JUDGMENT 1. - Mohan Ram has filed this Jail appeal against the judgment of District and Sessions Judge, Jhunjhunu dated, 23rd February, 1983 whereby he was convicted under Section 307 I.P.C. and sentenced to three years Rigorous Imprisonment and a fine of Rs 100/-, in default of payments of fine he is to undergo further rigorous imprisonment for one month. 2. Notice of this appeal was given to the State Government and at the admission stage the appeal has been heard finally and is being decided accordingly. 3. On 26-6-1982, Sardar Singh has submitted a written report at the police station Uaipurwati alleging that his brother who is accused had gone to village two or three days before this incident and returned last evening i.e. on 25-6-1982. As soon as he returned to home he started fighting and quarrelling with family members. The inhabitant of gwadi asked accused Mohan Ram not to fight At this accused told that he will murder the family members and will die. Thereafter, he was made to sleep. In the night at 2' O'clock accused woked his son Jagadish aged 14 years and took h.m to the well known as Bagariya Wala. With the intention to murder Jagadish the accused thrown him in the well Bagariya Wala and himself fell down in the well known as Munda Wala. Bhagirath Jat gave the information to him and his father about the fact that Mohan had fallen in the well. They went to the well alongwith other persons and took out Mohan from the well. When he was interrogated about Jagdish, he told that he had thrown Jagadish into the well known as Bagariya Wala. At this Jagdish was also taken out from the well by Dula Ram. Jagdish was alive at that time and Jagdish infotmed him that his further took him from the house for going to village sotwara and when they came near the well, his father lift him and thrown him in the well. He then thrown stones on him. On this report the police registered a case under Section 307 and 309 I.P.C. against the accused. After investigation the accused was challaned and he was committed to the Court of Sessions Judge Jhunjhunu. A charge under Section 307, 309 I.P.C. was framed against the accused who pleaded non-guilty. The prosecution has examined 8 witnesses. On this report the police registered a case under Section 307 and 309 I.P.C. against the accused. After investigation the accused was challaned and he was committed to the Court of Sessions Judge Jhunjhunu. A charge under Section 307, 309 I.P.C. was framed against the accused who pleaded non-guilty. The prosecution has examined 8 witnesses. After hearing the public prosecution and the Amicus Curiae, the learned Sessions Judge did not find the accused guilty under Section 309 I.P.C. so acquitted him from this charge. However, on the evidence of the prosecution, the learned Sessions Judge found that the case under Section 307 I.P.C. has been proved and established against the accused. So he found him guilty of this offence and sentenced as mentioned above. 4. The learned Amicus Curiae for the accused petitioner has argued that the learned Sessions Judge has not believed the prosecution evidence for the charge under Section 309 I.P.C., but believed the same evidence for the offence under Section 307 I.P.C. According to him the learned Sessions Judge has committed error in believing the prosecution witnesses. He has argued that there is no eye-witnesses of this incident. The whole case depends on circumstantial evidence and the learned Sessions Judge has incorrectly appreciated the evidence of the prosecution witnesses. The witnesses are unreliable, hence, conviction on the basis of these witness is illegal. 5. The learned Amicus Cuitae has readover to me the entire evidence of the prosecution witnesses. I have also gone through this evidence and after perusingh the evidence I am of the view that the learned Sessions Judge has not correctly appreciated the evidence of the witnesses. There is no eye,witness to the fact that the accused with intention of murdering Jagdish, threw him in the well. Nobody had seen the accused doing this act. As such, the whole case depends on the circumstantial evidence. It is material to note that Jagdish is an important witness who would have said about this incidence. Jagdish when taken out from the well he told that he was thrown in the well by his father. So whatever the witnesses have said is a hear-say evidence. Jagdish is the only witness to prove this fact that he was thrown in the well by the accused. Jagdish has not been produced in evidence. Jagdish when taken out from the well he told that he was thrown in the well by his father. So whatever the witnesses have said is a hear-say evidence. Jagdish is the only witness to prove this fact that he was thrown in the well by the accused. Jagdish has not been produced in evidence. The learned Sessions Judge in his judgment also mentioned that Jagdish has not been examined by the prosecution. It is alleged that the Jagdish is not traceable so he could not be examined. This is not a ground to accept the statements of other witness and to believe the hear-say evidence. It was for the prosecution to trace out Jagdish and should have examined him. This lacuna certainly has bearing on the whole prosecution case. The learned Sessions Judge has erred in believing the hearsay evidence. As such, there is no proof that Jagdish was thrown by the accused in the well with the intention to murder him. 6. Another aspect is that when Jagdish was taken out from the well he was medically examined. Dr. R.K. Purohit P.W. 1 has proved the injuries of Jagdish. According to the prosecution evidence there are two 'Gurders' fited in the well and on these 'gurders' a motor for lifting the water is also fited. Dula Ram P.W. 5 in his cross-examination has said that there was 10 to 20 feet water in the well and before a person reaches to the water he is sure to struck against the motor and gurder. These gurders were only two to three feet above the water level. Thus, when Jagdish was thrown into the well he was bound to struck against the 'gurders' and the motor. By striking against the gurders he is to have more serious injuries.The injuries noted by Dr. R.K. Purohit are not of serious nature. All these injuries are simple in nature. According to Doctor these could be caused by friction against rough surface. But by stricking against gurders and the engine Jagdish is hound to have more serious injuries. Hence, this fact also goes against the prosecution and nullifies the story that Jagdish was thrown in the well by the accused. Had Jagdish been thrown in the well, he was bound to strick against the gurders and the engine. But by stricking against gurders and the engine Jagdish is hound to have more serious injuries. Hence, this fact also goes against the prosecution and nullifies the story that Jagdish was thrown in the well by the accused. Had Jagdish been thrown in the well, he was bound to strick against the gurders and the engine. Therefore, the injuries of Jagdish indicates that the story of throwing Jagdish in the well is not believable. 7. The witnesses Sardar Singh P.W. 2 Govinda P W. 4 are very important witnesses, Govinda is the rather of the accused and Sardar Singh the informant is his step brother. I have perused the statement of both the witnesses and I am of the view that they are most unreliable witnesses. Sardar Singh P.W. 2 in his examination in chief has repeated the first information report. According to him when accused took Jagdish in the night and went out of the gwadi, he and his father were just lying on the coat. They were not sleeping. Sardar Singh had said that accused while taking Jagdish murmured that I will die and will murder others. in the cross-examination he has stated that he and his father were not sleeping at that time. They heard accused saying these words and they saw him taking Jagdish with him. He has also said that they did not obstruct the accused and did not follow him to see as to where he is going. He has clearly said that his father was also not sleeping but he too did not follow the accused and did not say anything to accused. The statement of Sardar Singh is most unreliable. It cannot be belived that after hearing accused that he will die and will murder others an taking Jagdish with him the witness Sardar Singe or his father Govinda will not check the accused & will not follow him while taking his son Jagdish. This is most unnatural statements by Sardar Singh. This witness is not an illiterate one, but is a student of B Com final. He is of 21 years of age, an educated boy and even after hearing accused as stated above will not obstruct him or prevent him from taking Jagdish in the nigh at an odd hour. It is most unnatural that he and his father will not follow accused on this occasion. He is of 21 years of age, an educated boy and even after hearing accused as stated above will not obstruct him or prevent him from taking Jagdish in the nigh at an odd hour. It is most unnatural that he and his father will not follow accused on this occasion. So the conduct of this witness is most unreliable. Apart from this Govinda P.W. 4 has not supported the statement as given by Sardar Singh P.W. 2. He has said that be was sleeping. Mohan was also sleeping at the house or not he does not know. He has not said that he heard accused saying that he will die and murder others. As such, he has not supported the statement of Sardar Singh P.W. 2. This shows that Sardar Singh is an unreliable witness and the learned Sessions Judge has erred in believing his statements. It cannot be believed and it is most unnatural that the father and the brother, after hearing the accused saying that he will die or will murder others and at the odd hour taking his son aged 14 years, will not follow him and will not check him. This is a strange-affair and I say that the whole case is a concocted, one. 8. The learned Amicus Curiae has argued that at the time when this incident had taken place, the accused was not mentally sound. He used to get fits of madness and during that condition the accused is not in a position to judge whether he is doing correct action or not. So the Amicus Curiae has taken the plea of Section 84 I.P.C. and argued that the case is covered in the general exception. The accused be given benefit of this Section. 9. On the point whether accused had fits of madness or not I have perused the statements of the prosecution witnesses. I have no hesitation to say that the father Govinda P.W. 4 and brother Sardar Singh P.W.2 have not stated truthfully. They tried to avoid to give evidence on this point. But from their statements it could be very well-judged that the accused was not of proper mental equilibrium Sardar Singh said that in the evening before the date of incident Mohan accused came to the house and began to talk in irregular manner. He said that he will die and murder others. But from their statements it could be very well-judged that the accused was not of proper mental equilibrium Sardar Singh said that in the evening before the date of incident Mohan accused came to the house and began to talk in irregular manner. He said that he will die and murder others. This shows that he was not of sound mind, but had some defect. Though both the witness have denied that accused ever had fits of madness but it is in the evidence that when Mohan was taken out from the well, sometimes he was laughing and sometime taken kept quite and sometimes he wept. All these indicate that Mohan accused not a man of healthy mind. Certainly he gets fits of madness. It is also in the evidence that when he was seen in the well he was sitting on the gurder singing Bhajan. This is a strange behaviour. The person who try to commit suicide who steeped down in the well through the pipe, sat on the gurder and go on singing bhajan. All these facts show that accused Mohan is not of heal they and sound mind. There is some defect in the mind, that is why even he was inside the well, he was singing Bhajan, when he was taken out of the well he was sometimes laughing, some times weeping and sometimes kept quiet. This is correct that he has not lead any medical evidence to prove that he is a man of unsound mind. One fact is to be kept in mind that in the Sessions Court the accused was not represented by any counsel but Amicus Curiae was provided. Who will take interest for this poor accused? When he has taken the plea about unsound mind, it was no doubt for the accused to prove this fact but in the interest of justice it was the duty of the Sessions Judge also to get him medically examined by the Doctor and find out whether he occasionally had fits of madness or whether he is a man of perfect and healthy mind. When the Court provided Amicus Curiae to defend this poor accused, the Sessions Judge should have taken this trouble also in getting him medically examined about this fact of madness in-order to grant him benefit of S 84 I.P.C. Whether his case is covered under general exception of Section 84 I.P.C. no doubt it is a duty of the accused to prove it,but in the circumstances of this case when the accused was represented by Amicus Curiae, the father and brother of the accused were hostile, it was the duty of the Sessions Judge to get him medically examined. Anyway even on the merit of this case as I have discussed above the witnesses Sardar Singh P.W. 2 and Govinda P.W.4 are unreliable witnesses and believing their statements and finding the accused guilty, I am of the view that the learned Sessions Judge has committed a mistake. The case of the prosecution has not been proved to the guilt. I do not agree with the conclusion arrived at by the learned Sessions Judge and I do not agree with the judgment that the accused is guilty of offence under Sessions 307 I.P.C. I am unable to maintain the conviction of the accused. 10. The appeal is, therefore, accepted. The judgment of the learned Sessions Judge dated 23-2-1983 is set aside. The accused appellant is acquitted from the offence under Section 307 I.P.C. The accused is in Jail. He should be released immediately from the Jail if not needed in any other case.Appeal accepted. *******