The foundation for drawing an adverse inference due to the non-examination of witnesses must be laid through eliciting evidence of the witness's availability for giving testimony.

JUDGMENT - 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 from where 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, whether the 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

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