1. This is an appeal filed by four of the original seven accused persons against their conviction by the Judicial Magistrate, First Class, Khamgaon, which was confirmed by the Additional Sessions Judge, Khamgaon, on appeal.
2. The short facts of the case are that on the 16th of January 1967 the complainant Mahadeo found that one of his bullocks was missing from the Kotha and he ultimately traced the bullock to the cattle pound fromwhere it was got released. The prosecution story is that he was then proceeding by bus to Shegaon to report the matter to the police when he was waylaid by the four applicants before me, along with original accused Nos. 1, 2 and 3, who fell upon him and started beating him with sticks, with the result that he received a number of injuries and fell down unconscious on the road. According to the prosecution, when he regained consciousness, Mahadeo found Semadhan, Vishanu, Shriram and Deorao near him, and he was carried to the police station where he lodged his report and then sent for medical treatment. In view of the report made by Mahadeo, the accused persons were arrested and were put up for trial before the Judicial Magistrate First Class, Khamgaon. The said Magistrate however, gave accused Nos. 1, 2 and 3 the benefit of doubt by reason of the fact that their names were not mentioned by Mahadeo in the report which he had lodged at the police station, but he convicted accused Nos. 4 to 7 who are the applicants before me of the offence under Section 323 of the Indian Penal Code and sentenced them to rigorous imprisonment tor 15 days and to pay a line of Rs. 25 each. He, however, acquitted all the accused per-sons of the offence under Section 147, as well as the offence under Section 149 read with Section 325 of the Indian Penal Code. On appeal to the District Court by accused Nos. 4 to 7, their conviction as well as the sentences imposed upon them by the trial Magistrate were confirmed. Accused Nos. 4 to 7 have thereafter filed the present revision application.
3. There is no substance whatsoever in this application in so far as the conviction of these accused rests upon the evidence given by Mahadeo, which is amply corroborated by the evidence of witness Samadhan, both or whom have rightly been believed by the lower Courts. The only ground urged before me has been that though four persons were mentioned by Mahadeo in the list as eye witnesses only two of them were examined. One of whom has stated that he came up subsequent to the actual incident. Mr. Khanna has therefore contended that an adverse inference should be drawn against the prosecution, but I am afraid that cannot help the accused. Even if an adverse inference were to be drawn it would be for the Court to weigh the evidence of such of the witnesses as nave been examined before it as against that adverse inference and, if those witnesses are found to be reliable, the Court would be perfectly justified in convicting the accused persons. Moreover, in the present case, no basis has been laid in the course ot the evidence for drawing an adverse inference by reason of the non-examination of the two eye witnesses. A party asking the Court to draw against the other party an adverse inference of the nature indicated in Illustration (g) to Section 114 of the Evidence Act by reason of the non-examination of a witness by that party must, whetherthe proceeding be a civil or a criminal one, lay the foundation for it by eliciting evidence which would show that the witness in question was available to the other party for the purpose of giving evidence at the time of the hearing. That evidence may be elicited, either in the course ol the cross-examination of the witnesses examined by the other side (e, g. the investigating officer in a criminal case), or by leading evidence to that effect. Unless that foundation is laid, no question of drawing an adverse inference as indicated in Illustration (g) to Section 114 arises at all.
4. The only other point which was urged was that since the other three accused persons, one of whom was supposed to be main accused, have been acquitted, there is no reason why accused Nos. 4 to 7 should have been convicted on the same evidence. I am afraid, there is no substance in that contention of Mr. Khanna either, for the simple reasons that accused Nos. 1 to 3 have merely been given benefit of doubt by reason of their names not being mentioned by Mahadeo in the report which he has lodged in the police station which has been recorded as a first information report. That cannot therefore necessarily lead to the conclusion that the other accused whose names have actually been mentioned in the first information report which furnishes valuable corroboration to the evidence of Mahadeo and Samadhan should also be acquitted. The conviction of accused Nos. 4 to 7 imposed by the lower Courts, is therefore clearly correct and this revision application must tail. I am somewhat surprised at the very lenient sentence that has been imposed upon these accused persons by the Courts below, but having regard to the fact that no notice of enhancement has yet been issued, I have not thought it fit to interfere in the matter at this stage. The accused persons should surrender to their bail.
5. Application dismissed.