Karnataka High Court
Kalyanrao S/O Maruteppa Davangave vs State And Ors on 4 September, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC-K:5171-DB
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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NC: 2025:KHC-K:5171-DB
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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NC: 2025:KHC-K:5171-DB
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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NC: 2025:KHC-K:5171-DB
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 -5- NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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. -6-
NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR
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 -7- NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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 -8- NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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 -9- NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR 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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NC: 2025:KHC-K:5171-DB CRL.A No. 200047 of 2016 C/W CRL.A No. 200066 of 2016 HC-KAR
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 List No.: 1 Sl No.: 82 CT:NI