JUDGMENT 1. - This appeal is directed against the judgment of Sessions Judge, Jhunjhunu dated March 31, 1980, whereby he convicted accused-appellants Hawa Singh and Dharampal for offence under Section 302 I.P.C. and sentenced each of them to imprisonment for life and fine of Rs. 200/-. In default of payment of fine, they were ordered to suffer further rigorous imprisonment for three months. Accused-appellant Khushi Ram has been convicted for offence under Section 302 read with Section 34 l.P C. and was sentenced to imprisonment for life and a fine of Rs. 200/-in default to further undergo three months rigorous imprisonment. All the three accused-appellants have also been convicted for offence under Section 364 I.P.C. and each of them was sentenced to undergo four years' rigorous imprisonment and a fine of Rs. 500/- each. In default of payment of fine, each of them was ordered to further undergo six months' rigorous imprisonment. All the accused were further convicted for offence under Section 323 IPC but no separate sentence was recorded on this count. 2. The facts leading to this case are that report Ex. P/l was lodged at Police Station, Singhana by Mahendra Kumar PW 1, wherein he stated that in the morning at 5 00 a.m. his brother Veer Singh had gone for easing himself and at that time one Manubai, wife of Subhash Chandra had gone to forest for cutting grass. Accused Dharampal, Khushi Ram and Hawa Sing stated that Veer Singh molested Manu Bai and when she raised an alarm. Veer Singh ran away. After some time Sher Singh, Ram Kumar, Hawa Singh and Dhaiampal came to his place and told his uncle Judge that since Veer Singh has outraged the modesty of Manu Bai, a village Panchayat has to be called where they should accompany, else they would be killed. These people, it was alleged, took his father and uncle near Dbaram- shala where number of other persons, who had been impleaded as accused in that case but since acquitted, had collected. They all told his father and uncle that Veer Singh, who had molested Manubai, must be produced before the Panebajat forthwith, else they would be beaten. He and his family members told the villagers that Veer Singh was not responsible, upon which the family members were made to sit near a `bur' tree and were threatened. They all told his father and uncle that Veer Singh, who had molested Manubai, must be produced before the Panebajat forthwith, else they would be beaten. He and his family members told the villagers that Veer Singh was not responsible, upon which the family members were made to sit near a `bur' tree and were threatened. His father thereupon told these people that possibly Veer Singh might have gone towards village Singhana. Hawa Singh, Nagar, Roshan, Shersi Ugh, Jugal Kishore and Pannaram directed that three accused persons Hawa Singh, Dharampal and Khushiram to go in search of Veer Singh and bring him before the Panchayat. They also told that if necessary he may be beaten by them. Thereafter it is alleged that Khushiram, Hawasingh ahd Dharampal went to Singhana and complainant Mahendra Singh also followed them. He met Mahavir in Singhana, who said that Veer Singh has been taken away by the accused-appellants and that he will be beaten on his way. He, therefore, ran towards Kosi-wali Kui and saw that the three appellants had removed the clothes from the person of Veer Singh and he was only putting on undervest. He was being beaten by the appellants and his condition had become precarious. It was further stated that these people were dragging him and beating him with belt, At that time two boys from Khanpur also appeared, whom he know by face. They tried to rescue the deceased, but they were threatened by Hawa Singh and Dharampal. There after they were taken to Hiraram's well where again he was beaten to his unconsciousness and then he (complainant) went to rescue the deceased. Khushi Ram caught hold of him and asked the other two accused to immediately put Veer Singh into the well Thereafter it is alleged that Hawa Siagh caught the hairs of the deceased and Dharampal legs and at about 4 0:0 p.m. they dropped him into the well. He raised an alarm, but none came to his aid. On receipt of this report a case for offences under Sections 302, 323, 147, 149, 342, 114, 109 and 34 I.P.C. was registered and investigation commenced. 3. He raised an alarm, but none came to his aid. On receipt of this report a case for offences under Sections 302, 323, 147, 149, 342, 114, 109 and 34 I.P.C. was registered and investigation commenced. 3. The prosecution case further is that the Investigating Officer went to the well in the evening and it was found that it was quite dark and therefore, he deferred the removal of the dead body from the well till next morning when he again went with the motbirs and removed the corpse from the well where the autopsy was got conducted by Dr. Ram Niwas PW 6, who was Medical Officer In charge of the Primary Health Centre, Buhana, who found the following injuries on the person of the deceased: 1. Swelling-Right cheek, which is diffused in mouth. 2. Bruise - 1" X 1/2" on right upper eyelid, swollen, bluish in colour. 3. Bruisediffused with bluish discolouration 4"X ⅓"on the front of upper ⅔ of right forearm. 4. Bruisediffused with bluish discolouration 4"1/2"X2" on the inner side of middle ⅓ of right upper arm. 5. Bruise 11/2"X3' bluish discolouration with diffused swelling horizontally on the outer side of middle 1(3 of right upper arm. 6. Bruise 5"X 11/2' obliquely on the outer Parallel ) aspect of upper ⅔ of left upper arm. 7. Rectangular Bruise 3" X2' at back of chest at medial and lower sides of left scapular region which is reddish in colour. 8. Rectangular Bruise 3"X2"at back of right chest at lower angle of right shoulder blade which is reddish in colour. 9. Bruise 21/2'X 1/2" at lateral border of left shoulder blade. 10. Bruise 7"X 1/4" in front and outer side of right chest obliquely from above downwards and outwards. 11. Abrasion 1/2'X 1/4" on right shoulder at outer aspect. 12 Abrasion 1/4'X ⅛" at scalp 3" above from the right ear. 13. Abrasion ⅙"X 1/10" at scalp in occipital region. 14. Abrasion 1/4"X ⅙" in frontal 'region of scalp, 5"' away from nasion point. 15. Abrasion ⅙"to ⅛" at inner side of right pinna just near the opening of external meatus. 16. Abrasion 1/2"X 1/4" in front of lower ⅓ of right forearm. 17. Abrasion 1/2"X1/10" at middle ⅓ of left thigh at anterior aspect. 18. 14. Abrasion 1/4"X ⅙" in frontal 'region of scalp, 5"' away from nasion point. 15. Abrasion ⅙"to ⅛" at inner side of right pinna just near the opening of external meatus. 16. Abrasion 1/2"X 1/4" in front of lower ⅓ of right forearm. 17. Abrasion 1/2"X1/10" at middle ⅓ of left thigh at anterior aspect. 18. Abrasions 4 in number varying in size from 1 "X1/10" to 1/2 'X 1/10" at lower ⅓ of right thigh at anterior aspect. 19. Abrasion 2"X1/10" in front of right ankle joint. 20. Abrasion 2"X1/10" at back of lower ⅓ of right thigh. 21. Abrasion ( 2 / 5 ")X 1/10" at back of upper ⅔ of right leg. 22. Abrasion 1/2" X 1/10" just below right medial malleolus. 23. Nail of right ring finger not present, which was covered by a cloth bandage. 24. Nail of left II toe not present. The cause of death given by the Doctor was asphyxia due to drowning. He has found 750 ml. of water present in the stomach. The investigation in this case changed various hands and finally a charge-sheet was filed in the Court of Munsif md Judicial Magistrate First Class, Khetri against as many as 19 persons including be three accused-appellants for various offences. The learned Magistrate committed them to Sessions for trial where the learned Sessions Judge framed charges for offences under Sections 302 and 302/34 and 464 and 364/34 I.P.C. against the accused-appellants and rest of the accused were charged for offences under Sections 147, 342/149 I.P.C. 4. At the trial the prosecution examined seven witnesses in support of it case. The accused in their statements under Section 313 Cr.P.C. generally denied the charges. Hawa Singh came with a case that Veer Singh voluntarily limped into the well. Accused Dharampal, however, admits that he had given laps and belt injuries to the deceased. His case is that they were giving beating to veer Singh when he suddenly escaped and jumped into the well. Other accused demitted the holding of the Panchayat, but rest of the story was denied. Five witness were examined by defence in support of their case. 5. The learned Sessions Judge relying on the statement of Mahendra PW I, be recovery of clothes and the medical evidence, found the case proved against the recovery accused-appellants, who have been convicted and sentenced by him as indicated above. Five witness were examined by defence in support of their case. 5. The learned Sessions Judge relying on the statement of Mahendra PW I, be recovery of clothes and the medical evidence, found the case proved against the recovery accused-appellants, who have been convicted and sentenced by him as indicated above. He, however, acquitted the rest of the accused persons. 6. The learned counsel appearing for the accused-appellants challenged the finding of the learned Sessions Judge on the ground firstly, that there is no (dependent evidence of any independent witness recorded in this case, though ccording to the statement of PW 1 Mahendra two boys from Khanpur namely, Ram Chandra and Dana Ram had seen the beating given to Veer Singh and Mst. Saraswati, who was present at the time when Veer Singh was thrown into the well. Secondly, though Mahavir Singh informed Mahendra PW 1 at Smghana that the accused-appellants followed Veer Singh and he is likely to be beaten, yet he has not lodged any report at Police Station. Singhana. Thirdly, the conduct of the witness in not collecting the people of the area for bringing out the body of Veer Singh from the well when it was not certain till then whether he has died or not. Fourthly, the statement of M ihendra PW 1 is not corroborated by the testimony of Gharsi Ram PW 5. Fifthly, the statements of Bakhta var PW 3 and Mahaveer PW 4 even if accepted, do not connect the accused to the crime and lastly (he medical evidence contradicts the statement of Mahendra PW 1 when he states that the deceased died before he was thrown into the well. 7. The learned Public Prosecutor appearing for the State contended that simply because Mahendra PW 1 is the brother of the deceased and no independent; witness has supported the case, the prosecution story should not be thrown out. The reason assigned by him that why the two boys were not examined was that they were won over by the accused and an application to this effect had also been filed in the Court. According to the learned Public Prosecutor reliance can also be placed on the statement of Gharsi Ram PW 5, who has no enmity with the accused persons. 8. We have given our earnest considerations to the rival contentions and have perused the entire record. According to the learned Public Prosecutor reliance can also be placed on the statement of Gharsi Ram PW 5, who has no enmity with the accused persons. 8. We have given our earnest considerations to the rival contentions and have perused the entire record. Mahendra PW 1 is the star witness of the prosecution, who while supporting the story given by him in the first information report as is reproduced above, has in his Court statement given the names of the two boys from Khanpur as Ram Chandra and Dana Ram. He also came out with a case that a lady was present when the deceased 'was thrown in the well with whom he had a detailed talk and the entire incident was narrated by him to her. He has stared that he along with the Sub-Inspector had reached the spot soon after his lodging the report, but since it had become dark, the corpse was not taken out. He has given the distance from his village to Singhana as 3 Kos (6 miles) and from Singhana to the well where Veer Singh was dropped as 2-3 miles. He admitted in cross-examination that he did not lodge the report despite the fact that Mahavir has told him that Dharampal. Ha Singh and Khushi Ram have taken his brother I and gave beating to him. He has further stated that Gharsi Ram was cutting grass at a distance of 503 paces from the well where Veer Singh was dropped. He states that he has started beating from before a distance of one mile, but nobody came to save his brother. He has stated that it was about 10 to 12 paces that he was caught by Khushi Ram, but he was not beaten by him. He further states that Veer Singh had been murdered before he was dropped in the well. His further statement is that the accused-appellants had immediately left the well after dropping Veer Singh and it is thereafter that he looked into the well, but then also he did not call Gharsi Ram near him. He admits that he has not given the name of Gharsi Ram and shown the name of the lady in the report Ex. P/1. He also did not mention this fact in his statement recorded under Section 161 Cr. P.C. He states that he went slowly and did not chase the accused persons. He admits that he has not given the name of Gharsi Ram and shown the name of the lady in the report Ex. P/1. He also did not mention this fact in his statement recorded under Section 161 Cr. P.C. He states that he went slowly and did not chase the accused persons. He denied the suggestion that Veer Singh might have been put in the well at 3.00 or 4.00 p.m. Gharsi Ram PW 5 has stated that at about 3 00 or 3.t0 p.m he was cutting grass for his camel. At that time he heard the cries of Mahendra who was going after accused-appellants The accused appellant at the time were dragging Veer Singh towards Heera's well. Thereafter one of them caught Mahendra and the two dropped Veer Singh in the well. In cross examination he admits that his well is about 600-700 yards away from Heera's well and the place where he was cutting the grass was also 400 yard away from the Well. He went for cutting the grass only half an hour before the incident. He had not seen any weapon of offence with the accused and had seen that one accused had caught Veer Singh, while the two were pushing him from behind. He states that he silently went to his place after the occurrence and did not narrate this incident to anybody. He states that his statement was recorded by the police after six days of the occurrence i e., on August 21, 1979, but when he was confronted with the police statement, he admitted that his statement was recorded on October 21, 1979. He went to the police at the instance of Bakhtawar PW 3. A close scrutiny of the statements of PW 1 Mahendra and PW 5 Gharsi Ram shows that they have not come out with the true version of the incident. PW 1 Mahendra is the real brother of the deceased and is highly interested in the prosecution case. His testimony suffers from various infirmities. According to him when he left his village at about 10 00 in the morning in search of the accused persons, it is not understandable that it will take him about 6 hours to cover a distance of 8 to 9 miles. His testimony suffers from various infirmities. According to him when he left his village at about 10 00 in the morning in search of the accused persons, it is not understandable that it will take him about 6 hours to cover a distance of 8 to 9 miles. His presence at the well was not normally expected as according to himself Mahavir has not told him that it is towards Heera's well that the accused have taken Veer Singh. The prosecution case is that before the father and uncle of the deceased and Mahendra went to the Panchayat, these accused had already left the village in search of Veer Singh. Therefore, there must have been some distance between the deceased and PW 1 Mahendra. When he says that he had gone with a very slow speed, it makes still doubtful that he could have reached the well before the incident took place. His testimony is further shaken from the fact that according to him Veer Singh has died before he was thrown into the well, while Dr. Ram Niwas PW 6 in his statement stated that injuries sustained by the deceased were caused 2 to 3 hours before the time of his death, which clearly means that both the things did not take place simultaneously. The cause of death according to the Doctor was asphyxia due to drowning and not injuries sustained by him. This clearly indicates that the deceased was first chastised by the accused persons for his outraging the modesty of Manibai and it appears that for the fear of being further beaten by the Panchayat when he saw the three accused-appellants coming towards him for taking him to the Panchayat, he for the sake of fear and further being humiliated, jumped into the well. If Mahendra P.W. 1 would have seen him being thrown in the well by the three appellants had immediately left the place. According to him, it is most unnatural that he with Gharsi Ram and other persons of the neighbouring fields would not have attempted to bring the corpse of Veer Singh out of the well. If Mahendra P.W. 1 would have seen him being thrown in the well by the three appellants had immediately left the place. According to him, it is most unnatural that he with Gharsi Ram and other persons of the neighbouring fields would not have attempted to bring the corpse of Veer Singh out of the well. It is an admitted case of Gharsi Ram that there are number of fields around that well and he himself had seen this occurrence, but his testimony also does not inspire confidence, because he appears to be a chance witness, though having his own field at a distance of 600-700 pawandas was not removing grass there but had come at a distance of 400 to 500 paces from the well. His conduct in not coming to the rescue of Veer Singh or at least in not assisting Mahendra subsequent to dropping of Veer Singh in the well makes his conduct most unnatural. His testimony has further to be rejected on the ground why he had been examined by the Investigating Officer after more than two months of the incident. In the mean time he admits that he did not disclose this incident any one. Not disclosing such an important event where a men has been dropped into the well, at his house or in the neighbourhood or in the village, is abnormal conduct of a person and no reliance can be placed on such evidence, more so he admits that he was present when the police came along with others. We, therefore, have no hesitation in discarding the evidence of both PW 1 Mahendra and PW 5 Gharsi Ram. 9. According to the prosecution Mst. Saraswati had seen the entire occurrence and her statement under Section 161 Cr. P.C. was also recorded. Besides her one Mst. Mooli's statement was also recorded under Section 161 Cr.P.C. as an eyewitness The prosecution has not examined both the witnesses and no explanation has been given as to why they have been with-held. When independent witnesses are available and not examined, adverse inference has to be drawn against the prosecution. 10. There is another infirmity in the prosecution case that none of the motbirs to the information and recovery memo of clothes have been examined at trial. When independent witnesses are available and not examined, adverse inference has to be drawn against the prosecution. 10. There is another infirmity in the prosecution case that none of the motbirs to the information and recovery memo of clothes have been examined at trial. It was essential for the prosecution to have examined, if they wanted to rely on this piece of evidence that the clothes which have been removed from the person of Veer Singh had been recovered at the instance of the accused persons. In that absence of examination of both the motbirs, we reject this evidence of the recovery of clothes. 11. We are, however, satisfied in the case that chastisement has been given to the deceased by the three appellants and they themselves have also admitted this fact in their statements under Section 313 Cr. P.C. and also corroborated by the ^ defence witnesses. We, therefore, have no hesitation in holding that they are guilty . of causing simple injuries on the person of Veer Singh. 12. We have also perused the statements of PW 2 Virendra Singh and PW 3 Bakhtawar to find out that if there is any evidence in support of the prosecution for abducting Veer Singh with an intention that he will be killed. There is complete lack of evidence to this effect. On the contrary the prosecution evidence is that Veer Singh had been missing from the village since morning and, therefore, the ingredients of Section 364 I.P.C. are not at all satisfied in the instant case. 13. From the aforesaid discussion of the evidence we are clearly of the opinion that the prosecution has failed to prove its case beyond reasonable doubt for offences under Sections 302, 302/34 and 364 I.P.C. We give benefit of doubt to the accused-appellants and acquit them of the aforesaid charges. We, however, hold that the prosecution has proved its case for offence under Section 323 I.P.C. for which the accused had already remained in jail for the period specified under the law. Hence their sentence is reduced to the period of imprisonment already undergone by them for offence under Section 323 I.P.C. 14. In the result the appeal is partly allowed. The conviction and sentences awarded to the accused-appellants under Sections 302, 302/34 and 364 I.P.C are set aside and they are acquitted of the aforesaid charges. Hence their sentence is reduced to the period of imprisonment already undergone by them for offence under Section 323 I.P.C. 14. In the result the appeal is partly allowed. The conviction and sentences awarded to the accused-appellants under Sections 302, 302/34 and 364 I.P.C are set aside and they are acquitted of the aforesaid charges. The accused-appellants' conviction under Section 323 I.P C. is maintained and they are sentenced to the period of imprisonment already undergone by them, Accused-appellant Dharampal is in jail. He shall be released forthwith, if not required in any other case. Accused-appellants Hawa Singh and Khushirm are on bail. They need not surrender to their bail boqels. Their bail bonds are discharged. *******