JUDGMENT M.G.Uma, J. - The appellant/accused No.2 has preferred this appeal aggrieved by the impugned judgment of conviction and order of sentence dated 30.04.2012 passed in S.C.No.82/2010 on the file of the Fast Track Court, Jamakhandi (for short referred to as 'the trial Court'), convicting him for the offences punishable under Sections 447 and 436 read with Section 34 of IPC and sentencing to undergo imprisonment and to pay fine with default sentence and also directing to pay the compensation of Rs.25,000/- to PW4 as required under Section 357(3) of Cr.P.C 2. Heard the learned counsel Sri.Srinand A. Pachhapure for the appellant and the learned AGA Sri.Vinayak Kulkarni for respondent-State. 3. The brief facts of the case of the prosecution are that, accused Nos.1 and 2 with common intention committed criminal trespass into the land of the complainant on 20.05.2010 at 11.30 pm and set fire to the hut belonging to the complainant and caused damage of Rs.78,400/- and thereby they have committed the offences punishable under Sections 447 and 436 read with Section 34 of IPC. 4. The first informant-Bhimappa Ramappa Savalagi lodged the first information with Jamakhandi police against accused Nos.1 and 2 alleging commission of the offence as stated above. 5. On the basis of the first information, the investigation was held and the charge sheet was laid. The Jurisdictional Magistrate took cognizance of the offence and committed the matter to the learned District and Sessions Judge, Bagalkote district, who in turn made over the matter to the trial Court for trial. The trial Court secured the presence of accused Nos.1 and 2 and they have pleaded not guilty of the charges leveled against them. 6. The prosecution in order to prove its contention, examined 16 witnesses, got marked 14 documents and identified 2 material objects in support of its contention. The accused have denied all the incriminating materials available on record but they have not chosen to lead any evidence in support of their defence. 7. The trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of accused beyond reasonable doubt and convicted and sentenced them as stated above. 8. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, accused No.2 has preferred this appeal on various grounds. 9. 8. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, accused No.2 has preferred this appeal on various grounds. 9. The learned counsel for the appellant submitted that accused No.1 is already dead and he had not filed any appeal against the impugned judgment of conviction and order of sentence. He further submitted that the impugned judgment of conviction and order of sentence passed by the trial Court is illegal, perverse and the same is liable to be set aside. There are material contradictions in the evidence led by the prosecution but the same are not taken into consideration by the trial Court. 10. Learned counsel submits that the first informant, who is examined as PW4 has categorically stated that he had not seen accused Nos.1 and 2, either committing the offence or at the scene of offence, at the relevant point of time. PWs.12, 14 and 15 have also not supported the case of the prosecution. PWs.6, 7 and 9 are the wife and children of PW4 and they are the interested witnesses. Their version is highly improbable and cannot be believed. The evidence of PW8 also cannot be believed even for a moment. Under such circumstances, no reliance could be placed on their version to convict the accused. 11. Learned counsel further submitted that there is inordinate delay in lodging the first information. The prosecution has not explained this delay, which gave rise to manipulation and embellishment on the part of PW4, who falsely implicated the accused. The fire was an accidental fire and PW4 took advantage of the situation and falsely implicated this accused. He also submitted that accused No.1 was the son-in-law of PW4, who may be having motive but accused No.2 is a distant relative of accused No.1 and he has nothing to do with PW4. Under such circumstances, convicting him for the above said offences without any reasonable cause has resulted in miscarriage of justice. Therefore, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence passed by the trial Court and acquitting accused No.2 in the interest of justice. 12. Alternatively, the learned counsel submitted that there is absolutely no material against accused No.2 for having committed the criminal trespass into the land bearing Sy.No.59/2 of Gothe village. 12. Alternatively, the learned counsel submitted that there is absolutely no material against accused No.2 for having committed the criminal trespass into the land bearing Sy.No.59/2 of Gothe village. Therefore, accused No.2 is to be acquitted for the said offences. He further submitted that even if this Court is to form an opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt for the offences punishable under Section 436 of IPC, the maximum leniency may be shown in favour of accused No.2. He submitted that admittedly there was no ill will and motive for accused No.2 to commit the offence. Accused No.1 is the main accused and he is already dead. Therefore accused No.2 may be sentenced for the period for which he has already undergone, in the interest of justice. 13. Per contra the learned AGA Sri.Vinayak Kulkarni supporting the impugned judgment of conviction and order of sentence submitted that the delay in lodging the FIR was not inordinate but it is quite reasonable. The FIR-Ex.P4 explains the delay in lodging the complaint. Admittedly accused No.1 who is the main accused is the close relative of PW4 as he is the son-in-law. PW7 is the wife of accused No.1 and daughter of PW4 and further PW15 is the second wife of accused No.1 and she is also the daughter of PW4. Under such circumstances, the delay caused in lodging first information is quite but natural. Moreover, PW4 had sustained injuries in the incident and he had taken treatment with the Doctor. Therefore it cannot be said that there was inordinate delay in lodging the first information. 14. Learned AGA further submitted that PWs.4, 6, 7 and 9 consistently supported the case of the prosecution but nothing has been elicited from them during cross examination to disbelieve their version. These witnesses categorically stated that accused No.2 was at the scene of offence and they had seen him at the time of incident. They are the natural witnesses and therefore the conviction of accused based on the version of these witnesses is to be confirmed. He submitted that there are no material contradictions or omissions which are brought on record and the trial Court properly appreciating all the materials, proceeded to convict the accused. There are absolutely no reason to interfere with the judgment of conviction and order of sentence. He submitted that there are no material contradictions or omissions which are brought on record and the trial Court properly appreciating all the materials, proceeded to convict the accused. There are absolutely no reason to interfere with the judgment of conviction and order of sentence. Therefore he prays for dismissal of the appeal as devoid of merits. 15. I have gone through the materials placed before the Court including the trial Court records. 16. The prosecution is mainly relying on the evidence of PW4, who is the first informant. PW6 is the wife of first informant and PWs7 and 9-the daughters of PWs4 and 6. PW4 lodged the first information as Ex.P3. The incident had taken placed on 20.05.2010 at 11.30 pm and the first information- Ex.P3 was came to be lodged on 21.05.2010 at 7.15 pm. It is stated that PW7 is the first wife of accused No.1. But after some time, accused No.1 married PW15 who is also the daughter of PW4. After few months, he started quarreling with his first wife-PW7 and sent her back to her parental house. Therefore, she was residing in the house of PW4. PW4 made attempts to send back PW7 to the house of accused No.1 and he even advised accused No.1 to take her back. But accused No.1 was not willing to take her back and even threatened to set fire to the shed of the complainant. Accordingly on 20.05.2010 at 11.00 pm, when PWs4, 6, 7 and 9 were in their shed, situated in their land, accused No.1 came along with accused No.2 and set fire, as a result of which, the shed was burnt to a great extent. It is stated that the inmates of the shed could see accused Nos. 1 and 2 running away from the scene of offence and PW4 lodged the first information against both the accused. 17. Pw4 in his evidence deposed in support of the first information lodged by him but stated that he had not seen accused Nos.1 and 2 at the scene of occurrence at the time of the incident. On the other hand, he came to know that the high handed act was committed by accused Nos.1 and 2 only on the next day morning. As PW15 who is his daughter and second wife of accused No.1 had informed about the same. On the other hand, he came to know that the high handed act was committed by accused Nos.1 and 2 only on the next day morning. As PW15 who is his daughter and second wife of accused No.1 had informed about the same. Even during cross examination, he has reiterated the same. Therefore his evidence cannot be relied on to prove the commission of the offence by the accused. 18. Pw6 is the wife of PW4 and she fully supported the case of the prosecution. She stated that when the fire started burning, she suddenly woke up and saw accused Nos.1 and 2 at the scene of occurrence. On the next day, even her daughter PW15 informed that the act was committed by accused No.1. Even though this witness was cross examined at length, nothing has been elicited from her to disbelieve her version. The version of this witness was supported by PW7-wife of accused No.1 and daughter of PWs4 and 6. Another witness who supported the case of the prosecution is PW9, who is the other daughter of PWs4 and 6. Both PWs7 and 9 have fully corroborated the version of PW6. There is absolutely no reason as to why the evidence of these witnesses should not be believed. 19. The prosecution led the evidence of PW8 as a neighbor, but this witness stated that he went to the spot on hearing hue and cry and by the time, about 15 persons have gathered there and he saw accused Nos.1 and 2 who were still at the spot. This version of the witness cannot be believed, as even when several persons have gathered at the scene of occurrence, accused Nos.1 and 2 staying at the spot, is most improbable. Similarly the evidence of PW14 that before the incident, accused No.1 had taken lift after introducing himself as son-in-law of PW4, also cannot be believed and it is also not probable. 20. Even though evidence of PWs4, 8 and 14 is to be discarded regarding the presence of accused Nos.1 and 2 at the scene of occurrence, the evidence of PWs.6, 7 and 9 consistently speak about the commission of offence by these accused. 20. Even though evidence of PWs4, 8 and 14 is to be discarded regarding the presence of accused Nos.1 and 2 at the scene of occurrence, the evidence of PWs.6, 7 and 9 consistently speak about the commission of offence by these accused. The cogent material placed before the Court goes against accused Nos.1 and 2 and the same can not be discarded simply because, evidence of PWs.4, 8 and 14 cannot be believed to connect the accused to the offence in question. 21. An attempt was made during cross examination of prosecution witnesses to contend that it was an accidental fire, which destroyed the hut belonging to PW4. But all the witnesses have categorically denied the said suggestion. As per the case made out by the prosecution, there was no motive for accused No.1 to commit the offence as he was not willing to take back his first wife-PW7 as advised by PW4. 22. The contention taken by the learned counsel for the appellant that with such motive, PW4 falsely implicated accused No.1 in the present case, cannot be accepted for the simple reason that PW15 is also the daughter of PW4 and she is the second wife of accused No.1 and she continues to stay with accused No.1 in his house. Moreover, no motive or ill will was suggested to PW4 to falsely implicate accused No.2. 23. Pw1 is the doctor who examined the injured PW4 and issued the wound certificate as per Ex.P1. The wound certificate discloses that PW4 was examined by the doctor on 21.05.2010 at 7.15 pm and he had sustained two burn injuries, which were simple in nature. During cross examination, it is suggested to this witness that the injuries mentioned in Ex.P1, could be caused if boiling water spills on the part of the body, which was denied by the witness. 24. Admittedly accused No.1 is the son-in-law of PW4. PWs7 and 15 are the daughters of PW4 and they are the first and second wives of accused No.1. It is also admitted that PW15 the second wife continues to stay with accused No.1 after the incident. Under such circumstances, it is quite natural for PW4 to think twice before lodging the first information. PWs7 and 15 are the daughters of PW4 and they are the first and second wives of accused No.1. It is also admitted that PW15 the second wife continues to stay with accused No.1 after the incident. Under such circumstances, it is quite natural for PW4 to think twice before lodging the first information. In the first information, it is stated that after discussing the issue with the elders, the complaint was came to be lodged but nothing has been elicited during cross examination of this witness, to contend that there was embellishment in projecting the commission of the offence by the accused or the accused were falsely implicated with ill will and motive. All these circumstances cannot be presumed by the Court when no specific defence was taken in that regard. When accused No.1 is the close relative of PW4 and when one of the daughter of PW4 is the second wife of accused No.1, it also cannot be said that PW4 will falsely implicate the accused without any reason. Even though the learned counsel submitted that accused No.2 was not at all related to PW4 and there was no reason for him to commit the offence, no attempt was made to contend that there was mistaken identity of this accused. PWs6 and 7 categorically stated that they were familiar with accused No.2, who used to visit their house quite often and that he is the close relative of accused No.1. This version of these witnesses is not shaken during cross examination. No grounds are made out to contend that these witnesses could not have identified accused No.2 at the scene of occurrence. 25. The cumulative effect of the discussions held above, show that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 436 read with Section 34 of IPC. Even though the prosecution contended that accused have criminally trespassed into the house/land, no materials are placed before the Court in support of such contention. Therefore, I am of the opinion that the prosecution is successful in proving the guilt of the accused only for the offence punishable under Section 436 read with Section 34 of IPC and not for the offence punishable under Section 447 of IPC. 26. Learned counsel for accused No.2 sought for leniency in sentencing accused No.2. Therefore, I am of the opinion that the prosecution is successful in proving the guilt of the accused only for the offence punishable under Section 436 read with Section 34 of IPC and not for the offence punishable under Section 447 of IPC. 26. Learned counsel for accused No.2 sought for leniency in sentencing accused No.2. His submission that the incident had taken place more than 10 years ago and the main accused i.e. accused No.1 is already dead, is to be taken into consideration. Therefore a lenient view is to be taken while sentencing accused No.2 for the above said offence. Hence, I proceed to pass the following: ORDER The appeal preferred by accused No.2-Vithal @ Mudakappa Takkalaki @ Halyal, is partly allowed. The impugned judgment of conviction and order of sentence dated 30.04.2012 passed by the Fast Track Court, Jamakhandi, convicting accused No.2 for the offence punishable under Section 447 read with Section 34 of I.P.C., is set aside and accused No.2 is acquitted for the above said offence. Impugned judgment referred to above convicting accused No.2 for the offence punishable under Section 436 read with Section 34 of I.P.C., is confirmed. The order of sentence passed by the trial Court is modified as under: Accused No.2 who is found guilty for the offence punishable under Section 436 read with Section 34 of I.P.C. is sentenced to undergo imprisonment for a period of three months and to pay fine of Rs.5,000/- and in default to pay fine, to undergo further imprisonment for two months. Order passed by the trial Court directing payment of compensation of Rs.25,000/- to PW4 under Section 357(3) of Cr.P.C., is confirmed. Appellant-accused No.2 is entitled for set off under Section 428 of Cr.P.C. Send back the trial Court records with a copy of the judgment.