JUDGMENT : R.M. Chhaya, J. Present appeals arise out of common judgment and order passed by learned Special Judge, City Civil & Sessions Court, Court No.6, Ahmedabad on 25.04.2005 in Atrocity Criminal Case No.7 of 2004 whereby the appellants accused and other original accused were convicted and sentenced as under: (i) Accused Nos.1, 5 and 6 were found guilty for the offences punishable under Sections 323 read with Sections 143, 147 and 149 of the Indian Penal Code, 1860 (for short "the IPC") and sentenced each of them to undergo rigorous imprisonment (R.I.) for one year and to pay a fine of Rs. 1,000/- for the offence punishable under Section 323 of the IPC and to undergo imprisonment for a period of two and half years for the offence punishable under Sections 143, 147 and 149 of the IPC. Each of them were ordered to pay a sum of Rs. 2,500/- as compensation to the widow of the deceased, in default, to undergo further R.I. of one year. The sentences were ordered to run separately. The benefit of set-off was given. (ii) Accused Nos.3 and 4 were found guilty for the offences punishable under Sections 302 read with Sections 143, 147, 148 and 149 of the IPC and sentenced each of them to undergo rigorous life imprisonment and to pay a fine of Rs. 2,500/- each as compensation to the widow of the deceased, in default, to further undergo imprisonment of one year. Also, to undergo R.I. for seven years for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "the Atrocities Act"). The sentences were ordered to run concurrently. The benefit of set-off was given. (iii) Accused No.2 was sentenced to undergo R.I. for six years for the offence punishable under Section 326 read with Sections 143, 147, 148 and 149 of the IPC and to pay a sum of Rs. 2,500/- as compensation to the widow of the deceased, in default, to undergo further R.I. of one year. The benefit of set-off was given. (iv) Original accused Nos.7 and 8 were acquitted by the trial Court from all the above charges. 2. Before us, two criminal appeals have been filed. Criminal Appeal No.1024 of 2005 has been filed by Rajesh @ Lambu Vinodbhai Dantani and Shaileshbhai @ Chaliyo Chaturbhai Dantani (for short "A3" and "A4" respectively). The benefit of set-off was given. (iv) Original accused Nos.7 and 8 were acquitted by the trial Court from all the above charges. 2. Before us, two criminal appeals have been filed. Criminal Appeal No.1024 of 2005 has been filed by Rajesh @ Lambu Vinodbhai Dantani and Shaileshbhai @ Chaliyo Chaturbhai Dantani (for short "A3" and "A4" respectively). Criminal Appeal No.1190 of 2006 has been filed by Rajesh @ Jaliyo Chaturbhai Dantani (for short "A2"). As both these appeals arise out of the aforesaid impugned judgment and order dated 25.04.2005, they have been heard together and are being disposed of by this common judgment. 3. The case of the prosecution can be stated briefly as under: 4. That on 15.01.2004 at about 9:30 p.m. original accused Nos.3 and 4 were standing near Eye Hospital, Saraspur on the public road. Dhirajbhai Manubhai Parmar (PW-3) was also standing there. Original accused Nos.3 and 4 abused PW-3 and asked him to run away and in presence of the public they addressed him as "dhedas" and gave fist blows and threatened him to kill. That all the accused, with an intention to kill the deceased Jashwantbhai Revandas Parmar (the deceased), resident of same locality, formed an unlawful assembly and assaulted upon the deceased with blunt substance and inflicted blows upon his forehead. That the said incident occurred in presence of (PW-2), Vasantbhai Hargovanbhai Parmar and PW-3. That a boy from the locality informed about the said incident to the wife of the deceased, Lalitaben Jashwantbhai Parmar (PW-1). That she immediately rushed to the scene of occurrence and found the deceased in semi-conscious condition and was bleeding from mouth and ear. That other persons from the locality had also gathered at the scene of occurrence. Immediately the deceased was taken to Shardabai Hospital, where the doctor advised to take him to Civil Hospital or V.S. Hospital, as the injuries were serious. That the deceased was taken to Civil Hospital. That the first informant was informed about the incident by PW-2 that when the deceased was passing through the road, the accused were abusing PW-3 and PW-4 and as the deceased tried to intervene, the accused assaulted the deceased. The deceased succumbed to the injuries inflicted by the appellants-accused in the hospital on 18.01.2004. 5. That the first informant was informed about the incident by PW-2 that when the deceased was passing through the road, the accused were abusing PW-3 and PW-4 and as the deceased tried to intervene, the accused assaulted the deceased. The deceased succumbed to the injuries inflicted by the appellants-accused in the hospital on 18.01.2004. 5. First Information Report being C.R.No.I-17 of 2004 came to be registered at Shaherkotda Police Station, Ahmedabad for the offences punishable under Sections 302, 143, 147, 148 149, 323, 326 of the IPC as well as for the offence punishable under Section 3(2)(v) of the Atrocities Act and after full-fledged investigation charge-sheet was submitted before Metropolitan Magistrate, Court No.3, Ahmedabad, who in turn, committed the case to City Civil & Sessions Court, Ahmedabad as the offences were exclusively triable by the Court of Sessions and the same was registered as Atrocity Criminal Case No.7 of 2004. 6. Charges were framed below Exh.5 by learned Special Judge, Court No.7, Ahmedabad for the aforesaid offences. The same was read over to the accused and the accused pleaded not guilty to the charges and claimed to be tried. 7. After considering the evidence led by the prosecution, the trial Court came to the conclusion that the prosecution was successful in proving the charges against the accused and recorded conviction by the judgment impugned in these appeals. Hence, the present appeals. 8. Heard learned advocate Ms.Bhartiben H. Rana for the appellants-original accused Nos.3 and 4 (in Criminal Appeal No.1024 of 2005), learned advocate Mr. Mukesh B. Dave for the appellant-original accused No.2 (in Criminal Appeal No.1190 of 2006) and learned APP, Mr.Divyesh C. Sejpal for the State in both these appeals. 9. Learned advocates for the appellants have taken us through the oral testimony of PWs 1, 2 and 3 as well as PW-6, who is a doctor, who performed autopsy on the dead body of the deceased, and the oral testimony of PW-11 and PW-12. Learned advocates for the appellants have submitted that the trial Court has wrongly convicted the appellants for the offence punishable under Section 3(2)(v) of the Atrocities Act. Learned advocates for the appellants have submitted that the provisions of the said Act is not attracted in the present case as the appellants and PWs 2 and 3 as well as the deceased belong to scheduled caste. Learned advocates for the appellants have submitted that the provisions of the said Act is not attracted in the present case as the appellants and PWs 2 and 3 as well as the deceased belong to scheduled caste. 9.1 Learned advocates for the appellants have submitted that two eye-witnesses - PWs. 2 and 3 are got up witnesses and their presence at the time of occurrence is also not free from doubt. It was submitted that PW-1, the first informant, is not an eye-witness and the F.I.R. is lodged on hearsay evidence. It was submitted that behaviour of PW-1, after the incident is unnatural and the F.I.R. so lodged by her, is tailored version with a view to falsely implicate the appellants-accused. It was submitted that PWs 1, 2 and 3 are interested witnesses and relatives of the deceased and their oral testimony is not corroborated by any further evidence on record. It was submitted that in order to ensure conviction of the appellants-accused all these three witnesses have falsely implicated the appellants-accused. Learned advocates for the appellants have submitted that the oral testimony of PW-3, PW-2 and PW-1 are not trustworthy and reliable. It was further submitted on behalf of appellants CR. accused that the ocular evidence does not corroborate with the medical evidence on record and their testimony has major improvements without any corroboration. Learned advocates for the appellants-accused have submitted that even the panch witnesses have turned hostile and the prosecution has thus not been able to prove the charges leveled against the appellants-accused. It was also submitted that the trial Court has wrongly convicted the appellants-accused and submitted that the appeals deserve to be allowed and the order of sentence and conviction deserves to be set aside. 10. Mr. Divyesh C.Sejpal, learned APP has opposed both the appeals. He has submitted that the prosecution has been able to prove the guilt of the appellants and the trial Court has rightly passed the order of sentence and conviction. Mr. Sejpal has taken us through the oral testimony of PWs 1, 2 and 3 and has submitted that the two eye-witnesses - PWs 2 and 3 cannot be labeled as 'interested witnesses' and that their oral testimonies are trustworthy and their versions is fully corroborated with the evidence on record. Mr. Sejpal has taken us through the oral testimony of PWs 1, 2 and 3 and has submitted that the two eye-witnesses - PWs 2 and 3 cannot be labeled as 'interested witnesses' and that their oral testimonies are trustworthy and their versions is fully corroborated with the evidence on record. He also submitted that the appellants-accused had constituted an unlawful assembly with an intention to cause injuries upon the deceased and have assaulted the deceased on vital part of the body i.e. head, with such force knowing fully well that such injuries would cause death in ordinary course of nature. Mr. Sejpal submitted that the trial Court has rightly passed the order of conviction and sentence and the same deserves to be confirmed by this Court by dismissing both these appeals. Mr.Sejpal, however, candidly submitted that it has come on record that the appellants-accused as well as the deceased and PWs 2 and 3 belong to scheduled castes. Mr. Sejpal has not been able to show how the provisions of Section 3(2)(v) of the Atrocities Act would apply to the facts of the present case. 11. We have examined record and proceedings in the context of rival submissions. 12. Section 3(2)(v) of the Atrocities Act reads as under: "(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, - (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;" On plain reading of the aforesaid section it becomes clear that the aforesaid provision would not apply in case if both the parties belong to scheduled castes. Upon reading evidence of Pws 2 and 3 it has come on record that the appellants-accused belong to Vaghri community, which is a scheduled caste and PWs. 1, 2, 3 and the deceased belong to Chamar caste, which is also a scheduled caste. We, therefore, hold that in the instant case the provisions of the Atrocities Act would not apply. 13. We find that the case of the prosecution is mainly based on the oral testimony of PWs. 1, 2, 3 and the deceased belong to Chamar caste, which is also a scheduled caste. We, therefore, hold that in the instant case the provisions of the Atrocities Act would not apply. 13. We find that the case of the prosecution is mainly based on the oral testimony of PWs. 2 and 3, who are the eye-witnesses and the oral testimony of PW-1, the first informant. We find that the prosecution has also examined PWs. 6, 7, 8, 12 and 13. The prosecution has also examined PW-15, Mansukhbhai Vallabhbhai Dolara, who is a State Government Employee, working as Social Welfare Officer. The prosecution has also relied upon the serological report (Exh.52). 14. Upon reading the evidence of PW-2, Vasantbhai Hargovanbhai Parmar, (Exh.18) we find that PW- 2 has stated that Rajesh @ Lambu (A3), Vinodbhai Dantani (A1) and Shaileshbhai @ Chhaliyo Chaturbhai Dantani (A4) were abusing each other. He has stated that at that moment PW-3 asked them not to speak such filthy language. He has further stated that A3 told PW-3 to go away and addressed him as `dhedha'. As PW-3 told him not to speak any unfair language, A3 gave fist blows to PW-3. He has further stated that he himself and one Laxmanbhai tried to intervene. He has further stated that at that moment the deceased also came there and intervened. He has further stated that thereafter all the accused persons came there. He has stated that original accused No.2 (A2), armed with an iron pipe, gave a blow on the back of the deceased. Original accused No.1, 5, 6 and others gave first blows to the deceased. A3 brought dumbbell and gave a blow on the head of the deceased. He has also stated that A4 ran away with a wooden log and inflicted blow on the head of the deceased. He has stated that 5-6 other persons had gathered at the scene of CR.A/1024/2005 15/28 JUDGMENT occurrence and started pelting stones. He has stated that police had immediately arrived and all the accused ran away from the scene of occurrence. He has stated that PW-1 also came at the scene of occurrence and thereafter other neighbours also came. He has stated that the deceased was taken to Shardaben Hospital in a rickshaw where the doctor advised to take him to Civil Hospital. He has stated that PW-1 also came at the scene of occurrence and thereafter other neighbours also came. He has stated that the deceased was taken to Shardaben Hospital in a rickshaw where the doctor advised to take him to Civil Hospital. He has stated that in Civil Hospital they were asked to get the offence registered with the police and PW-1 lodged the aforesaid F.I.R. 14.1 We find that the defence has extensively cross-examined him in detail. In his cross-examination we have particularly find that the accused and this witness and the deceased stay in the same locality and there is a road in between both these localities. He has categorically stated that though there is no relation between the first informant they are very closely related to each other as they stayed in same chawl since many years. He has admitted that he gave names of the accused to PW-1, the first informant. We also find that he has stated that the incident occurred on a public road where 10-15 people were present. He has also admitted that PW-3 was abused by the appellants-accused. He has admitted that initially the first informant gave five names, which were narrated by him in his examination-in- chief. He has denied certain suggestion of the defence as regards the occurrence of the crime. 15. Upon reading the evidence of PW-3, Dhirajbhai Manubhai Parmar, (Exh.19), we find that he had initial scuffle with A3 and A4 and has narrated the incident as stated by PW-2. This witness has extensively cross-examined by the defence. In his cross-examination he has stated that he had not seen any blood-stains on the weapons - pipe as well as dumbbell. He has stated that when the deceased was placed in the rickshaw he was bleeding and his clothes were damp with blood. This witness has also denied certain suggestions of the defence. 16. PW-1 is the wife of the deceased and is the first informant. Upon reading the evidence of PW-1 (Exh.17), we find that as she heard uproar and somebody informed her about the incident at about 9:15 p.m. she ran towards the scene of occurrence. She has stated that the deceased was in semi-conscious condition, bleeding from mouth and ear and had also found injury over his head. Upon reading the evidence of PW-1 (Exh.17), we find that as she heard uproar and somebody informed her about the incident at about 9:15 p.m. she ran towards the scene of occurrence. She has stated that the deceased was in semi-conscious condition, bleeding from mouth and ear and had also found injury over his head. She thereafter took the deceased to Shardaben Hospital and as the deceased had sustained serious injuries, the doctor advised to take him either Civil or V.S. Hospital. We find that she took the deceased to Civil Hospital and got him admitted in the Emergency Ward. She was informed about the incident by PW-2, who gave names of the accused - Chhaliya, Rajeshbhai, Lakhabhai, Shankar, Kalpesh and Vinod. She has stated that they belong to Hindu Chamar caste. This witness has been extensively cross-examined by the defence. In her cross-examination she has stated that her husband was assaulted with wooden log as well as dumbbell on his forehead. She was informed about the same by PW-2. She has admitted that PWs 2 and 3 were with her at the Civil Hospital. In her cross-examination she has stated that when she took the deceased in the rickshaw, the deceased was bleeding and her clothes as well as clothes of PW-2 were bloodstained. We find that first she stated that she was given copy of F.I.R. 4-6 days before her oral testimony was recorded in the court and immediately she denies the said fact. She has admitted the fact that PW-2 is her relative and PW-3 is her neighbour. This witness has denied certain suggestions of the defence. 17. PW-6 is the doctor, who performed the autopsy on the dead body of the deceased on 19.01.2004 and had noticed the following external and internal injuries: External Injuries: (1) 2x2 cm T'stoma int in the middle of neck. (2) 6x3 cm abrasion C scab over (R) side forehead just above the eyebrow (3) 1.5x1.5 cm abrasion C scale just lat to the (R) lat can thus of eye (4) 3x1 cm abrasion C scab over the (L) temporal region 3 cm above the pinna. (5) 3 cm sutured wound C surrounding abrasion the (R) post temporal region. (6) 0.5x0.5 cm abrasion over the lower end of (R) knee laterally. (7) 0.5x0.5 cm abrasion once lower end of (R) knee 2 cm med. to the above injury. (5) 3 cm sutured wound C surrounding abrasion the (R) post temporal region. (6) 0.5x0.5 cm abrasion over the lower end of (R) knee laterally. (7) 0.5x0.5 cm abrasion once lower end of (R) knee 2 cm med. to the above injury. Internal Injuries: (1) Bruising of scalp & subcutaneous tissue in entire. frontal region over on area of 7x5 cm. (2) Bruising of scalp & sub. tissue present in (L) parietal & adjacent occipital region. (3) There is a fissured # present in skull in (L) parietal eminence & adjacent occipital bone. It is in a curved form & extends from (L) parietal eminence post, backwards & downwards. After crossing the suture line it is going in the occipital bone upto the centre obliquely. Suture let occipital & temporal bone has been lossened. (4) (L) temperalis muscle is bruised. (5) Thin subdueral & sub arachnoid linage int over entire (R) cerebral hemisphere. (6) Little clots of lobed int in . ant. Cranial & middle cranial Tossa. (7) Laceration of brain matter in base of (L) cerebral hemisphere upto the death of 1.5 cm along c liquefaction necrosis. (8) Entire (L) cerebellar hemisphere is lacerated & liquefaction necrosis is going on in (rt) cerebellum. (9) Intra cerebellar liage is seen. (10) Entire brain is congested & Oedematous. In his cross-examination he has opined that injury No.1 is not caused because of any quarrel or with any weapon. He has stated that injury Nos.6 and 7 are small abrasions which can be caused if any person falls abruptly on rough road. He has admitted that injury Nos.6 and 7 are simple injuries. He has stated that injury Nos.2, 3 and 4 are abrasions. He has stated that he cannot say whether injury No.5 was simple or grievous injury. He has further stated that taking into consideration injury No.5 and internal injuries it can be described as grievous injury. He has stated that injury upon the forehead of the deceased may result into profuse bleeding. In a specific question put to this witness that if an injury caused on forehead which has resulted into profuse bleeding would blood stains be found on the weapon, he has answered in affirmative. He has stated that if a person is assaulted with log the same would leave a mark in shape of the log. In a specific question put to this witness that if an injury caused on forehead which has resulted into profuse bleeding would blood stains be found on the weapon, he has answered in affirmative. He has stated that if a person is assaulted with log the same would leave a mark in shape of the log. This witness has stated that by which weapon the injury has been caused on the forehead of the deceased cannot be definitely said. He has stated that such injury may be caused by all the three weapons. 18. PW-7 is a PSI, who has taken statements of various persons staying in the locality where the offence was committed. In his cross-examination we find that he has stated that he had not seen that clothes of PW-1 were bloodstained. He has admitted that PW-1 had not produced any blood-stained clothes. 19. We also find that the prosecution has also examined other three investigating officers PWs 8 (Exh.31), 12 (Exh.39) and 13 (Exh.54), who have narrated the details how they carried out the investigation. 20. The prosecution has relied upon Serological Report (Exh.52). We find that as per the said report no blood was found on the three weapons - iron pipe, dumbbell and wooden log. 21. The sum total of the above leads to the fact that the entire case of prosecution hinges on oral testimony of the eye-witnesses - PWs. 3 and 4. We find that even though these two witnesses claim to be eye-witnesses, their testimony gets no corroboration from the medical evidence on record. These witnesses have attributed three accused with injuries to deceased with deadly weapon like wooden log, dumbbell and iron pipe. However, the injuries found on the body of the deceased do not correspond with such attribution. We also find that, at the scene of offence as well as at the hospital many other persons were present. And still the prosecution has not examined any of them. On close scrutiny of the oral testimony of these two witnesses we find that their version is not natural and is not free from exaggeration. We find that the prosecution has not been able to further corroborate the version of these two eyewitnesses and the same renders their oral testimony untrustworthy. We do not hear the ring of truth in the versions of these two eye-witnesses. We find that the prosecution has not been able to further corroborate the version of these two eyewitnesses and the same renders their oral testimony untrustworthy. We do not hear the ring of truth in the versions of these two eye-witnesses. Similarly, the wife of the deceased (PW-1), the first informant, has no personal knowledge about the incident as she is not an eye-witness. As discussed above, her version is based on the hearsay information given by PW-2 and, therefore, her oral testimony does not take the case of the prosecution any further. Cumulatively therefore, we find that the oral testimony, upon which the prosecution has relied upon, creates doubt of its veracity, benefit of which would naturally go to the appellants-accused. 22. The prosecution has also not been able to corroborate their case with the medical evidence. The doctor, who performed autopsy on the dead body of the deceased has opined that the deceased might have been assaulted on his forehead by any of the three weapons recovered in the present case. The doctor has also not clearly stated as to the fatal injury is caused by which weapon. This piece of evidence therefore, does not corroborate with the oral testimony of the prosecution witnesses. Even the serological report (Exh.52) clearly reveals that no blood-stains were found from the three weapons - wooden log, dumbbell and iron pipe. The prosecution has thus, failed to link the appellants-accused with the charges leveled against them beyond reasonable doubt. Even though it has come on evidence that when the deceased was taken to the hospital in the rickshaw he was profusely bleeding, clothes of PWs 1 and 2 were not found to be bloodstained. We also find that the prosecution has not been able to prove the motive or means rea in the present case. We, therefore, hold that the prosecution has not been able to prove the charge of murder as well as unlawful assembly against the appellants-accused beyond reasonable doubt and the benefit of the same would go to the appellants-accused. The trial Court has therefore, erred in convicting and sentencing the appellants-accused. 22.1 It has clearly come on evidence that the appellants-accused belong to Vaghri caste and PWs. 1, 2 and 3 belong to chamar community. We, therefore, find that provisions of Section 3(2)(v) of the Atrocities Act are not attracted in the present case. The trial Court has therefore, erred in convicting and sentencing the appellants-accused. 22.1 It has clearly come on evidence that the appellants-accused belong to Vaghri caste and PWs. 1, 2 and 3 belong to chamar community. We, therefore, find that provisions of Section 3(2)(v) of the Atrocities Act are not attracted in the present case. The said provisions would apply only when a person is not a member of Scheduled Caste or Scheduled Tribe. We, therefore, hold that the trial Court has erred in appreciating the evidence on record and has wrongly convicted the appellants-accused for the offences punishable under Section 3(2)(v) of the Atrocities Act. 23. Having carefully scrutinized the evidence on record, we are not satisfied that the prosecution has proved its case beyond reasonable doubt. We are left with a strong suspicion that the case put forward by the prosecution may not be true. In any event the appellants are entitled to the benefit of doubt. We, therefore, hold that the appeals deserve to be accepted by setting aside the sentence and conviction by giving benefit of doubt to the appellants-accused. 24. For the foregoing reasons, we hold that the learned Special Judge has not properly appreciated the evidence on record and has therefore, erred in convicting the appellants accused. The prosecution has not been able to prove any of the charges levelled against the appellants-accused. Both the Appeals are hereby allowed. The order of conviction and sentence of the appellants-accused recorded by learned Special Judge, Court No.6, Ahmedabad dated 8.6.2005 in Atrocity Criminal Case No.7 of 2004 against the appellants-accused viz. (1) Rajesh @ Lambu Vinodbhai Dantani and (2) Saileshbhai @ Chhaliyo Chaturbhai Dantani in Criminal Appeal No.1024 of 2005 and the appellant accused Rajesh alias Jaliyo Chaturbhai Dantani in Criminal Appeal No.1190 of 2006 are hereby set aside and they are ordered to be set at liberty forthwith if not required in any other offence. Fine, if paid, be refunded to the appellants-accused. Appeals allowed.