KUNDAN SINGH, J. ( 1 ) THESE two appeals by Rama and Puran arise out of a common judgment and order dated 24. 6. 1981 passed by Sri P. C. Srivastava, the then Additional Sessions Judge, Gyanpur, district Varanasi, in Sessions Trial No. 54 of 1980, whereby Puran has been convicted under sec. 302 I. P. C. and Rama under Section 302/34 I. P. C. and each of them has been sentenced to imprisonment for life. Sri A. K. Dwivedi, learned counsel for the complainant, informed that Puran appellant has died and on that statement of the counsel of the complainant his appeal was abated. ( 2 ) A brief resume of facts giving rise to the present appeals is as under: On 12. 1. 1980 at about 2. 00 P. W. Gulab Chand, brother of Pushkar Nath Shukia informant, was going to ease himself near a pond in village Bhawanipur within police station Orai, district Varanasi. When he was in the way on northern side of the pond opposite to the house of Jhingur Teli he was detained and abused by Rama appellant. At that time Puran was accompanying Rama, Gulab Chand asked him not to abuse and shouted for his brother, the informant, who at that juncture was sitting and talking to Devi Shankar Dubey and Kripa Shankar Dubey in front of his house. All of them rushed towards Gulab Chand but in the meantime Rama instigated Puran to shoot Gulab as he had old enmity with him. On the exhortation of Rama Puran took out a country made pistol from the fold of his Dhoti and fired two shots with an intention to kill Gulab Chand, which hit him and caused two gun shot wounds. He was then taken to Gopichand Hospital where first aid was given to him by the Doctor but he referred him to Kabir Chaura Hospital, Varanasi, as his condition was precarious. Kripa Shankar Dubey and Devi Shankar Dubey then took him to the Hospital at Varanasi, while Pushkar Nath, Shukla went to police station Orai where he lodged an F. I. R. at 4. 10 P. M. on 12. 1. 1980. Trijugi Narain, Sub Inspector (P. W. 5) after registration of the case under Sec. 307 I. P. C. recorded statement of the informant under Sec. 161, Cr. 10 P. M. on 12. 1. 1980. Trijugi Narain, Sub Inspector (P. W. 5) after registration of the case under Sec. 307 I. P. C. recorded statement of the informant under Sec. 161, Cr. P. C. when he came out of the Thana in order to proceed to the place of occurrence, he found Gulab Chand lying in a Taxi parked outside the Police Station and hence before leaving to village Bhawanipur he recorded his statement at the Thana under Sec. 161 Cr. P. C. as his condition was precarious. He also recorded the statement of Rama v. State of U. P. Kripa Shankar there and thereafter proceeded to village Bhawani put to make investigation, after sending the injured to Hospital. In village Bhawanipur he recorded statement of the remaining witnesses under Sec. 161 Cr. P. C. and completed other necessary formalities in connection with the investigation. ( 3 ) GULAB Chand died in the Hospital at Varanasi at about 1. 30 in the night on 13. 1. 1980 and on receipt of that information the case was converted into one under Section 302 I. P. C. The autopsy on the dead body of Gulab Chand was conducted by Dr. J. K. Singh (P. W. 1) at 3. 30 p. m. on 13. 1. 1980, who found four gun shot wounds and two abraded contusions on his body Satya Narain, Station officer, completed the remaining investigation in the case and submitted charge sheet against both the accused. ( 4 ) THE prosecution examined seven witnesses in all to prove its case. Out of them Kripa Shankar (P. W. 2) and Pushkar Nath Shukla (P. W. 3) were examined as eye witnesses of the incident, while others were of normal character. ( 5 ) RAMA Appellant denied the prosecution version and stated that he has been falsely implicated due to previous enmity Kripa Shankar (P. W. 2) is brother-in-law (Bahnoi) of Pushkar Nath, while the latter is real brother of the deceased. ( 6 ) THE learned Session Judge after going though the evidence on record held both Rama and Puran guilty of the charges levelled against them and accordingly he convicted and sentenced them as above. ( 6 ) THE learned Session Judge after going though the evidence on record held both Rama and Puran guilty of the charges levelled against them and accordingly he convicted and sentenced them as above. ( 7 ) THE learned counsel for the appellant contended that the prosecution has examined only two witnesses of that factual incident, namely Kripa Shankar Dubey and Pushkar Nath Shukla, who were highly interested and inimical to the appellant. Their evidence is false and totally unreliable whereas evidence of independent witnesses has been withheld by the prosecution. It was also contended that the only role assigned to Rama appellant was that of exhortation while the main offence under Sec. 302 I. P. C. was committed by Puran appellant, who as stated above, has died and his appeal has been abated. He further contended that the role of instigation assigned to Rama is not substantiated by the evidence on record. ( 8 ) WE have gone through the entire evidence on record and given our anxious thought to the arguments advanced by both the sides. Since the only role assigned to appellant Rama is that of exhortation, therefore, we have to prove into the question whether the role of exhortation assigned to the appellant is substantiated by the evidence on record. The Investigating Officer took blood stained earth from point Ta of the Rasta which lies to the north-west of point B in front of the house of the informant where the witnesses were sitting and chatting when they heard cries of deceased, as indicated in the site plan prepared by the Investigating Officer. Puran who is now dead fired shots at the deceased Gulab Chand on the exhortation of appellant Rama at place "a". Kripa Shankar (P. W. 2) deposed in court that at the time when Rama instigated his cohort; he and his companions were at a distance of 60 or 65 paces away from Gulab Chand and they heard instigation of Ram there. In our opinion, Rama was not expected to give instigation to his companion in such a loud voice which could be over heard by the witnesses at a long distance of 50 or 60 paces. In that connection another question that germinates for our consideration is whether at that juncture any exhortation was needed for commission of the crime. In our opinion, Rama was not expected to give instigation to his companion in such a loud voice which could be over heard by the witnesses at a long distance of 50 or 60 paces. In that connection another question that germinates for our consideration is whether at that juncture any exhortation was needed for commission of the crime. According to the prosecution, both the accused reached the place of occurrence together and killing of Gulab Chand was a concerted plan. The shots were fired by Puran as he had the country made pistol. At the most appellant Rama was to point out the person who has to be eliminated. We think, there was no occasion or necessity for appellant Rama to exhort his companion so loudly which could be over heard by the witnesses and 9ther villagers for enabling them to come on the spot and recognize, the assailants. Moreover, the witnesses were sitting at point B as indicated in the site plan, which was at a distance of 145 and 160 steps from the Rastas shown by letters Ra Ma La and Ba Aa Ba Sa. respectively, which about the point a where the deceased was shot at. It is not thinkable that the accused kept on abusing the deceased till the arrival of the witnesses from a distance of 140 or 160 steps and then Rama instigated his companion to shoot Gulab Chand. No overt act has been assigned to Rama accused except that of exhortation. In our opinion, the evidence of exhortation brought on record by the prosecution falls short to sustain the conviction of the appellant in view of the following observations of the Supreme Court in the case of Jainul Haque v. State of Bihar: It has also found that the eye witnesses were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abatement can be recorded against thy person alleged to have exhorted the actual assailant. ( 9 ) NOW adverting to the dying declaration it may be mentioned that it has been recorded by the Investigating Officer himself and not by any Magistrate or the Doctor in Gopiganj Hospital or Kabir Chaura Hospital at Varanasi. The learned Session Judge has rightly discarded that dying declaration for valid reasons and that point need not detain us to record and reiterate the same reasons which have impelled the learned Sessions Judge to reject the dying declaration. ( 10 ) SO far as the presence of Kripa Shankar Dubey (P. W. 2) on the spot is concerned, at that time he was a servant of Daya Shankar, Advocate, at his brick-kilns. He is alleged to gone to Gulab Chand in connection with his employment, which he assured to him. He is brother-in-law of the deceased. The statement that he gave in court was not given by him to the Investigating Officer that he went to village Bhawanipur from that Brickkiln. Therefore, there is doubt about his presence in village Bhawanipur at the time of incident. ( 11 ) PUSHKAR Nath Shukla (P. W. 3) is real brother of the deceased. The learned Session Judge has given reason that he had confused about the direction of place of the occurrence. Various villagers have allegedly come on the spot on hearing noise and report of shots but none of them has been examined by the prosecution. Only closely related persons, who were highly interested and had an animus against the accused have been examined to prove the prosecution case whose evidence is not convincing and their presence on the spot at the time of incident is also doubtful. ( 12 ) IN view of the foregoing discussion, we are not inclined to place an implicit reliance on the testimony of partisan and highly interested witnesses. ( 12 ) IN view of the foregoing discussion, we are not inclined to place an implicit reliance on the testimony of partisan and highly interested witnesses. Their evidence is not clear, coherent and reliable about the role of exhortation of Rama appellant, which in our view, was not needed at all in the pre planned commission of the crime. The possibility of false implication of Rama appellant in the present case due to previous enmity cannot be ruled out. ( 13 ) ACCORDINGLY, the appeal succeeds and is hereby allowed. The conviction and sentence of the appellant as passed by the learned trial Judge are set aside. The appellant is on bail. He need not surrender and his bail bonds are cancelled and sureties discharged. Appeal allowed. .