JUDGMENT AND ORDER : This appeal is directed against the judgment and sentence dated 13.09.2013, passed by the learned Assistant Sessions Judge, Nagaon in Session Case No. 129/2007 convicting the accused appellants u/s 447/436/34 of the IPC and sentencing them to R.I. for 7 years and to pay fine of Rs.4,000/- in default to imprisonment for another 6 months u/s 436 of the IPC and to pay fine of Rs.500/- in default to imprisonment for 15 das u/s 447 of the IPC. 2. Heard Mr. Z. Hussain, learned counsel appearing for the appellants and also heard Mr. N. K. Kalita, learned Addl. PP, Assam. 3. The facts of the case in a nut-shell is that on the intervening night of 12.06.2005 the accused appellants set fire to the dwelling house of the informant as a result of which the entire house was gutted by the fire and properties were also damaged. 4. Written FIR regarding the occurrence was lodged by Afia Khatun with the O/C, Batadraba P.S. on the basis of which Batadraba P.S. Case No.47/2005 was registered and on completion of investigation charge sheet was submitted against the accused appellant u/s 447/436/34 of the IPC. 5. The case came up for trial after committal before the learned Asst. Session Judge, Nagaon. Prosecution examined 6 witnesses including the I/O. Defence took the plea of total denial and from the trend of the cross examination the defence plea would be that due to a case filed by the accused against the husband of the informant a false case has been foisted against them to take revenge. 6. Mr. Hussain, learned counsel appearing for the accused appellants made strenuous submission to convince me that the accused appellants have been falsely implicated in the case due to earlier case lodged by them against the husband of the informant. He has led me painstakingly through the entire evidence and contended that PW 1 Afia Khatun, PW 3 Ambia Khatun, although claimed to have seen the accused appellants setting fire to the house but implicit reliance cannot be placed on their evidence. 7. Mr. Kalita, learned Addl. He has led me painstakingly through the entire evidence and contended that PW 1 Afia Khatun, PW 3 Ambia Khatun, although claimed to have seen the accused appellants setting fire to the house but implicit reliance cannot be placed on their evidence. 7. Mr. Kalita, learned Addl. PP on the other hand submits that minor contradictions and variations in the evidence of the witnesses is the hallmark of the truth of their testimony and the claim of these two witnesses that they saw the accused appellant setting fire to the house cannot be disbelieved because of the minor contradictions. 8. In the backdrop of the aforesaid contention, I have minutely gone through the entire evidence on record. Apart from PW 1 and PW 3 none of the other witnesses examined by the prosecution saw the accused appellants setting fire to the house. According to PW 1 Afia Khatun, after hearing the hue and cry when she came out from her house she saw the house of Ambia Khatun, where she was also staying, engulfed by fire and she saw the accused appellants setting fire to the house. The entire house including 5 other houses were completely gutted and goods, utensils, cloths paddy wheat etc., were burnt and there was loss of property worth Rs.4,00,000/-. Her evidence further is that the accused appellant Khairul is her brother in law and Fakaruddin is her nephew. She lodged the FIR, Exb.1 on the next morning which is corroborated by the evidence of the I/O, PW 6. Her evidence reveals that the accused appellant Khairul filed a case against her husband and another brother in law and her husband was absconding in the said case. Obviously to evade arrest by police he was absconding. However, her evidence with regard to the damage of property due to the fire appears to be improvements made during the trial. The I/O confirmed that no such statement was made by the witness before him. The IO claims to have recorded the statement of the witnesses on the morning of the next day of the occurrence. No statement was made before him by Ambia Khatun that properties worth Rs. 4,00,000/- or Rs.6,00,000/- were damaged due to the fire. The IO also confirmed that there was earlier land dispute between the accused appellants and the informant and her husband. 9. No statement was made before him by Ambia Khatun that properties worth Rs. 4,00,000/- or Rs.6,00,000/- were damaged due to the fire. The IO also confirmed that there was earlier land dispute between the accused appellants and the informant and her husband. 9. PW 3 Ambia Khatun who is the own sister of Afia Khatun although claims to have seen the accused appellants setting fire to the house while she was coming out in the mid night with her mother to attend to the call of nature but no such statement was made by her before the IO and if her evidence that she came out with her mother is believed to be true then her mother would have also noticed the accused appellants setting fire to the house. The mother has not been examined by the prosecution to corroborate the evidence of her daughter on this vital aspect. The other witnesses PW 2 and PW 4 and PW 5 are post occurrence witnesses residing in the neighborhood and they arrived at the spot when the house was engulfed by the fire. They admittedly had not seen the accused appellant setting fire to the house 10. The house of the accused appellants are also situated in front of the house which was burnt. The probability that they also came out on seeing the fire also cannot be ruled out. It is also unexpected that after setting fire to the house then waited near that place to be seen by the other witnesses. It is an admitted fact that there was prior enmity between the accused appellants and the informant and her husband and false implications due to the enmity also cannot be ruled out. Since there is not cogent and reliable evidence to prove that properties worth Rs.4,00,000.00/Rs.6,00,000.00 was damaged in the fire, the informant themselves setting fire to the house and putting the blame on the accused appellants as pleaded by them also cannot be thrown out of consideration. More particularly, when PW 3 who claims to have seen the accused appellants setting fire to the house failed to make any such statement before the IO when her statement was recorded by him soon after the occurrence. Because of the improvements made by her during trial implicit reliance cannot be placed on her evidence and it would be too hazardous to convict the accused appellants on her testimony. 11. Because of the improvements made by her during trial implicit reliance cannot be placed on her evidence and it would be too hazardous to convict the accused appellants on her testimony. 11. In view of my above discussions and having regard to the submissions made by the learned counsels and on scrutiny of the impugned judgment and evidence on record, I am of the considered view that the learned Assistant Sessions Judge, Nagaon failed to properly appreciate the evidence on record and consequently, the judgment cannot stand the test of law. 12. The appeal is accordingly allowed. 13. The accused appellants are acquitted and set at liberty forthwith. 14. Send down the LCR along with a copy of this judgment for information and necessary action.