Mr. Ravi, S. Nagaraju and Jagadisha @ Venkatesha vs State

Subhash B.Adi

Heard.

Admit,

Appeal is by the accused Nos. 1 to 3 against the judgment of conviction in S.C. No. 36/2010, dated 06.09.2011, on the file of the Fast Track Judge, Srirangapatna.

The accused were chargesheeted and tried for the offences punishable under Sections 448, 427, 436 r/w Section 34 of IPC.

The case of the prosecution to brief was that, PW1-H.S. Raghu and his family members were residing at the house situated at Hosa-Anandoor village, Belagola Hobli, Srirangapatna Taluk. The said house was standing in the name of wife of the complainant.. On the back side of the house there is Poorna Prasanna Canal, and a place between the said canal and the complainant''s house is used by the complainant for growing plants. On 04.11.2008, at about 1.00 p.m., while the PW1 was sleeping at his house, the accused came and destroyed the plants PW2-mother of PW1, was at home, she saw the accused Nos.1 to 3 coming from behind then house damaging the compound gate and set the gunny bags kept near the backdoor on fire. On seeing the incident, PW3 and PW4 neighbors came and extinguished the fire. PW2 immediately informed the PW1, PW1 rushed to the spot and found damaged steel gate fixed to the compound, damage of the back door, andb estimated the damage at Rs.2,000/-. He went to Police Station at about 7.30 p.m. and lodged a complaint. PW7 registered the case in Crime No.179/ 2008 and after investigating the matter filed the chargesheet. All the accused pleaded not guilty and claim to be tried. Accordingly, they were, tried.

To prove the; charge, the prosecution examined PW1 to PW7 and marked Exs. P1 to P4 and produced MO1-Ash and MO2-Half- burnt gunny bag.

The trial Court on the basis of the evidence of PW2-eye-witness, PW1 who was Bleeping at the house, PW3 and PW4-neighbours, who had also seen the incident and who supported the case of the prosecution and also relying on the complaint, held that the prosecution has established the charges beyond reasonable doubt and convicted the accused for the offences punishable under Sections 448, 427 and 435 r/w Section 34 of IPC. It is against the said judgment of conviction, the accused are before this Court.

Heard Sri. D.R. Sundaresha, learned Counsel for the accused and Sri, Bhavani singh, learned SPP for the State.

From amongst the witnesses examined, PW1, PW2, PW3 and. PW4 stated to be eye-witnesses. PW1 stated, that after finishing his night duty he came and slept in his house, however, he is not an eye-witness. PW2 states that she informed PW1 and it is only thereafter he went to the spot. PW1 and PW2 admit that the portion over which they had grown the plant does not belong to them, it is the Government land. PW1 and PW2 also admit that there is dispute between the accused and PW1 and PW2 regarding the land and the matter is pending before the Assistant Commissioner.

To prove that the incident had occurred, the prosecution case is that PW7 went to the spot and conducted a spot mahazar. However, Ex. P2 which is stated to be spot mahazar is not a spot mahazar but a detailed report of the crime, in which, gist of the spot mahazar has been mentioned. The spot mahazar has not been produced by the prosecution, Ex.P2 does not prove the place of occurrence. PW7 had gone to the spot along with panchas and conducted spot mahazar however, no materials were seized from the spot. Though, ash and gunny bags is produced, in the cross-examination, PW1 and PW2 have stated that the gunny bag was used as foot mat The place where the incident is alleged to have occurred is not a place belonging to the accused or the complainant, this is an encroachment alleged to have been made by the PW1 on the government land. The accused going to the spot, though is stated by PW2 but to support the case that accused caused damage to the steel gate and burnt gunny bags and also caused das-sage to plants, the spot mahazar a vital evidence, which could have shown the correct place of occurrence and the damage, however though the spot mahazar is stated to have been prepared, however, has not been produced by the prosecution.

The trial Court while considering the evidence, has erroneously observed that the Ex.P2 is spot mahazar but Ex.P2 is not spot mahazar. Admittedly the are seized. The evidence produced by the prosecution does not prove the case against the accused in the absence of the same, it cannot be held that the prosecution has discharged the burden of proving the same beyond reasonable doubt. When there is no spot mahazar, more so, when there is serious dispute between the parties as regard to the farad, the trial Court without there being clear evidence to prove the charge has erroneously convicted the accused. Hence, the findings of the trial Court is non-sustainable in law Accordingly, I pass the following order:

ORDER

i) Accordingly, the appeal is allowed.

ii) Judgment of conviction in S.C.No. 36/2010, dated 06.09.3011, on the fife of the Fast Track Judge, Srirangapatna is hereby set aside.

iii) Accused are set free.

iv) Bail bond stands discharged.