1. The petitioners have been convicted of rioting and assaults committed in prosecution of the common object of the rioters and sentenced to various terms of imprisonment. Their appeal against their convictions and sentences to the learned Sessions Judge was dismissed.

2. The case for the prosecution was that in village Bishunpur the Rajput inhabitants are divided into two hostile parties, one of them headed by the petitioner Dharam Narain Singh. The complainant Mahabir Singh formerly belonged to this party but has now gone over to the other side. According to the evidence of the complainant the result of this was that attempts were made by the petitioners to prevent Babu lal (his ploughman) from working for him and that the attempt to deter Babulal from doing so ultimately resulted in the riot which is the subject-matter of this prosecution. The story told by the complainant was that when he went to call his ploughman, Babulal, on the Sri Panchmi day the latter refused to work alleging that the petitioners Dharam Narain Singh and Narsingh Singh had told him not to do so. He was ultimatly persuaded to work on that day however but on the next day he again failed to turn up and when the complainant went to fetch him Babulal is alleged to have said that he had been threatened by Dharam Narain Singh and Narsingh Singh if he worked for the complainant. Babulal is again said to have been persuaded by the complainant to resume work but on the way they were met by the petitioners and an altercation ensued during which Babu lal was abused and the petitioners stated that they would not allow him to go with the complainant. The complainant took hold of Babulal's hand and insisted upon taking him when the petitioner, Jagat Narain Singh, gave an order in consequence of which the other petitioners assaulted Mahabir Singh and two other persons on the prosecution side. Babulal was not examined at the trial although his name appeared in the list of prosecution witnesses to be examined and summons was actually served on him. But for the trial Court believing that Babulal was to be examined it is difficult to under, stand how the complainant was allowed to make statements as to what Babulal was alleged to have told him about the threats which had been made by Dharam Narain Singh and Narsingh Singh if he continued his work for the complainant. When it was found that the prosecution were not producing Babulal as a witness the defence moved the Court to examine him as a court witness. It appears from a note on the petition that was filed for that purpose that the prosecution objected on the ground that he had been won over by the defence. The Court nevertheless directed Babulal to be summoned as a court witness, but the summons was not served. The report of the process server was that he had gone to the house of Babulal and not finding him there had affixed the summons to the house. No further attempt was made to secure the attendance of Babulal. The Courts below have justified the conviction on the ground that apart from the evidence of Babulal there was sufficient evidence to sustain the conviction in spite of the fact that the trial Court found it necessary be reject the greater part of the evidence adduced by the prosecution on the ground that it was partisan evidence.

3. In a case of this description which is the result of a party faction in a village where the evidence on either side is liable to be prejudiced, it is necessarily of importance be ascertain the cause of the trouble. Now, the prosecution alleged that the cause of the riot under investigation was that in spite of the threats and attempts of the petitioners to prevent Babulal from working for his employer the latter was actually about to do so when he was obstructed by the petitioners and Mahabir Singh and his companions were assaulted. The genesis of the riot therefore was the threat by the petitioners be Babulal and the success of the latter's employer in persuading him to ignore the threats. The only way the prosecution could prove these threats was by the evidence of some one who heard them uttered and there is no indication that anybody heard these threats except Babulal himself. He therefore was the only person competent to prove them. The hearsay evidence of the complainant with regard to what Babulal told him that the accused persons had said was inadmissible unless, possibly, it was impossible be secure the attendance of Babu lal. The process server's report does not indicate that it was impossible be secure Babulal's attendance. The mere fact that the latter was not at his home when the process server visited it is insufficient mate-rial from which to draw an inference that Babulal had permanently disappeared or that he was avoiding the service of summons. In my view therefore, the complain, ant's evidence with regard to the threats said to have been held out by the petitioners prior to the occurrence was inadmissible.

4. The learned Government Pleader however referred to the evidence of the complainant with regard to what took place at the time of the occurrence. After stating what Babulal was alleged to have said to him with regard to the threats he (the complainant) went on to say that he persuaded Babulal to accompany him and they stated:

When we had gone to the south of Laldhari's house, the accused surrounded me. Narsingh Singh and Dharam Narain Singh abused Babulal. I protested. There was altercation between us as they said that they would not allow Babulal to go and I insisted on taking him with me. I caught hold of Babulal and wanted to take him away forcibly. Jagat Singh ordered and Narsing hurled his pharsa at me.

5. In this passage we have direct evidence that Narsingh and Dharam objected to Babulal going to the complainant on the day of the occurrence. But this evidence does not indicate whether Babulal was willing to go with the complainant or whether it was his desire to refrain from doing so. The fact that the complainant caught hold of Babulal to take him away forcibly, as he says, may indicate that Babulal was undecided what to do or it may, on the other hand, indicate that the complainant caught hold of him merely to prevent his being detained by the accused. In any case, the best evidence on that point would have been the evidence of Babulal himself and in a case like this where the evidence was mainly of a partisan nature it is regrettable that a more serious attempt was not made to procure that evidence. Section 510 of the Cr PC, provides:

Any Court may, at any stage of any enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case.

6. It is manifestly therefore the duty of the Court to summon and examine any person whose evidence the Court considers essential to the just decision of the case. It cannot be denied that in the present proceedings the evidence of Babulal was essential and the Court itself recognized that by directing summons to be issued to him, the Court should have been vigilant to satisfy itself that a real attempt was made to serve the summons on Babulal or to take further steps to secure his attendance. Its omission to do so has resulted in the admission of inadmissible evidence and the absence from the record of the best possible evidence of Babulal's attitude when the petitioners endeavoured to detain him from accompanying his employer. The explanation which the Magistrate has given to this Court is extremely unsatisfactory. It is as follows:

On 23rd March 1938 the accused filed a petition that Babulal should be examined as a court witness which was allowed and summonses were issued against him but he could not be found. Thereafter the defence did not apply for enforcing his attendance.

7. It was not on 23rd March but on 23rd May that the accused filed a petition for the examination of Babulal. There is no order in the order-sheet either on 23rd March or on 23rd May or on any other date to indicate that this petition was filed or what the Court's order was with regard to it or why the Court did not take further steps to secure his attendance.

8. All that can be found in the record is the order on the petition itself that Babulal should be summoned as a court witness and the process server's report on the back of the summons which I have already referred to above. That report so far from showing that Babulal could not be found merely showed that no attempt was made to find him. The Magistrate's remark that the defence did not apply for enforcing his attendance is entirely beside the point. It was the duty of the Court to secure the attendance of this important witness. The Magistrate goes on to say that Babulal's evidence could at best have been partisan evidence. Reliance has been placed for proof of the common object on very much superior evidence.

9. What is meant by this ambiguous statement I am unable to understand. If the Magistrate meant that Babulal would have deposed for the prosecution regardless of the true facts that idea is negatived by the prosecution's attitude towards him. As I have already stated, when the accused applied for Babulal to be examined the prosecution stated that he had been gained over by the defence. If however the Magistrate meant that Babulal would have deposed in favour of the defence regardless of the truth, it seems difficult to believe that the petitioners had behaved towards Babulal in the manner alleged by the prosecution, namely that they at first threatened him if he continued working for his employer and then forcibly attempted to prevent him from doing so. In the circumstances I am far from satisfied with the manner in which the trial was conducted and in the absence of the evidence of Babulal do not feel justified in accepting the view taken by the Courts below that there is sufficient reliable evidence to sustain the convictions. Without evidence as to the preceding threat the bald prosecution case is that for no apparent reason the petitioners suddenly appeared and forcibly attempted to prevent Babulal from accompanying his employer. It is possible to believe a story of an apparently unjustified attack when it is supported by unambiguous and unimpeachable evidence. But when the evidence tendered is not of that description it is unsafe to accept it unless it is supported by circumstances indicating its truth. Evidence of previous threat is evidence of such a nature. It is missing in the present case. The result is that the rule is made absolute and the petitioners are acquitted and their convictions and sentences are set aside.

D.S/R.K

10. Rule made absolute.