1. Jainul Haque and 12 others were convicted by learned Assistant Sessions judge Muzaffarpur under Section 147; 323 and 447 Indian Penal Code and were sentenced to under go on that account: various terms of imprisonment. Jainul Haque with Section 34 Indian Penal Code and each one of them was sentenced to undergo rigorous imprisonment for a period of seven years on that account. Ainul Haque, who too was an accused, was convicted under Section 304 Indian Penal Code. Charge was also framed against Jainul Haque under Section 379 Indian Penal Code but he was acquitted in respect of that charge. On appeal the Patna High Court acquitted 10 of the accused. The conviction of two of the accused, namely, Nainul Haque and Abdul Majid, was maintained under Section 323 Indian Penal Code. The conviction of Jainul Haque was altered to that Section 323 read with Section 114 Indian Penal Code and he was sentenced to undergo rigorous imprisonment for a period of six months. The conviction of Jainul Haque as Well as of Mainul Haque and Abdul Majid for the other offences was set aside. Jainul Haque thereafter came up in appeal to this Court by special leave.
2. The case for the prosecution is that Ainul Haque, who was accused No. 3 at the trial, as well as abdul (PW5) and Sirajul (PW 10) are brothers of Smt. Hasin (PW 4). Hasina along with her cousin Shakina purchased a plot of land situated in village Bahera Zahidpur Tole Jadupatti within the area of police station Pupri in district Muzaffarpur as per sale deed dated March 21, 1946.
3. On August 31, 1965 at about 8 a.m., it is stated, Mainul Haque and Ainul Haque accused uprooting paddy seedlings from the above mentioned plot. Abdul Hakim and Sirajul PWs went there and opposed the uprooting of paddy seedlings Mainul and Ainul accused resented the act of Abdul Hakim and Sirajul PWs and called their supporters and the other accused. The other accused then arrived there and assaulted Abdul Hakim and Sirajul Pws. On hearing noise Shah Leyaquat Business deceased, who was aged about 80 or 90 at the time of the present occurrence, arrived there. Leyaquat protested against the highhandedness of the accused. When the accused did not pay any head to the protests of Leyaquat, the latter held out a threat that he was going to the police station to lodge a report. Leyaquat then proceeded towards the police station. Leyatquat had hardly gone for a distance of 400 yards toward police station when Ainul Haque, Mainul Haque and Abdul Majid assaulted Leyatquat on the exhortation of Jainul Haque appellant. Leyatquat fell down on the ground. The appellant then took out currency notes of the value of Rs. 500/- from the pocket of Leyatquat.
4. Sirajul PW, accompanied by Abdul Hakim (PW 5) and Leyatquat deceased, then went to police station Pupri, at a distance half of mile from the place of occurrence, and lodged there report Ex. 6 at 8.30 a.m. Sirajul, Abdul Hakim and Leyatquat were then sent to Pupri State Dispensary where their injuries were examined. The doctor, after examining the injured persons, sent them to Darbhanga hospital. Leyatquat was found to have sustained head and thigh injuries. On September 17, 1965 an operation was performed on the thigh of Leyatquat. His condition deteriorated and he died on September 19, 1965.
5. The accused in their statements denied the prosecution allegations against them.
6. The trial court convicted all the 13 accused. On appeal the High Court, as mentioned earlier, acquitted 10 of the accused. The conviction of the two of the accused was maintained under Section 323 Indian Penal Code, while that of the appellant was altered to that under Section 323 read with Section 114 Indian Penal Code.
7. Mr. B.P. Singh on behalf of the appellant has argued that the prosecution evidence having been found by the High Court to be not reliable, the conviction of the appellant upon the basis of that evidence cannot be sustained. As against that, there was no sufficient ground to interfere with the judgment of the High Court. In our opinion, there is considerable force in the contention advanced by the learned Counsel for the appellant.
8. The prospect examined Maqbool (PW1), Saddique (PW2), Abdul Hakim (PW5), Yasin (PW 8) and Sirajul (PW 10) as eye-witness of the occurrence. The High Court discussed the evidence of these witnesses and found that their version of the assault on Abdul Hakim (PW 5) and Sirajul (PW 10) was not consistent. It was also observed that the said witnesses were anxious to exaggerate things and wanted to implicate as many persons as possible. The High Court further came to the conclusion that it was not safe to convict the accused for the assault on Abdul Hakim (PW 5) and Sirajul (PW 10) upon the basis of that evidence. The conviction of the various accused in respect of the assault on Abdul Hakim and Sirajul PWs was consequently set aside. As regards the assault on Leyatquet, the High Court found that according to the evidence adduced at the trial, he was assaulted by Ainul Haque, Mainul Haque and Abdul Majid. As there were two accused of the name of Abdul Haque and the evidence was not very clear on the point as to which one of the two accused bearing the name of Ainul Haque had joined in the assault on Leyatquat, Ainul Haque accused was given the benefit of the doubt and was acquired. So far as Jainul Haque appellant was concerned, the High Court found that according to the evidence of the eye witnesses; he had also joined in the assault on Leyatquate Hussain, while according to the first information report lodged at the police station, the part played by Jainul Haque in the assault on Leyatquat consisted merely of exhortation. The High Court in the circumstances corrected the appellant for the offence under Section 323 read with Section 114 Indian Penal Code for having abetted the assault on Leyatquat.
9. It would appear from the above that there is a clear discrepancy between the evidence of the witnesses given at the trial and the version given in the first information report regarding the part played by the appellant. The part attributed to the appellant according to the first information report is that he had exhorted the other accused to assault on Leyatquat, while according to the evidence adduced at the trial the appellant actually joined in the assualt on Leyatquat. The High Court did not accept the prosecution evidence on point that the appellant had joined in the assault on Leyatquat. All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyatquat. In the absence of any substantive and cogent evidence, adduced at the trial what the appellant had exhorted the other accused to assault Leyatquat, the High Court, in our opinion should not have convicted the appellant for the offence under Section 323 read with Section 114 Indian Penal Code. The High Court has found the evidence of the eye witnesses to be unsatisfactory. It has also found that the eye witnesses were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, as 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. The evidence adduced at the trial in respect of the part alleged to have been played by the appellant is contradictory and far from convicing. We would, therefore, accept the appeal, set aside the conviction of the appellant and acquit him.