- 1 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 34 OF 2019 (C) BETWEEN: 1. MOHAMMED JUNAID S/O AKBAR SAHEB, AGED ABOUT 23 YEARS, R/A BABASHA MOHALLA, GANGOLLI VILLAGE, KUNDAPURA TALUK. PIN CODE - 576 216. 2. JAFFER @ WELDING JAFFAR S/O ISUBU SAHEB, AGED ABOUT 36 YEARS, R/A BABASHA MOHALLA, GANGOLLI VILLAGE, KUNDAPURA TALUK. PIN CODE 576 216. …APPELLANTS (BY SRI. MUZAFFAR AHMED, ADVOCATE) AND: 1. STATE BY BYANDOOR POLICE CPI, BYANDOOR CIRCLE BYNDOOR POLICE STATION UDUPI DISTRICT REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE - 560 001. …RESPONDENT (BY SRI.B.LAKSHMAN, HCGP) Digitally signed by LAKSHMINARAYAN N Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 THIS CRL.A. IS FILED U/S.374(2) CR.P.C PLEASED TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 05.12.2018 AND SENTENCE DATED 10.12.2018 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA IN S.C.NO.27/2016 - CONVICTING THE APPELLANT/ACCUSED NO.1 AND 2 FOR THE OFFENCE P/U/S 451,436 AND 427 R/W 34 OF IPC. THIS APPEAL, COMING ON FOR FURTHER ARGUMETNS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT The appellants have preferred this appeal against the judgment of conviction and order on sentence passed by the Additional District and Sessions Judge, Udupi (sitting at Kundapura) in SC No.27/2016 dated 05.12.2018. 2. For the sake of convenience, the parties herein are referred to as per their status before the trial Court. 3. Brief facts leading to this appeal are that, the Circle Inspector of Police, Byndoor Circle, Byndoor, Udupi District has submitted the charge-sheet against the accused for the offences punishable under Section 436, 451 and 427 read with Section 34 of Indian Penal Code. - 3 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 4. It is alleged by the prosecution that, on 21.01.2025 at about 02.20 a.m. at Gangolli village of Kundapura Taluk, accused Nos.1 and 2, with regard to previous enmity i.e., loss caused to the shops situated in Jamia Complex by litting fire to the said shops, the accused in furtherance of common object, by coming in a Maruthi Omni, to Venkatesha Krupa Traders belonging to CW1-Sri.G.Venkatesha Shenoy, committed, house trespass by entering into the compound of said Traders, in order to commit the offence of destroying the shop of CW1, committed mischief by causing wrongful loss/damage to the property of CW1-Sri.G.Venkatesha Shenoy, which are Chevrolet Enjoy Car bearing Registration No. KA-20/Z-5011 and Ritz car bearing Registration No.KA-20/Y-8262 and a Twister motorcycle. Further, it is alleged that the accused having common object to destroy the shop of PW1 and committed mischief by fire by pouring petrol over shop of PW1 and godown and lit fire by pouring petrol over the Chevrolet Enjoy Car bearing Registration No. KA-20/Z-5011 and Ritz car bearing Registration No.KA-20/Y-8262 and Motorcycle which were parked in the compound of said Venkatesha Krupa Traders intending to cause (or knowing it to be likely that the - 4 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 accused would thereby cause), destruction of shop of CW1. Thus accused Nos.1 and 2 have committed the alleged commission of offences. 5. After filing the charge-sheet, case was registered in CC No.1371/2016. Thereafter, case was committed to the Court of Sessions and came to be registered in SC No.27/2016. Accused appeared before the Sessions Court and were enlarged on bail. 6. Upon hearing on charges, the trial Court has framed charges for the offences punishable under Section 436, 451 and 427 read with Section 34 of Indian Penal Code and the same were read over and explained to the accused. Having understood the charges, Accused Nos.1 and 2 have pleaded not guilty and claimed to be tried. 7. To prove the case of the prosecution, in all, 14 witnesses were examined as PW1 to PW14. 26 documents were marked as Exhibits P1 to P26. 20 material objects were marked as MOs.1 to 20. On closure of prosecution side evidence, statements of the accused under Section 313 of Code of Criminal Procedure were recorded. The accused have totally - 5 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 denied the evidence of prosecution witnesses. However, they have not chosen to lead any defence evidence on their behalf. 8. Having heard the arguments on both sides, the trial Court has convicted the accused for the offence punishable under Sections 451, 436 and 427 read with Section 34 Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5,000/- for the offence punishable under Section 451 of Indian Penal Code. Further, the accused are sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.10,000/- for the offence punishable under Section 427 of Indian Penal Code. Further, the accused to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.20,000/- for the offence punishable under Section 436 of Indian Penal Code. Being aggrieved by this judgment of conviction and order on sentence, the appellants have preferred this appeal. 9. The learned counsel for the appellants would submit that the judgment of conviction and order on sentence recorded by the trial judge is contrary to law, facts, evidence on record. - 6 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 Hence, same is liable to be set aside. There is no motive, much less an action on the part of the appellants. The trial Court ought to have appreciated that there ought to be strong motive for a person to commit such heinous crime and it cannot constitute an offence unless it is coupled with intention. 10. The prosecution has set up certain witnesses to suit their convenience against the appellants with a view to implicate them in the crime. The prosecution is not sure about occurrence of the alleged incident and there are many shortcomings in the police version and the investigation has not been conducted properly. 11. The appellants have not committed any offence which prompts any such imprisonment. The appellants are too young and have a promising future ahead and by convicting them without verifying the actual state, great injustice is caused to them. The whole theory of the prosecution is nothing but a story created and concocted and is placed before the Court below to help the complainant who wanted to wreck vengeance against the appellants. The entire prosecution theory is absolutely false and far from truth. There are no - 7 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 eyewitness to speak about the incident. The alleged eyewitness PW4 and CW28 in the complaint have not supported the case of the prosecution and the prosecution has even failed to identify the appellants at the spot, but identified in the court and name of the appellant are not known to PW4 and CW28. This shows that the case on prosecution is concocted one. There is contradictory evidence of the incident and the timings of the incident by each witness who have adduced evidence before the Court. That there were criminal clashes in the town and the accused were known to the complainant and only with an intention to involve these appellants in a crime which was not committed by them, and with a view to implicate them in the crime the complainant has lodged the complaint though they have not committed any such crime. Even the eye-witnesses who was set up by the prosecution itself show that the witnesses were intentionally set up by the prosecution for the purpose of the case in order to implicate the appellants in crime and the prosecution, in collusion with the complaint, fixed the appellants to framing charges against them, which the Court below failed to appreciate by convicting the appellants which has caused great injustice is caused to the appellants. The trial - 8 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 Court has relied on inadmissible evidence. There is no mahazar drawn at the time of preparing the CD. Admittedly the prosecution themselves have prepared the CD when the CCTV was connected from the laptop and therefore before admitting the evidence, Section 65B report was the mandatory. The absence of such report is fatal and could not have been relied by the trial Court. 12. After lapse of 10 days of appellant No.1 was arrested and subsequently, his illegal confession was recorded. Nothing was recovered by virtue of confession. Therefore, the entire statement recorded by the Investigating Officer hit by Section 25 of the Evidence Act. The trial Court has relied on the confession of the accused which is prohibited under Section 25 of Indian Evidence Act. 13. The appellants are innocent of the alleged offences. They have not committed any offence as the law requires them. The trial Court has lost sight of the fact that the case of prosecution was deteriorated state by stage. 14. Though there is no cogent, convincing, corroborative, legal evidence before the trial Court. The trial - 9 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 Court has convicted the accused which is not sustainable under law. On all these grounds, it is sought for allowing this appeal. 15. As against this, the learned High Court Government Pleader, Sri.B.Lakshman, would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts and there are no grounds to interfere with impugned judgment of conviction and order on sentence passed by the trial Court and sought for dismissal of this appeal. 16. Having heard the arguments on both sides and on perusal of materials, the following points would arise for my consideration: 1. Whether the trial Court is justified in convicting the accused Nos.1 and 2 for the offence punishable under Section 451, 436 and 427 read with 34 of Indian Penal Code? 2. What order? - 10 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 Regarding Point No.1: 17. The Investigating Officer has submitted charge- sheet against the accused for the offence punishable under Sections 436, 451 and 427 read with Section 34 Indian Penal Code. 18. To prove the guilt of the accused, the prosecution has examined, in all, 14 witnesses as PW1 to 14. 26 documents were marked as Exhibit P1 to 26 and 20 material objects were marked as MO1 to 20. 19. The genesis of the case arose by complaint-Exhibit P1 filed by PW1-G.Venkatesh Shenoy, in which, it is stated as under: "£Á£ÀÄ ªÉÄïÁÌt¹zÀ «¼Á¸ÀzÀ°è ªÁ¸ÀªÁVzÀÄÝ UÀAUÉÆ½î ¥ÉÃmÉAiÀÄ°è ªÉAPÀmÉñÀ PÀÈ¥Á mÉæÃqÀgïì JA§ QgÁt CAUÀr ªÁå¥ÁgÀ £ÀqɸÀÄwÛzÀÄÝ ºÉÆïï¸É¯ï ºÁUÀÆ jmÉÃ¯ï ªÁå¥ÁgÀ«zÉ. CAUÀrAiÀÄ PÀlÖqÀzÀ°è »A¨sÁUÀzÀ°è UÉÆÃqÁ£ï EzÉ. ºÁUÀÆ ªÉÄîÎqÉAiÀÄÄ UÉÆÃzÁªÀÄÄ EzÉ. CAUÀrAiÀÄ ¥ÀPÀÌzÀ°è £ÀªÀÄä ªÀÄ£É EzÉ. gÁwæ ªÀÄ®VzÀÄÝ ¢£ÁAPÀ 21/1/2015 gÀ ¨É¼ÀVΣÀ eÁªÀ ¸ÀĪÀiÁgÀÄ 2:20 WÀAmÉUÉ ¥ÉmÉÆæÃ¯ï ªÁ¸À£É §A¢zÀÄÝ £À£ÀUÉ JZÀÑgÀªÁV ºÉÆgÀUÀqÉ §AzÁUÀ QrUÉÃrUÀ¼ÀÄ UÉÆÃzÁ«Ä£À UÉÃn£À §½ ¨ÉAQ ºÀZÀÄÑwÛzÀÝgÀÄ. £Á£ÀÄ £ÉÆÃqÀÄwÛzÀÝAvÉ ¨ÉAQAiÀÄÄ CAUÀr PÉÆÃuÉ, UÉÆÃzÁªÀÄÄ ªÀÄÄA¨sÁUÀ ¤°è¹zÀ ªÁºÀ£ÀUÀ½UÉ ªÀÄvÀÄÛ UÉÆÃzÁ«ÄUÉ ¨ÉAQ ºÀwÛ Gj¬ÄvÀÄ. vÀPÀët £Á£ÀÄ ¨ÉƨÉâ ºÁQzÀÄÝ £À£Àß ¨ÉƨÉâ PÉý vÀAzÉ-vÁ¬Ä, dAiÀIJæà ±ÉuÉÊ, vÀªÀÄä «oÀ×® ±ÉuÉÊ ªÀÄvÀÄÛ CªÀgÀ ¥Àwß ªÉʵÀÚ« ±ÉuÉÊ, ªÀÄvÉÆÛ§â vÀªÀÄä «dAiÀiï ±ÉuÉÊ ºÁUÀÆ CªÀgÀ ¥Àwß ªÉʱÁ° ±ÉuÉÊ ªÀÄvÀÄÛ £À£Àß ¥Àwß ªÉʨsÀ« ±ÉuÉÊAiÀĪÀgɯÁè §A¢zÀÄÝ J®ègÀÆ ¸ÉÃj ¤ÃgÀÄ ºÁQ ¨ÉAQAiÀÄ£ÀÄß £ÀA¢¹zÀgÀÄ. ¥Áè¹ÖPï PÁå£ÀÄUÀ¼À°è ¥ÉmÉÆæïï C£ÀÄß vÀÄA©¹PÉÆAqÀÄ §AzÀÄ ¨ÉAQ ºÁPÀ®Ä G¥ÀAiÉÆÃV¹gÀĪÀÅzÀÄ - 11 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 PÀAqÀħgÀÄvÀÛzÉ. ¨ÉAQ¬ÄAzÀ CAUÀr PÉÆÃuÉAiÀÄ ±ÉÆÃPɸÀÄ ºÁUÀÆ ¢£À¹ ¸ÁªÀiÁ£ÀÄUÀ¼ÀÄ ¸ÀÄlÄÖ ºÉÆÃVgÀÄvÀÛzÉ. UÉÆÃzÁ«Ä£À°ègÀĪÀ ¢£À¹ ªÀ¸ÀÄÛUÀ¼ÀÄ PÀÆqÀ ¸ÀÄlÄÖ ºÉÆÃVgÀÄvÀÛzÉ. PÀA¥ÁAqï M¼ÀUÀqÉ KA20 Z5011, Cheverlet Enjoy car, KA30 A2355 407- tempo, KA20 D1630 Bolero goods ªÁºÀ£À, KA19 MA4909 Ritz car, KA20 Y8262 Honda Motor cycle, ¤°è¹zÀÄÝ PÉ®ªÉÇAzÀÄ ªÁºÀ£ÀUÀ¼ÀÄ ¨ÉAQ¬ÄAzÀ ¸ÀÄlÄÖ ºÁ¤UÉÆArgÀÄvÀÛªÉ. ¢£À¹ ¸ÁªÀiÁ£ÀÄUÀ¼ÀÄ ¨ÉAQ¬ÄAzÀ ¸ÀÄlÄÖ ºÁ¤UÉÆArgÀĪÀÅzÀÄ ªÉÄïÉÆßÃlPÉÌ ¸ÀĪÀiÁgÀÄ JAlÄ ®PÀëgÀÆ¥Á¬Ä DVgÀ§ºÀÄzÁV PÀAqÀħgÀÄvÀÛzÉ. ¨ÉAQ¬ÄAzÀ ºÁ¤UÉÆAqÀ ªÁºÀ£ÀUÀ¼À ºÁUÀÆ E¤ßvÀgÀ ¸ÀévÀÄÛUÀ¼À £ÀµÀÖªÀ£ÀÄß ªÀÄÄAzÀPÉÌ ¥Àj²Ã°¹ w½¸À¯ÁUÀĪÀÅzÀÄ. D¥Á¢vÀgÀÄ £ÀªÀÄä£ÀÄß £ÉÆÃr Nr ºÉÆÃVzÀÄÝ, CªÀgÀÄ E§âgÀÄ ªÀåQÛUÀ¼ÀÄ £ÉÆÃrzÀÄÝ CªÀgÀÄ ªÉÆÃmÁgï ¸ÉÊPÀ¯ï£À°è ºÉÆÃVgÀÄvÁÛgÉ. CªÀgÀ eÉÆvÉAiÀÄ°è E£ÀÄß PÉ®ªÀgÀÄ EgÀĪÀ ¸ÁzsÀåvÉ EzÉ. D¥Á¢vÀgÀÄ PÀÈvÀå £ÀqɸÀ®Ä ¸ÀA¥ÀÆtðªÁzÀ ¥ÉÊ¥À£ÀÄß §¼À¹ CAUÀrAiÀÄ M¼ÀUÀqÉ ¨ÉAQ ºÁPÀ®Ä ¥ÉmÉÆæÃ¯ï ºÁPÀ®Ä §¼À¹zÀÄÝ ¸ÀܼÀzÀ°è EgÀĪÀÅzÀÄ PÀAqÀħgÀÄvÀÛzÉ. AiÀiÁgÉÆà QrUÉÃrUÀ¼ÀÄ £ÀªÀÄä CAUÀr ºÁUÀÆ UÉÆÃzÁ«ÄUÉ ¨ÉAQ ºÀaÑ £ÀªÀÄUÉ PÉÆÃmÁåAvÀgÀ gÀÆ¥Á¬Ä £ÀµÀÖ GAlĪÀiÁqÀĪÀ GzÉÝñÀ¢AzÀ F PÀÈvÀå J¸ÀVgÀÄvÁÛgÉ. F §UÉÎ D¥Á¢vÀgÀ «gÀÄzÀÞ ¸ÀÆPÀÛ PÁ£ÀÆ£ÀÄ PÀæªÀÄ vÉUÉzÀÄPÉƼÀî¨ÉÃPÁV PÉýPÉƼÀÄîvÉÛãÉ." 20. On the basis of the complaint, on 21.01.2015, the Sub Inspector of Police, Gangolli Police Station has registered the case in Crime No.11/2015 for the offences punishable under Section 427, 436, 451 read with Section 34 of Indian Penal Code and submitted the First Information Report to the Court as per Ex.P18. 21. CW1-G.Venkatesha Shenoy examined as PW1. He has reiterated the averments made in the complaint-Ex.P1. Further, he has deposed that the accused lit fire to his shop by entering into side gate, as the same was unlocked and when he - 12 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 has witnessed the accused left 10 liter can and fled. The accused have covered their face with kerchief and they ran away in two wheeler and a car. PW1 has stated in Exhibit P1 that the culprits have escaped through a motorcycle. For the first time before the Court, PW1 has stated that the culprits fled spot through one two wheeler and a car. 22. CW2-Bhaskara Shenoy examined as PW2, who is the son of PW1, has deposed as to the litting of fire to the vehicles and shop. But he has not deposed anything against the accused. 23. CW9-Ravindra Shenoy examined as PW3, has also not deposed anything against the accused. But he has stated that he has handed over, CD films recorded in CCTV and also he has given certificate as per Exhibit P8. 24. CW11- Raghuvendra Karvi examined as PW4. He has deposed that after lapse of 14 days he has informed about the accused to the police. He is not an eye-witness. - 13 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 25. CW12-Vamana S/o Srinivas examined as PW5. He has said to be the mahazar witness. He has deposed as to the mahazar conducted by the police as per Exhibit P2. 26. CW14-Venkatesha Pai examined as PW6, has deposed regarding the mahazar conducted by the police as per Exhibit P9. 27. CW17-Shankara Devadiga examined as PW7, has deposed regarding the mahazar conducted by the police as per Exhibit P11 and seizure of Omni van-MO.10. 28. CW21-Ramakrishna Rai, RTO, Udupi examined as PW8. He has deposed as to the examination of the vehicles and issuance of report as per Exhibit P12. 29. CW25-Mohan, CPC-2213, Gongolli police station, Kundapura Taluk examined as PW9, has deposed as to the arrest of accused Nos.1 and 2 on 26.07.2015. 30. CW22-Vishwanath Naik, RTO, examined as PW10, has deposed as to the examination of the vehicle bearing registration No.KA-20/B-8372 (Taxi) (MO.20) and he has - 14 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 identified the same in Exhibit P7, Exhibit P7(B) and P7(C) photos and also deposed as to Exhibit P13. 31. CW20-Dr.Vani.N, Assistant Director, Chemistry Division Forensic Science Laboratory, Bangalore, examined as PW11, has deposed as to the issuance of certificate of examination of the materials examined item Nos.1 to 16. 32. CW19-Dr.Geethalakshmi, Scientific Officer, FSL, Mangaluru examined as PW12, has deposed as to the issuance of report as per Exhibits P15 and P16. 33. CW27-B.Subbanna, PSI, Gangolli Police Station examined as PW13, CW28-Sudarshan, Circle Inspector of Police, Manipal examined as PW14, have deposed as to their respective investigation. 34. The prosecution witnesses have not witnessed the accused at the time of alleged commission of offence. The Investigating Officer has not conducted test identification parade, after arrest of the accused. The Investigating Officer has arrested the accused after lapse of 11 days from the date of incident. The Investigating Officer has clearly admitted in his - 15 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 evidence that, he has not investigated as to whom the motorcycle belongs. Further, he has clearly admitted that none of the witnesses have given statement before him about the culprits who fled in Maruthi car. Further, he has clearly admitted that culprits cannot be identified in CCTV footage. The trial Court has also observed the same in paragraph 46 of its judgment. 35. Viewed from any angle, absolutely there is no legally acceptable evidence before the Court to convict the accused for the commission of alleged offences. The trial Court has observed in paragraph 47 of the judgment that, the prosecution has proved its case on the basis of the confessional statement of accused No.1 recorded by the Investigating Officer. The confessional statement said to have been recorded by the Investigating Officer is not admissible in evidence, in view of Section 25 of the Indian Evidence Act, 1872. However, the trial Court has relied on the confession statement made by accused No. 1, which is not sustainable under law. 36. In that view of the matter, I do not find any cogent, convincing, corroborative, clinching, legal evidence to convict - 16 - HC-KAR NC: 2026:KHC:5051 CRL.A No. 34 of 2019 the accused for the commission of alleged offences. Accordingly, I answer point No.1 - in the negative. Regarding point No.2: 37. For the foregoing reasons and discussions, I proceed to pass the following: ORDER i) Appeal is allowed. ii) The judgment of conviction and order on sentence passed by the Additional District and Sessions Court, Udupi sitting at Kundapur in SC No.27/2016 dated 05.12.2018, is set aside. iii) The accused/appellants are acquitted of the offences under Section 451, 436 and 427 read with 34 of IPC. iv) The fine amount, if any, deposited by the appellants shall be returned to them in accordance with law. Registry is directed to send the copy of this judgment along with Trial Court records to the concerned Court. Sd/- (G BASAVARAJA) JUDGE KBM List No.: 1 Sl No.: 38