JUDGMENT : 1. This appeal is filed under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) by appellants – original accused Nos.2 and 4 respectively, against judgment of conviction and order of sentence passed by Additional Sessions Judge, Banaskantha at Deesa, dated 31.5.2002 in Sessions Case No. 227 of 2000, whereby the appellants along with one another co-accused – Ghumansing Bhomji Thakor came to be convicted for an offence under Section 394 of the Indian Penal Code (hereinafter referred to as “IPC”) and they were ordered to undergo 7 years rigorous imprisonment. Over and above that, another accused - Ghumansing Bhomji Thakor was also convicted for an offence under Section 135 of the Bombay Police Act and he was ordered to undergo 4 months’ simple imprisonment. Both the sentences imposed upon the accused No. 1 - Ghumansing Bhomji Thakor was ordered to run concurrently. Another accused - Ghumansing Bhomji Thakor, preferred Criminal Appeal No.550 of 2002. However, it appears that with the death of the appellant therein, the appeal filed by him came to be disposed of as abated. 2. As per the case of the prosecution, alleged incident took place on 09.09.2000 at about 4:00 p.m. in the sim of village Genaji Goliya and a first information was given by Bhikhaji Ukaji Suthar at about 6:45 pm. As per the case of the prosecution, at about 12:00 pm. on 09.09.2000, Kanti, brother of first informant - Bhikabhai Ukaji, went to the sim of village with cattle for grazing. However when the first informant, his younger brother and father were at home at about 4:00 p.m., one Rabari Jamabhai Prabhubhai of their village brought Kantibhai, who was injured, having injuries over his head and bleeding profusely, when the first informant asked his injured brother what happened, to which he replied that while he was grazing cattle at that place, one Thakor Bhuraji Maknaji and son of Thakor Dhiraji and son of Thakor Bhomji came to him and they were attempting to remove the gold earrings which was objected to by him, at that time, it is alleged that Thakor Bhuraji Maknaji inflicted knife blow on left side of the head of the injured and at that time, son of Thakor Bhomji caught hold of him and son of Dhiraji had removed gold earrings from his one ear. He had further informed that, because of injury, he fell down and Rabari Jamabhai Prabhubhai, on seeing him, brought him home. It is further the case of the prosecution that because of injury when he stopped speaking, he was taken to Deesa in a tractor but on coming to the road, they found one Jeep car and in that said Jeep car, injured Kantibhai was taken by first-informant, his mother and another brother, to Deesa Government Hospital. It is further the case of the prosecution that, after admitting the injured to Deesa Government Hospital, he went to police station for filing the First Information Report. 2.1 Pursuant thereto, an FIR came to be registered at Deesa Rural police station for an offence under Section 307, 397 and 34 of the “IPC” as also under Section 135 of the Bombay Police Act. On conclusion of investigation pursuant to an FIR, a charge-sheet came to be filed against 4 accused:- i) Ghumansing @ Gamnaji Bhomji Thakor, ii) Lakhmansing @Lakhusinh Shivji Thakor, iii) Jesungji Shantuji Thakor, iv) Nathusing Dhirji Thakor, in the Court of learned Magistrate. 2.2 On committal of the said case to the Court of Sessions, it was numbered as Sessions Case No. 227 of 2000. During the course of trial, accused No. A/3 – Jesungji Shantuji Thakor, died and case against him came to be abated. Another accused being accused No.1 – Ghumansing @ Gamnaji Bhomji Thakor, on conviction, preferred Criminal Appeal No. 550 of 2002 but he also died during pendency of the appeal itself, and therefore, appeal filed by him also came to be abated. 2.3 On case being committed to the Court of Sessions, a charge vide Exhibit-10 came to be framed on 20.11.2001 against all the 4 accused prosecuted. The case against the accused proceeded thereafter and on conclusion of trial, arguments on behalf of the prosecution as also the defense were heard and by the judgment impugned, the appellants came to be convicted and ordered to undergo imprisonment as aforesaid. 2.4 On appeal being filed, it came to be admitted and appellants – accused came to be released on bail pending the final hearing of it. 2.5 To prove the case against the accused, prosecution examined in all 18 witnesses, produced and proved nearly 19 documents. 2.4 On appeal being filed, it came to be admitted and appellants – accused came to be released on bail pending the final hearing of it. 2.5 To prove the case against the accused, prosecution examined in all 18 witnesses, produced and proved nearly 19 documents. On conclusion of evidence, arguments were heard on behalf of the accused as also the prosecution and they have been convicted as aforesaid, and therefore, the present appeal. 3. Mr. Tejas Barot, learned advocate for the appellants, submitted that judgment of conviction and order of sentence passed by the trial Court is erroneous and requires to be quashed and set aside and the accused are required to be acquitted of the charge framed against them. It is submitted that prosecution has miserably failed to bring evidence to establish that at least appellants can be termed as ‘offender’ as stated in Section 397 of the “IPC”, the offence for which they have been convicted. 3.1 It is further submitted that since appellants being accused No.2 and accused No.4, as coming out from the evidence, were not armed with any weapon, and therefore, they cannot be said to be ‘offender’ as stated under Section 397 of the “IPC”, and therefore, conviction recorded against them is required to be quashed and set aside. 3.2 It is further submitted that they can be charged and convicted with the help of Section 34 of the “IPC”, if at all prosecution establishes that they shared common intention with the offender, of an offence under Section 397 of the “IPC” and not without that. It is further submitted that prosecution has miserably failed to lead any evidence for bringing home charge under Section 34 of the “IPC”. It is submitted that prosecution is not able to show any material based on which even inference can be drawn that they can be convicted for an offence with the help of Section 34 of the “IPC”. 3.3 Reading the impugned judgment and order, it is submitted that learned Judge has wrongly placed reliance on a statement recorded under Section 161 of “the Code” during the course of investigation and conclusion reached after relying on such statement cannot be countenanced by this Court. According to his submission, it’s use is limited for the purpose of contradiction and those statements cannot be relied on by the Court for any other purpose. According to his submission, it’s use is limited for the purpose of contradiction and those statements cannot be relied on by the Court for any other purpose. 3.4 He has further submitted that learned Judge has read those statements recorded under Section 161 of “the Code” as a substantive evidence, despite there being no evidence led by any of the witness. It is further submitted that the first-informant – Bhikhabhai Ukaji, as also Jama Rabari, who brought injured to his home, have not supported the case of the prosecution. Not only that, even the only injured witness has also improved upon his story to involve the appellants into the crime. 3.5 Drawing attention of the Court from the evidence of injured, it is submitted that appellant No. 1 i.e. accused No. 2, is alleged to have thrust wooden log in the mouth of him, which is nothing but an improvement in his evidence and proved to be a contradiction through the evidence of the Investigating Officer. Therefore, according to his submission, the injured witness also is not reliable for convicting any of the accused when he improves upon his own version with a view to involve more and more accused. He has further submitted that so far as appellant No. 2 – accused No. 4 is concerned, there is no evidence at all led by the prosecution to prove charge against him. It is further submitted that though a dying declaration of the injured was recorded at that time, cannot be treated as the same, as he survived but neither in the dying declaration nor in the evidence, role to the appellants attributed. The role attributed to appellant No. 1 – accused No. 2 of thrusting a wooden log in his mouth is proved to be a material improvement and contradiction in his evidence, and therefore, even evidence of the sole injured eyewitness is also not reliable at all. 3.6 It is further submitted that the injured eye-witness has introduced other accused, they are neither named in the FIR nor they have been prosecuted. Not only that, in his deposition, he had named three accused along with three other accused, whose names he did not know. As such, according to the submission of Mr. Tejas Barot, there were never 6 accused, who are said to have committed offence, as registered. Not only that, in his deposition, he had named three accused along with three other accused, whose names he did not know. As such, according to the submission of Mr. Tejas Barot, there were never 6 accused, who are said to have committed offence, as registered. In his deposition before the Court, injured eye-witness had attributed an Axe to accused No. 1 – Ghumansing Bhomji Thakor, which is proved to be contrary to his own version before the Police and it has been brought on record from the evidence of Investigating Officer that during the course of his investigation, use of axe by any of the accused was never found. It is further submitted that though injured eye-witness refers the appellant No. 2 as son of Dhirji Thakor, how his name came to be revealed during the course of investigation, is not brought on record. It is further submitted that even how many sons Dhirji have, is also not brought on record by the prosecution. Not only that, the appellant No. 1 is referred to as Lakhu only without his father name or full name of him without there being any material to support that Lakhu is Lakhusinh Shivji Thakor, coupled with the fact, as submitted by the learned advocate for the appellants, there appears no test-identification parade conducted by the Investigating Officer to identify them as an accused as the same accused referred to by him as son of Dhirji Thakor and Lakhu. 3.7 It is submitted that there is no recovery of any weapon from any of the appellants. It assumes more importance, as submitted by the learned advocate for the appellants, as appellant No. 1 – Lakhu, is said to have thrust a wooden log in the mouth of injured. In short, according to his submission, neither of the appellants can be said to have committed an offence, that too, an offence under Section 397 of the “IPC”, and therefore, judgment of conviction and order of sentence recorded by the learned Judge is required to be quashed and set aside. In short, according to his submission, neither of the appellants can be said to have committed an offence, that too, an offence under Section 397 of the “IPC”, and therefore, judgment of conviction and order of sentence recorded by the learned Judge is required to be quashed and set aside. 3.8 Relying on several decisions of Supreme Court, it is submitted that it is only a person using any deadly weapon or causing grievous hurt to any person in an attempt to commit robbery or dacoity, can be held responsible under that Section and no one else can be convicted, who cannot be said to be an offender using any arms. 3.9 Relying on a decision in the case of Shri Phool Kumar v. Delhi Administration, reported in 1975 (1) SCC 797 , it is submitted that the use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imprisonment of minimum punishment on another offender who had not used any deadly weapon. In short, submission is that the provision postulates individual acts of the accused to be relevant to attract Section 397 of the “IPC”, and thereby, inevitably negates the use of the principles of constructive or vicarious liability engrafted in Section 34 of the “IPC”. On the same line, he has relied on other decisions as under:- (i) Ashfaq v. State (Govt. of NCT of Delhi), reported in (2004) 3 SCC 116 , (ii) Shravan Dashrath Datarange v. The State of Maharashtra, reported in (1997) SCC OnLine Bom 18, (iii) Dilawar Singh v. State of Delhi, reported in (2007) 12 SCC 641 . 3.10 It is further submitted that there is no evidence to establish that the present appellants – Lakhmansing @Lakhusinh Shivji Thakor and Nathunsing abetted the offence committed by Ghumansing and Jesungji Thakor. Therefore, it is submitted that they cannot be convicted for an offence under Section 397 with the aid of Section 34 of the “IPC”. Therefore, unless it is shown by the prosecution that the appellants shared common intention to commit offence under Section 397 of the “IPC”, they cannot be convicted with the aid of Section 34 for an offence under Section 397 of the “IPC”. Therefore, unless it is shown by the prosecution that the appellants shared common intention to commit offence under Section 397 of the “IPC”, they cannot be convicted with the aid of Section 34 for an offence under Section 397 of the “IPC”. For the aforesaid submission, he has relied on the following decisions:- (i) Mahbub Shah v. King (Emperor), reported in AIR 1945 PC 118 , (ii) Mohan Singh and Anr. v. State of Punjab, reported in AIR (1963) SC 174, (iii) Indrapal Singh and others v. State of Uttar Pradesh, reported in (2022) 4 SCC 631 , (iv) Dharam Pal and others v. State of Haryana, reported in (1978) 4 SCC 440 , (v) Sonu alias Sunil v. State of Madhya Pradesh, reported in 2020 SCC OnLine SC 473. 3.11 It is further submitted that though testimony of sole eyewitness/ injured witness can be relied on to convict the accused if it inspires confidence, in the present case, not only the material improvement in the deposition of the injured/victim, there are several other discrepancies in his evidence, and there is no other corroboration thereof, and therefore, his testimony is not found to be trustworthy and reliable. Therefore, it is submitted that, to accept the testimony of witness, the test, whether evidence has a ring of truth, is cogent, credible and trustworthy, which is not the case here. In support of his submission, he has relied on decisions of the Supreme Court in the case of:- (i) Joseph v. State of Kerela, reported in (2003) 1 SCC 465 , (ii) Amar Singh v. State (NCT of Delhi), reported in (2020) 19 SCC 165 . 3.12 It is further submitted that though a dying declaration of the injured was recorded, since he has survived, it cannot be used as a dying declaration but it would be a statement of a witness. Therefore, it is submitted that the use of the said dying declaration/statement can be for a limited purpose for corroboration or either contradiction. For the purpose, he has relied on a case of:- (i) Ramprasad v. State of Maharashtra, reported in (1999) 5 SCC 30 , (ii) Maqsoodan and others v. State of Uttar Pradesh, reported in (1983) 1 SCC 218 , (iii) Gajula Surya Prakasarao. For the purpose, he has relied on a case of:- (i) Ramprasad v. State of Maharashtra, reported in (1999) 5 SCC 30 , (ii) Maqsoodan and others v. State of Uttar Pradesh, reported in (1983) 1 SCC 218 , (iii) Gajula Surya Prakasarao. v. State of Andhra Pradesh, reported in (2010) 1 SCC 88 , (iv) Ranjit Singh and others v. State of M.P., reported in (2011) 4 SCC 336 , (v) Suresh Chandra Jana v. State of West Bengal and others, reported in (2017) 16 SCC 466 . 3.13 It is further submitted that the injured/victim, in his so called dying declaration, named four assailants being:- (i) Gopalsing, Lakhusinh, Ghumansing and Bhursing. However, prosecution has failed to show who Gopalsing and Bhursing are and they have not been prosecuted at all. Furthermore, it is submitted that full name of each accused is not mentioned in the dying declaration except the first name. Not only that, appellant No.2 – accused No. 4 – Nathusing, is not referred to at all in the said dying declaration. Over and above that, as submitted by the learned advocate for the appellants, no specific role is attributed to any of the assailants for a specific injury. 3.14 At the same time, it is not stated if assailants were armed with any deadly weapons or not. Over and above that, it is not coming out from his dying declaration that who took out his gold earring. He has further submitted that there is no recovery or discovery of any of the weapons of offence from the appellants. This apart, there is no recovery of the alleged loot article i.e. the earring of the victim. Over and above that, no test-identification parade held despite injured/victim gave only first name without any description of the accused. 3.15 As submitted hereinabove by the learned advocate for the appellants, to convict the appellants, the statement recorded under Section 161 of “the Code” of the witnesses have been referred to and used by the learned Judge, which is impermissible under the law. Therefore, it is submitted that statement recorded under Section 161 of “the Code” can be used only to prove contradictions and/or omissions. In support of that submissions, the learned advocate for the appellants relied on the following decisions:- (i) Parvat Singh and others v. State of Madhya Pradesh, reported in (2020) 4 SCC 33 . Therefore, it is submitted that statement recorded under Section 161 of “the Code” can be used only to prove contradictions and/or omissions. In support of that submissions, the learned advocate for the appellants relied on the following decisions:- (i) Parvat Singh and others v. State of Madhya Pradesh, reported in (2020) 4 SCC 33 . (ii) Rajendra Singh v. State of Uttar Pradesh and Anr., reported in (2007) 7 SCC 378 . (iii) V.K. Mishra and anr. v. State of Uttarakhand and Anr., reported in (2015) 9 SCC 588 . In short, it is the submission of the learned advocate for the appellants that prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. Therefore, they are required to be acquitted of the charge leveled against them. 4. As against that, Mr. Utkarsh Sharma, learned APP, submitted that the appellants are named in the FIR, they have been assigned specific role by the injured – victim, they have been identified before the Court, specific role is attributed to them by the victim in his deposition, prosecution has adduced ample evidence in support of its case. 4.1 It is further submitted that even the Officer, who recorded the dying declaration of the victim, is also examined before the Court. Though victim survived, the said dying declaration cannot be used as evidence under Section 32 of the Evidence Act, still however, the contents of it when deposed to before the Court by the witness who recorded the same, Court has to act on the said deposition, which is corroborative to the evidence led by the victim, and therefore, according to the submission of learned APP, prosecution has established its case beyond reasonable doubt. 4.2 Mere non-recovery or discovery of weapon of offence and/or muddamal article will not lead to a presumption that no case is made out against the accused. If the evidence of injured is cogent, reliable, it doesn’t require corroboration through recovery of weapon as also muddamal article. Therefore, he has submitted that the appellants – accused are rightly convicted, and therefore, appeal filed by them be dismissed. 5. If the evidence of injured is cogent, reliable, it doesn’t require corroboration through recovery of weapon as also muddamal article. Therefore, he has submitted that the appellants – accused are rightly convicted, and therefore, appeal filed by them be dismissed. 5. Having heard the learned advocate for the appellants as also the learned APP, going through the impugned judgment of conviction and order of sentence as also referred to the evidence led before the Court, it emerges that appellants, along with other accused were charge-sheeted for an offence under Sections 307, 397 and 34 of the “IPC” as also Section 135 of the Bombay Police Act. However, during the course of an investigation, it is found that offence of Section 307 is covered under Section 397, the said provision was dropped by the Investigating Officer, and therefore, charge was framed against all the accused for an offence under Section 397 individually as also under Section 397 read with Section 34 of the “IPC” along with a charge for an offence under Section 135 of the Bombay Police Act. As such, deposition of three witnesses is important for the decision of this appeal:- (i) Bhikhaji Ukaji Suthar, first-informant and elder brother of the victim, who is examined as Prosecution Witness No. 1 at Exhibit-16, (ii) Kantiji Ukaji Suthar, (injured/victim), who is examined as Prosecution Witness No. 2 at Exhibit-24, and (iii) Jamabhai Prabhubhai Rabari, who is examined as Prosecution Witness No. 3 at Exhibit-25, 5.1 Considering the FIR, Exhibit-63, given by the first-informant - Bhikhaji Ukaji Suthar, who is the brother of the victim, it appears that he derived knowledge about the assailants from the victim and pursuant thereto, he lodged the FIR on the same day, within less than 3 hours to the incident. According to his first information, victim informed him that while he was grazing cattle, at that time, Thakor Bhuraji Maknaji, son of Thakor Dhiraji and son of Thakor Bhomji came to him and they attempted to remove his gold earrings, which was resisted, and therefore, Thakor Bhuraji Maknaji inflicted knife blow on the left side of his head and at that time, son of Thakor Bhomji caught hold of him and son of Thakor Dhiraji had removed gold earrings from one of his ear. However, when the deposition of the first- informant - Bhikhaji Ukaji Suthar, Exhibit-16 is seen, he has pleaded ignorance about the incident as also the assailants. Though he maintained that his brother was beaten on his head, forehead and inside the mouth, over and above missing one of his gold earring but he was not speaking. Though he acknowledges that he had given the First Information Report, in his examination-in-chief itself, he had stated that he did not receive any information about who assaulted his brother and he did not ask anyone about the same. However, he has stated that since his brother – victim informed him that accused had beaten him, he had given names of the accused in the First Information Report. Though he had stated that after his brother – victim had regained consciousness, the names of the accused were given. Thereafter, the witness had given names of the accused but name of the appellant is not referred thereto but one ‘son of Dhirji’ is given; however, the name he does not know. However, he has asserted in his deposition that Lakhuji Shivji thrust wooden log in the mouth of the victim, whereas Gamnaji gave knife blow over the head. As such, specific role attributed to Lakhuji Shivji, if presumed to be appellant No. 1, he has admitted in his cross-examination that it is not so stated in the First Information Report and it is clearly an improvement proved to be contradiction. Not only that, as coming out from the cross-examination, he has admitted that he has given name of Thakor Bhuraji Maknaji as an assailant, whereas no such person is even charge-sheeted or prosecuted. He has specifically admitted in his cross-examination that his brother – Kantiji Ukaji – victim had not informed him about the incident. He has further admitted in his cross-examination that who had assaulted him was also not stated by his brother to him. Therefore, so far as evidence of the PW-1 – Bhikhaji Ukaji – First informant is concerned, no role is assigned to appellant No. 2 in participation of an offence or even his presence. The role assigned to appellant No. 1 is admitted to be not stated in his First Information Report and proved to be vital improvement in his deposition. Therefore, so far as evidence of the PW-1 – Bhikhaji Ukaji – First informant is concerned, no role is assigned to appellant No. 2 in participation of an offence or even his presence. The role assigned to appellant No. 1 is admitted to be not stated in his First Information Report and proved to be vital improvement in his deposition. Furthermore, he gave FIR on the information about incident and assailants, supplied by his injured brother, deposed to in examination-in-chief that he did not derive knowledge about incident as also assailants from anyone. Therefore, his evidence is not useful to reach the final conclusion in this appeal. 5.2 The Witness - Jamabhai Prabhubhai Rabari, reached the place of incident first and brought the victim – injured at his house, has not supported the case of the prosecution and he was declared hostile. Therefore, prosecution is left with the deposition of sole injured eye-witness – Kantiji Ukaji Suthar, PW-2, Exhibit-24. Now, examining his deposition in the examination-in-chief, he stated that one Rabari Jamabhai Prabhubhai came to him and along with him three other persons were there, whose names are not known. He has further stated that they took him away and those three others had throttled him, his legs were tied and gold earrings were removed from his ears. When he resisted to give the gold earrings, wooden log was thrust in his mouth and he was assaulted with axe and knife. In his examination-in-chief, he attributes axe blow to Lakhu, if to be treated as appellant No. 1 and knife blow was inflicted by Ghumansing, who has died pending the appeal, and therefore, case against him is abated. He also further alleges that Lakhu had thrust wooden log in his mouth. Over and above that, he has identified the accused sitting in the Court. He did not identify the wooden log which was in the Court. However, he had identified muddamal article No. 6. He claimed in his examination-in-chief that after the accused had beaten him, he became unconscious and his gold earrings were removed by them. 5.3 Considering his cross-examination, first of all, he states that the First Information Report was given by Jamabhai, which is incorrect. Furthermore, in his cross-examination, he has stated that Jama informed him that Gamna had assaulted with the knife, and therefore, he has deposed to with regard to the same in the Court. 5.3 Considering his cross-examination, first of all, he states that the First Information Report was given by Jamabhai, which is incorrect. Furthermore, in his cross-examination, he has stated that Jama informed him that Gamna had assaulted with the knife, and therefore, he has deposed to with regard to the same in the Court. Though injured denied suggestion that Lakhu had assaulted him with axe is not stated in his police statement but if deposition of Investigating Officer – Sabarsing Dalpatsing Raol, PW-18 Exhibit-67 is seen, in his cross-examination, he admitted that during the course of his investigation, it was never revealed that anyone had assaulted injured with an axe. It is further stated in his cross-examination that, neither the injured nor any of the witnesses stated that any of the accused had assaulted with an axe. He had to admit in his cross-examination that no statement of Dhirji was recorded, so as to ascertain how many sons he had. At the same time, he had admitted in his cross-examination that in the First Information Report, it is not stated that Ghumansing had given knife blow. He has to further admit that, during the course of investigation, it was no ascertained how many sons, Bhomji had. It is further an admission in the cross-examination that no test-identification parade of the appellants through injured was carried out as he referred them as unknown persons. The injured witness has agreed to the suggestion that there is enmity between witness and accused – Lakhu, though he has denied the suggestion that because of that enmity, his name is wrongly given in this case. 5.4 So far as allegation against the appellant No. 1 that he thrust wooden log into the mouth of the victim is concerned, as deposed to by him, is again found to be sheer improvement as proved through Mafatlal Khenabhai, PW-17, Exhibit-66, who was deputed to Civil Hospital, Ahmedabad, for recording his statement, though victim alleged that appellant No. 1 – Lakhusinh thrust wooden log in his mouth, is proved to be material improvement and contradiction, not stated in his police statement and deposed to before the Court for the first time. Not only that, even Lakhu assaulted him with axe is also found to be not stated in the police statement, though deposed to before the Court. Not only that, even Lakhu assaulted him with axe is also found to be not stated in the police statement, though deposed to before the Court. 5.5 As such from the evidence of the injured eye-witness, so far as appellant No. 2 is concerned, there appears no evidence so as to involve him for the present offence. Not only that, so far as the role attributed to appellant No. 1 of assaulting with an axe is concerned, it is found contrary to the prosecution case itself. Over and above that, the manner in which the incident occurred, as deposed to before the Court by the victim, is not even as per the prosecution case itself of three unknown persons throttling his neck, tying his legs and taking out earrings from his ears. Even the wooden log thrust in his mouth is also not getting support from the other material on record, including medical evidence. Injury No.3 shown in the injury certificate and deposed to by the Doctor reveals that it was an external injury on the right jaw and the cheek, whereas according to the victim himself, the wooden log was thrust into his mouth, though finding no injury inside his mouth. The deposition of injured – victim, so far as it relates to story narrated by him in the deposition before the Court, does not inspire confidence in respect of present appellants. Over and above that involving other accused with weapon assigned, is also found to be contrary to the case of the prosecution. 5.6 Not only that, deposition of PW-14, Mahendrabhai Natwarlal Sukhadiya, Executive Magistrate, who recorded dying declaration of the victim, is also important. If the evidence of witness – Mahendrabhai Sukhadiya, Executive Magistrate, is seen, he has referred about the contents of the dying declaration of victim – Kantibhai and deposed to that, Gopalsing, Lakhusinh, Ghumansing and Bhursing assaulted him. If this part of the narration given by the victim as a dying declaration is seen, it nowhere refers appellant No. 2 nor it refers appellant No. 1 by his full name. Not only that, victim has not stated before him about the weapon of offence used by any of the accused or the injury caused by which of the accused and by what weapon. Not only that, victim has not stated before him about the weapon of offence used by any of the accused or the injury caused by which of the accused and by what weapon. As per the cross-examination of this witness, he had to admit that person who took out gold earrings from the victim was also not named in it. The said dying declaration came to be recorded on that very day i.e. 09.09.2000, the day of incident, at Palanpur Civil Hospital, which even belies the deposition of the victim himself that he became unconscious and regained consciousness after three days in the Ahmedabad Hospital. Not only that Gopalsing and Bhursing are not an accused as per the prosecution case. Even as admitted by PW-12 – Kalusinh Bhathisinh Khant, who conducted initial investigation, FIR disclosed that Thakor Bhursinh Maknaji gave knife blow, but no such accused is ever prosecuted. Thus, injured witness appears to have improved his version before the Court contrary to his own dying declaration, so far as involvement of accused are concerned. 6. Analyzing the overall evidence brought on record, not only there is material improvement in the prosecution case, which is proved to be contradictory, the persons named by the victim, all have not been prosecuted and the persons who have been attributed specific role, is proved to be most material and vital improvement in his deposition, which is not stated in his police statement and he is already contradicted with the same through the Police Officer who recorded his statement. Thus, deposition of the victim himself is not found to be cogent, reliable and in tune with the probabilities as also it is not inspiring implicit confidence, therefore, it can safely be concluded that the prosecution has failed to establish the case against appellants beyond reasonable doubt, and therefore, there is no option but to acquit the appellants of the charge leveled against them. Judgment of conviction and order of sentence passed by Additional Sessions Judge, Banaskantha at Deesa, dated 31.05.2002 in Sessions Case No. 227 of 2000 is hereby quashed and set aside and appellants are acquitted of the charges leveled against them. Since pending appeal the appellants are on bail, their bail bonds stand cancelled. In view thereof, this appeal is allowed.