2013 ALL MR (Cri) 3569
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

T.V. NALAWADE, J.

Shri Laxman Nivrutti Rasal Vs. The State Of Maharashtra & Anr.

Criminal Appeal No.147 of 2002

23rd January, 2013

Petitioner Counsel: Shri N.C. GARUD
Respondent Counsel: Shri K.S. PATIL, Shri D.B. RODE

Penal Code (1860), Ss.427, 447, 323, 504, 506 - Mischief causing damage - Appeal against acquittal - Respondent accused alleged to have caused damage to pipeline of appellant by using motor cycle and tractor - Pipeline was laid on public way for which permission of competent authority necessary to be obtained - Evidence against accused given by only interested witnesses - Possibility that there was damage caused but pipeline was laid on public way cannot be ruled out - Hence acquittal of accused, held proper. (Para 6)

JUDGMENT

JUDGMENT :- The Appeal is filed against judgment and order of S.T.C.No. 386/1989 which was pending in the Court of Joint Judicial Magistrate, F.C. Shrigonda, Dist.Ahmednagar. The respondent is acquitted of the offences punishable u/s 447, 427, 323, 504 & 506 of IPC.

2. Both sides are heard. This Court has perused original record. In short, the facts leading to institution of the Appeal can be stated as under :

3. The appellant had filed private complaint for aforesaid offences. The appellant is the owner of agricultural land bearing Gat No.520. At the relevant time, he had laid the pipeline between land Gat No.520 and 533 to take water from the well situated in land Gat No.533.

4. The incident took place on 16/5/1989 at 10 p.m. The accused went towards Gat No.533 by his motor cycle and his motor cycle ran over the aforesaid pipeline. When the complainant and his persons tried to convince the accused to see that no damage is caused to the pipeline, accused became angry. The accused then came with his tractor and he ran over pipeline by using the tractor. Due to this, some pipes got broken. Accused then manhandled complainant and his men. On the same night, complainant went to police station and gave report. No action was taken by police. The police patil of the village of the complainant prepared panchanama, then private complainant came to be filed.

5. Case was tried as regular criminal case and the evidence came to be recorded before charge and after charge. Complainant examined himself and he examined Digambar [P.W.2], Dada [P.W. 3] and police patil Anandrao [P.W.4]. He produced 7/12 extracts in respect of agricultural land and he produced panchanama prepared by Anandrao. All the witnesses gave evidence that by using motor cycle and tractor, the accused caused damage to the pipeline of the complainant.

6. Though the trial Court has given exhibit to the panchanama prepared by Anandrao, the evidence of Anandrao shows that panchanama was not duly proved. In such a case, some evidence could have been collected by the complainant's side with the help of police and even by taking some order by JMFC. There were only words against the accused and they are all interested. It appears that the distance between 2 lands was more than 400 ft. when the accused was going by that side on his motor cycle and also by tractor, it can be said that between 2 lands, there was public way available. Whenever, there is such public way, for laying pipeline, it becomes necessary to obtain permission of competent authority like Mamlatdar. In that case, the complainant could have collected some record and police would have also taken some action. The possibility that there was damage caused but the pipeline was laid on the way cannot be ruled out.

7. There is no circumstantial check to the evidence given by all the four witnesses. In view of the aforesaid possibility, it was not possible for the trial Court to convict the accused. The view taken by the trial Court is a possible view and no interference is possible in the decision of the trial Court. Appeal stands dismissed.

Appeal dismissed.