J. C. GUPTA, J. ( 1 ) THE present appeal has been filed against the judgment and order dated 22-5-1980 passed by the then Additional Session Judge, Fatehpur in Session Trial No. 244 of 1979 convicting appellant No. 1 under Section 302, I. P. C. and appellant No. 2 under Sections 302/34, I. P. C. and sentencing each of them to imprisonment for life. ( 2 ) AT the outset it may be mentioned that as far as appeal of appellant No. 1 Munni is concerned, the same has abated on account of his death during the pendency of appeal. ( 3 ) THE incident in question relates to 25-5-1978 and it is alleged that on that day at about 10 P. M. Majhil Singh P. W. 1, his deceased brother Kallu Singh and Km. Keta daughter of the deceased were irrigating their fields from the tubewell, which had light of an electric bulb. At that hour the appellant No. 1 Munni Pandit armed with a gun and Mithauri with a country-made pistol along with two unknown persons who were armed with lathi came near the field of Majhil Singh. On seeing Kallu Singh, accused Mithauri exhorted Munni Pandit whereupon the latter fired a shot from his gun which hit Kallu Singh causing injuries in the right side of his abdomen and right hand. Surat Singh P. W. 3 who was sleeping in the adjoining field also woke up due to the sound of fire and saw the accused persons while they were taking to their heels. ( 4 ) MAJHIL Singh P. W. 1 took injured Kallu Singh to Police station Kotwali and lodged written report Ex. Ka. 1 at 3. 15 A. M. On the basis of the written report case was registered and investigation started. Kallu Singh was sent to District Hospital. Fatehpur where he was medically examined by Dr. B. R. Bajpai P. W. 7 at 5. 00 A. M. He found a number of gun shot injuries on the person of Kallu Singh with two exit wounds. ( 5 ) SINCE the condition of Kallu Singh was serious, Tehsildar, Fatehpur was called to the hospital where at 6. 45 A. M. he recorded the Dying Declaration of Kallu Singh. Thereafter Kallu Singh was shifted to L. L. R. Hospital, Kanpur where he succumbed to his injuries at 8 A. M. on 30-5-1978. ( 5 ) SINCE the condition of Kallu Singh was serious, Tehsildar, Fatehpur was called to the hospital where at 6. 45 A. M. he recorded the Dying Declaration of Kallu Singh. Thereafter Kallu Singh was shifted to L. L. R. Hospital, Kanpur where he succumbed to his injuries at 8 A. M. on 30-5-1978. Autopsy was conducted on the dead body of Kallu Singh on 30-5-1978 by Dr. R. P. Verma P. W. 10 and in his opinion death of Kallu Singh occurred due to shock and haemorrhage as a result of ante mortem injuries of gun shot. It may be mentioned here that in addition to gun shot injuries Dr. Verma also found one lacerated wound measuring 10 cm x 6 cm x 51/2 cm upper half right forearm and also an incised wound 10 cm x 5 cm x 51/2 cm on back side corresponding to injury No. 5. After completion of investigation, charge sheet was submitted against both the accused. Both the accused pleaded not guilty to the charges framed against them and claimed trial. ( 6 ) PROSECUTION produced in the trial Court ten witnesses in all. Out of the witnesses examined Majhil Singh P. W. 1 Km. Keta P. W. 2 and Surat Singh P. W. 3 are witnesses of fact. The dying declaration of the deceased has been proved as Ex. Ka. 6 by Sri B. C. Dixit, Tehsildar P. W. 5. ( 7 ) BOTH the accused in their statements recorded under Section 313, Cr. P. C. stated of their false implication at the instance of Praduman Narain Singh Advocate who bore enmity against them. In defence they produced Sri Rajendra Pratap Gautam of the office of State Electricity Board, Fatehpur who stated that on 10-12-1977 supply of power energy to the tubewell in question was disconnected on the application of Kallu Singh deceased and it had not been restored up to the date of incident. ( 8 ) WE have heard learned counsel for the appellants and the learned A. G. A. ( 9 ) LEARNED counsel for the appellant submitted before us that the conviction of the appellant No. 2 is not sustainable from the evidence on record and the possibility of the dying declaration being the result of tutoring is not ruled out. ( 8 ) WE have heard learned counsel for the appellants and the learned A. G. A. ( 9 ) LEARNED counsel for the appellant submitted before us that the conviction of the appellant No. 2 is not sustainable from the evidence on record and the possibility of the dying declaration being the result of tutoring is not ruled out. It has also been submitted by him that in any view of the matter the dying declaration rules out the role of exhortation assigned to this appellant. ( 10 ) WITH the dismissal of appeal of appellant No. 1 Munni Pandit, the main assailant, the only question which we are required to answer is whether conviction of the appellant No. 2 Mithauri with the aid of Section 34, I. P. C. is sustainable from the evidence on record. To make this appellant vicariously liable, the only allegation made against him is that he exhorted co-accused Munna Pandit to kill the deceased whereupon the latter fired a shot on the deceased. ( 11 ) TO prove the case against appellant No. 2 Mithauri the prosecution has relied on the testimony of three witnesses namely, Majhil Singh P. W. 1, Km. Keta P. W. 2 and Surat Singh P. W. 3 and also on the dying declaration of the deceased Ex. Ka. 6 recorded by the Magistrate Sri Bipin Chandra Dixit, P. W. 5. ( 12 ) P. W. 1 Majhil Singh and P. W. 3 Surat Singh are real brothers of the deceased while Km. Keta P. W. 2 is his daughter. P. W. 1 Majhil Singh admitted in his statement before the Court that he was prosecuted and convicted in a Cycle theft case and in that Sukhdev Pandey, the father of appellant Mithauri, appeared as a witness against him and since then he was nurturing ill with against him. It is, therefore, evident that all the prosecution witnesses produced at the trial were interested and inimical to accused Mithauri. In this view of the matter and having regard on the role assigned to appellant Mithauri in an incident which occurred during night hours, the testimony of these witnesses require careful and cautions scrutiny and a minute analysis. ( 13 ) NOTHING has been brought on record in the prosecution evidence that appellant Mithauri had any affinity or connection with the deceased appellant Munni Pandit. ( 13 ) NOTHING has been brought on record in the prosecution evidence that appellant Mithauri had any affinity or connection with the deceased appellant Munni Pandit. The motive for committing the murder of Kallu Singh alleged by the prosecution was only against Munni Pandit as it is said that 4-6 days prior to the murder of Kallu Singh, the electronic motor of the tube well of Majhil Singh got damaged at the hands of one Budhai. Majhil Singh asked Budhai to compensate the loss whereupon accused Munni Pandit came forward and assured on behalf of Budhai that if he (Budhai) did not pay the money, he would reimburse but he paid nothing to the deceased inspite of his repeated demands. In this connection even an altercation has taken place between the deceased and accused Munni Pandit only and not with Mithauri appellant. Before the trial Court P. W. 1 Majhil Singh further alleged that he had taken some loan from Co-operative Society which had been paid back by him but Khanna the Sarpanch of the Co-operative Society continued to make a demand from him. He admitted that this Khanna alias Kamta Prasad is the uncle of accused Munni Pandit. Prior to the incident some quarrel had taken place between Majhil Singh, Munni Pandit and Khanna. He further stated that about one and half years prior to the date of incident accused Munni Pandit and Khanna had come to his door and asked him not to install the tube well and on this score also some altercation had ensued between him, Munni Pandit and Khanna. The appellant Mithauri was not in picture at all till this stage. It would thus appear that no motive whatsoever has been alleged by the prosecution witnesses against accused-appellant Mithauri. On the other hand the First Informant Majhil Singh had a strong motive to falsely implicate appellant Mithauri as he was convicted on the basis of evidence given by appellants father in a cycle theft case. The First Informant thus must be fostering a persistent vindictive feeling against Mithauri and might be waiting for a suitable occasion to take revenge for all what the appellants father had done to him on account of which he had to face conviction and humiliation. ( 14 ) AS already stated above the allegation against the appellant is that he had exhorted co-accused Munni Pandit to kill the deceased. ( 14 ) AS already stated above the allegation against the appellant is that he had exhorted co-accused Munni Pandit to kill the deceased. Our experience tells that there is a tendency amongst the villagers to add as many persons as possible in addition to the real culprit or culprits against whom the First Informant or other witnesses may be having enmity or prejudice and one of the easiest way of implicating them is to assign the role of exhortation. In a case where First Informant is highly inimical to the accused, the evidence adduced with regard to the allegation of exhortation is considered as a very weak type of evidence and unless the Court is fully satisfied with the truthfulness of the allegation, it would not be safe to base conviction because the possibility of false implication in such cases is increased many fold. In the present case the allegation made in the F. I. R. against Mithauri appellant was that he along with co-accused Munni Pandit arrived at the scene of occurrence when the deceased was irrigating his field from his tube well. Accused was armed with a gun and as soon as he arrived, he said to his associate. " It is he who demands money, today he be paid his money. " It is said that on this saying, co-accused Munni Pandit fired from his gun upon Kallu Singh. In his statement recorded at the trial however the First Information P. W. 1 Majhil Singh deposed that the appellant after his arrival at the scene of occurrence uttered," today we have brought money, take it. " In cross-examination he reiterated that excepting the above words Mithauri did not utter any other words nor he did any other thing P. W. 2 Km. Keta stated a different story by saying that all the four culprits came close to Kallu Singh and Mithauri said," Yahi hai", upon this Munni Pandit fired upon the deceased. She further contradicted P. W. 1 Majhil Singh on the point of weapon which the accused Mithauri is alleged to be carrying at the time of incident because as per the F. I. R. and statement of P. W. 1 Majhil Singh appellant Mithauri was having a gun while according to Smt. Keta P. W. 2 this accused was holding a country-made pistol and not a gun. Moreover her presence at the scene of occurrence is rendered highly doubtful in view of the admission made by P. W. 1 Majhil Singh in his cross-examination. Majhil Singh in specific words stated that Km. Keta was called from the village after the firing was over. He further stated that his village was removed by about one mile from the place of occurrence. Km. Keta P. W. 2 admitted in her cross-examination that when her uncle Surat Singh P. W. 3 arrived at the scene of occurrence after the incident, she did not tell him the names of accused persons including Mithauri. Had Mithauri been present amongst the killers, in a natural course she would have told his name to her own uncle particularly when her family was on inimical terms with this accused as her own uncle Majhil Singh had earlier been got convicted by appellants father. This behaviour of P. W. 2 Km. Keta in not disclosing the name of accused Mithauri at the earliest opportunity cannot be ignored as insignificant and is most inconsistent with natural human conduct which goes a long way to support the submission of learned counsel for the appellant that the name of accused Mithauri was introduced by the maker of the F. I. R. Majhil Singh who was highly inimical to the appellant and his father. P. W. 2 Km. Keta also categorically admitted that there was old enmity of her family members with the accused and on account of this animosity she has deposed before the Court. ( 15 ) THE claim of P. W. 3 Surat Singh to have seen the fleeing accused while they were making their escape good is not free from doubt. As per his own statement at the trial, he was sleeping in his own field and he woke up on the cries of his father and brother. P. W. 2 Km. Keta admitted that the field of Surat Singh P. W. 3 where he was sleeping was removed by 2-3 fields from her fathers tubewell. In the site plan Ex. Ka. 10 prepared by the investigating officer, the field where Surat Singh was sleeping is shown to be situated in the east of the place of occurrence. According to the witnesses the assailants after firing only one shot ran towards north. In the site plan Ex. Ka. 10 prepared by the investigating officer, the field where Surat Singh was sleeping is shown to be situated in the east of the place of occurrence. According to the witnesses the assailants after firing only one shot ran towards north. As per the statement of P. W. 3 Surat Singh when he first saw the assailants he was on the north-eastern corner of his field. It is thus highly doubtful if this witness, who got up after hearing the sound of fire, would have been able to identify the assailants particularly when they were running towards north and his field was situated in the east of the place of occurrence removed by 2-3 fields. In any view of the matter since this witness merely claimed to have seen accused fleeing, he could not have any occasion to witness the alleged exhortation role assigned to the appellant. It may be noted here that when he arrived at the place where Kallu Singh was shot and met P. W. 1 Majhil Singh, the latter did not tell him that Mithauri appellant had exhorted Munni to kill the deceased. The oral evidence of the prosecution witnesses so far as the same relates to the role of exhortation is throughout inconsistent and is not of such a character on which implicit reliance could be placed. ( 16 ) WE, therefore, find that so far as the allegation of exhortation assigned to the appellant is concerned, the evidence of these prosecution witnesses apart from being partisan and highly interested is most inconsistent and full of unnaturalities and is not capable of being acted upon for holding the appellant Mithauri guilty of the offence charged for. ( 17 ) MUCH reliance has been placed by the learned Sessions Judge and stress has also been laid by the learned A. G. A. on the dying declaration of the deceased, Ex. Ka 6 recorded by Magistrate Sri B. P. Dixit P. W. 5. It was recorded on 26-7-78 at 6. 45 A. M. Prior to it the F. I. R. of the case had already been lodged at 3. 15 A. M. by P. W. 1 Majhil Singh who was having direct enmity with the appellant Mithauri which we have already pointed out above. It was recorded on 26-7-78 at 6. 45 A. M. Prior to it the F. I. R. of the case had already been lodged at 3. 15 A. M. by P. W. 1 Majhil Singh who was having direct enmity with the appellant Mithauri which we have already pointed out above. It is in the evidence that when Majhil Singh went to lodge the report at the police station Kallu Singh also accompanied him and both of them went together from the police station to hospital. The injuries of Kallu Singh were medically examined by Dr. Bajpai P. W. 7 at 5 A. M. It is thus clear that the deceased remained in the company of Majhil Singh for nearly about seven hours. The Magistrate Sri Dixit P. W. 5 in cross-examination stated that he did not remember if any family member of the deceased was also present there as attendant of Kallu Singh, injured. He further stated that he was not sure if he had got removed all the persons who were present near Kallu. Therefore the possibility of the name of appellant Mithauri having come in the dying declaration on account of tutoring is not completely ruled out. Rather the same inference is easily deducible from the tenor of the dying declaration itself. As per the dying declaration, the deceased after setting the tube well motor in motion sat down for about 10-15 minutes and then went to take his bath. There he heard barking of 2-3 dogs and saw 2 persons moving there. He asked them where they were going. Those persons then inquired from him about the way leading to Ramwa Village. The deceased told them that they have already left behind that path. The said persons then asked his name and when he disclosed his identity, one of them fired upon him and the other simply said "run, the shot has struck". The person who fired on him was Munni Pandit and the other was Mithauri. A close examination of Dying Declaration Ext. Ka. 6 would thus indicate that the miscreants were not knowing Kallu Singh by face nor the deceased himself was knowing, those miscreants. It is only when they confirmed his identity by asking his name he was fired upon. The deceased was very well known to Mithauri appellant as he belonged to his own village. Ka. 6 would thus indicate that the miscreants were not knowing Kallu Singh by face nor the deceased himself was knowing, those miscreants. It is only when they confirmed his identity by asking his name he was fired upon. The deceased was very well known to Mithauri appellant as he belonged to his own village. If Mithauri was amongst those two persons, there was no occasion for them to enquire from Kallu Singh as to what his name was? Such query could only be made when the deceased was a stranger to the miscreants. It is also worthwhile to mention here that as per the dying declaration only Km. Keta P. W. 2 was present at the time of the incident whereas her presence at the moment is rendered highly doubtful in view of the statement of P. W. 1 Majhil Singh made before the trial Court that at the time when shot was fired upon Kallu Singh, Km. Keta was present in the village from where she was called after the incident. For all these infirmities, the possibility of the dying declaration being the result of tutoring is not completely ruled out. In any view of the matter even from the dying declaration the role of exhortation assigned to the appellant is not made out as the deceased has not assigned any role of exhortation to appellant-Mithauri. ( 18 ) AN accused can be convicted only when the Court is in a position to come to a definite conclusion beyond reasonable doubt that the accused committed the offence. The effect and weight of the material and evidence relied on by the prosecution to fasten the guilt of appellant Mithauri falls below the standard required to be achieved by the prosecution agency to demand conviction. We, therefore, feel it appropriate to given benefit of doubt to appellant-Mithauri and allow his appeal. ( 19 ) FOR the foregoing reasons which we have given, the appeal of Munni Pandit is dismissed as abated while the appeal of appellant No. 2 Mithauri is allowed and his conviction and sentence recorded by the learned Additional Sessions Judge are set aside and he is acquitted of the offences charged for. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. Order accordingly. .