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22. He referred to the evidence of PW-12 & PW-13 who were sub-divisional officers and to the evidence of PW-21 who was the bodyguard of the deceased to show that these independent witnesses have not said anything about the exhortation by A-1 to A-7 to Bhutkun to kill the deceased. He also submitted that the evidence of the prosecution witnesses are not consistent on the point as to who exhorted Bhutkun to kill the deceased and, therefore, the decision of this Court in Masalti v. State of U.P (supra) does not apply to the facts of the present case. He submitted that in Jainul Haque v. State of Bihar [AIR 1974 SC 45] this Court has held that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite 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 and unless the evidence in this respect is clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. He submitted that considering the proposition of law laid down in this decision, and considering the fact that there are discrepancies with regard to who exhorted Bhutkun to shoot at the deceased, the conviction of A1-A7 would not be unsafe.

33. The High Court after carefully scrutinizing the evidence of the witnesses has also discarded the prosecution story in the FIR lodged by PW- 14 that A-2, A-3 and A-4 had exhorted Bhutkun Shukla to kill the deceased. The High Court has held that none of the eye-witnesses of Category-II comprising the civil officials, the driver and the bodyguard, namely, PW- 12, PW-13, PW-17 and PW-21 have supported the allegations of exhortation by A-1 to A-7 and out of the Category-I witnesses comprising Police Personnel, PW-5 and PW-9 have not heard anyone exhorting Bhutkun Shukla to kill the deceased. The High Court has further held that out of the seventeen alleged eye-witnesses, six witnesses do not speak of exhortation and out of the remaining eleven prosecution witnesses, six witnesses namely, PW-1, PW-3, PW-4, PW-9, PW-10 and PW-14, have said that only A-1 exhorted Bhutkun Shukla to shoot at the deceased. Accordingly, the High Court has recorded the finding that only A-1 exhorted the lone shooter to kill the deceased and was guilty of the offence of abetment under Section 109 IPC and was liable for punishment under Section 302/109 IPC for the murder of the deceased and A-2, A-3 and A-4 have to be acquitted of the charges under Section 302/109 IPC.

34. We have gone through the evidence of the witnesses and we find that this finding of the High Court that A-2, A-3 and A-4 cannot be held guilty of the offences under Section 302/109 IPC is based on a correct appreciation of evidence of the prosecution witnesses. Out of fourteen witnesses who accompanied the procession, only four witnesses, namely, PW- 6, PW-7, PW-8 and PW-11 have said that A-2 along with A-1 exhorted Bhutkun Shukla to shoot at the deceased, whereas the remaining eight do not say that A-2 also exhorted Bhutkun Shukla to shoot at the deceased. Similarly, out of the fourteen witnesses who accompanied the procession, only PW-7 and PW-8 have spoken of exhortation by A-3 to Bhutkun Shukla to shoot at the deceased and the remaining eleven witnesses have not said that A-3 also exhorted Bhutkun Shukla to shoot at the deceased. Again out of the fourteen witnesses examined by the prosecution, only PW-7 and PW-11 have said that A-4 also exhorted Bhutkun Shukla to shoot at the deceased, but the remaining twelve witnesses have not said that A-4 also exhorted Bhutkun Shukla to shoot at the District Magistrate. This Court has held in Jainul Haque v. State of Bihar (supra) that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite 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 and unless the evidence in this respect is clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. Since the majority out of the fourteen prosecution witnesses comprising both civilian and police personnel accompanying the procession do not support the prosecution version that A-2, A-3 and A-4 also exhorted Bhutkun Shukla to shoot at the deceased, it will not be safe to convict A-2, A-3 and A-4 for the offence of abetment of the murder of the deceased. In our view, therefore, the High Court was right in acquitting A-2, A-3 and A-4 of the charge under Section 302/109 IPC.

35. In Masalti vs. State of U.P. (supra), this Court has held that where a criminal court has to deal with the evidence pertaining to the commission of offence involving large number of offenders and large number of victims, it is usual to adopt a test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In this case, ten out of the fourteen witnesses who were accompanying the procession and were near the place of occurrence have given a consistent version that A-1 exhorted Bhutkun Shukla to shoot at the deceased. PW-1, PW-3, PW-4, PW-6, PW-7, PW- 8, PW-9, PW-10, PW-11 and PW-14, have consistently deposed that A-1 exhorted Bhutkun Shukla to shoot at the deceased. The remaining four witnesses may be at the place of occurrence but for some reason or the other may not have heard the exhortation by A-1 to Bhutkan to shoot at the deceased. Hence, just because four of the fourteen witnesses have not deposed regarding the fact of exhortation by A-1, we cannot hold that the ten witnesses have falsely deposed that A-1 had exhorted Bhutkun to shoot at the deceased.