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2. The present both appeals are filed by the appellants under Section Section 374 of the Code of Criminal Procedure, 1973, (for short 'Cr.P.C.') challenging the judgment and order dated 03.04.2007 passed by the learned Sessions Judge (Main Court) Gandhinagar in Sessions Case No.86 of 2006, whereby the learned Sessions Judge convicted the present appellants-accused for the offence punishable under Section 435 of the Indian Penal Code (for short 'IPC') and sentenced them three years rigorous imprisonment with fine of ₹5,000/- each and in default stipulation further rigorous imprisonment of one month. 2.1 The Court of first instance i.e. Sessions Court tried thirteen accused in Sessions Case No.86 of 2006 for the offence under Sections 147, 148, 149, 332, 435, 337, 427 of IPC, Sections 4 and 7 of the Prevention of Damage to Public NEUTRAL CITATION R/CR.A/706/2007 JUDGMENT DATED: 29/08/2025 undefined Property Act, 1984 (for short 'PDPP Act') and Section 135 of the Bombay Police Act (for short 'B.P. Act'). In conclusion of the trial, the learned Sessions Judge acquitted ten accused i.e. accused Nos.4 to 13 from all the charges. While accused Nos.1 to 3 been convicted for the charges under Section 435 of IPC.

5. Learned advocate Mr. Nandish Thacker with Ms. Namrata Sonam for the appellant in Criminal Appeal No.706 of 2007 has adopted the arguments made by learned advocate Mr. Mangukiya.

6. Learned APP Mr. Rohankumar Raval for the State referring to the charge framed against the accused and supporting the conviction under Section 435 IPC, submitted that the accused NEUTRAL CITATION R/CR.A/706/2007 JUDGMENT DATED: 29/08/2025 undefined Nos.1, 2 and 3 were arrested on the spot, where they had set the vehicle on fire. The complaint was by P.W.1 - P.S.I., but investigation was conducted by P.S.I. - M.A. Patel P.W.13, who had arrested the accused. Mr. Raval, learned APP submitted that the investigation was also made to the complaint dated 18.03.2006. The panchnama of the place of incident and more specifically of the vehicle, which was set on fire, was drawn. P.W.5 - A.S.I. injured witness had deposed about the burning of the vehicle and that has been supported by P.W.6 and P.W.7. Mr. Raval submitted that the person, who had given the telephonic 'Wardhi' was examined as P.W.9. The evidence of P.W.10, who was in possession of the Pulsar vehicle shows the mode of setting the vehicle on fire. The injury sustained by police witness has been corroborated by the treating Doctor - P.W.12. The IO - P.W.13 has brought all the scientific evidence on record by way of F.S.L. NEUTRAL CITATION R/CR.A/706/2007 JUDGMENT DATED: 29/08/2025 undefined report. Mr. Raval, learned APP, submitted that the undisputed fact of the vehicle put on fire was corroborated by the evidence of the police witnesses by proving the presence of the three convicted accused. Mr. Raval submitted that police was engaged in controlling the crowd, the convicted accused had set the vehicle on fire. Mr. APP submitted that it was an independent investigation by P.W.13 and contended to upheld the conviction stating that the impugned judgment is reasoned order.

11. Section 435 IPC denotes mischief by fire or explosive substance. Mischief is defined under Section 425 IPC. 'Mischief' involves intention or knowledge of likelihood to cause wrongful loss or damage. Destruction with object of creating wrongful loss or damage is obligatory to be established. 'Mischief' involves a mental act with a destructive animus. The mischief under section 435 IPC must be by fire or explosive substance.

36. Here in the present case, the charge by the police was under section 435 IPC along with other sections,and under prevention of damage to public property act, and Bombay Police Act. Section 435 came to be invoked on the ground of damage to the Government vehicle, ownership of which was with the police. No documentary evidence was produced on record to prove the vehicle as public property. Document of ownership was also not produced, whether motorbike was of the Police Department, could not be found by the documentary NEUTRAL CITATION R/CR.A/706/2007 JUDGMENT DATED: 29/08/2025 undefined evidence. The Panchnama only showed alpha letter 'G' and numerical figure eight '8'. Though, the Panchnama noted the registration number of the vehicle, no registration book was produced. Police failed to produce Movement Register to prove that motorbike and Gypsy vehicle were taken to village Khoraj. The police, as a complainant has to prove the actual fact of the incident and has to describe the alleged act of the accused. Mere statement that 'I had seen', would not suffice, the police witness is not an ordinary witness, even an ordinary person, standing in the court of law has to describe the whole act, which they allege to have seen.