respondents and especially respondent No. 9, so as to given an opportunity to explain such circumstance. 13. It has been held in State of H.P. v. Ajay Kumar, 1998 (1) Ch. L.R. 245, by this court that the provisions contained in Section 313, Code of Criminal Procedure, are based on the principle involved in the maxim audi alteram partem, namely, that no person should be condemned unheard and the accused should be heard not merely what is prima facie proved against him but on every circumstance appearing against him in evidence. 14. The Honble Supreme Court in Machander v. The State of Hyderabad, (AIR 1955 SC 792), has observed that the Judges and Magistrates must realise the importance of examination under Section 342, Code cf Criminal Procedure, 1898 (which corresponds to Section 313, Code of Criminal Procedure, 1973). It is their duty to question the accused fairly and properly, bringing home to his mind in clear and simple language the exact case he has to meet and each material point that is sought to be made against him and of affording him a chance to explain them if he can and so desires. 15. In Chet Ram v. State, (AIR 1954 HP 32), it was held that when no question was put to the accused in his examination under Section 342, Code of Criminal Procedure, 1898, in order to give him an opportunity of explaining the incriminating circumstances, the prosecution evidence regarding such incriminating circumstances must be discarded. 16. 15. In Chet Ram v. State, (AIR 1954 HP 32), it was held that when no question was put to the accused in his examination under Section 342, Code of Criminal Procedure, 1898, in order to give him an opportunity of explaining the incriminating circumstances, the prosecution evidence regarding such incriminating circumstances must be discarded. 16. In the present case, the incriminating circumstance regarding delivery of possession on 8.8.1983 to the Satsang by respondent No. 9 vide Ex. PW 12/A was never put to the respondents in order to afford them an opportunity to explain the same. Therefore, Ex. PW 12/A cannot be used against the respondents for holding the delivery of possession to the Satsang on 8.8.1983 by respondent No. 9. If Ex. PW 12/A is ruled out of consideration, there is no other evidence to show that the satsang came into possession on 8.8.1983 and continued to be in possession till the date of alleged occurrence. Though PW 12, Shri Madam Gopal Singh has deposed that the possession of the land in dispute was delivered to him by respondent No. 9 vide PW 12/A, such part of his statement cannot be looked into since this circumstance also was never put to the respondents during their examination under Section 313, Code of Criminal Procedure. Thus, in the absence of evidence, it cannot be said that the Satsang was in possession of the land in dispute as on 3.7.1984. Therefore, the offence under Section 447, Indian Penal Code does not stand proved against the respondents. In view of the admitted fact that the land in dispute was coming in possession of the school and was being used as a playground, in the absence of evidence to the contrary, it would be presumed that the school continued to be in possession of the same. 17. There is yet another significant aspect of the case, Ex. PW 2/ A is alleged to be the first information report. It was recorded at about 9.30 p.m. on 3.7.1984 on the basis of the statement of PW 2, Tara Singh. 18. It has come in evidence that PW 2 Tara Singh at about 6 p.m., after the respondents had left the spot after having committed trespass and acts of mischief and rioting, had informed the local police and Deputy Superintendent of Police, PW 17, K.L. Chopra on telephone at Chamba about the occurrence. 18. It has come in evidence that PW 2 Tara Singh at about 6 p.m., after the respondents had left the spot after having committed trespass and acts of mischief and rioting, had informed the local police and Deputy Superintendent of Police, PW 17, K.L. Chopra on telephone at Chamba about the occurrence. PW 21 Hira Lal, the Station House Officer of Police Station, Dalhousie, is alleged to have arrived at the spot on having received such telephonic message. If the occurrence had been reported by PW 2 to the police at about 6 p.m. disclosing the commission of a cognizable offence, then Ex. PW 2/A recorded at about 9.30 p.m. cannot be termed as a first information report. Nothing has been brought on the record to show as to what was reported by PW 2 to the police at Dalhousie and the Deputy Superintendent of Police at Chamba. No report in this regard appears to have been recorded in the daily diary. And, if recorded, the same has not been proved in the present case. The failure of the prosecution to do so would lead to an adverse inference. 19. The report, Ex. PW 2/A, appears to have been recorded after due consideration and deliberation. PW 21, Shri Hira Lal, has contradicted PW 2 as to the telephonic information. He has deposed that while he was on routine patrol duty at Moti Tibba, PW 2 happened to meet him at about 9.30 p.m. upon which he had gone to the spot and recorded the statement Ex. PW 2/A of PW 2 Tara Singh. Therefore, the possibility of the story of telephonic message having been given by PW 2 to the local police having been introduced as a cover to the delay in making the report and the deliberations and consultations having taken place, cannot be ruled out. 20. According to the prosecution all the respondents having left the spot at about 6 p.m., had again come to the spot at about 8.30 p.m. when they are alleged to have again committed the act of criminal trespass, mischief and rioting in the presence of PW 17, K.L. Chopra, Deputy Superintendent of Police and PW21, Hira Lai, Station House Officer, Dalhousie. The respondents are alleged to have remained at the spot on this occasion till about 9 p.m. and they are alleged to have even ignored the threats of firing advanced by PW 17, Shri K.L. Chopra, Deputy Superintendent of Police. As stated above, according to PW 21, Hira Lal, he had reached the spot at about 9.30 p.m. It is admitted both by PW 21, Hira Lal and PW 17, Shri K.L. Chopra, Deputy Superintendent of Police that Shri K.L. Chopra, Deputy Superintendent of Police had reached the spot after PW 17 Hira Lal and that by that time the report Ex. PW 2/A had already been recorded. If the version given by PW 17 K.L. Chopra and PW21 Hira Lal is accepted, the story of the prosecution about the alleged second occurrence which took place between 8.30 p.m. and 9.00 p.m. stands falsified. Be it stated that PW 21 Hira Lai has not stated even a single word about this alleged second occurrence. 21. Considering the entire evidence coming on the record, the only irresistible conclusion is that the prosecution has failed to bring home the offence under Section 447, Indian Penal Code against the respondents. 22. Once the charge under Section 447, Indian Penal Code fails, for the self same reasons the other offences charged against the respondents also fail. Resultantly, there being no merit in the appeal, the same is dismissed. The acquittal of the respondents is upheld. The ball bonds of the respondents shall stand cancelled and discharged. Appeal dismissed.