1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4168 OF 2009 Mr. A.S.Lomte,Advocate for applicant. [ CORAM : P.R.BORKAR, J. ] DATE : 05/03/2010 PER COURT : 1. Heard Mr. A.S.Lomte, Advocate for the applicant. 2. This is an application for leave to file Appeal against Order of acquittal passed by the J.M.F.C., Ambajogai in R.C.C. No. 228 of 2007 decided on 26/8/2009. The accused/respondent nos. 1 and 2 were acquitted of the offence under sections 323, 427 r/w 34 of the Indian Penal Code. As per the complaint produced on record, in the night of 9/7/2007 and 10/7/2007, at about mid night, the respondents removed the steps of the stair case which were used by the complainant/applicant for going on the first floor and thus by removing steps, there was damage caused to the extent of Rs. 1500/- and thus mischief has been committed. On 10/7/2007 at mid day, when the complainant met accused and showed them PTR extract and Map of the house and asked why they had removed the steps. The accused gave him abuses and also gave threats. He was also beaten by fists and 2 kicks. The witnesses intervened and rescued the complainant. 3. The process was issued against accused for the offence U/s 323, 427 r/w 34 of the Indian Penal Code. In all 5 witnesses are examined. The trial Court observed in para no. 11 that so far as offence of beating is concerned, the complainant was given ample time and fair opportunity , but he did not lead any evidence. There is only evidence of complainant and P.W. 2 Shaikh Hakeem Shaikh Miyan. It is stated that the evidence of both of them is consistent. However, the evidence of complainant was shaken in the cross examination as in the complaints lodged by complainant before police on 10/7/2007 and 13/7/2007, he had not said anywhere that he was beaten by the accused. So, in view of absence of such allegation in the complaint lodged by complainant with police, it is held that the evidence regarding beating is not reliable. It is not the case of the complainant that he had sustained any injuries. It is also observed in para no. 11 that the complainant did not explain above said material omission from the complaints. 4. So far as offence of mischief is concerned, in para no. 13 it is stated that, the complainant has stated in cross examination that he was at Aurangabad when the incident of removing the steps has taken place. So, he could not have been the eye witness to the commission of mischief. Similarly, it was observed that witness no. 3 Haribhau 3 Dattatraya Khune and Anant Rajaram Wede were not eye witnesses to the actual commission of mischief. The panchanama Exh. 22 is no doubt proved, but it only proves that the steps were seen removed. P.W. 2 Sk. Hakeem is mainly a witness on the incident of beating and not of removing the steps. P.W. 4 P.H.C. Jadhav has enquired into the matter and had sent the Chapater Case against Allah Baksh. 5. In the facts and circumstances, it can not be said that the findings of the trial Court is perverse or suffers from any illegality. In the result, this is not a case where leave can be granted. Hence, the application is dismissed. [ P.R.BORKAR ] JUDGE knp/Cri. Apln. 4168.09