Judgment A.L. Dave, J.—These appeals arise out of judgment and order rendered by the Sessions Court, Kachchh at Bhuj on 24.12.2004 in Sessions Case No. 64 of 2003. 2. There were in all 11 persons facing charges before the trial Court for the offences punishable under Sections 147, 148, 149, 120-B, 341, 323, 504, 506(2) and 302 of the IPC and Section 135 of the Bombay Police Act. The trial Court found that the prosecution was successful in proving charges for offences punishable under Sections 147, 148, 149 and 120-B read with Section 302 of the IPC against accused Nos. 1, 2 and 8 before it. The trial Court found that the prosecution was also successful in proving offences punishable under Section 323 read with Sections 147, 148 and 149 of the IPC against accused Nos. 3, 5, 7, 10 and 11. The trial Court found further that charges punishable under Section 341 read with Sections 147, 148, 149 and 120-B of the IPC were proved by the prosecution against accused Nos. 3, 4, 5, 6, 7, 10 and 11. It was also found that offence punishable under Section 506(2) of the IPC was proved against accused No. 1 and charge for offence punishable under Section 135 of the Bombay Police Act was held to have been proved by the prosecution against accused Nos. 1, 2, 5, 6, 7 and 11. The trial Court recorded acquittal so far as original accused No. 9 is concerned. 3. Aggrieved by the judgment, original accused Nos. 4, 5 and 10 have preferred Criminal Appeal No. 68 of 2005 and original accused Nos. 1, 2 and 8 have preferred Criminal Appeal No. 332 of 2005, whereas, State of Gujarat has preferred appeal against acquittal of accused No. 9 and rest of the accused for the offences with which they were charged and not convicted. 4. It is thus clear from the above narration that against conviction, only accused Nos. 1, 2, 4, 5, 8 and 10 have preferred appeal and rest of the convicts chose not to challenge the order of conviction. 5. The brief facts of the case are that as per the prosecution case, the accused persons had grievance against victim Devabhai for having enticed away Lachhuben, - daughter of accused No. 1 Budha Uka about 22 years prior to the date of incident i.e. on 9.9.2003. 5. The brief facts of the case are that as per the prosecution case, the accused persons had grievance against victim Devabhai for having enticed away Lachhuben, - daughter of accused No. 1 Budha Uka about 22 years prior to the date of incident i.e. on 9.9.2003. It is the case of the prosecution that following the incident in 1981, the present accused persons had assaulted the victim and had cut his nose and ears for which they were prosecuted, initially convicted, but acquitted in appeal. Keeping further grudge in the mind, the accused persons, on the date of incident i.e. on 9.9.2003, intercepted the deceased and his family members who were travelling in jeep car while going on a pilgrimage. They were intercepted at village Laiyari of Abdasa Taluka of Kachchh district at about 10:30 in the morning by pushing the cattle on the road. It is the case of the prosecution further that the accused persons pulled deceased Devabhai out of the jeep car and assaulted him, as a result of which, he fell down and then accused persons assaulted him again indiscriminately with sticks. The deceased suffered injuries on neck, right ear and chin and died due to profusely bleeding. As per the prosecution case, the incident was witnessed by Panchan Deva Rabari, Jeevaben and Soniben. It is also the case of the prosecution that these witnesses were also assaulted by the group of accused persons and were caused hurt by inflicting lathi blows. 6. Initially, an information was given to the police on telephone that a dead body was lying near the bus stand of village Laiyari. The police went to the place of incident and drew the Inquest Panchnama and Panchnama of place of incident. Thereafter, FIR was lodged at about 2:00 p.m., on the day of incident, with the police and offence was registered and investigated. 7. At the end of investigation, the police found that there was sufficient evidence against 11 accused and therefore, filed charge sheet in the Court of JMFC, Nalia, on basis of which, Criminal Case No. 445 of 2003 came to be registered in respect of I – C.R. No. 8 of 2003 of Vayor Police Station. 7. At the end of investigation, the police found that there was sufficient evidence against 11 accused and therefore, filed charge sheet in the Court of JMFC, Nalia, on basis of which, Criminal Case No. 445 of 2003 came to be registered in respect of I – C.R. No. 8 of 2003 of Vayor Police Station. Learned JMFC, Nalia, in turn, committed the case to the Court of Sessions as the offences were triable exclusively by the Court of Sessions and Sessions Case No. 64 of 2003 came to be registered. 8. The trial Court framed charge at Exh-1 for the offence punishable under Sections 34, 120-B, 147, 148, 149, 302, 323 and 506(2) of the IPC and Section 135 of the Bombay Police Act. All the accused persons pleaded not guilty and claimed to be tried. 8.1 At the end of the trial, the trial Court by judgment dated 24.12.2004 convicted some of the accused for different offences as narrated herein above and acquitted original accused No. 9. 9. Learned Senior Advocate Mr. Barot appears for original accused Nos. 1, 2, 4, 5, 8 and 10 with learned advocate Mr. JM Buddhbhati and learned advocate Mr. YV Brahmbhatt, whereas learned APP Mr. Pandya appears for the State. Learned advocate Mr. Mankad appears for the original complainant. 10. Learned Senior Advocate Mr. Barot appearing for the convict accused states that he does not press the appeal as far as it relates to original accused No. 1. He stated that the State of Gujarat has released original accused No. 1 on 1.5.2010 in celebration of 50 years of the State of Gujarat he having crossed the age of 60 years. He further submitted that rest of the accused are on bail. 11. It is also worth to specifically reiterate that original accused Nos. 3, 6, 7 and 11 have chosen not to challenge the order of conviction as recorded by the trial Court. 12. Learned advocate appearing for the convict accused appellants submitted that the evidence led by the prosecution is not properly established. The three witness, who claimed to be eye-witnesses, cannot be believed to be eye-witnesses at all. They were only chance witnesses and have exaggerated the incident. They have falsely implicated the persons, who might not have been there or who had not participated in the incident. 12.1 Mr. The three witness, who claimed to be eye-witnesses, cannot be believed to be eye-witnesses at all. They were only chance witnesses and have exaggerated the incident. They have falsely implicated the persons, who might not have been there or who had not participated in the incident. 12.1 Mr. Barot submitted that all the witnesses say that after first assault on the deceased, the deceased fell down and thereafter, all the accused persons assaulted him indiscriminately with the help of sticks, whereas, the postmortem report or the Inquest Panchnama does not reveal any marks of injury attributable to stick or similar weapon. 12.2 Mr. Barot submitted further that there is inconsistency about medical evidence as far as it relates to the injury on chin and pina of the deceased. Mr. Barot submitted further that the medical evidence is inconsistent and there are contradictions within. Mr. Barot submitted further that the prosecution has not tendered any evidence to show that the accused persons had prior knowledge about the likely arrival of the victim at the place of incident nor is there any evidence to show that the accused persons had assembled together to form an unlawful assembly with a common objective. He also submitted that there is total lack of evidence to indicate presence of any conspiracy. The trial Court was not justified in convicting the appellants in Criminal Appeal Nos. 68 of 2005 and 332 of 2005. 13. Appeals are opposed to by learned APP Mr. Pandya. Learned advocate Mr. Mankad appears for the original complainant. It was submitted by learned APP Mr. Pandya that there is consistent evidence of three eye witnesses, who have no reason to lie. They have seen the incident with their own eyes and they have described the same, which is corroborated by medical evidence and therefore, the appeals preferred by the accused persons may not be allowed and may be dismissed. Mr. Pandya submitted that the trial Court has ignored the evidence led by the prosecution to show their conspiracy. The trial Court has failed to appreciate the same and has recorded acquittal in spite of the offence of murder so far as accused Nos. 3, 4, 5, 6, 7, 8, 10 and 11 are concerned. Mr. Pandya submitted that therefore, the State appeal may be allowed and the appeal by the convicts may be dismissed. 14. It is submitted that original accused Nos. 3, 4, 5, 6, 7, 8, 10 and 11 are concerned. Mr. Pandya submitted that therefore, the State appeal may be allowed and the appeal by the convicts may be dismissed. 14. It is submitted that original accused Nos. 2 and 8 were released on bail after a lapse of about five years by this Court. Original accused No. 1 was on bail, but has been released from on 1.5.2010 on the occasion of celebration of the Golden Jubilee year of the State of Gujarat. Rest of the accused persons are on bail. 15. We have taken into consideration rival submissions. We have also examined R & P in context of the rival submissions. 16. At the outset, we may observe that the prosecution attributes motive for the incident in question to an incident, which had occurred in 1981 i.e. approximately 22 years prior to the incident. That incident was in respect of enticing away daughter of original accused No. 1 by victim Devabhai. It would also be appropriate to note that pursuant to the incident in 1981, in 1982, the accused persons were alleged to have assaulted deceased Devabhai and to have chopped off his nose and ears, for which they were prosecuted and convicted by the trial Court. However, they came to be acquitted by the Appellate Court. Thereafter, no untoward incident is alleged to have occurred and the victim and his family had shifted to another village. It is therefore, not possible to accept the prosecution case about the alleged motive, which in our view, is a stale incident. 16.1 We are conscious of the fact that when the incident is claimed to have been seen by eye witnesses, the presence and absence of motive pales into insignificance. However, since the prosecution case is founded on this allegation of motive, we hold that the said attribution of motive to the accused cannot be accepted it being too stale a cause. 17. However, since the prosecution case is founded on this allegation of motive, we hold that the said attribution of motive to the accused cannot be accepted it being too stale a cause. 17. The second aspect is that because of the said motive, as per the prosecution case, the accused persons had formed an unlawful assembly, the common object of which was to cause death of Devabhai and therefore, on the day of the incident, they were waiting near the bus stand of village Laiyari and when the victim and his associates reached near the place of incident, the accused persons released a herd of cows on the way of the vehicle of the victim and thereby, caused wrongful restraint and then committed assault on victim Devabhai. 17.1 It would be very important and relevant to deal with this question for the reason that accused Nos. 1, 2 and 8 have been convicted for the offence of murder with the help of Sections 149 and 120-B of the IPC. Similarly, accused Nos. 3, 4, 5, 6, 7, 10 and 11 have been convicted for offence punishable under Sections 147, 148, 149 and 120-B read with Section 341 of the IPC. It is therefore, necessary to examine whether 11 accused persons were acting in furtherance of their common object as a group or not. 18. In above context, if the offence is seen, there is not an iota of evidence to indicate that the accused persons were aware about the possible arrival of the victim and his group at the place of incident. It is also not emerging from the evidence that the time and place, at which the incident occurred, was the usual time and place of arrival of the victim and his group nor it has come in evidence that the victim and his group had planned the visit, which may have come to the notice of the accused persons. On the contrary, it has come in evidence that the victim and his family decided to go on pilgrimage to Momai Mata and that is how they had started. This is not indicated to be a preplanned visit and therefore, there was no source for the accused persons to know about likelihood of the victim and his company arriving at the place and time of incident. This is not indicated to be a preplanned visit and therefore, there was no source for the accused persons to know about likelihood of the victim and his company arriving at the place and time of incident. They therefore, could not have been waiting over there as is sought to be impressed upon by leading evidence that the accused persons were waiting near the bus stand and upon seeing the vehicle, they released the herd of cattle to prevent the victim and his associates from travelling further to facilitate the assault. As held earlier by us, we are of the firm view that the motive attributed for the incident is a very stale cause since after 1982, no incident is alleged to have occurred and therefore, the accused persons cannot be said to have constituted an unlawful assembly and to have acted in furtherance of the common object. The conviction of the appellants therefore, with the help of Sections 147, 148 and 149 of the IPC, cannot be upheld. 19. In light of what is discussed herein above, conviction of the appellants with the help of Section 120-B of the IPC also cannot be upheld since the cause for conspiracy is too stale and there is no evidence to indicate even a cause for the appellants to conspire against the victim and his company. 20. As per the prosecution, the incident was witnessed by P.W. 1 Panchan Deva, P.W. 4 Jeevaben and P.W. 7 Soniben. These three eye-witnesses attribute accused No. 1 with a dhariya, accused No. 2 with an axe and accused No. 8 with a knife. The medical evidence is in the form of postmortem note and medical certificate, besides the evidence of two Doctors, who are P.W. 2 and P.W. 3 i.e. Dr. Akhilesh Mishra and Dr. Naresh Solanki respectively. 21. The evidence of the eye witnesses, if examined, would go to show that victim Devabhai and his associates reached the place of incident in a jeep car. The accused persons were waiting near the bus stand and they released the herd of cow on the path of the jeep car. The jeep car therefore, was required to be stopped and was surrounded. Thereafter, the accused persons pulled the victim out of the jeep and assaulted him with dhariya, axe and knife. The accused persons were waiting near the bus stand and they released the herd of cow on the path of the jeep car. The jeep car therefore, was required to be stopped and was surrounded. Thereafter, the accused persons pulled the victim out of the jeep and assaulted him with dhariya, axe and knife. He therefore, fell down and upon the victim falling down to the ground, the remaining accused persons, who were armed with sticks, committed an indiscriminate assault on the victim Devabhai. 22. Before dealing with the evidence in respect of the assault on victim Devabhai, it would be appropriate if the case of the prosecution and the evidence led in respect of the assault on the witnesses is examined. 22.1 All the witnesses i.e. P.W. 1 Panchan Deva, P.W. 4 Jeevaben and P.W. 7 Soniben came out with a theory that the accused persons assaulted them with sticks. They were taken to the doctor and treated by him. Dr. Mishra – P.W. 2 has stated in his deposition that he found no traces of any injury attributable to stick i.e. hard and blunt substance. All that was found upon examination of the witnesses was the complaint of pain and tenderness, and the findings of the doctor were on basis of the complaint made by the patients and not on basis of clinical examination. The say of the witness is that they were assaulted by the accused persons with sticks when they tried to rescue the main victim who was being assaulted by accused Nos. 1, 2 and 8. The accused persons belonged to Rabari community, members of which are well known for their ability in the use of sticks. It is therefore, not possible for us to reconcile as to why there are no marks of any external injuries attributable to stick. 23. Known canons of interpretation of evidence are that the duty of the Court is to separate truth from untruth and accept what is found to be truthful and reject what is found to be untruthful. In this exercise, it is prudent for a Court to look for some corroboration, which may lend credence to a version of the eye witness and what could be a better corroboration than medical evidence, which would be a self speaking contemporaneous evidence. In this exercise, it is prudent for a Court to look for some corroboration, which may lend credence to a version of the eye witness and what could be a better corroboration than medical evidence, which would be a self speaking contemporaneous evidence. In our view, therefore, the evidence of eye-witnesses P.W. 1 Panchan Deva, P.W. 4 Jeevaben and P.W. 7 Soniben does not inspire confidence so far as it relates to involvement of accused Nos. 3, 4, 5, 6, 7, 8, 9, 10 and 11. 24. It is further the case of the eye-witnesses Pachan Deva, Jeevaben and Soniben that the victim suffered external injury No. 3 on chin with axe. It is the case of the appellants that axe was blunt and therefore, the injury, as is recorded in the postmortem note, could not have been caused with such weapon, more so, when doctor has so deposed. However, if the evidence of discovery of weapon axe is seen, the Panchnama reveals that the axe was sharp edged when it was seized. The witness to such seizure or discovery, in his deposition has given a version which does not inspire confidence. In the first breath, he says that the weapon was not sharp edged, but it was sharp edged when it was seized. In the next breath, he says that the weapon was edged, but there is rust on it. 24.1 The medical evidence, in this context, is that if an injury on chin is caused by forceful use of axe, the nature of injury would be different and not of a nature which was found and recorded while conducting the postmortem by the doctor. In this context, it may also be noted that the medical evidence of Dr. Solanki is to the effect that the injuries found on neck, ear and chin of the deceased were with the same weapon and that injury No. 3 on the chin could not have been caused with muddamal article axe. The version of the eye-witnesses in respect to the role attributed to accused No. 2 therefore, gets falsified and cannot be accepted with confidence as truth. In these circumstances, the benefit of doubt has to go to accused No. 2. 25. So far as accused No. 8 is concerned, he is alleged to have used knife for causing injury on the right pina of the deceased. In these circumstances, the benefit of doubt has to go to accused No. 2. 25. So far as accused No. 8 is concerned, he is alleged to have used knife for causing injury on the right pina of the deceased. The doctor, in his evidence, says that injury No. 1 i.e. on the right pina, injury No. 2 i.e. on the neck and injury No. 3 i.e. on chin were all possible with the same weapon. It has also come in his evidence that the injury on neck was attributable to muddamal dhariya. If that being so, the evidence of eye-witnesses in the context of involvement of accused No. 8 also becomes doubtful. 26. The evidence of eye-witnesses does not inspire confidence for one more reason. As per the evidence of Dr. Solanki while preparing postmortem report, he noticed that the penis of the deceased was cut and none of the eye-witnesses speak anything about any assault of such nature by anyone of the accused. In our view, such assault could not have gone unnoticed by the eye-witnesses when they are giving details as to how the incident occurred, which assault first, which assault later. This also renders the evidence of eye-witnesses weak. 27. Accused Nos. 1, 2, 5, 6, 7 and 11 are convicted under Section 135 of the Bombay Police Act. Dhariya is attributed to accused No. 1, axe is attributed to accused No. 2 and sticks are attributed to others. In our view, when the version of the eye-witnesses is found to be not reliable, the conviction of the above appellants cannot be upheld. 28. For the foregoing reasons, we find that conviction of accused Nos. 2, 3, 4, 5, 6, 7, 8, 10 and 11 cannot be upheld. The evidence in respect of accused No. 9 is virtually nil. His acquittal therefore, is well founded. In the result, appeal by original accused Nos. 4, 5 and 10 being Criminal Appeal No. 68 of 2005 deserves to be allowed. 28.1 Criminal Appeal No. 332 of 2008 by original accused Nos. 1, 2 and 8 deserves to be partly allowed in respect of original accused Nos. 2 and 8, whereas appeal by original accused No. 1 is not pressed by learned advocate for the appellants. 29. The foregoing discussions would go to show that the acquittal recorded by the trial Court cannot be interfered with. 1, 2 and 8 deserves to be partly allowed in respect of original accused Nos. 2 and 8, whereas appeal by original accused No. 1 is not pressed by learned advocate for the appellants. 29. The foregoing discussions would go to show that the acquittal recorded by the trial Court cannot be interfered with. The State Appeal being Criminal Appeal No. 424 of 2005 is devoid of merits and deserves to be rejected. 30. In the result, Criminal Appeal No. 68 of 2005 is allowed. Conviction of appellants – original accused No. 4 Hira Asha Rabari, original accused No. 5 Rama Asha Rabari and original accused No. 10 Pachan Soma Rabari is hereby set aside and they are acquitted of the charges levelled against them. Since they are on bail, their bail bonds shall stand cancelled. 30.1 Criminal Appeal No. 332 of 2005 is partly allowed. Appeal so far as original accused No. 1 Budha Uka Rabari is not pressed by learned advocate for the appellants, whereas conviction of original accused No. 2 Umara Budha Rabari and original accused No. 8 Habhu Khengar Rabari is hereby set aside and they are acquitted of the charges levelled against them. Since they are on bail, their bail bonds shall stand cancelled. This appeal is accordingly party allowed. 30.2 Criminal Appeal No. 424 of 2005 stands dismissed. P P P P P