Amar Saran & Sunita Agarwal,JJ. This criminal appeal has been preferred against the judgement of the Additional Sessions Judge/Special Judge, Fatehpur dated 5.2.1983, convicting and sentencing the appellants Girja Shankar alias Ram Shankar, Virendra, Anant Swarup and Satya Brat alias Poori Lal, under section 302/34 I.P.C to imprisonment for life. The appellant Virendra has also been convicted to six months RI under section 25 of the Arms Act. 2. As the appellants Girja Shankar alias Ram Shankar and Satyabrat alias Poori Lal have died and a report confirming their deaths was received from the Court below, the appeals preferred by the said appellants were made to abate by an earlier order dated 23.3.2012. Now only the appeal against the appellant Virendra and Anant Swarup survives. 3. This case was listed peremptorily today, as learned counsel Sri G.P. Dixit had not appeared on the previous occasion and it was a very old matter. Even today when the case was called out in the revised list, the learned counsel has chosen not to appear. In view of the law laid down in Bani Singh Vs. State of U.P (1996) 4 SCC 720 and K.S. Panduranga Vs. State of Karnataka, 2013 (3) SCALE 152, we propose to hear and decide this appeal after hearing learned A.G.A and after perusing the trial court judgement and record. 4. The prosecution case was that on 7.3.1979, there were 107 Cr.P.C proceedings in Tehsil Khaga between the parties. After that the informant Digvijay Singh had gone along with the deceased to his house. The informant accompanied by the deceased Munna Singh and the witnesses Rahmat Ali and Imamuddin were proceeding to the post-office in Khaga. At about 11.40 a.m, the four accused persons arrived crying out that they had met the enemy and he should be murdered. Then the appellant Virendra Singh fired with a country made pistol on the chest of Munna Singh whereas Satyabrat fired with his gun on the back of the head of Munna Singh causing his death. The witnesses tried to apprehend the accused persons but they ran away as the accused Anant Swaroop kept threatening them that if any one came forward, he would meet the same fate as Munna Singh. PW 1 Digvijay Singh an uncle of the deceased, lodged the report at police station Khaga, 3 miles away, on the same day at 12.30 P.M. 5. PW 1 Digvijay Singh an uncle of the deceased, lodged the report at police station Khaga, 3 miles away, on the same day at 12.30 P.M. 5. PW-8 SI Sadanand Rai was present at the police station when the report was lodged by the informant. The check report was taken down by HM Brahm Deo Singh. After examining the informant, he proceeded to the spot. Thereafter SI PW-6 Ram Pal Rawat completed the inquest proceedings on the dead body of the deceased and after completing other formalities, the dead body was sent for post-mortem. The post-mortem was conducted by PW-5 Dr. J.S. Rai on 8.3.1979 at 1.00 P.M. He found the following ante- mortem injuries on the body of deceased: 1. Gun shot wound of entrance 1 " x 1" x brain cavity deep. Margins lacerated, inverted, on left side of back of skull 3" below the left ear. Blackening present. All bones of skull are fractured. Brain matter coming out. Bones come out of the skull in pieces. Direction from left to right. 2. Gun shot wound of exit 1/3" x 1/3" x brain cavity deep on right side of forehead 3/4" above outer end of right eye brow. No blackening seen. Margins lacerated, and everted. 3. Gun shot wound of entrance 1" x1" x cavity deep, front of abdomen in epigastric region, 6" from the right nipple, 5" above umbilicus. Margins lacerated, inverted. Blackening tattooing present. 4. Gun shot wound of exit 1 1/3" x 1/14 x cavity deep on the left side of thorax 1 1/2" below and outward to inferior angle of left scapula. Margins lacerated and everted. 6. The cause of death was due to shock and haemorrhage as a result of ante-mortem injuries. 7. Apart from the formal witnesses, the prosecution has examined three witnesses PW-2 Digvijay Singh, PW-3 Rahmat Ali and PW-4 Imamuddin. PW-3 Rahmat Ali and PW-4 Imamuddin have turned hostile and have not supported the prosecution case. 8. We thus have only the evidence of PW-2 Digvijay Singh, the informant. He deposes that on the date of incident, he had gone to Khaga as there was a date fixed in the proceedings under section 107/116 Cr.P.C. between the two parties before the S.D.O Khaga. There were cross proceedings against both the sides. In the 107/116 Cr.P.C case, State Vs. He deposes that on the date of incident, he had gone to Khaga as there was a date fixed in the proceedings under section 107/116 Cr.P.C. between the two parties before the S.D.O Khaga. There were cross proceedings against both the sides. In the 107/116 Cr.P.C case, State Vs. Sarjoo Prasad, Anant Swaroop, Satya Brat, Virendra Singh and 8 others were arrayed as the opposite party, and in the case, State Vs. Drig Vijai Singh, Drig Vijay Singh, Munna Singh (deceased), the witness Imamuddin and 10 others were shown as the opposite party. In both the cases 7.3.1979 was the date fixed. After the cases were adjourned, Digvijay Singh had gone to the house of the deceased Munna Singh in the town of Khaga. From there, Digvijay Singh, Munna Singh, and the witnesses Rahmat Ali PW-3 and PW-4 Imamuddin had left for the post office in Khaga. On the road in front of Shankar Rice Mill, the accused Satyabrat alias Poori Lal, who was armed with the licenced SBBL gun of Sarju Prasad and accused Virendra Singh son of Anant Swarup, who was armed with a pistol and accused Anant Swarup who was carrying a Lathi and accused Girja Shankar who was carrying a pistol met them at about 11.40 A.M. Anant Swarup cried out that as the enemy had arrived, this was a good opportunity to finish him. Thereafter accused Satyabrat pointed his gun towards Digvijay Singh, Munna Singh, Rahmat Ali and Imamuddin and warned them that if anyone tried to escape, he would be shot dead. Thereupon, Virendra fired a shot with his pistol which struck Munna Singh on his chest causing him to fall down on the road. Thereafter Satya Brat fired a shot with his SBBL gun which hit Munna Singh on the back of his skull. The informant Digvijay Singh, Rahmat Ali and Imamuddin tried to catch hold of the accused but the accused Anant Swarup threatened them that if anyone come forward, he would meet the same fate as Munna Singh. Thereafter the four accused decamped from the spot. 9. On an analysis of the evidence, we find that although it is true that two of the witnesses Imamuddin and Rahmat Ali appear to have been won over by the accused persons and have turned hostile and have not supported the prosecution case but the evidence of Digvijay Singh is available on record. 9. On an analysis of the evidence, we find that although it is true that two of the witnesses Imamuddin and Rahmat Ali appear to have been won over by the accused persons and have turned hostile and have not supported the prosecution case but the evidence of Digvijay Singh is available on record. So far as the appellant Virendra is concerned, a direct role of firing on the deceased Munna Singh on the chest with his country made pistol has been assigned to this appellant. Also Digvijay Singh had stated in the first information report itself that Satya Brat alias Poori Lal, (who has died during trial) had fired with his SBBL gun on the back of the head of the deceased Munna Singh. The said description of the injuries is corroborated by the medical evidence. We also find that the FIR has been lodged at 12.30 p.m. on 7.3.79 within 50 minutes of the incident which took place at 11.40 a.m., and therefore, it is extremely prompt and can be relied upon. 10. The appellant Virendra was also arrested on 7.3.1979 itself at 3.00 P.M near the tube well of Puttu Singh along with his father Anant Swarup and on the pointing out of the appellant Virendra, a country made pistol was recovered from the adjoining wheat field, with which he claimed to have fired upon the deceased. Thus there was evidence against this appellant Virendra also under section 27 of the Evidence Act. This appellant Virendra was also rightly convicted under section 25 of Arms Act after sanction for his prosecution was obtained from the District Magistrate concerned. The trial judge has considered the argument on behalf of the accused persons that as Digvijay Singh was the main enemy of the appellants and he was present on the spot, he was unlikely to have been spared, but the trial judge himself has given a good reason for Digvijay not receiving any injury by pointing out that the accused may have decided to first fire on Munna Singh, by which time, the informant may have got away from the place of incident. Digvijay Singh had also good reasons to be present in Khaga town on the date of incident as the 107/116 Cr.P.C proceedings were to be held on that date and he had indeed appeared before the S.D.O in Tehsil on that day as was disclosed by the order sheet which has been placed on record. For all these reasons, we think that there was sufficient evidence which was corroborated by the circumstances and medical evidence for showing the participation of the appellant Virendra in this crime and for recording his conviction under section 25 of the Arms Act as well as under section 302 read with section 34 I.P.C. 11. So far as the other surviving accused Anant Swarup is concerned, it may be noted that when his 313 Cr.P.C statement was recorded on 31.1.1983, his age was mentioned as 45 years, which has been confirmed by the trial judge in his observations about Anant Swarup's age. Therefore, he would be more than 76 years in age at present after 35 years of the incident. He is said to be only carrying a Lathi which was not used and only a role of exhortation was assigned to this accused along with Girja Shankar. Even otherwise the evidence of exhortation has been considered to be evidence of a weak nature. In Zainul Haque Vs. State of Bihar 1974 (3) SCC 543 , it has been held that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often a tendency to implicate some person in addition to the actual assailants by attributing to that person an exhortation to the assailants to assault the victim and unless evidence in this respect is cogent and reliable, no conviction can be recorded against the person who have exhorted the actual assailant. This decision has been referred to in Anand Mohan Vs. State of Bihar 2012(7) SCC 225 . In Dukhmochan Pandey Vs. This decision has been referred to in Anand Mohan Vs. State of Bihar 2012(7) SCC 225 . In Dukhmochan Pandey Vs. State of Bihar, AIR 1998 SC 40 and Ram Bilas Singh vs. State of Bihar, AIR 1989 SC 1593 , it has been held that the mere presence of an accused on the spot without any overt act may not be sufficient for conviction under the main provision with the aid of section 34 and 149 I.P.C It is noteworthy that there is only the solitary evidence of PW 1 Digvijay Singh, informant in this case, who was admittedly inimical to the accused and whereas for the co-accused Virendra, PW 1 Digvijay's evidence was corroborated by the presence of injuries caused by the country made pistol fired by Virendra on the chest of the deceased and also by the recovery of the said weapon at his instance soon after the crime, but so far as the 76 year old appellant Anant Swarup was concerned, there was no such corroborative evidence. 12. We are therefore of the view that so far as the appellant Virendra is concerned, the witnesses have not succeeded in establishing the prosecution case against Anant Swarup beyond reasonable doubt and we are therefore of the view that the judgment of the trial Court convicting him deserves to be set aside and he is therefore, entitled for an acquittal under section 302/34 I.P.C. for which he has been convicted by the trial Court. 13. However, we need to point out that we find some difficulties in sending back the appellant Virendra to jail, who has been on bail since 14.2.1983 at this stage because we note that age of this appellant Virendra on 31.1.1983 was 19 years, which has been confirmed by the trial judge in his observations on the disclosure of the appellant regarding his age in his statement under section 313 Cr.P.C. The appellant Virendra who would now be about 50 years old, would have been below 15 years in age on 7.3.1979, the date of incident, and would thus be eligible for the benefit of the provisions of the Juvenile Justice Act. In view of the law laid down in Jayendra Vs. State of U.P., 1981(4) SCC 149 , Gopinath Vs. State of West Bengal, 1984 (Supp) SCC 228, Bhoop Ram vs. State of U.P., 1989 (3) SCC 1 , Umesh Vs. In view of the law laid down in Jayendra Vs. State of U.P., 1981(4) SCC 149 , Gopinath Vs. State of West Bengal, 1984 (Supp) SCC 228, Bhoop Ram vs. State of U.P., 1989 (3) SCC 1 , Umesh Vs. State of Bihar, 2000 (6) SCC 89 , Akbar Sheikh Vs. State of West Bengal, 2009 (7) SCC 415 , Hari Ram Vs. State of Rajasthan, 2009 (13) SCC 211 , Bablu Vs. State of Uttrakhand, 2012 (8) SCC 800 , Abu Zar Hossain vs. West Bengal, 2012 (10) SCC 489 and Union of India Vs. Ajeet Singh, 2013 (4) SCC 186 , whilst maintaining the conviction of the appellant Virendra, his sentence has to be set aside, as no action can be taken against the appellant Virendra at this stage, when he has crossed 18 years in age. 14. In this view of the matter, whilst upholding the conviction of the appellant Virendra under section 302/34 I.P.C and 25 of Arms Act, we set aside the sentence awarded to the appellant Virendra. As held above, the conviction and sentence of the appellant Anant Swarup under section 302/34 IPC awarded by the trial Judge is set aside and he is acquitted of the offence for which he has been convicted. Accordingly the appellants who are on bail need not surrender to their bail. Their bail bonds and sureties are discharged. 15. The appeal is partly allowed. Let a copy of the judgment along with the record be forwarded to the Court below for information and compliance. ____________