- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1262 OF 2009 APPLICATION NO.1262 OF 2009 APPLICATION NO.1262 OF 2009 The State of Maharashtra ...Applicant vs. Tanaji Shivram Mahadik and others ...Respondents Mr.Y.S.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 1,2009 : APRIL 1,2009 : APRIL 1,2009 P.C.: P.C.: P.C.: 1. Heard learned A.P.P for the applicant in support of this application for grant of leave. The respondents-accused have been acquitted of the offences punishable under section 477, 427 r/w 34 of the Indian Penal Code. The learned A.P.P. submitted that the order of acquittal has been passed by the learned Magistrate and one of the offences is cognizable and non-bailable and hence appeal against acquittal is maintainable in this court. 2. The allegation of the prosecution is that on 18th May 2003 between 8.30 am to 6 pm accused came in the field of the complainant along with an Excavator Machine and demolished the Bandh of the complainant abutting the land bearing Gat No.625/2. The allegation is that while committing the act of encroachment the accused caused damage to the Bunding Tal and the standing trees of the complainant as well as caused the destruction of boundary between the two properties. - 2 - 3. The prosecution examined 5 witnesses. The learned Magistrate while passing the order of acquittal found that the Investigating Officer deposed that when the spot panchanama was recorded, the boundary marks showing the boundary between the two properties were not in existence and the officers of the revenue department were not present at that time. He admitted that the plan showing the location of bandh between the two properties was not placed on record of the trial. He also admitted that the excavator allegedly used by the accused was not seized and even the statement of the owner and/or driver of the excavator was not recorded. 4. As the boundary marks were not existence when the spot panchnama was recorded, even assuming that the alleged eye witnesses supported the prosecution case, their evidence is of no consequence. The complainant in this case is admittedly not an eye witness. 5. In the circumstances, the view taken by the learned Magistrate that the offence is not proved beyond reasonable doubt is a possible view to be taken on the basis of evidence on record. No case is made out for grant of leave. Application is rejected. - 3 - Judge - 4 - - 5 - - 6 - - 7 - JUDGE JUDGE JUDGE