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3. The prosecution story as has been set out by the informant Vijay Kumar Yadav in the F.I.R. is that opposite to his house a house of Angad Yadav, who was a State Minister in the regime of B.S.P. Government, was being constructed. There was a dispute going on with respect to a public pathway in between their houses. On 28.10.1995, with respect to the dispute of public pathway, a compromise meeting was held between his father Laxmi Shanker Yadav and Angad Yadav and the dispute was settled but on 29.10.1995, at about 9:30 p.m., Angad Yadav came along with his 4-5 associates at the place where his house was being constructed and was standing. Few minutes thereafter a white Gypsy with a banner of Samajwadi Party came there from which 3-4 persons including Ramesh Kaliya and Surajpal Yadav came out. They were armed with fire arm. The said persons entered into the house of the informant along with accused Angad Yadav. The deceased Laxmi Shanker Yadav was in his bed room in the house. Accused Angad Yadav made an exhortation to the other co-accused uttering that "Maro Sale ko Bachne na Paye". On his exhortation, the associates of accused Angad Yadav opened fire on Laxmi Shanker Yadav, who sustained fire arm injuries and fell down. The incident was witnessed by the informant Vijay Kumar Yadav, his wife Smt. Kumkum Yadav, Rajdeep Yadav and Chaukidar Ram Charan Yadav, who were present in the house at the time of incident. The deceased Laxmi Shanker Yadav was taken to Medical College in injured condition where the doctor on duty declared him dead.

10. In the cross examination made on behalf of the appellant Angad Yadav, the witness stated that he started practice in Lucknow in the year 1980 and did practice for one and half years. He had heard the name of Angad Yadav before laying down the foundation of the house of Angad Yadav but neither he has seen him and nor he has been formerly introduced by any one to him. He has also neither formerly met his gunner nor anyone had introduced him. He also did not formerly meet Surajpal Yadav, Chandrapal Yadav and Ravi Yadav. On the day of incident, he did not know the name of the gunner of Angad Yadav and he identified them by their faces. At the time of incident, there was name plate of the gunners and he came to know about their name from it. He did not mention the name of the gunners in the F.I.R. but he told the Investigating Officer about their names in his statement and if the Investigating Officer had not mentioned the same then he cannot tell any reason for the same. He denied the suggestion that at the tutoring of someone he has identified the gunners as he did not mention in the F.I.R. that at the time of incident there was any guard or shadow along with Angad Yadav. He stated that at the time of the incident no person was in police uniform. He saw the uniform and name plate of the gunners prior to the incident. He did know that whether on the date of incident or prior to it any police squad was deputed for the security of Angad Yadav or not. He further deposed that neither he had seen any sale deed nor any map of the house of Angad Yadav. He further did not know about the area of the plot of Angad Yadav. He saw Angad Yadav coming to his plot for getting the work done. He further did not know whether the plot on which Angad Yadav was getting his house constructed, was part of sale deed or not. He further deposed that he did not mention in the F.I.R. that in spite of his father opposing, Angad Yadav had not stopped the work of digging of the land and abused him. He further did not mention in the F.I.R. that from the conduct of Angad Yadav, it was apparent that he was not happy with the compromise. He stated that he had told the Investigating Officer about the said fact and if he has not mentioned the same then he cannot tell the reason. He further stated in the F.I.R. that he did not mention that Angad Yadav had made an exhortation to his associates but he has told the same in his statement to the Investigating Officer that Angad Yadav made an exhortation and if he has not mentioned the same in his statement then he cannot tell any reason. He further did not mention in the F.I.R. that at the time of incident both the guards of Angad Yadav were standing at the gate. He denied the suggestion that the aforesaid facts were not mentioned by him in the F.I.R. and on the tutoring he has stated the same in his statement. He further stated that he did not mention in the F.I.R. that Angad Yadav was getting the digging done excess 12ft. wide on public pathway and he has stated the said fact to the Investigating Officer that Angad Yadav was making constructions on excess 12 ft. wide on public pathway. The total width of the public pathway was 12 ft. and he cannot tell that as to how much in width Angad Yadav was getting the digging done. The question was being put to the witness that whether Angad Yadav was getting the construction done on more 12 ft. width? on which the witness replied that after leaving 2-3 ft. public pathway, the digging was being done by him. The digging was being done by Angad Yadav after leaving 10 ft. from the gate of the house of the witness. On the day of the incident, no shadow was provided to his father. Surajpal Yadav had absconded after the incident. Angad Yadav was in B.S.P. and he did not know in which party Surajpal was. On the Gypsy the banner of Samajwadi Party was put. He stated that he had shown the place where the accused were standing at the time of the incident and he has also stated that Angad Yadav was standing in the gallery. The Investigating Officer had prepared the site plan at his instance on the day of the incident. He has denied the suggestion that on the day of the incident Angad Yadav and his shadow, namely, Shiv Bhawan and Ramji Prasad were not present. He further denied the suggestion that Angad Yadav had not exhorted the accused to kill the deceased. He has also denied the suggestion that he was not present at the place of occurrence. He also denied the suggestion that the report which has been stated to be written, has not been written at that time. He denied the suggestion that because of the political rivalry the name of Angad Yadav has been falsely implicated in the present case.

47. The law regarding the act of exhortation of an accused has been laid down by the Apex Court in catena of decisions some of which are relevant to be mention for the consideration of present case are quoted hereinbelow;

48. In Jainul Haque vs. State of Bihar : AIR 1974 SC 1651 Hon'ble Supreme Court in para 8 of its judgment has held as under:

"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 abetment can be recorded against the person alleged to have exhorted the actual assailant."

As we have said, each case must rest on its own facts and the mere similarity of the facts in one case cannot be used to determine a conclusion of fact in another. In the present case, we are of opinion that the facts disclosed do not warrant an inference of common intention in Pandurang s case. Therefore, even if that had been charged, no conviction could have followed on that basis. Pandurang is accordingly only liable for what he actually did."

52. From the law laid down in the above referred cases it can be deduced that evidence of exhortation is a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by ascribing to that person role of an exhortation to the assailant to assault the victim. Unless the evidence in this respect is clear, cogent and reliable, no conviction can be recorded against the person alleged to have exhorted the actual assailant.