JUDGMENT : 1. This appeal arises out of the judgment and order dated 29.07.2000 passed by Additional Sessions Judge, Sabarkantha at Himatnagar in Atrocity Case No.12 of 1998, by which the appellants are convicted for the offences punishable under sections 452 and 323 of the Indian Penal Code, 1860 (the IPC) and also sentenced to undergo imprisonment of one year and fine of Rs.1,000/- each, in default, 45 days simple imprisonment for the offence under section 452 of the IPC and sentenced to undergo imprisonment of six months and fine of Rs.500/- each, in default, 15 days simple imprisonment for the offence under section 323 of the IPC imposed on them. 2. Briefly stated, the case of the prosecution is that the complainant, her husband and their children were at home at about 10:30 O’clock at night on 17.12.1997. Meanwhile, several persons of the mob from Darbar Vas arrived shouting and armed with weapons like scythe, pipe and club in front of the house of the complainant in Harijan Vas and told that why did you give complaint against Momin and sent them in jail and shouted to kill them. Her husband Revabhai escaped and the persons of the mob attacked on her and her daughter Bhavna and she saw in the light of the house that out of the persons of the mob, accused Bharatbhai Sartanbhai Solanki had pipe, which he inflicted on the left wrist of the complainant. Accused – Vinubhai Pratapbhai Solanki had scythe, which he inflicted in the head of the complainant. Accused – Amrutbhai Sartanbhai Solanki had crossbar, which he inflicted in her back. Jagabhai Jivabhai had pipe in his hand, which he hurled at the complainant. Kodarsinh and Malsinh Thakore were also amongst the mob, who pelted stones at the house of the complainant, vandalized the doors and household items and caused damage. They threatened to kill witness Bhavnaben and her mother-in-law Kaliben. Thereafter, the complainant lodged the complaint before PSO, Amrutbhai Jivabhai, at Himatnagar Town Police Station on 18.12.1997. Thereafter, investigation was undertaken and on completion thereof the charge-sheet was filed; the case was committed to the Court of Session; charges were framed. Since the accused persons pleaded innocence, trial was held. 3. Upon consideration of evidence, the trial court convicted the appellants-accused and sentenced them as mentioned hereinabove. The sentences imposed have been directed to run concurrently. 4. Thereafter, investigation was undertaken and on completion thereof the charge-sheet was filed; the case was committed to the Court of Session; charges were framed. Since the accused persons pleaded innocence, trial was held. 3. Upon consideration of evidence, the trial court convicted the appellants-accused and sentenced them as mentioned hereinabove. The sentences imposed have been directed to run concurrently. 4. Learned Senior Advocate Mr.B.B.Naik submitted that the conviction recorded by the trial court is premised on incorrect appreciation of evidence. It was submitted that the case papers, where history of the injured is recorded are not produced on record. It was submitted that as per the evidence of the doctor, who treated the injured, PW-2, Dr.Bharatkumar Kalidas Solanki, the names of the accused are not given in the history and time of the incident is stated to be 8:00 p.m. and not 10:30 p.m. It was submitted that on the same day i.e. 17.12.1997 at 11.00 p.m. an F.I.R. was lodged with the same police station by accused No.4 for offence under Section 302 of the IPC for the murder of his uncle - Sardarsinh being C.R. No.I-440 of 1997, wherein the first informant Savitaben (PW-1), her husband Dahayabhai, Kaliben (PW-4), and her husband Valabhai were accused and Savitaben and Koliben were arrested by the investigating officer and were brought to the police station at around 3:00 a.m. 4.1. Learned Senior Advocate Mr.B.B.Naik submitted that on 18.11.1997 when F.I.R. being C.R. No.I441 of 1997 was lodged by the complainant-Savitaben, an F.I.R. being C.R. No.I-440 of 1997 was already lodged by Jugabhai, who is the nephew of deceased Sardarsinh and accused No.1 Bharatbhai Solanki against the complainant and her husband for the murder of Sardarsinh. Thus, it is contended that it is not possible and highly improbable that both of them can be present at the scene of offence at 10:30 p.m. on 17.12.1997. 4.2. Learned Senior Advocate Mr.B.B.Naik has submitted that the eye-witnesses of the case have materially improved their versions during their depositions before the court than what was stated in their police statements. It was submitted that the fact is proved during the cross-examinations of PW-3, PW-4, PW-5, PW-6 and PW-12 (the investigating officer). It was submitted that these improvements are very vital and important which rendered their evidence highly doubtful. It was submitted that the fact is proved during the cross-examinations of PW-3, PW-4, PW-5, PW-6 and PW-12 (the investigating officer). It was submitted that these improvements are very vital and important which rendered their evidence highly doubtful. It was submitted that the trial court had referred to the same but the impact on reliability of these witnesses is not considered at all and hence, the judgment and order passed by the trial court is not sustainable and required to be set aside. 4.3. Learned Senior Advocate Mr.B.B.Naik submitted that the prosecution witnesses have stated that there was a mob of 200 or 100 people of the village, which came towards Harijan Vas but they have identified six accused only. The role assigned to the accused is almost similar. In this circumstance, the trial court ought to have acquitted the appellants also with accused Nos.4 to 6. 4.4. Learned Senior Advocate Mr.B.B.Naik submitted that there are major contradictions and inconsistence in the evidence of witnesses themselves in their examinations-in-chief and cross-examinations as well as among different witnesses, which is apparent from the record of the case which go to the root of the matter. It was submitted that the trial court has completely ignored the same while convicting the appellants and hence, the judgment and order passed by the trial court is suffering from non-application of mind and requires to be quashed and set aside. 5. Learned Additional Public Prosecutor Mr.Raval, while supporting the findings and appreciation of evidence by the trial court, contended that the judgment and order of the trial court is required to be sustained. It was submitted that the involvement of the accused in the offence is established from the evidence. Learned APP has invited the attention of this court to the testimonies of the relevant witnesses and the findings of the trial court. While placing reliance on the deposition of PW-2, Dr.Bharatkumar Kalidas Solanki, the learned APP submitted that the injuries sustained by the victims reveal that they were assaulted by the accused. It was also submitted that the presence of the accused on the scene of offence is also established as per the evidence led by the prosecution. Thus, he submitted that the present appeal may not be entertained. 6. I have given thoughtful consideration to the rival contentions raised by the learned advocates appearing for the respective parties. It was also submitted that the presence of the accused on the scene of offence is also established as per the evidence led by the prosecution. Thus, he submitted that the present appeal may not be entertained. 6. I have given thoughtful consideration to the rival contentions raised by the learned advocates appearing for the respective parties. The evidence emerging from the record is also examined threadbare. In order to appreciate the findings of the trial court it would be apposite to examine the depositions of the relevant witnesses. 7. The complainant, Savitaben Dhahyabhai Chamar (PW-1) has been examined at Exh.18. In her deposition, she has narrated the incident which occurred on 17.12.1987 at 10.30 p.m. She has referred to the presence of Bharatbhai (A1) armed with iron rod, Vinubhai (A2) carrying scythe, and Amrutbhai (A3) carrying haul of cart (gada nu hadu). She has stated that the accused had broken the door and entered in her house, and after entering, accused Vinubhai (A2) hit her head with scythe and Amrutbhai (A3) hit her with the haul, whereas accused Jugatsinh (A4) had thrown pipe at her. 7.1. It is deposed by PW-1 that thereafter, the police arrived and took them at Himatnagar Police Station on the pretext that they would be taken to a hospital. It is stated that they were put in the lockup, and thereafter, in the morning, they were taken to the Civil Hospital. It is also narrated that at time Bhavna (daughter) and Kaliben were also injured. She has stated that Ghanabhai was also taken to the hospital and all four of them were administered the treatment and Kaliben was also injured, but she does not know who was the assailant. Bhavanben was also given a blow by axe, but she is not aware about the assailant. 7.2. In the cross-examination, it is elicited from her deposition that there was a mob of around 200 persons. She has also referred to an incident about the scuffle between her husband and accused Jugatsinh (A4) and the murder of one Sardarsinh, which had taken place on 17.12.1987 (i.e. on the same day of the incident) in which she and her family members are named as accused. It is elicited that after they were named as accused in the murder of Sardarsinh, the police had come to their home, and at that time her husband Dahayabhai had fled away. It is elicited that after they were named as accused in the murder of Sardarsinh, the police had come to their home, and at that time her husband Dahayabhai had fled away. She has also stated that her daughter Bhavnaben had arrived in the morning at around 8 to 9. 8. The deposition of the complainant reveals contradictions about the presence of her husband Dahayabhai and her daughter Bhavnaben. In her examination-in-chief she has stated that her husband and daughter were present with her when the accused assaulted them, whereas in the cross-examination it is elicited that her husband had fled away as the police were searching for him in connection with the murder of one Sardarsinh on that day. With regard to presence of her daughter Bhavaben, it is elicited that she arrived in the morning between 8 to 9. From the deposition it emerges that she has tried to improve her version of the incident. It is also established that she and her family members were named as accused in the murder of one Sardarsinh, which had taken place on the same day, i.e. 17.12.1987 and the police were in search of them. Thus, the complainant (PW-1) establishes herself as unreliable and untrustworthy witness. 9. PW-2, Dr.Bharatkumar Kalidas Solanki, who administered treatment to the victims is examined at Exh.22. His deposition reveals that no names of the accused were given by the complainant or other victims. No history is recorded by him. His deposition reveals that Ghanabhai Ramahai, (PW-5) Bhavnaben Dahaybhai, complainant and Kaliben Valabhai (PW-4) were administered treatment by him. He has referred to various injuries caused to them. 10. PW-3, Bhavababen Dahyabhai Chamar, daughter of the complainant is examined at Exh.30. She has deposed that the accused at the first point of time had attacked the house of her aunt Kaliben (PW-4) and thereafter, they had come to her house, at that time they were watching television. It is narrated by her that accused-Bharatsinh had given a blow of pipe on the hand of her aunt Kaliben. Thereafter, the accused came to their house, and on seeing them her father had fled away and accused Bharatsinh had given a blow of pipe on her mother's hand, whereas the accused Amrutsinh had given the blow of haul of cart on her back and accused Vinusinh had given blow of scythe on the head of her mother. Thereafter, the accused came to their house, and on seeing them her father had fled away and accused Bharatsinh had given a blow of pipe on her mother's hand, whereas the accused Amrutsinh had given the blow of haul of cart on her back and accused Vinusinh had given blow of scythe on the head of her mother. She has further deposed that the accused Bharatsinh had given the blow of pipe on the finger of her left hand. 10.1. In her cross-examination, the defence is successful in revealing various omissions and contradictions. The fact of the accused having attacked them when they were watching the television is not narrated in her police statement. It is revealed that she had not narrated the incident of giving blow of pipe by the accused on her aunt Kaliben in the statement before the police. The facts of ransacking the house of Kaliben and attacking her house are also omitted. She has also not stated that Jugatsinh was carrying a pipe and all the accused had threatened them to kill her and her family members. It is also elicited that her house is situated after one plot from the house of her aunt - Kaliben. The incident with regard to murder of Sardarsinh is also established in her testimony. It is also revealed that accused Bharatsinh is nephew of deceased Sardarsinh. She has deposed that when she went to the police station at that time she was accompanied by her mother and father. 11. The deposition of PW-3 is tainted with various contradictions and omissions. Her deposition does not corroborate with the testimony of her mother (i.e. the complainant). The presence of her father at the time of incident does not align with both the testimonies. The narration of the incident by her and her mother is also not consistent. The fact of attacking her aunt Kaliben and her house by the accused is absolutely missing in the testimony of her mother. It is also established that both the houses are at a distance as there is one plot between her house and the house of her aunt. 12. PW-4, Kaliben Valabhai, is examined at Exh.35. She has deposed that first the accused attacked her house and then went to the complainant's house. Her cross-examination reveals the omission of the incident of murder of Sardarsinh in her statement before the police. 12. PW-4, Kaliben Valabhai, is examined at Exh.35. She has deposed that first the accused attacked her house and then went to the complainant's house. Her cross-examination reveals the omission of the incident of murder of Sardarsinh in her statement before the police. It is revealed that the complainant and her family members had conspired to kill Sardarsinh and she along with them had played an active role in his murder. It is also elicited that she was detained in the murder of Sardarsinh as she was arraigned as an accused. In her cross-examination it is elicited that the police had detained all of them at the night of the incident and accordingly their physical panchanama was also carried out. It is also narrated by her that accused no.4 Jugatsinh had given statement against her in the incident of murder of Sardarsinh. 13. From the testimony of PW-4, it emerges that she along with the complainant and her family members were arraigned as accused in the murder of one Sardarsinh and all of them were detained by the police at night. She has also played an active role in the murder of Sardarsinh. 14. PW-5, Ghanabhai Ramabhai is examined at Exh.36. His testimony is tainted with various contradictions and omissions. He does not disclose the incident of attack by the accused on the house of Kaliben (PW-3). He does not establish himself as a trustworthy witness. Hence, his testimony is required to be ignored. 15. PW-6, Vishnuben Valabhai, daughter of PW-3, is examined at Exh.37. She narrates the incident of assault by the accused on her mother Kaliben at their house. In her cross-examination it is elicited that when she saw the mob coming towards their house, she along with her brother fled away to her elder uncle's house. There are various omissions revealed in her testimony. She has not narrated in her police statement about the accused having gone to her uncle's house after they had assaulted her mother. The blow administered by the accused Bharatsinh on Bhavanben is also not narrated. She has also admitted that her mother Kaliben is involved in the murder of Sardarsinh. 16. In her cross-examination it is elicited that on seeing the mob she had ran away from the house along with her brother. The blow administered by the accused Bharatsinh on Bhavanben is also not narrated. She has also admitted that her mother Kaliben is involved in the murder of Sardarsinh. 16. In her cross-examination it is elicited that on seeing the mob she had ran away from the house along with her brother. Thus, the rest of the narration of the incident by her cannot be believed as her presence is doubtful at the time of incident. She does not establish herself as a credible and trustworthy witness. 17. All the panchas have turned hostile and the panchnamas are also not proved through the testimony of the investigation officer. The investigating officer, PW-12 is examined at Exh.51. From his deposition it emerges that he had recorded an F.I.R. with regard to murder at 23.00 hours on 17.12.1997. He has pointed out various omissions with regard to the testimony of the key witnesses. 18. A careful scrutiny of the impugned judgment of the trial court reveals that conviction of the accused is premised primarily on the deposition of the witness sans discussion on the omissions and the contradictions. The trial court has not discussed the evidence by considering the omissions and corroboration of the testimony of the witnesses and it has held the conviction only on the assertion of the witnesses in their examinations-in-chief. The evidence reveals that the witnesses have improved their versions during their depositions before the trial court in comparison with the statements before the investigating officer. Though, the trial court has referred to the same, but the impact of such improvement and omissions on the reliability of the witnesses are not discussed in the judgment. Hence, the judgment and order, passed by the trial court convicting the appellants, suffers from non-application of mind and deserves to the set aside. Heavy reliance is also placed on the evidence of PW-2, Dr.Bharatkumar Kalidas Solanki, for convicting the accused. It is pertinent to note that the names of the accused are not given in the history and time of the incident is stated to be 8:00 p.m. and not 10:30 p.m. as narrated by the complainant. The case papers narrating the history of the victims are not produced on record. 19. It is pertinent to note that the names of the accused are not given in the history and time of the incident is stated to be 8:00 p.m. and not 10:30 p.m. as narrated by the complainant. The case papers narrating the history of the victims are not produced on record. 19. It is also established on record that on the same day, i.e. 17.12.1997, at 11.00 p.m. an F.I.R. was lodged with the same police station by accused no.4 for the offence under section 302 of the IPC for the murder of his uncle - Sardarsinh being C.R No.I-440 of 1997 involving the complainant (PW-1), her husband Dahayabhai, Kaliben, PW-4, and her husband Valabhai. They were arrested and brought to the police station at around 3.00 a.m. on 18.11.1997, wherein F.I.R. being C.R No.I-441 of 1997 was lodged by complainant Savitaben. Thus, the presence of the accused at 10.30 p.m. at the scene of offence becomes doubtful. The testimony of the witnesses do not corroborate with each other as there are various loopholes with regard to the manner, the timings as well as the sequence of events. The trial court has fell in error in not discussing the evidence in its true perspective. 20. On the substratum of the foregoing analysis, the appeal succeeds. The judgment and order dated 29.07.2000 passed by Additional Sessions Judge, Sabarkantha at Himatnagar in Atrocity Case No.12 of 1998 convicting the appellants for the offence punishable under Sections 452 and 323 of the IPC is quashed and set aside. The appellants are acquitted of the charges under sections 452 and 323 of the IPC. The appellants are on bail, they are discharged from liability of their bail bond. The personal bond and the surety bond stand cancelled. 21. Record and Proceedings be sent back to the trial Court concerned forthwith