1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4535 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Coram: P.R.Borkar, J. Date : February 04, 2010 1. Heard Smt. B.R.Khekale, learned A.P.P. for the applicant-State. 2. This is an application for leave to file appeal against judgment of acquittal passed by the Judicial Magistrate, First Class, Jafrabad, District Jalna, in S.T.C. No. 444 of 2007 decided on 8.9.2009. 3. The respondents-accused charged for offences punishable under Sections 447 and 434 read with Section 34 of I.P.C. It is the case of the original complainant Jafar Khan that he is the President of grave Yard Committee at village Bharaj (BK). The grave yard has 2 an area of 2 acre 7 gunthas out of Gat No.317. He got the said area measured on 20.5.2006 through T.I.L.R. office and it was noticed that accused No.1 Sakruba Pandurang Damodhar had encroached to the extent of 6 gunthas from eastern side and accused No.4 Sakruba Latuba Dhage had encroached to the extent of 1 R from northern side including one well. It is complained that at the time of measurement on 20.5.2006, boundary marks were found uprooted. It is further stated that on next day, it was again found that the respondents-accused had encroached on the property of the grave yard committee and uprooted the boundary marks and thus they have committed various offences. 4. The trial court discussed the evidence in details. The learned judge referred to the record of the Wakf board. It shows that the area of grave yard is only 1-1/2 acres. PW-3 Babu Khan also specifically admitted that the area of the grave yard was only 1 3 acre 23 gunthas. It is also found that the two wells situated in the portion allegedly encroached were irrigating lands of the respondents. 5. After considering the facts on record in details, the trial court came to the conclusion that the evidence regarding encroachment is not reliable and for thirty years at least, the respondents were in possession of the property. It was, therefore, held that they cannot be said to have committed offence under Section 447 of I.P.C. 6. So far as offence under Section 434 of I.P.C. is concerned, the trial court observed that there was no direct evidence regarding uprooting of boundaries by the respondents as alleged by the complainant. Moreover, it was also found that PW-2 Khwaja Khan Kassam and PW-3 Babu Khan were not present when the boundary marks were allegedly uprooted. There was no evidence to prove that it was the respondents-accused who uprooted the 4 boundary marks. 7. After considering reasons given by the learned trial judge in paragraph 19 of his judgment, in my opinion, the view taken by the learned judge is a reasonable view and hence, this is not a case wherein leave to file appeal deserves to be granted. 7. In the circumstances, leave refused. Application rejected. Date: 04/02/2010 (P.R.BORKAR, J.) pnd/criap4535.09