Karnataka High Court
Beerbal S/O Ramanna Sitalgera Kuruba ... vs The State Of Karnataka on 4 September, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 200047 of 2016
C/W CRL.A No. 200066 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF SEPTEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
CRIMINAL APPEAL NO.200047 OF 2016
(374(Cr.PC)/415(BNSS))
C/W
CRIMINAL APPEAL NO.200066 OF 2016
IN CRL.A.NO.200047/2016
BETWEEN
1. BEERBAL
S/O RAMANNA SITALGERA KURUBA,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: BACKCHOWDI VILLAGE,
Digitally signed TQ: DIST: BIDAR.
by SACHIN
Location: HIGH
COURT OF 2. SHIVARAJ
KARNATAKA S/O RAMANNA SITALGERA KURUBA,
AGED ABOUT: 40 YEARS,
OCC: MECHANIC IN TELEPHONE EXCHANGE,
OFFICE, BHALKI,
R/O: BACKCHOWDI VILLAGE TQ:DIST: BIDAR.
3. MAHEBOOB S/O RUKMODDIN,
AGED ABOUT: 40 YEARS, OCC: COOLIE,
R/O: BACKCHOWDI VILLAGE,
TQ: DIST: BIDAR.
...APPELLANTS
(BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE)
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CRL.A No. 200047 of 2016
C/W CRL.A No. 200066 of 2016
HC-KAR
AND
THE STATE OF KARNATAKA,
THROUGH POLICE BIDAR RURAL
POLICE STATION, BIDAR.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL. SPP FOR
RESPONDENT)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING
TO CALL FOR RECORDS AND ALLOW THE APPEAL AND SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED
22.03.2016 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BIDAR IN S.C.NO:85/2016 WHEREIN
CONVICTING THE APPELLANTS FOR THE PERIOD OF 3 MONTHS
AND THEY SHALL PAY THE FINE AMOUNT OF RS.500/- FOR
PUNISHABLE U/SEC. 447 R/W 34 IPC AND FURTHER
CONVICTING THE APPELLANTS FOR THE PERIOD OF 7 YEARS
FOR SIMPLE IMPRISONMENT ALSO PAY THE FINE AMOUNT OF
RS.5000/- EACH FOR THE OFFENCE U/SEC.435 R/W 34 IPC
AND ALSO APPELLANTS CONVICTING THE APPELLANTS FOR
THE PERIOD OF 2 YEARS AND THEY SHALL PAY FINE AMOUNT
OF RS.2000/- EACH FOR THE OFFENCE U/S. 504 R/W 34 IPC,
IN DEFAULT OF FINE AMOUNT THE APPELLANT SHALL
UNDERGO IMPRISONMENT FOR FURTHER TWO YEARS, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN CRIMINAL APPEAL NO.200066/2016
BETWEEN
KALYANRAO S/O MARUTEPPA DAVANGAVE,
AGE ABOUT 66 YEARS,
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CRL.A No. 200047 of 2016
C/W CRL.A No. 200066 of 2016
HC-KAR
OCC: PENSIONER AND AGRICULTURE,
R/O: SHIVNAGAR NORTH BIDAR.
...APPELLANT
(BY SRI K. M. GHATE, ADVOCATE)
AND
1 STATE THROUGH SUB INSPECTOR
OF POLICE RURAL POLICE STATION
BIDAR DIST: BIDAR
REPRESENTED HIGH COURT GOVERNMENT
PLEADER, KALABURAGI BENCH.
2. BIRBAL S/O RAMANNA SITALGERA,
AGE: 44 YEARS, OCC: AGRI,
R/O: VILLAGE, BAKCHOUDI TALUKA
AND DISTRICT BIDAR.
3. SHIVARAJ S/O RAMANNA SITALGERA,
KURUBA SITALGERA KURUBA
AGE ABOUT 43 YEARS,
MECHANIC IN TELEPHONE
EXCHANGE OFFICE, BHALKI
R/O: VILLAGE BAKCHOUDI TALUKA AND
DIST: BIDAR.
4. MEHABOOB SAB
S/O RUKMODDIN,
AGE : 43 YEARS,
OCC: COOLIE,
R/O: VILLAGE BAKCHOUDI,
TQ: DIST: BIDAR.
...RESPONDENTS
(BY SRI SIDDALING P. PATIL, ADDL. SPP FOR R1;
SRI SHARANABASAPPA K. BABSHETTY, ADV. FOR R2
TO R4)
THIS CRL.A. IS FILED U/S.372 OF CR.P.C 1973, PRAYING
TO ALLOWING THE INSTANT APPEAL FILED BY THE APPELLANT
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CRL.A No. 200047 of 2016
C/W CRL.A No. 200066 of 2016
HC-KAR
COMPLAINANT, THE ORDER PASSED IN SESSION CASE
No.85/2013 DATED 22.03.2016 ON THE FILE OF PRL. DISTRICT
& SESSIONS JUDGE BIDAR, ACQUITTING THE RESPONDENT
ACCUSED NO.2 TO 4 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 436 R/W SEC.34 OF IPC AND AWARDING
INADEQUATE SENTENCE, FINE FOR THE OFFENCE PUNISHABLE
UNDER SECTION 447, 435, 504 R/W SEC.34 OF IPC MAY BE
INTERFERED AND PLEASE TO CONSIDER ABOUT PAYMENT OF
COMPENSATION TO THE APPELLANT COMPLAINANT TO MEETS
THE ENDS OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 01.09.2025 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Criminal Appeal No.200047/2016 is filed challenging
the judgment of conviction dated 22.03.2016 and order of
sentence dated 23.03.2026 passed in Sessions Case
No.85/2013 by the Principal District and Sessions Judge,
Bidar (hereinafter referred to as 'trial Court') for the
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offences punishable under Sections 447, 435 and 504 r/w
Section 34 of IPC and other Criminal Appeal
No.200066/2016 is filed challenging the acquittal of
accused for the offences punishable under Section 436 of
the IPC.
2. The factual matrix of the case of the
prosecution is that at 8:00 a.m. on 01.04.2012 when the
complainant and his son Chennabasavanna went near his
sugarcane land Sy.No.100/A for transportation of
sugarcane to the Sugar factory, at that time they found
fire was set on the sugarcane crops and having moved
towards the entire area found accused Nos.1 to 3 are
setting the fire for remaining area. As a result, sugarcane
crop and hut which is in existence in the very same
property was burnt and accused have caused loss to the
tune of Rs.1,50,000/- and hence complaint is lodged and
case was registered for the offences punishable under
Sections 447, 435, 436 and 504 r/w Section 34 IPC.
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3. It is also the case of the prosecution that
having registered the case, the Investigating Officer has
investigated the matter and filed the charge-sheet. After
filing of charge-sheet case is registered as
C.C.No.1594/2012 and thereafter, case was committed to
the Sessions Judge and the same is numbered as Sessions
Case No.85/2013. The Trial Court had secured accused
Nos.1 to 3 and they were enlarged on bail and they did not
plead guilty and hence, charges are framed.
4. The prosecution examined PW-1 to PW-9 and
got marked Ex.P.1 to 17 and got marked material objects
as MOs.1 to 3. On closure of prosecution case, the accused
persons were subjected to Section 313 of Cr.P.C statement
wherein they denied all the incriminating circumstances
and they did not choose to give any statement and led
defence evidence by examining DW-1 and DW-2 and got
marked Ex.D.1 to Ex.D.11. The Trial Court having
considered the material on record, both oral and
documentary evidence convicted the accused persons and
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sentenced them and acquitted for offences under Section
436 of IPC. Hence, the present appeals are filed before
this Court challenging the conviction and also acquittal for
the offence under Section 436 of IPC.
5. The main contention of the learned counsel
appearing for the appellants in Criminal Appeal
No.200047/2016 before this Court that the Trial Judge
committed an error in accepting the evidence of PW.1 and
PW.3 as both of them are interested witnesses. PW.3 also
turned hostile in part and all the other witnesses have not
supported the case of the prosecution and considered only
the interested witnesses evidence.
6. The learned counsel also vehemently contends
that none of the independent witnesses have supported
the case of the prosecution and Trial Court wrongly
considered the evidence of PW.1 to PW.4 and further
evidence of PW.5, 6, 7 and 9 even though they turned
hostile and had arrived at in coming to the conclusion that
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appellants are found guilty and the same is not in
corroboration of evidence by any of the independent
witnesses and nothing is proved before the Trial Court that
sugarcane crop of the complainant was burnt by accused
persons and hence, it requires interference of this Court.
7. The learned counsel appearing for the
appellants also would vehemently contends that though
nine witnesses have been examined, though PW-2
supports for seizure mahazar, his evidence is not helpful to
the prosecution in proving that accused persons only set
the fire and only he is the mahazar witness to the seizure.
8. The learned counsel for the appellants also
vehemently contends that PW.4 is the photographer and
he supports only that he took the photographs and given
CD.
9. The learned counsel for the appellants
vehemently contends that PW.5 and PW.9 who are the
husband and wife, though the case of the complainant is
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that he engaged the services of PWs.5 and 9 but they
have not supported the case of prosecution as they have
turned hostile to the case of the prosecution. The Trial
Court ought not to have accepted the evidence of
prosecution and even though PW.6 examined before the
Court only partly supported the case, the same also not
inspires confidence of the Court.
10. The learned counsel for the appellants
vehemently contends that Accused No.2 was not at the
spot and he was working and trial Court fails to take note
of contradictions in Ex.P1 and also the evidence available
on record and hence it requires interference.
11. The appellant in Criminal Appeal No.
200066/2016 who is the complainant before the Trial
Court vehemently contend that the Trial Court committed
an error in not invoking Section 436 of IPC and committed
an error in acquitting the accused for the offences
punishable under Section 436 of IPC. The Trial Court failed
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to take note of evidence of PW.1 in getting marked
material important documentary and oral evidence
regarding seizure of MO.3 -compact disc, in order to
establish the gravity of the offence and entire burning of
sugarcane crop by setting fire with sole intention to cause
financial loss.
12. The counsel for the appellants also vehemently
contends that the evidence of PW.1 is very clear that a
criminal intention of accused persons in setting fire to the
sugarcane crop in causing loss to the complainant and
Trial Court proceeded to acquit the accused for the
offences punishable under Section 436 of IPC and ought to
have convicted for the offences punishable under Section
436 of IPC considering the gravity of the offence. Hence,
it requires interference on this Court.
13. The counsel for the appellants also in support of
his argument would vehemently contend that though Trial
Court convicted the accused for other offences ought to
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have considered the gravity of the offence and seriousness
of the offence and ought to have convicted the offence
under Section 436 of IPC since dwelling house was also
burnt.
14. Per contra, the counsel appearing for the State
ie., Additional SPP in his argument would vehemently
contend that though the other witnesses have turned
hostile but evidence of PW.1 and 3 who are the
complainant and son of the complainant and their
evidence is consistent and there is no discrepancy in their
evidence, both of them have witnessed the incident of
setting the fire on the sugarcane crop, though other
witnesses have also came to the spot and witnessed, but
have turned hostile and no reason to disbelieve the case of
the prosecution only on the ground that they are
interested witnesses. The Trial Court in detail discussed
the material available on record and rightly comes to the
conclusion that accused persons only set the fire and
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caused mischief in setting the fire on the crop of the
complainants - PW.1 and 3.
15. The learned counsel also vehemently contend
that PW.6 turned hostile partly and his evidence also
cannot be discarded and to the extent of evidence given
supporting the case of prosecution also could be
considered. Trial Court considered in detail considering the
material available on record and believed the evidence of
PW.1, 3, 4, 6 and 8, rightly comes to the conclusion that
prosecution bring home the guilt of the accused person
and it doesn't require any interference.
16. Having heard the learned counsel for the
appellants and also the learned counsel appearing for the
State and considering both oral and documentary evidence
available on record, the question arises before this court
are
i) Whether the Trial Court committed an error in
convicting and sentencing the accused for the
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offences punishable under Sections 447, 435
and 504 read with Section 34 of IPC ?
ii) Whether the Trial Court committed an error in
acquitting the accused for the offence
punishable under Sections 436 r/w 34 of IPC
and whether it requires any interference of
this Court ?
iii) What order ?
Point No.1 :
17. Having heard the respective counsel and also
on perusal of material on record, this Court also set out
the case of prosecution against the accused persons
considering the gist of charges levelled against them.
18. Having considered the material on record,
prosecution relies upon the evidence of PW.1 to 9 and
documentary evidence of Ex.P1 to Ex.P16 and also MOs.1
to MO.3 and also the defence evidence and also evidence
of two witnesses i.e., PW.1 and PW.2 and got marked
document Ex.D1 to Ex.D11. Now this Court has to
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reassess both oral and documentary evidence available on
record.
19. Having considered the evidence available on
record, particularly the complaint - Ex.P1 a specific
averment is made that the complainant had the property
in Sy.No.100/A to the extent of 3 acres 22 guntas and the
same is purchased from accused No.1 and also he
contends that he is cultivating the said land. It is also his
evidence that he had grown sugarcane crop and already
harvested the sugarcane crop to the extent of one acre
and supplied the same to the Mahatma Gandhi Sugar
Factory and remaining 2 acres of land harvested 16 tons
of sugarcane crop and kept the same in order to transport
the same.
20. It is also the case that in order to protect the
same, he had engaged services of one Mareppa S/o.
Bhimshah. It is his averment in the complaint that on
27.03.2012 at 8:00 AM when he himself and his son and
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friends went near the said land, accused No.1 and other
persons came and abused in a filthy language questioning
their cultivation and hence, he had lodged the complaint
and the same was registered in Crime No.28/2012 for the
offences punishable under Sections 447, 504 and 506 read
with 34 of IPC. It is also case of the complainant in the
complaint that on 31.3.2012 the said Mareppa was not in
the station and his wife Smt. Mahadevi came to attend the
work and she called and informed that accused Nos.1 to 3
were sitting near the land and they were talking about the
complainant to discontinue the cultivation and also talking
to burn the sugarcane crop and hence, advised not to
come alone and come along with some persons.
21. It is also stated in the complaint that on
01.04.2012 at 8:00 AM as usual he himself and his son
went near the land, at that time found fire was set on the
sugarcane crop and when they further proceeded, found
that accused persons were setting the fire and having
witnessed both of them, they abused and ran away from
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the spot. Hence, he lodged the complaint that they caused
the loss to the tune of Rs.1,50,000/-. When the said
incident was informed to Prakash Talghat came along with
Maruthi and they witnessed the same.
22. Having considered these contents of the
complaint, this Court has to consider the evidence of the
prosecution witnesses, mainly PW1 and PW3 are the star
witnesses to the case of prosecution. The PW.1 in his
evidence reiterated the contents of complaint and in the
complaint, he has stated that when both complainant and
his son went near the spot, found that fire was set but in
the chief evidence, he says that all the accused persons
were setting the fire while proceeding and they might have
set the fire from the midnight itself but found them at
8:00 AM and they ran away from the place. He had
discussed with Prakash and lodged the complaint. Police
came and drawn the mahazar. In the cross-examination,
he says that he purchased the property from accused No.1
in the year 2007 and he did not furnish sale-deed, but he
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gave only the RTC and accused Nos.1 and 2 are brothers
and throughout the cross-examination his suggestion was
made that the accused only pledged the said property and
not given any possession when he had received the money
as loan from the complainant an amount of Rs.1,00,000/-
and also suggestion was made that based on the said
document, got created the document of RTC and
suggestion was also made that a suit was filed in
O.S.No.87/2008 and also got elicited from the mouth of
PW.1 that in the said suit, an interim order was granted in
favour of accused persons, but witness says that the
interim order was got vacated.
23. It is also elicited that another suit was filed in
O.S.No.34/2014 but witnesses says that i.e., in respect of
Sy.No.98 and the said land was standing in the name of
accused No.2 before entering the name of his daughter
and in the cross-examination also admits that in respect of
Sy.No.98 also in the said suit, there was an injunction in
favour of accused No.2. In the cross-examination also
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admits that he also filed a case against the wife of accused
No.1 on 15.12.2009 and witness volunteers that when
they caused obstruction case was registered and also
admits that a case was registered against accused No.1
and 2 and one Vittala in Crime No.216/2009. It is
suggested that accused persons have not set any fire on
the sugarcane crop and only suggestion was made that
they only put the fire on the sugarcane wadi after the
removal of the crop and the same was denied but claims
that fire was set on the sugarcane crop only. However,
PW.1 admits that CWs.2 and 3 are the panch witnesses
and in this case also they are the panchas.
24. Now this Court has to consider the evidence of
PW.3 who is the son of PW.1 and in his evidence, he says
that one Mareppa was engaged to take care of their
sugarcane land and crop and he also deposes that he
himself and his father went near the spot and found the
fire was set including the hut and accused persons having
witnessed, both of them ran away from the spot and this
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witness was turned as hostile in part and cross-examined
in respect of that on 27.3.2012 having given any
complaint, he was not aware of the same, but he says that
Mahadevi had called and informed about the discussion
made by the accused persons on 31.03.2012. This witness
is subjected to cross-examination by the learned counsel
for the accused and in the cross-examination he admits
that he cannot say from whom, his father had purchased
the property, but he claims that property was sold in the
year 1997. It is suggested that accused No.1 had given
loan in respect of the said land and the name of his father,
only for namesake an entry was made and same was
denied. He also admits filing of case in the Court and also
he admits that his father and PW.2 - Veerashetty are
friends. He also admits that he had deposed in one case
filed by his father and he cannot tell how many witnesses
statement was recorded by the police and he cannot tell
except Prakasha and Maruthi, any other persons are
present.
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25. He also admits that accused No.1 to 3 have also
filed a suit claiming that the same is an ancestral property.
It is elicited that if any fire was set, neighboring village
owners of the property and villagers used to make an
attempt to extinguish the fire. It is suggested that at
around 8:00 am to 9:00 am all farmers will be there in the
land, but he denies the same.
26. Now having considered the evidence of PW.2,
PW.2 supports only drawing of mahazar but he says, he
can't say how a fire was set but he found 2 acres of
sugarcane crop was burnt and mahazar was done. In
cross-examination he admits that he was a witness in
respect of Criminal case filed by PW.1 and he is very
cordial with PW.1 and both of them used to take tea
together. He admits that after removing of sugarcane
crop, they used to set fire on the sugarcane wadi and also
he admits that after harvesting of sugarcane crop, the
remaining portion of sugarcane crop will be lying at the
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spot and he admits that MOs.1 and 2 are the similar
remaining portion of the sugarcane crop.
27. Now this Court has to take note of evidence of
PW.4 - photographer and his evidence is only limited
purpose of taking the photo. In the cross-examination, it is
elicited that he has given photo and compact disk, other
witnesses PW.5-Marappa according to the complainant, he
was an employee of PW.1 but he did not support the case
of the prosecution. He was cross-examined treating him as
hostile by the learned Public Prosecutor and he denied the
suggestions. However when this witness was cross-
examined by the learned counsel for the accused, he
admits that the land in Sy.No.100/A to the extent of 3
acres 22 guntas is in the possession of accused No.1 and
his brother and he was working with them from last 6
years and still he is working with them. This evidence will
not comes to the aid of the prosecution since he turned
hostile and he gave the evidence in favour of the accused
that they were in possession. PW.6 is also according to the
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prosecution that he came and witnessed the incident but
he says that PW.1 called him to harvest the sugarcane
crop. Accordingly he went near the land of PW.1, at that
time PW.1 was alone and found sugarcane crop was set in
fire and except himself and PW.1, no other persons were
there, at the spot. He cannot tell who had set the fire and
also he did not witness the accused persons at the spot.
This witness also turned hostile. However, in the cross-
examination he admits that Mareppa and Mahadevi were
working under PW.1 in 2012. He admits that having
received the phone call from PW.1, he himself and Maruthi
went near the spot and he says that Mareppa was present
at that time and suggestion that accused Nos.1 to 3 have
set the fire was denied. The other witnesses PW.7-
Maruthi, he did not support the case of the cross-
examination in entirety. The PW.8-Srinivasa, PSI official
witness for having received the complaint and also
conducting investigation and he categorically admits in the
cross-examination that he did not record the statement of
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neighboring witnesses of Sy.No.100/A and also he did not
collect the sale-deed, only at the time of filing the charge-
sheet he had produced RTC. He admits that he was not
aware of any civil dispute between the complainant and
accused during the course of investigation. The other
witness PW.9 who is the wife of PW.5 and PW.5 also did
not support the case of the prosecution and this witness
was also subjected to cross-examination, nothing is
elicited in the cross-examination of PW.9.
28. The defence witness DW.1 speaks about
accused No.2 was working in BSNL office at Bhalki and he
is the brother of accused Nos.1 and he claims that the said
land is ancestral property. He claims that the accused No.1
is cultivating the same. This witness was subjected to
cross-examination and in the cross-examination he admits
that he had not produced any document to show that the
same is an ancestral property. But he claims that
Sy.No.100/A, 3 acres 22 guntas is an ancestral property
including a house but he claims in Ex.D6 his brother name
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is only found. The other witnesses DW.2 claims that he is
the neighboring owner and the property is an ancestral
property of the accused persons and accused No.1 is
cultivating the same, Mareppa is working in the said land
from last 8 to 10 years. In the cross-examination, when
the suggestion was made Accused No.2 is residing at
Bhalki, he denies the same that he is not aware of the
same and suggestion was made that the very said
property was sold by accused No.1 in favour PW1 in 2012-
13 and suggestion was made that PW.1 is the owner but
same was denied.
29. Having reassessed the material available on
record, particularly this Court has to take note of contents
of complaint - Ex.P1. In the complaint, it is stated that
property was purchased four years ago and he was
cultivating the land. It is further stated that sugarcane
crop was already cut and removed in one acre of land and
also they cut and harvested sugarcane crop to the extent
of 16 tons and the same was kept in order to transport the
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same. But this averment is clear that they have already
harvested sugarcane crop to the extent of 2 acres, the
same was kept for transportation. But the evidence of the
prosecution witness PW.1 that before going to the spot, he
had called upon labours to cut the sugarcane crop and the
same is contrary to the statement made in the complaint -
Ex.P1. It is also important to note that in the complaint,
he says that he had engaged the services of Mareppa to
take care of the land but Mareppa who had been examined
before the Court as PW.5 did not support the case of the
prosecution, he turned hostile to the prosecution case. In
the cross-examination of accused counsel he says that he
is working with accused persons, not with the
complainant. It is also important to note that the
complainant in the complaint stated that on 27.03.2012
when he himself and his son Chennabasappa went along
with their friends near the land an incident was taken
place and case was registered in Crime No.28/2012 and
those persons have not been examined before the Trial
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Court and apart from that, it is the case of complainant
that on 31.03.2012 wife of PW.5 i.e., PW.9 called and
informed that accused persons were talking to stop the
cultivation of complainant and to set the fire on the crop
but PW.9 who has been examined has not supported the
case of the prosecution with regard to the discussion made
by accused persons on 31.3.2012.
30. Now the evidence remains with regard to the
incident i.e., 01.04.2012. According to PWs-1 and 3, both
of them went near the spot and already fire was set but
when they further proceeded, PW.1 says that he found all
the three accused persons at the spot and they ran away
from the spot as they were setting the fire. But the
evidence of PW.3 is not clear with regard to this fact is
concerned and PW.3 also not completely supported the
case of prosecution and says that already fire was set on
the sugarcane and when they further proceeded also found
even fire was covered on the hut also and though he says
that accused persons ran away from the spot but he did
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not speak anything about accused persons were setting
the fire when they further moved towards remaining land.
But the evidence of PW.1 that when they further moved,
they found setting the fire by accused Nos.1 to 3 and
there is a clear contradictions in the evidence of PW.1 and
PW.3 about setting fire but only PW.1 and PW.3 evidence
is consistent that accused persons ran away from the spot
but he says that Prakash and Maruthi both of them have
also witnessed setting the fire and PW.1 says that they
came to the spot and not speaks about Prakasha and
Maruthi have witnessed the same and both Prakash and
Maruthi have examined before the Court and they have
not supported the case of the prosecution with regard to
the incriminating evidence is concerned. Prakash has been
examined as PW.6, he witnessed only fire was set on the
crop but when he went near the land, he found only PW.1
and in the cross-examination, he admits that he himself
and Maruti went near the land but he says that Mareppa
was there at the spot and the same is not the evidence of
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PW.1 and PW.3 says that Mareppa was present at the time
of the incident. All these contradictions were found in the
cross-examination of PW.1, PW.3, PW.6 and PW7-Maruti
had completely turned hostile and not supported the case
of prosecution.
31. When such being the case, when the
contradictions are found, particularly witnessing the
incident of setting the fire, the Trial Court ought not to
have accepted the evidence of PW.1 and PW.3. No doubt,
PW.2 supports only with regard to the mahazar is
concerned and his evidence is not helpful to the
prosecution. PW.4 speaks only about taking up
photographs and preparing the compact disk. The
evidence of PW.4 also will not come to the aid of
prosecution. We have already pointed out that PW.5 gives
a contra evidence as against the prosecution and he says
that he was working with accused No.1 and not with the
complainant and though PW.1 and PW.3 claims that PW.5
was engaged to look after the property of sugarcane crop,
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but he did not support the case of the prosecution. Even
the evidence of PW.6 and PW.7 also not inspires the
confidence of the Court that they had witnessed the same
and only they witnessed the sugarcane crop was burnt but
in order to come to a definite conclusion that accused
Nos.1 to 3 only set the fire except the interested witnesses
of PW.1 and PW.3, no other evidence is available. The
evidence of PW.1 and PW.3 is also contrary to each other
having witnessed the accused Nos.1 to 3 have continuing
to set the fire. There are contradictions which we have
discussed above and when such being the case, the Trial
Court ought to have extended the benefit of doubt in
favour of accused persons, instead of considering the
evidence of PW.1, PW.3, PW.4, PW.6 and PW.8 -
Investigating Officer and while considering the material on
record, particularly convicting the accused, the prosecution
must prove the case beyond reasonable doubt.
32. It is also important to note that during the
course of cross-examination of PWs.1 and 3, it is emerged
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that there was a civil dispute between both of them and
PW.1 claims that he had purchased the property in the
year 2007 but not produced the sale-deed, only given the
RTC. On the other hand, it is the defence of the accused
persons that they availed an amount of Rs.1,00,000/- and
executed a document of pledging of property and
clandestinely got entered the name of the compliment in
the RTC. The complainant did not place on record the sale-
deed and also there is no explanation and also
Investigating Officer who has been examined, he
categorically admits that he had collected only RTC and
not the sale-deed. Also, it is important to note that PW.1
categorically admits that when the suits are filed an
injunction was obtained and PW.1 claims that injunction
was got vacated but the same is not also placed on record,
having got vacated the interim order. So also in respect of
Sy.No.98 a suit was filed and injunction was obtained.
Even PW.3 also admits filing of suit and when PW.1 admits
that there is an order of injunction, unless the possession
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is proved, question of invoking of Section 447 does not
arise and also with regard to the mischief is concerned,
invoking of Sections 435 and 436 also question of
convicting and sentencing is an error by the Trial Court.
33. The counsel appearing for the appellant also
brought to notice of this Court regarding registration of
cases in Crime No.28/2012 and also Crime No.216/2009
and both civil and criminal cases between the parties and
with regard to the possession is concerned, the same
could be proved in a civil case as admittedly pending
before Court. When such material is not placed before the
Court with regard to possession is concerned, question of
trespass also doesn't arise. PW.2 says that normally after
harvesting the crop for the remaining sugarcane crop, fire
will be set and his evidence supports in respect of the
defence. When all these materials were clear, Trial Court
committed an error in convicting the accused and hence,
we answered the point No.1 in the affirmative.
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Point No.2 :
34. The other contention of the appellant before
this Court that the Trial Court has committed an error in
acquitting accused for the offence under Section 436 and
we do not find any ground to accept the contention of the
appellant in other appeal and when this Court has
answered point No.1 as affirmative, the Trial Court has
committed an error in convicting the accused and question
of invoking Section 436 as contended by learned counsel
for the appellant also doesn't arise. Hence, we answer
Point No.2 as negative.
35. In view of the discussions made above, we pass
the following:-
ORDER
i) The appeal filed by the accused persons
i.e., Crl.A.No.200047/2016 is allowed.
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ii) The judgment of conviction dated
22.03.2016 and the order of sentence
dated 23.03.2016 passed in Sessions
Case No.85/2013 by the court of the
Principal District and Sessions Judge,
Bidar is set aside.
iii) The appeal filed by the complainant i.e.,
Crl.A.No.200066/2016 is dismissed.
iv) If any fine amount is deposited is ordered to
be refunded in favour of the appellants on
proper identification and bail bond are
cancelled.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(T.M.NADAF)
JUDGE
SHS
CT:NI
