JUDGMENT : Harsh Kumar, J. 1. The present criminal appeal has been filed against the impugned judgment and order dated 14.9.1982 passed by II Additional Sessions Judge, Aligarh in S.T. No.111 of 1982 (State Vs. Kallu and another), convicting the accused-appellant nos.1 & 2, under Sections 324 & 324/34 I.P.C. and sentencing them with rigorous imprisonment for a period of 2 years & 1 year respectively. 2. The brief facts relating to the case are that on 3.5.1981 at 2:40 a.m. a F.I.R. was lodged by Abdul Hamid against Kallu @ Tonta and Sukha with the allegations that “when he and his son Farahim were sleeping on road side Patari in front of the shop, at about 1:15 a.m. his son Farahim raised alarm upon which he, Chaman Pathan and Mahfooz woke up and saw that Kallu and Sukha were abusing his son and upon being exhorted by Sukha, Kallu made a knife (Chhuri) blow on the right side of chest of Farahim and he and witnesses seen and identified the two accused in the electric light as well as light of torches and they fled away leaving the knife on the spot. After submission of charge-sheet, charges were framed against Kallu under Section 307 I.P.C. and against Sukha under Section 307/34 I.P.C. and by impugned order the learned trial court acquitted the accused-appellants for the offences under Sections 307 & 307/34 I.P.C. and holding the guilty, convicted Kallu under Section 324 I.P.C. and Sukha under Section 324/34 I.P.C. and sentenced them with rigorous imprisonment for a period of 2 years and 1 year respectively. During pendency of appeal the accused-appellant no.1 Kallu has died and appeal in respect of him has abated vide order dated 3.10.2017. 3. Heard Sri Akhilesh Srivastava, learned counsel for accused-appellants, learned A.G.A. for the State and perused the record, paper-book as well as the lower court record summoned in appeal. 4. During pendency of appeal the accused-appellant no.1 Kallu has died and appeal in respect of him has abated vide order dated 3.10.2017. 3. Heard Sri Akhilesh Srivastava, learned counsel for accused-appellants, learned A.G.A. for the State and perused the record, paper-book as well as the lower court record summoned in appeal. 4. Learned counsel for the sole surviving appellant Sukha submitted that the accused-appellant Sukha has been falsely implicated due to enmity with the injured; that injury to Farahim is alleged to have been caused by co-accused Kallu and appellant no.2 has been falsely implicated by assigning him role of abusing and exhortation; that there are material contradictions in the statements of prosecution witnesses; that the alleged eye witnesses Chaman Pathan and Mahfooz, who are alleged to be sleeping at a short distance by the side of injured have not supported the prosecution case in their statements on oath as P.W.-4 & P.W.-5 and have stated that they could not see or identify the culprits; that there is no evidence on record to show that appellant Sukha was present sharing common intention with Kallu for causing injuries to Farahim; that the appellant Sukha was neither all present on the spot nor abused or exhorted Kallu and there is no iota of evidence against him worth reliance; 5. It is lastly submitted by the learned counsel for the appellant that in the 37 years old incident dated 3.5.1981, considering the fact that he has been assigned with the role of exhortation, which itself is a very weak type of evidence, as well as considering the fact that he remained in custody during the appeal for a period of about 20 days from 23.10.2017 to 13.11.2017 and also remained in custody for few days during trial till he was released on bail and since has undergone for a period of about one month, even upon upholding his conviction, his sentence may be reduced to the period of imprisonment already undergone. 6. Per contra, learned A.G.A. supported impugned judgment and order of conviction and contended that prompt F.I.R. of the incident has been lodged against the named accused persons and since the appellant Sukha actively participated in the incident by abusing the victim and exhorting the co-accused Kallu, so it is proved that he had common intention with Kallu to commit the incident in question. 7. 7. Upon hearing the parties' counsel and perusal of paper-book as well as the original record of court below summoned in the appeal, I find that undisputedly the incised wound is alleged to have been caused to the victim by accused-appellant Kallu deceased and no injury is alleged to have been caused to victim by the appellant no.2 Sukha, who alleged to have participated only by abusing the victim along with Kallu and by exhorting Kallu to cause death of victim. 8. Perusal of evidence on record shows that P.W.-3 and P.W.-4 have not supported the prosecution case and have turned hostile and there are material contradictions in the statements of injured witness Farahim P.W.-2 and his father the first informant P.W.-3 with regard to the alleged exhortation by accused-appellant no.2 Sukha. 9. It is settled principle of law that for proving formation of common intention, direct evidence may not be available, but still prosecution is under a bounden duty to prove that participants had shared a common intention. Mere presence of the accused by itself would not attract the provisions of Section 34 of I.P.C. and he may also not be considered to share common intention under Section 34 of I.P.C., by assigning him the role of exhortation, unless proved otherwise. 10. It is pertinent to mention that the evidence of exhortation is in the very nature of things, a weak piece of evidence and may not be safely relied. There is a tendency to implicate some more persons in addition to real assailants by attributing them the role of exhortation. The evidence on record does not indicate any participation of accused-appellant Sukha in the incident in question by abusing or exhortation or in any other manner whatsoever. Since he was not assigned with any weapon, he could have been caught by the first informant, Chaman Pathan and Mahfooz and the other persons who were sleeping there. No attempt to catch him is alleged to have been made which doubts his presence over the spot. The prosecution has failed to prove by any independent, cogent and strong reliable evidence to prove beyond reasonable doubt that accused-appellant Sukha abused victim or exhorted Kallu for causing death of Farahim. No attempt to catch him is alleged to have been made which doubts his presence over the spot. The prosecution has failed to prove by any independent, cogent and strong reliable evidence to prove beyond reasonable doubt that accused-appellant Sukha abused victim or exhorted Kallu for causing death of Farahim. The evidence of injured Farahim and his father Abdul Hamid both of whom are interested witnesses, does not aspire confidence and is not sufficient to prove that the injuries caused to Farahim by Kallu were upon exhortation by the accused-appellant no.2 Sukha. 11. In view of the discussions made above, I have come to the conclusion that learned trial court has failed to consider the fact that exhortation itself is a very weak type of evidence, as well as the tendency of implicating some other persons in addition to the real assailants. I find that there is absolutely no reliable evidence on record to show that appellant Sukha was even present on the spot or having common intention with the appellant Kallu deceased exhorted him to voluntarily cause injuries to Farahim with deadly weapon or for attempting on the life of Farahim. The impugned judgment and order convicting the accused-appellant no.2 Sukha under Section 324/34 I.P.C. is wrong and incorrect and is liable to be set-aside and the appeal is liable to be allowed. 12. The appeal in respect of appellant no.1 Kallu has abated and it is allowed in respect of appellant no.2 Sukha. The impugned judgment and order convicting accused-appellant no.2 Sukha for the offence under Section 324/34 I.P.C. and sentencing him with rigorous imprisonment for a period of 1 year is set-aside and he stands acquitted of the charges levelled against him. 13. The appellant no.2 Sukha is on bail. His bail bonds and surety bonds are cancelled and sureties are discharged. He need not surrender unless wanted in some other case. 14. The material exhibits, if any, shall be disposed off after statutory period in accordance with rules. 15. Let lower court record be sent back to court below along with a copy of this order for necessary compliance, if any.