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2024 DIGILAW 2213 (GUJ)

Mohan Sundershan Nair v. State Of Gujarat

2024-12-17

ILESH J.VORA, S.V.PINTO

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. The present appeal is filed by the appellants – original accused nos. 1 to 5 and 7 under Section 374 of Code of Criminal Procedure, 1973 (‘Cr.P.C.’, in short) against the judgement of conviction and order of sentence dated 26.02.2006 passed by the learned Additional Sessions Judge, Fast Track Court, Surat in Sessions Case no. 284 of 1997, wherein, the appellants came to be tried for offences punishable under Sections 147, 148, 149, 436, 427, 323 and 506(2) of the Indian Penal Code, 1860 (old) ('IPC', for short). The trial Court, after appreciation of the evidence, convicted the appellants and they were sentenced as under: Accused Sections of IPC Punishment Fine In default Accused no. 1 to 5 and 7 147, 148, 149, 436 and 427 RI for two years Rs.5000/- RI for two months Accused no. 5 323 RI for six months Rs.1000/- - RI for one month The sentences were to run concurrently for original accused no. 5. 2. Facts and circumstances giving rise to file this appeal are as under: 2.1 The appellants – accused were tried by the Sessions Court for the charge that on 10.01.1995, they had formed an unlawful assembly with a common object to destroy the shops of the complainant by setting it on fire. 2.2 The complainant PW:1 Kishor Agarwal had purchased shops, for doing his business at Jash Market, Surat. There was an association of the shop owner and same is registered as Service Society. The appellants accused Mohan Nayak and Mukesh Bombaywala were the officer bearers of the society, whereas accused no.2 Gokul Baxi being a Chartered Accountant was occupying the office in the said building. The furniture work of the shops allegedly purchased by PW:1 was going on and there was a complaint against PW:1 that he indulged in unauthorized use of the passage and parking place and put the raw materials of furniture over there. The members of the society filed a suit before the Lavad Court at Surat, wherein they sought prohibitary injunction against PW:1 complainant that he be restrained in unauthorized use of passage and parking place. The market hired security services from Royal Security Guard for the security of the building. PW:1 had also hired the services of the security personnel from United Security Organizer. The market hired security services from Royal Security Guard for the security of the building. PW:1 had also hired the services of the security personnel from United Security Organizer. On the issue of unauthorized use of marking and passage, off and on the dispute arose between the security guards of the rival parties. 2.3 On 10.01.1995, at about 10:00 a.m. PW:1 was informed by his security personnel about the threat administered by the security personnel of the building as well as the accused. “The threat was given that if they do not remove the encroachment from the parking as well as passage area, by evening the shops would not remained there”. The PW:1, requested his security agency to deploy further security guards, so as to avoid further confrontation. However, the dispute was not resolved. At about 03:30 to 04:00 p.m., the quarrel took place between the security guards of both the parties, as a result of which, the security guards of both the sides suffered bodily injuries. The Salabatpura Police Station on receiving the information, came at the place and the security guards deployed by PW-1 taken to the Police Station. In the said quarrel, accused Kapildev being security guard suffered ribs fractures, whereas, PW-10 Ramprakash Dabbarsing sustained head injury. According to case of the prosecution, PW-1 Kishor Agrawal, after receiving the message of the fight ensued between the security guards came at the market place. At about 4:30 p.m, the appellant accused armed with deadly weapon came at the shops area of the market and vandalized the shops and by sprinkling kerosene oil, they set on fire the shops, which has suffered damages to the tune of Rs.10 to 12 lakhs. The PW-1 Kishor Agrawal, at that time, was sitting in the shop of Mr. Ashokbhai, opposite the place of occurrence. The FIR of the PW-1, according to his allegations did not have taken note of and after intervention of the then Home Minister, it came to be registered. The PW-1 Kishor Agrawal, at that time, was sitting in the shop of Mr. Ashokbhai, opposite the place of occurrence. The FIR of the PW-1, according to his allegations did not have taken note of and after intervention of the then Home Minister, it came to be registered. 2.4 In nutshell, it is the case of the prosecution that the appellants accused, in order to take revenge of the dispute with respect to the parking place of the building, hatched a criminal conspiracy with a common object to destroy his shops and in order to execute the conspiracy on 01.10.1995, they assembled at the place of occurrence with deadly weapon and vandalized the shops and thereafter, they sprinkled the kerosene oil from the plastic cane which they brought at the place and set on the shops. 2.5 The investigation of the case entrusted to the PW:14. The I.O. PW:14, obtained necessary samples for FSL purpose at the place by drawing panchnama of scene of offence, recorded the statement of the security guards and others, arrested the accused and after obtaining medical certificates of injured witness PW:10, the police found sufficient evidence for the charges and accordingly, 7 accused were chargesheeted for the offences as enumerated above. The case was committed to the Court of Sessions which had culminated into Sessions Case No.284 of 1997. 3. On the basis of material on record, the charges were framed against the appellants at Exh. 11, to which they pleaded not guilty and therefore, they came to be tried by the trial Court, accordingly. 4. In order to prove the case against the appellants, prosecution has examined 14 witnesses and exhibited 6 documents to prove its case as per the following table: Oral evidence PW 1 – Exh. 27 Kishorkumar Jayprakash Agrawal PW 2 – Exh. 30 Rameshsingh Zailsingh Tomar PW 3 – Exh. 36 Manoj Kartarsingh Rajput PW 4 – Exh. 41 Vijendrasingh Mangatsingh Tomar PW 5 – Exh. 53 Nareshbhai Thakorbhai PW 6 – Exh. 55 Dineshbhai Vinodchandra Rana PW 7 – Exh. 56 Gokulbhai Budhabhai More PW 8 – Exh. 58 Kanchanbhai Gokulbhai PW 9 – Exh. 60 Dr. Prashant Ramniklal Shah, medical officer PW 10 – Exh. 63 Ramprakashsing Dabbarsing PW 11 – Exh. 64 Rajusing Vasudevsing Rajput PW 12 – Exh. 53 Nareshbhai Thakorbhai PW 6 – Exh. 55 Dineshbhai Vinodchandra Rana PW 7 – Exh. 56 Gokulbhai Budhabhai More PW 8 – Exh. 58 Kanchanbhai Gokulbhai PW 9 – Exh. 60 Dr. Prashant Ramniklal Shah, medical officer PW 10 – Exh. 63 Ramprakashsing Dabbarsing PW 11 – Exh. 64 Rajusing Vasudevsing Rajput PW 12 – Exh. 65 Ravindra, Nahari Pathak PW 13 – Exh.67 Tapiram Bhikhabhai Chaudhary PW 14 – Exh.76 Ramjibhai Varvabhai Rabari Documentary evidence Exh. 28 Complaint Exh.54 Panchanama of place of offence Exh.57 Arrest Panchanama Exh.61 Certificate of medical treatment of injured Ramprakash Exh.66 Order to register FIR Exh.77 FSL report 5. After recording the evidence and upon filing closing purshis by the prosecution, the statements of the accused appellants under Section 313 of the Cr.P.C. were recorded in which they had stated that, they were innocent and falsely implicated as the FIR being C.R.No.6 of 1995 for the incident of causing injuries to the security guards was being filed against PW:1 and others in which he was arrested and therefore, the present FIR is nothing but a counter blast to the proceedings initiated against PW:1. PW:1 is influential person and due to his closeness to the then Home Minister, the FIR came to be filed after delay of 8 hours. The building association i.e. society requested the PW:1 not to create hurdle in the passage as well as parking area but he did not heed the request. The society filed a Lavad Suit, wherein injunction was sought restraining the PW:1 not to use a common passage area and parking. The Court had granted interim relief. On the day of incident, the security persons of the market had been assaulted by the rival security guards and on lodging of the FIR, the accused as well as rival parties had gone to the Sabalatpura Police Station. The appellant accused no.3 – Gokul Baxi is by profession Charterered Accountant and at the relevant time, was the President/ Director of Prime Cooperative Bank, Surat. On the day of incident i.e. 10.01.1995, he was busy with his business meeting and thereafter, he attended the bank meeting upto 05:00 o’clock and the same facts have been established by adducing cogent evidence. In support of the plea of alibi he has examined two witnesses and produced the supporting evidence. 6. On the day of incident i.e. 10.01.1995, he was busy with his business meeting and thereafter, he attended the bank meeting upto 05:00 o’clock and the same facts have been established by adducing cogent evidence. In support of the plea of alibi he has examined two witnesses and produced the supporting evidence. 6. The Trial Court, after appreciating oral as well as documentary evidence on record, proceeded to convict the appellants herein for the offence as enumerated above, against which, they have preferred this appeal. 7. Oral evidence on record: 7.1 PW:1 Kishor Agarwal claimed to be an eyewitness has stated that he had purchased 14 shops in the commercial market viz. Jash Market at Surat. The furniture work of the shop was in progress. He had hired private security guards for security purpose of shops from United Security Organization at Surat. The incident of fire took place on 10.01.1995 at about 04:30 p.m. He got message from watchman Mr.Pandey that threat was administered by the accused that, by evening the shops would be destroyed. The witness again received the message at about 12:00 o’clock from Mr.Pandey Security Guard that quarrel took place between the securities of the parties and due to said quarrel, the police came at the place and the security guards had been taken to Police Station. The witness PW:1 after receiving the said message went to the place of the occurrence where he came to know that in a free fight the security guards of the rival parties suffered injuries. So far as incident of fire is concerned, the witness PW:1 has stated that at about 04:00 o’clock, the appellants accused along with others, armed with deadly weapon vandalised his shops and by sprinkling kerosene oil, they set on fire his shops and caused damages to the extent Rs.10 to 12 lakhs. It is stated by witness that at the time of incident, he was sitting in the shop of Ashokbhai, opposite to his shop. The witness has further stated that after the incident, he went to the Police Station to lodge the FIR, however, the police did not register his complaint. In order to register the complaint he had contacted the then Home Minister at Navsari and because of his intervention the police lodged an FIR at about 12:00 o’clock which he produced at Exh.28. The cross examination of PW:1 was done at length. In order to register the complaint he had contacted the then Home Minister at Navsari and because of his intervention the police lodged an FIR at about 12:00 o’clock which he produced at Exh.28. The cross examination of PW:1 was done at length. In the cross examination, he has admitted that the quarrel between two securities personnel arose because of usages of parking place and common passage of the market. The witness in his cross-examination admitted that when the incidents of assault took place, he was not present at that time. The witness had denied to the suggestion that the accused nos.1 and 3 were not present at the place of incident and they were at the Salabatpura Police Station and accused no.2 was busy with his personal meeting with Reliance Company as well as meeting held by Prime Cooperative Bank. The witness has admitted that before the incident, the society filed a civil suit, wherein they sought an injunction against him with respect to use of passage and parking place by him. The witness also admits the facts that on the same day, the rival party has registered FIR against him and others with respect to causing injuries to the security guards of the society. He also denied to the suggestion that accused Kapildev was beaten by his security guards and has suffered ribs fractured. The witness PW:1 has denied to the suggestion that he has not seen the incident and the facts about setting fire by the accused has not been disclosed in his police statement as well as the FIR. 7.2 PW2 Rameshsingh Tomar, was at the relevant time, serving as a Supervisor in United Security Agency at Surat. In his deposition, he has stated that on 10.01.1995, he had deployed his security guards viz. Rajusingh Vasudev, Ramprakash, Brijsingh and Pandey for the security of the shops owned by PW:1. He has further stated that at about 11:00 a.m., on the day of incident, he came at the place of the incident, where his security personnel informed that the accused threatened them that by evening, if they would not remove their materials from the parking/common passage, then they will cause damage to the shops. The witness PW:2, received the message at about 04:00 o’clock when he was at office that the fight ensued between the security guards. The witness PW:2, received the message at about 04:00 o’clock when he was at office that the fight ensued between the security guards. He rushed to the place of the incident along with one Rameshsingh, Supervisor. He saw the PW:1 who was sitting in another shop, and thereafter, he went to the police station. It is admitted by the witness that, his security guards after the incident, taken to Salabatpura Police Station. So far as incident of assault as well as fire are concerned, the witness has stated that, he was not present at the time of incident. 7.3 PW:3 Manoj Kartarsingh, who was Ex. employee of PW:1 and at the relevant time, he was working as Accountant with PW:1. The witness PW:3 has stated that on the day of incident, when he reached at the market place, he saw that the accused by spripling kerosene oil set on fire the shops belonging to PW:1. In the cross examination, he has stated that at the time of incident of fire, the guards of the PW:1 were not present at the place. He also states that on the day of incident, he did not have any conversation with PW-1. The witness has denied to the suggestion that, he has not disclosed the facts of the incident, in his statement recorded by the police. 7.4 PW:4 Vijendrasingh Tomar was owner of United Security Organization. The witness reached at the spot after the incident and he does not have any knowledge about the occurrence of the fire as well as injuries suffered by the PW- 10. 7.5 PW:5 Naresh Thakor is the panch-witness of the panchnama of place of occurrence and he has been declared hostile. 7.6 PW:6 Dinesh Rana is the panch-witness of the panchnama of place of occurrence and he has been declared hostile. 7.7 PW:7 Gokul More is the panch-witness of arrest panchnama at Exh.57 and has not supported the case of prosecution. 7.8 PW:9 Dr.Prashant Bhatt, Medical Officer, Civil Hospital, Surat was on duty, when the witness PW-10 Ramprakash Dabbarsingh brought before him for medical examination and treatment. 7.7 PW:7 Gokul More is the panch-witness of arrest panchnama at Exh.57 and has not supported the case of prosecution. 7.8 PW:9 Dr.Prashant Bhatt, Medical Officer, Civil Hospital, Surat was on duty, when the witness PW-10 Ramprakash Dabbarsingh brought before him for medical examination and treatment. According to the say of the doctor, the history given by the injured, which he had noted in the case papers, and same is reads thus, “on 10.01.1995 at about 04:30 p.m., he was assaulted by somebody, with wooden stick at Jash Market, Surat.” After examination of the patient, doctor found blunt injury on his head and according to him, it was possible by weapon iron pipe and the injury was simple in nature. The certificate which doctor has issued is produced at Exh.61. 7.9 PW:10 Ramprakashsingh Dabbarsingh was deputed as a Security Guard at Jash Market by United Security Agency at the behest of PW:1. The witness has stated that when he was on duty, the accused came before him and stated that by evening the shops would not remain there and further threatened to vacate the parking place. The witness has further stated that at about 02:00 p.m., when PW:1 came at the place, he informed about the threat administered by the accused, meanwhile, one of the security guard – accused Udayraj Pande, caused injuries on his head by iron pipe. The police after receiving the message of incident, came there. After said incident, he along with other security guards, had been taken to Salabatpura Police Station. So far as incident of fire is concerned, he has not witnessed the incident, as he was at police station. In the cross examination, he has stated that at the relevant time, he was having a licence rifle with him. It is denied by him that he fired from his rifle, which led to a incident of fire. He also admits that the criminal case registered by opposite party against him and others is pending before the Court. He also admits that the dispute was with regard to use of parking place where the raw materials of the furniture had been kept by the PW:1. It is denied by the witness that, they had beaten the security guards of the market and in order to save himself from the said incident, he is telling lie. He also admits that the dispute was with regard to use of parking place where the raw materials of the furniture had been kept by the PW:1. It is denied by the witness that, they had beaten the security guards of the market and in order to save himself from the said incident, he is telling lie. 7.10 PW:10 Rajusingh Rajput was on duty as a Guard at the place of occurrence. According to his statement, accused Udayraj Pandey assaulted PW:10 Ramprakash by iron rod. The other facts whatever he has stated are hearsay evidence. 7.11 PW:13 Ramjibhai Rabari, has investigated the case and filed the chargesheet against the accused. The witness has recorded the complaint and the statement of the witnesses as referred above. The witness has stated that, during the investigation, he collected the samples of ashes from the place of occurrence and sent it to the FSL and also recorded the statements of the witnesses and recovered the iron rods from the accused Udayraj and after obtaining the medical evidence, he has filed the chargesheet against the accused. In the cross examination, the I.O. has admitted that the firearms have been recovered in the cross Sessions Case No.266 of 2000 and the report of FSL in this regard, collected by him and which he produced at Exh.78. So far as contradiction and improvements made by PW:1 is concerned, the defence has proved the contradictions and improvement made by the PW:1. The I.O. in his deposition admitted that, the witness PW.1 – complainant in his further statement has not disclosed that the accused along with 25 persons armed with wooden sticks came at the place and vandalize his shops and it set on fire shops and at that time, he was sitting in the shop opposite the place of occurrence. The I.O. has recorded the statements of witnesses namely Rameshsingh Tomar – PW.2, Manoj Kartarsingh – PW.3, Vijendrasingh Tomar – PW.4, Ramprakash Dabbarsingh – PW.10. The witnesses in their respective depositions made major improvements and the facts stated by them which they never disclosed in their police statements and same are being proved in the deposition of the IO. Defence Evidence: 7.12. The witnesses in their respective depositions made major improvements and the facts stated by them which they never disclosed in their police statements and same are being proved in the deposition of the IO. Defence Evidence: 7.12. The accused no.2 Gokul Bakshi in his defence raised the plea of alibi, inter alia, stating that, on 10.01.1995, in the afternoon, he was in meeting with the officers of Reliance Company for business purpose and thereafter, as a President and/or Director of Cooperative Bank, he had attended Director’s Meeting and therefore, his presence at the place is not established. In order to prove his claim, the bank official Mr. Vijay Parekh – DW.1 has been examined by him. The witness has produced of Minutes of Meeting along with the decision of passing of the loan of the bank customers and same has been produced at Exh.85 to 88. The second witness DW.2 is Raghunath Jambunathan who at relevant time, was serving as a Vice President with Reliance Industries. The firm Anand Enterprise owned by accused Gokul Bakshi was appointed as dealer for marketing purpose and in this regard, there was a meeting held on 10.01.1995 at the office of Reliance Company. The witness DW.2 has categorically stated that on 10.01.1995 at about 4 o’clock the accused Gokul Bakshi was with him for the purpose of renewal of the business contract. 8. Learned trial court while recording the conviction, mainly relied on the evidence of PW.1 and evidence of PW.10 – Ramprakashsingh. Learned trial court has believed the presence of the witnesses at the place of occurrence. 9. Submissions on behalf of the accused-appellant: 9.1 Mr. Suraj Shukla, learned counsel appearing for and on behalf of the appellant-accused vehemently submitted that the trial court committed a serious error in holding the appellant-accused guilty. He would submit that, the presence of PW-1 and PW-3 at the place is doubtful. The PW.1 in his FIR Exh.28, has categorically disclosed that, at the time of incident of fire, “no one was present at the place of occurrence and due to the said incident, he was under fear.” That, there was two incidents, one related to physical assault, allegedly caused by the security guards and after half an hour of the said incident, as per the prosecution case, the second incident of fire took place. Admittedly, after the first incident, the police came at the place of occurrence and all the security guards who had been discharging their duty at the place, were taken to Salabatpura Police Station. Thus, the PW.1 so far as first incident is concerned, is not claiming that, he saw the incident of assault. So far as second incident is concerned, the PW.1 himself disclosed in his FIR Exh.28 that, at the time of incident of fire, no one was present at the place. In this context, it was submitted that the witness PW:1, has first time in the Court stated that he was present at the place when the accused set the fire on his shops. PW:14 Investigating Officer, who has recorded the statements of the PW:1 and other witnesses, has stated that the said facts of the presence of PW:1 & PW-3 at the place has not been disclosed by them in their police statements. In the circumstances, it has been urged that the version given by the witnesses in the Court is different from that in the statement made before the police and that contradiction affects the credibility of the evidence of the PW:1 adn PW-3 and it said contradictions and/or omissions, improvement, cannot be termed as minor contradictions, which makes the witnesses unreliable. Thus, the principal arguments advanced to the effect that so far as incident of fire is concerned, the presence of PW:1 and PW-3 at the place, is not established and their claim of seeing the incident, has not got support from the evidence led by the prosecution. The learned Trial Court mechanically without reading the evidence of PW:1 adn PW-3 in its true perspective, acted upon, which has resulted in miscarriage of justice, as findings of guilt are not based on the evidence. 9.2 Mr.Suraj Shukla, learned counsel for the appellants accused, submitted that accused no.7 Mulji Parmar died during the pendency of the appeal and has tendered the death certificate which shows that the accused no.7 has passed away and appeal qua him stands abated. 9.3 Mr.Suraj Shukla, learned counsel has submitted that so far as incident of assault upon the PW:10 Ramprakash Dabbar is concerned, there is major contradiction in the evidence of the injured witness. 9.3 Mr.Suraj Shukla, learned counsel has submitted that so far as incident of assault upon the PW:10 Ramprakash Dabbar is concerned, there is major contradiction in the evidence of the injured witness. The PW.9 Dr.Prasant Shah in his evidence stated that the patient has not given name of assailants in his history and as per the history, the patient was assaulted by wooden stick. The injured PW:10 in his deposition stated that he was assaulted by accused Udayraj Pandey with iron rod. It is in this context, it was submitted that the witness was discharging his duties as a Security Guard and was armed with service rifle and the same had been recovered in the cross case by the police. The security guard who was on duty on behalf of the building society sustained rib fracture injuries and the said facts have been suppressed by the prosecution. In such circumstances, in the group clash, who assaulted the witness is not proved and established and the evidence of witnesses, who are highly interested in the result of the prosecution, in absence of any independent corroboration, it cannot be relied upon. 9.4 In the aforesaid contentions, learned counsel Mr.Suraj Shukla has submitted that the prosecution miserably failed to prove the charges beyond reasons doubt by adducing sufficient, cogent and acceptable evidence. In such circumstances, Mr.Shukla prays that the order of conviction and sentence be set aside and the appellants accused may be acquitted from all the charges. 10. Mr.L.B. Dabhi, learned APP for the respondent – State, vehemently opposed the contentions and submitted that the presence of PW:1 complainant Kishorbhai was natural at the place of incident as the shops which were setting on fire is of ownership of PW:1 and on the same day, from the morning, he was in constant touch with the security guards and after receiving the message of assault, he immediately rushed at the place and was present at the shop of one Mr. Ashokbhai. Thus, therefore, he would urged that the contradiction and inconsistency as pointed out by the defence would not affect the core of the case and the presence of PW-1 and PW-3, cannot be doubted. That the testimony of PW:1 has got supported from the evidence of PW:3, who at the relevant time, was the employee of PW:1. The facts disclosing in the FIR Exh.28 also support the version of the PW:1. That the testimony of PW:1 has got supported from the evidence of PW:3, who at the relevant time, was the employee of PW:1. The facts disclosing in the FIR Exh.28 also support the version of the PW:1. Thus, therefore, it is proved and established that the accused were involved in the alleged act of fire and voluntary injuries caused to PW:10. The plea of alibi raised by accused Gokul Baxi has rightly been not believed by the Trial Court. There was a motive behind the incident as the office bearers of the building i.e. accused was not happy with the furniture work done at the common passage place for which the dispute was going on before the Lavad Court, Surat. In the circumstances referred to above, Mr.Dabhi prays that there being no merits in the appeal filed by the accused appellants, and the same may be dismissed. 11. In the instant case, the PW:1 is the owner of shops as referred in the case record and on the same time, the accused nos.1, 2 and 3 were also possessed and occupied the offices in the Jash Market. It is admitted facts that before 6 months of the incident, there was a dispute of use of place of parking and common passage of the market place for which, the PW:1 was requested not to encroach upon the said place. However, the issue could not resolve amicably. The association of the market as well as the PW:1, availed the private security services. The accused nos.1, 2 and 3 were the office bearers of the Jash Market. Accused no.2 is by profession the Chartereded accountant and also at the relevant time, was President of Prime Cooperative Bank, Surat. The accused nos.4, 5, 6 and 7 were the security personnel, deployed for the security of Jash Market. On 10.01.1995, before the incident of fire, there was free fight between security personnel of the parties, as a result of which, the jurisdiction of police, Surat came at the place and the persons who were deployed as a security guard for the security of shops owned by PW-1 had been taken to Police Station for interrogation. It is no doubt true that so far first incident of assault between the parties is concerned, the PW-1 and PW-3 are not witness of said incident. 12. It is no doubt true that so far first incident of assault between the parties is concerned, the PW-1 and PW-3 are not witness of said incident. 12. The case of the prosecution hinges on direct evidence of PW:1 Kishor Agrawal and PW:3 Manoj Rajput. The principal arguments advanced by the defence are that the presence of both the witnesses are not established. 13. The issue arise for our determination is to whether in the circumstances of present case, it is possible to believe their presence at the scene of occurrence or in such situation, as would make it possible for them to witness the fact depose by them ? 14. We have heard learned counsel for the parties and considered their rival submission made hereinabove and also went through the record with utmost circumspection. 15. We have carefully examined the testimony of PW:1. The FIR was also filed by the PW:1 which is at Exh.28. On careful reading of the FIR, the PW:1 has disclosed that when the incident of fire happened, no one was present at the place. Despite of this, he has stated in his deposition that he along with others were present at the place. The Investigating Officer PW:14 recorded the statement of the PW:1 under Section 161 of the Cr.P.C. It is admitted facts that the version given by the PW:1 about the incident of fire in the Court, is different from that in the statement made before the police and has changed the story as if he was present at the place. Thus, the evidence of PW:1 suffers from major improvements, contradictions and exaggerations, which in our view, cannot be termed to be a small discrepancies or minor contradictions. The Supreme Court in its various judgments, observed that, “when the exaggeration fundamentally changes the nature of the case, the Court has to consider, whether the witness stating truth or not”. While evaluation of the evidence, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, must not prompt the court to reject the evidence. The Court has to tender the consideration the contradictions that may materially affect the trial. While evaluation of the evidence, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, must not prompt the court to reject the evidence. The Court has to tender the consideration the contradictions that may materially affect the trial. Keeping in mind the aforesaid settled legal principles on the aspect of major discrepancies and contradictions and applying to the facts of the present case, we are of the considered opinion that, the evidence of PW-1 and PW-3 suffer from major improvements, contradictions, which affect the case of the prosecution. The PW:1 is highly interested witness because he was aggrieved with the objections raised by the association of the shops owners market for the use of parking and common passage and the Civil Suit filed by the appellants accused, wherein, the prohibitory injunction was being passed against the PW-1. It is to be noted that according to the case of the prosecution, incident happened at about 04:30 p.m., and other shops of the market were open and their respective owners and employees were present over there. Despite of this, the I.O. could not obtain the statement of the independent witnesses and it is not the case of the prosecution that the independent persons were not willing to give their police statements. The presence of the PW:3 Manoj Rajput, after appreciation of the testimony, in our considered opinion, his presence at the place is also doubtful. He is the Ex employee of PW:1. There is material contradictions in his deposition about the incident, which he claimed that, he had saw the incident of fire. However, facts remained that, the said fact of his presence at the spot, has not been disclosed by him in his police statement and said contradiction has been proved in the deposition of IO PW-14. The PW:1 in his deposition did not have said about the presence of PW:3 at the place. The conduct of PW:3 was also unnatural because at the relevant time, according to his say, he has not tried to contact PW:1. Therefore, being a trusted man of PW:1, without meeting him at the place, he had left the place and went to the police station, which creates a doubt about his presence at the place. The conduct of PW:3 was also unnatural because at the relevant time, according to his say, he has not tried to contact PW:1. Therefore, being a trusted man of PW:1, without meeting him at the place, he had left the place and went to the police station, which creates a doubt about his presence at the place. In such serious act of fire, without contracting his employer, it would be prudently not believable that the employee who had witnessed the incident, left the place without taking proper care of the employer as well as his property. Both the witnesses made improvement to project their presence at the scene of offence, but as discussed above, we are not convinced that they were present at the place. The Supreme Court repeatedly observed in its various judgments that on the basis of testimony of the eyewitnesses, conviction may be recorded, but it has also cautioned that while doing so, the Court must be satisfied that the testimonies of the witnesses is of such sterling quality that Court finds it safe to base a conviction. The evidence of PW:1 and PW:3 does not inspire confidence of this Court about their presence at the place and considering the material improvement and/or contradictions in their deposition, as discussed above, they are not stating truth and their evidence is not worthy to accept. The learned Trial Court while recording the conviction, did not have properly scrutinized the evidence of PW:1 and PW:3. There is no any discussion about the presence of eyewitnesses at the place and why their testimonies having a ring of truth about the incident of fire. According to the case of the prosecution, PW:1 was seated in the shop of one Ashokbhai, however, Ashokbhai has not been cited as witness. Thus, we are of the firm view that, the PW:1 and PW:3 are not stating true facs of the incident and their presence at the place, are doubtful and considering the dispute of parking place, there was bitterness amongst the parties, they stating lie that, they were present at the place. 16. Admittedly, PW:1 and PW:3, had not witnessed the incident of assault which had occurred before the incident of the fire. 16. Admittedly, PW:1 and PW:3, had not witnessed the incident of assault which had occurred before the incident of the fire. So far as injury sustained by the witness PW-10 Ramprakash Jabbarsingh is concerned, the learned Trial Court relying on the testimony of the injured PW:10 Ramprakash Singh came to a conclusion that the appellant accused no.5 Udayraj Pandey had caused the voluntary injuries to the PW:10. Before the treating doctor PW:9, the history was given by the injured that he was assaulted by someone with wooden stick. The injured initially taken to the police station because of the FIR filed against him and thereafter, he was sent for treatment at civil hospital, Surat and after taking primary treatment there, he again came to the police station. It is to be noted that, in the cross complaint, there was an allegations levelled against PW-10 and others that they had assaulted accused Kapil Pandey, who suffered ribs fracture. In the cross complaint, the Sessions Court has acquitted the accused. In such circumstances, justice would be made if the sentence of 6 months be reduced to the extent upto undergone. 17. In view of the aforementioned discussions and reasons thereof, we are of the considered opinion that the learned trial Court has not appreciated the evidence in its true and proper prospective and findings of guilt are not based on the evidence on record, which leads us to irresistible conclusion that, the judgment of conviction and sentence recorded under Sections 147, 148, 149, 436 and 427 of IPC require interference, as the prosecution failed to prove the case beyond reasonable doubt for the aforesaid charges against the appellants accused. 18. In the result, the judgment of conviction and sentence dated 26.02.2006 passed by the learned Additional Sessions Judge, Surat in Sessions Case No.284 of 1997 is set aside and the appellants are acquitted from the charges under Sections 147, 148, 149, 436 and 427 of the IPC. The judgment of conviction and sentence for the offences under Section 323 of IPC awarded to the accused no.5 Udayraj Pandey is concerned, the appeal is allowed in part to the limited extent modifying and reducing the sentence for a period already undergone. Accordingly, this criminal appeal is allowed in the aforesaid terms. The judgment of conviction and sentence for the offences under Section 323 of IPC awarded to the accused no.5 Udayraj Pandey is concerned, the appeal is allowed in part to the limited extent modifying and reducing the sentence for a period already undergone. Accordingly, this criminal appeal is allowed in the aforesaid terms. The bail bonds executed by the appellants shall stand cancelled and fine amount, if deposited qua accused nos.1, 2, 3 and 4, shall be refunded to them. R&P be sent back to the trial Court forthwith.