JUDGMENT Tudball, J.
1. The applicant was convicted for aiding and abetting an offence under Section 355, Indian Penal Code, and he was originally sentenced to one year's rigorous imprionment, which on appeal was reduced to six months' rigorous imprisonment. One Jakka Khan laid in wait for Hafiz Abdul Jalil, a Municipal Commissioner at Pilibhit, after the meeting of the Municipal Board at the Town Hall in that town. He threw a shoe into the carriage. He was prosecuted for an offence under Section 355 of the Code and was sentenced. Throughout the course of that trial no mention whatsoever was made of Bijji Khan, the present applicant, or of his complicity in the matter. Subsequently while Jakka Khan was serving his sentence, he was placed before a Magistrate by a Police Officer and made a certain statement implicating the present applicant. Proceedings were, therefore, taken against the latter. Jakka Khan was examined as a witness and totally denied Bijji Khan's implication in the matter. His statement as recorded by the Magistrate, ostensibly under Section 164, Criminal Procedure Code, (which, however, did not apply) was taken into evidence by the Magistrate at the trial of Bijji Khan. It is not dear under what provision of the law this was done. No provision of the law has been shown to me under which it could possibly have been done. There was further evidence to en which one might accept that shortly before the occurrence Bijji Khan was seen talking to Jakka Khan. There is also evidence which showed that after the occurrence Bijji Khan told the brother of Abdul Jalil what had happened. That is to say, he told him that his brother had been beaten with a shoe and had fallen to the ground. It is denied that there was any actual beating or that Abdul Jalil actually fell on the ground. On this evidence Bijji Khan has been convicted. I notice on the record that there is a good deal recorded which was quite inadmissible in evidence. No particularly strong motive has even been suggested in the course of the trial for Bijji Khan to have incited Jakka Khan to commit the offence. Therefore, though there may be some suspicion arising from the statement made by the applicant to the brother of Abdul Jalil and by the fact that shortly before the occurrence he was seen speaking to Jakka Khan, these circumstances are not in themselves sufficiently strong for a Court to hold that beyond nil reasonable doubt Jakka Khan acted at the instigation of the applicant. The evidence, in my opinion, is insufficient to support the conviction. I, therefore, allow the application, set aside the conviction and sentence and direot the applicant to be released.