1 crapn1647.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1647 OF 2010 The State of Maharashtra, Through Police Station Officer, Police Station Talwada, Tq. Georai, Dist.Beed. ...APPLICANT VERSUS 1. Hanumant s/o Sheshrao Shinde, Age: 43 years, Occ: Agri., R/o. Sirasdevi, Tq. Georai, District Beed. 2. Rajabhau s/o Laxman Mahamuni, Age: 25 years, Occ. & R/o. as above. 3. Gorakh s/o Bansi Takalkar, Age: 22 years, Occ. & R/o. as above. 4. Ganesh s/o Bhimrao Pawar, Age: 30 years, Occ. & R/o. as above. 5. Bhagwat s/o Kisan Kadam, Age: 28 years Occ. & R/o. As above. (ABATED). 6. Shaikh Feroj s/o Shaikh Mukhtar, Age: 25 years, Occ.& R/o. as above. ...RESPONDENTS 2 crapn1647.10 ... Mr. V.D. Rakh, A.P.P. for applicant. Mr. S.V. Natu, Advocate to assist A.P.P. Mr. V.B. Deshmukh, Advocate holding for Mr. V.D. Salunke, Advocate for respondents. ... CORAM: S.S. SHINDE, J. DATE : 11TH FEBRUARY, 2011 PER COURT : . Heard learned A.P.P. and learned Counsel for the respondents. This appeal is filed by the State, challenging the judgment and order dated 07-01-2010 passed by the Additional Sessions Judge, Osmanabad in Special Case No.45 of 2005. 2. It is the case of the prosecution that on 06-12-2004 Sadashiv Kondopant Kulkarni alias Bhalerao recorded complaint at Exhibit-61 at Police Station Officer in Talwada Police Station. It was alleged that he alongwith family members held properties at village Sirasdevi. City Survey Numbers of those properties were 303 and 305. Said 3 crapn1647.10 plots are recorded in the name of his uncle and father of Kondopant. 3. On 06-12-2004 at 10-00 a.m. Hanumant Sheshrao Shinde, Rajabhau Laxman Mahamuni, Gorakh Bansi Takalkar, Ganesh Bhimrao Pawar, Bhagwat Kisan Kadam and Shaikh Feroz Shaikh Mukhtar assembled, and they were holding stones in hands besides sticks, spade and pick-axe and gathered in the abovesaid properties. Hanumant Shinde asked other persons to dig a pit and erect electricity pole. On his instigation, these persons dug a pit. When the complainant asked them as to why they were digging a pit for erection of electricity pole, at that time, Hanumant asked rest of the offenders to show him their hands. Hanumant abused the complainant. He further said others, drag him in to the pit. Thus, they all rushed on complainant's person for assault. Because of apprehension, the complainant escaped from that place when villagers and Ramesh Shripati Kadam, Rajendra Nivrutti Kadam and Bharat Dagdu 4 crapn1647.10 Adagale came and intervened the incident. Later on, Rajabhau Mahamuni and Hanumant Shinde went towards electricity transformer and cut off the electricity supply. Then, Rajabhau Mahamuni came at the place where pit was dug. He removed three wires from earlier erected pole and then that pole was took out and erected in newly dug pit. That pit and pole erected into the property of the family of complainant Sadashiv Then all these people refitted electricity wires on that re- erected pole. According to the complainant, if supply started from the wires on this newly arranged electricity pole, there would be possibility of danger to the human being and properties. With these allegations, complainant Sadashiv filed the complaint. 4. Said complaint was registered with the police station, Talwada. Offence was registered being Crime No.9/2005 of the offence punishable under Sections 47, 427, 143, 144, 504, 506-II read with Section 149 of the Indian Penal Code and Section 5 crapn1647.10 139 and 140 of the Electricity Act, 2003. . There was also second complaint filed by Ramesh Pundlik Waghchaure, Junior Engineer from the office of M.S.E.D.C.L. Sirasdevi. Said complaint was lodged to police on 28-12-2004 at 15-00 hours. 5. Police Head Constable Sutnase visited the spot of incident on 20-01-2005 in between 17-35 to 18-10 hours in presence of Shaikh Rajjak Shaikh Chand and Shaikh Sajan Shaikh Salim. Accordingly, necessary spot panchhnama was drawn. They found that there was pit in front of house of Sunil Rambhau Joshi. It is observed that earlier electricity pole might be in that pit but on its removal, that electricity pole was re-erected in front of house of complainant Sadashiv. Charge sheet was submitted. The trial Court framed points for consideration and held that respondents herein are not guilty of any offence levelled against them. 6 crapn1647.10 6. Learned A.P.P. submitted that spot panchnama prepared by the Investigating Officer does indicate that said pit is dug in the property of complainant. It is further submitted that all the accused persons gathered at the spot which is in the property of the complainant. They were carrying dangerous weapons. They were more than five in numbers. Therefore, each member of the unlawful assembly is responsible in respect of the overt act. Learned A.P.P. further invited my attention to the evidence of prosecution witnesses and submitted that the evidence of the complainant is corroborated by the evidence of all prosecution witnesses, in particular Rajendra Kadam, Shaikh Nawaj, and Shaikh Habib. Learned A.P.P. further submitted that merely because measurement of the said property was not carried out, is no ground to acquit the respondents. Learned A.P.P. further submitted that apart from the act of respondents to dig pit and erect electricity pole in the property of the complainant, they were carrying 7 crapn1647.10 weapons like pickaxe,spade, sticks and stones. Therefore, there was criminal intimidation and the trial Court should have appreciated the evidence of the prosecution witnesses in that regard. Learned A.P.P. invited my attention to the observations of the trial Court in Para-17 and also other part of the judgment and submitted that the Court has accepted the case of the complainant so far holding of weapons by the accused persons, digging pit and erecting electricity pole. However, merely on the ground that the measurement of the said property was not carried, the respondents-accused came to be acquitted. Therefore, learned A.P.P. assisted by learned Counsel appearing for the complainant would submit that this application may be allowed. 7. On the other hand, learned Counsel for the respondents submit that there was no intention on the part of the respondents as reflected in Para-14 of the judgment and also reasoning part of the trial Court that the prosecution has failed to 8 crapn1647.10 bring evidence on record to establish that the respondents-accused with an intention caused damage to the property of the complainant or with intention committed criminal intimidation to the complainant. Therefore, relying on the observations and reasons of the trial Court, learned Counsel for the respondents-accused submitted that order of the acquittal passed by the learned Additional Sessions Judge-II and Special Judge, Beed needs no interference. 8. I have given due consideration to the rival contentions of the parties. Perused the impugned judgment and order and evidence which is made available. It is not in dispute that property Survey Nos. 303 and 305 situated at Sirasdevi belongs to the complainant and his relatives. It is also not in dispute that no measurement of the said property was carried out and no such evidence was brought on record by the prosecution to show that the accused persons-respondents have dug pit and erected electricity pole on the property of 9 crapn1647.10 the complainant. In short, there is no evidence by way of carrying measurement, has been brought on record by the prosecution, to suggest that the incident had taken place in Survey Nos.303 and 305. In that respect, the trial Court has recorded finding based upon the evidence collected by the prosecution in Para-29 of the impugned judgment and concluded that the entry of accused persons in to or upon the property in possession of Sadashiv was not proved in the case at hands. It is also observed that unless Sadashiv get his property measured to point out existence of that pole in to his property, the allegations of criminal trespass not at all sustainable that too when evidence of Laxman, a line helper is totally against the contention of Sadashiv. 9. So far argument of learned A.P.P. as regards criminal intimidation is concerned, the trial Court in Para-17 has observed that there is no recovery of the alleged weapons which the accused persons were possessing and in absence of any 10 crapn1647.10 recovery, it is difficult to hold that they were carrying those weapons and there was criminal intimidation by them to the complainant or other persons. 10. Therefore, taking overall view of the matter, in my opinion, the impugned judgment and order passed by the Additional Sessions Judge-II and Special Judge, Beed is in consonance with the evidence brought on record by the prosecution. Once possible view is taken by the trial Court. On the basis of evidence brought on record, even if another view is possible, that is no ground to interfere in the order of the acquittal. Therefore, in my opinion, no case is made out for interference. Hence, application seeking leave to appeal against the judgment and order dated 07-01-2010 passed by the Additional Sessions Judge-II and Special Judge, Beed stands rejected. Consequently, there is no question of registering the appeal. 11 crapn1647.10 11. Registry to send back the original Record and Proceedings to the concerned Court, forthwith. [ S.S. SHINDE, J.] sut/feb11/crapn1647.10