JUDGMENT B.V. Pinto, J.— This appeal is filed by the State challenging the judgment dated 11.08.2003, passed by the Addl. Civil Judge and JMFC, Chintamani in C.C. No. 444/2002 acquitting the Respondents of the offences punishable under Sections 143, 147, 148, 448, 427, 435, 504, 506 read with 149 IPC. 2. Parties are referred according to their rank in the trial Court. 3. The case of the prosecution is that on 10.09.2002 at about 12 in the mid night, the accused formed themselves into an unlawful assembly, the common object of which was to hurt CW. 1 and to force him to leave the village, there by, they are alleged to have committed an offence punishable under Section 143 IPC. It is further alleged that on the said date, place and time, the accused committed rioting in the front of the house of CW. 1 M. Reddappa of Gopasandra village. Chintamani taluk, holding lethal weapons like stones, clubs and iron rods and trespassed into the house of CW. 1 Redappa and picked up quarrel with him and caused mischief and by destroying the house hold articles and utensils of cooking and caused loss of Rs. 1,00,000/- by setting fire to the Chappara in front of the house which was used for rearing the silk cocoons, thereby, they are alleged to have committed offences punishable under Sections 143, 147, 148, 448, 427, 435 read with 149 IPC. It is further alleged that on the said place, date and time, the accused intentionally insulted CW 1 Redappa and thereby, caused an offence by breaking public peace, thereby, they are alleged to have committed offence punishable under Section 504 read with 149 IPC. It is further alleged that on the said date, place and time, the accused have criminally intimidated CWs. 1 to 4 thereby, they are alleged to have committed offence punishable under Section 506 read with 149 IPC. 4. The prosecution in order to prove the case has examined in all 11 witnesses, PWs. 1 to 11 and got marked documents Exs. P.1 to P.5 and produced MOs. 1 to 3. 5. The defence of the accused was one of foe total denial, however, they have got marked Ex. D.1 being the portion of the statement of PW.2. 6. The prosecution in order to prove the case has examined in all 11 witnesses, PWs. 1 to 11 and got marked documents Exs. P.1 to P.5 and produced MOs. 1 to 3. 5. The defence of the accused was one of foe total denial, however, they have got marked Ex. D.1 being the portion of the statement of PW.2. 6. However, after hearing the prosecution and the defence, the learned Magistrate was pleased to hold that the prosecution has not proved the case against the accused beyond reasonable doubt and hence, the accused are acquitted of the offences charged against them. Being aggrieved by the judgment of acquittal, the State has filed this appeal. 7. Heard Sri Vijaya Kumar Majage, learned HCGP for the Appellant State and Sri M.R. Nanjunda Gowda, learned Counsel for the Respondents accused. 8. Sri Vijaya Kumar Majage, learned HCGP submits that the prosecution has in clear terms proved before the Court that the accused have formed themselves into an unlawful assembly and have caused damage to the house property of PW.1 Redappa. He has submitted that the evidence of PWs.1 and 2 and 8 who is the son of PW.1 clearly establishes that the accused have caused damage to the pendal of PW.1, which was used for rearing the silk cocoons. He further submits that fire brigade had come in the night and extinguished the fire which fact has been spoken by PW.7. He submits that PW.1 before the Court has stated that he has suffered loss of Rs. 60,000/-, whereas, the mahazar Ex.P.2 indicates that the complainant has suffered a loss of Rs. 1,00,000/- by the acts of the accused. He further submits that accused have caused mischief by setting fire and the only reason for such act is that PW. 1 and his family has come from some other village and has purchased property and he has settled in the place of the incident. He submits that in the cross-examination, PWs.1, 2 and 8 do not indicate any enemity on the part of the complainant nor any motive for falsely implicating the accused. He also submits that there is no reason as to why PWs.1 and 2, 8 and 10 should have falsely implicated the accused and prays that the order of acquittal is bad in law and therefore, submits that the accused may be convicted. 9. He also submits that there is no reason as to why PWs.1 and 2, 8 and 10 should have falsely implicated the accused and prays that the order of acquittal is bad in law and therefore, submits that the accused may be convicted. 9. Sri Nanjunda Gowda, learned Counsel for the Respondents on the other hand submits that A8 Anjappa and A10 Gopalareddy have died but however, no document is produced to show that A8 and A10 are dead. He submits that there is vast discrepancy in the evidence of the witnesses and PW.1 gives different version regarding the loss in his statement before the police, in the mahazar and in his statement before the Court. He submits that none of the witnesses have stated regarding presence of light and therefore, their evidence cannot be believed. Hence, he submits that the order of acquittal does not call for interference. He further submits that the witnesses have stated that Investigating Officer PW. 11 has come to the scene of occurrence in the night itself and complaint given by the complainant has been suppressed and Ex. P.1 is not the complaint originally given. Therefore, he submits that there is doubt, regarding the very genesis of the crime and on this ground also, the accused are entitle for an order of acquittal. 10. The prosecution in this case commenced by filing of the complaint by M. Redappa son of Munishyamappa before the Chitamani Rural Police Station on 11.09.2002 at 9 a.m. In the said complaint, it is stated by him that he is residing in Gopasandra Village along with his family and on 10.09.2002, at about 12 mid night when he was sleeping in the house along with his children the accused by name Gopala Ready, Chowda Reddy, Gopi, Umashankar, Narayana Swamy, Srinivas, Venkata Reddy, Anjappa, Narayana Swamy, Gopala Reddy, Ramesh and others formed themselves into an unlawful assembly and holding stones, clubs and iron rods broke the door of their house and criminally trespassed into their house thereafter, they have abused the inmates of the house saying that they have come from Chimanahally and they have purchased property. The complainant and his family restricted themselves into one room of the house and accused have broken the doors and windows and they have set fire to the pendal which was erected for keeping the Nilgiri trees. The complainant and his family restricted themselves into one room of the house and accused have broken the doors and windows and they have set fire to the pendal which was erected for keeping the Nilgiri trees. It is further stated in the complaint that they would also murder the family member and they had threatened the complainant. He has further stated that his house building is damaged and also they have committed dacoity. It is stated in the complaint that one Ramakrishanappa, Seenappa and Dommasandra Venkata. Reddy have seen the incident. 11. On the basis of the above complaint, the Chintamani Rural Police registered the case in crime No. 126/2002 for the offences punishable under Sections 143, 147, 148, 448, 427, 435, 506 read with 149 IPC and commenced investigation. Police visited the spot and prepared mahazar as per Ex.P.2. In the said mahazar, it has been noted that on 11.09.2002, the pendal in front of the house has been burnt and the Nilgiri trees have also burnt. The electric lines have also been charred and have become black. It is mentioned in the said complaint that the door of the house of C.W. 1 have also been damaged and has been plucked, the cooking articles have been placed helter-skelter, cooker has also been damaged. It is further mentioned in the complaint that he has sustained a loss of Rs. 1,00,000/-. After completion of the investigation, the police have filed charge sheet against all the eleven accused. 12. PW.1 M. Redappa has stated before the court that on 10.09.2002, there was Ganesha festival in the village. He had brought material for celebrating Ganesh festival and after taking the food, they have slept at about 10.00 p.m. At about 10.30 p.m., Ganesha procession came near the house and the boys requested them to make pooja, PW.1 stated that since he was not aware of the pooja, he could not do the pooja on that day. Half an hour later, again the boys came near the their house and they were plucking the pendal, removing the articles from the pendal. Since there were many people, they did not talk at that time. About 15 minutes later, Gopala Reddy came in a motor cycle near his house and started making the sound of the vehicle. Half an hour later, again the boys came near the their house and they were plucking the pendal, removing the articles from the pendal. Since there were many people, they did not talk at that time. About 15 minutes later, Gopala Reddy came in a motor cycle near his house and started making the sound of the vehicle. Then he came out of the house and asked the accused as to why he was removing the pendal, the accused stated that PW. 1 has come to the said village arid is making property and he would be taught a lesson. By telling that he set fire to his property. The accused Gopala Reddy abused the complainant and asked other accused to remove the coconut leaves. His son pushed the two wheeler brought by the accused Gopala Reddy, at that time, brother of Gopala Reddy requested Gopala Reddy not to do any galata. Thereafter, the accused Gopala Reddy told the other people to set fire to the pendal and they broke open the door of the house and came inside the house. They have also damaged cooking articles in the house, including cooker and have broken the window glasses by stones. Immediately, he phoned up to the police, however, the police have not come to the spot. Thereafter, he informed the same to the Chintamani Town Police Station. About 10 to 15 minutes later, the fire brigade came along with one Sub-Inspector. The people who had come there were sitting on the culvert. He has further stated that on the next day, he has given complaint to the police and police have come to the spot and have conducted the mahazar. He has identified the mahazar as well as the complaint given by him as per Exs.P.1 and P.2 respectively. In the cross-examination, it is elicited that Naga, Venu and Seenappa have removed the pendal. It is further elicited that the people came with the clubs and stones and iron rods. It is further elicited that there is misunderstanding regarding throwing garbage in the village. It is also elicited that one Naga has filed a complaint regarding throwing of garbage in the village. It is further elicited that Sub-Inspector of Kencharlahalli had come to the spot in the night and the Sub-Inspector was in the place for about 1½ hour. He has also informed the Sub-Inspector about the incident. It is also elicited that one Naga has filed a complaint regarding throwing of garbage in the village. It is further elicited that Sub-Inspector of Kencharlahalli had come to the spot in the night and the Sub-Inspector was in the place for about 1½ hour. He has also informed the Sub-Inspector about the incident. It is suggested that false case has been filed against the accused. PW.2 Venkata Reddy has also stated that on the date of the offence, he has seen the accused Gopala Reddy and Chowda Reddy causing damage to the house of PW.1. He has further stated that accused declaring that they would chase Redappa from the village, have set fire to the pendal of Redappa and breaking the door of their house, the accused have entered the house of Reddappa. He has further stated that the accused have broken the windowpanes of house of PW.1. He has identified the articles MOs.1 to 3, which were used by the accused for commission of the offence. In the cross-examination, it is elicited that 100 Nilgiri trees were kept near the pendal and the measurement of the pendal was 50 feet by 70 feet. It is further elicited that the incident has been witnessed by the light of the fire given to the pendal. Further, he has stated that he does not know as to who has set fire to the pendal. He also cannot say as to which glass is broken by Gopala Reddy. He is also not aware as to who has plucked the coconut leaf from the pendal. PW.3 Seenappa has corroborated the evidence of PWs.1 and 2. He has stated that the pendal of PW.1 has been set fire by the accused. In the cross-examination, it is elicited that, since it was dark he cannot say as to who has set fire arid who threw the stones. PW.4 Rama Murthy is a signatory to Ex.P.2 mahazar. PW.5 Ashwath Reddy is another witness to Ex.P.2-the mahazar prepared by the police on the next day of the incident. PW.6 Ananda Gowda is another witness to Ex.P.2. PWs.4, 5 and 6 have stated that pendal has been set fire, windows and doors of house of PW. 1 has been broken as mentioned in Ex.P.2. PW.5 Ashwath Reddy is another witness to Ex.P.2-the mahazar prepared by the police on the next day of the incident. PW.6 Ananda Gowda is another witness to Ex.P.2. PWs.4, 5 and 6 have stated that pendal has been set fire, windows and doors of house of PW. 1 has been broken as mentioned in Ex.P.2. PW.7 is the official of the Fire Brigade, Chintamani who has stated that on 11.09.2002, at about 1.30 a.m., he has been to the house at Gopasandra Village and had extinguished the fire. Ex.P.5 is the report given by him to the police who had recorded their attendance. He has stated that the house belongs to one Redappa of Gopasandra Village. PW.8 Manjunath is the son of PW.1 who has also stated regarding the accused setting fire to their house. He has mentioned the name of A1 Gopala Reddy, as being the cause of incident. It is suggested to him that a false case has been filed by himself and his father. PW.9 Venkata Reddy is the secretary to the Grama Panchayath who has stated that the house which was damaged belongs to one PW.1 Redappa as per the village records. PW. 10 Ramakrishnappa is another eye witnesses who has spoken regarding the accused setting fire to the pendal of PW. 1 and causing damage to the house of PW.1. PW.11 is the PSI of Chintamani Rural Police Station who has registered the case and issued FIR and later on filed the charge sheet against the accused. 13. It is from the evidence of these witnesses the learned Magistrate has given benefit of doubt to the accused. On a proper re-appreciation of the entire material on record, it is seen that the witnesses have spoken regarding the presence and participation of A1 and A2 in the commission of the offence. So far as the other accused are concerned, there is no specific overt act is alleged against A3 to A11 and therefore, though their names appear in the FIR, the reasoning given by the learned Magistrate that the presence and participation has not been spoken by the witnesses and does not call for interference. So far as A3 to A11 are concerned, the order of acquittal does nor suffer from any infirmity or illegality and therefore, their acquittal is hereby confirmed. So far as A3 to A11 are concerned, the order of acquittal does nor suffer from any infirmity or illegality and therefore, their acquittal is hereby confirmed. Further, so far as the presence, participation and overt acts of A1 and A2 is concerned, all the witnesses have spoken about their participation and therefore, on a proper consideration of the materials on record, I hold that A1 and A2 have caused damage to the house of PW.1 and have set fire to the pendal of PW.1. Therefore, they deserve to be held guilty arid accordingly, A1 and A2 are found guilty for having damaged the house of PW.1. So far as the damage caused to the PW.1 is concerned, there is no clear evidence and the materials which have been damaged has not been produced before the Court nor seized in this case. Under the circumstances, I am of the opinion that there is no need to give a specific finding regarding the quantum of damage caused to PW.1 by the act of the accused. However, the accused Nos. 1 and 2 have been found causing mischief by setting fire and they are liable to be punished under Section 435 IPC. So far as the sentence is concerned, the incident has happened in the year 2002 and almost 9 years have been passed from the date of the offence. The complainant, and the accused would have settled their differences and they would have joined in the main stream of Society. Under the circumstances, I do not see any reason to send the accused to custody by imposing sentence of imprisonment. On the other hand, the imposition of fine on A1 and A2 will meet the ends of justice. Hence, the following order: 1. The appeal filed by the State is partly allowed. 2. Accused Nos. 1 and 2 are convicted for the offences punishable under Section 435 read with 34 IPC and they are sentenced to pay fine of Rs. 10,000/- each in default, to undergo S.I. for one year. 3. Accused Nos. 1 and 2 are acquitted of the other offences charged against them so also the order of acquittal of accused Nos. 3 to 11 is hereby confirmed. 4. Accused Nos. 1 and 2 are directed to deposit the fine amount within two months from today, failing which the trial Court is directed to execute the sentence. 3. Accused Nos. 1 and 2 are acquitted of the other offences charged against them so also the order of acquittal of accused Nos. 3 to 11 is hereby confirmed. 4. Accused Nos. 1 and 2 are directed to deposit the fine amount within two months from today, failing which the trial Court is directed to execute the sentence. The entire fine amount shall be paid to PW.1 Reddappa as compensation under Section 357 Code of Criminal Procedure.