- (1.) THIS is an application for revision by Moolia who was convicted by 'the Magistrate, II Class, Mandawar under sec. 325 of the Indian Penal Code and sentenced to four months' rigorous imprisonment. He was challaned by the police Mandawar along with Ram Rikh, Nanda, Ram Saroop and Umrao under sec. 325 and 147 of the Indian Penal Code.
(2.) THE case against the accused was that Sheo Narain and Sirya who were real brothers were engaged by the villagers of Bhangada to graze their cattle and keep watch over them. On the 7th January, 1949, Sheo Narain rounded up some cattle which were found damaging the crops and when he was taking them to the village, accused met him breaking stones under the hill. Siriya the other brother of Sheo Narain had reached there by this time. THE accused told them not to take away the cattle, but they replied that they were paid by the villagers to keep watch over their crops, so they would not release the cattle. On this the accused assembled and attacked Sheo Narain and Siriya with lathies and sabli and inflicted injuries on them. When an alarm was raised, some persons reached the place and saved Sheo Narain and Siriya from the violence of the accused. A report was lodged by Sheo Narain at the Police Station, Mandawar under sec. 325/147 Indian Penal Code against the five accused. Investigation was taken in hand, and it was found on medical examination that Siriya had one grievous injury on his right leg. Both Siriya and Sheo Narain were found to have some minor injuries. THE case was ultimately challaned in the court of the Magistrate, II Class, Mandawar. THE accused denied the charge and pleaded that the case was an outcome of enmity. THE learned Magistrate, however, framed a charge under sec. 325/147 Indian Penal Code against the applicant Moolia and against the other four accused, he framed a charge under sec. 323/147 Indian Penal Code. Ultimately, only the applicant was convicted under sec. 325 Indian Penal Code and sentenced to four months' rigorous imprisonment. THE other accused were acquitted. The applicant went in appeal to the court of District Magistrate, Alwar, but his appeal was dismissed. He has now come in revision to this Court. It was argued by Mr. M. M. Sharma on behalf of the applicant that only six witnesses were examined for the prosecution out of whom Sub-Inspector Ganeshi Lal P. W. 1 was a formal witness. Sadhu P. W. 4 and Raghunath P. W. 5 did not support the case of the prosecution inasmuch as they have not deposed that they saw the accused going with lathies or sabli or giving beating to Sheo Narain and Siriya. The only thing which Sadhu has stated was that he saw two bawaries sitting, one of whom had injury in his leg. Five accused were breaking stones there. Raghunath's evidence is mere hear-say and he does not give any direct evidence. Dr. Ram Kishan P. W. 6 has also deposed about the injuries on the persons of Siriya and Sheo Narain and his evidence is of no avail to implicate any of the accused. The only two witnesses Sheo Narain and Siriya who were P. W. 2 and 3 respectively who were injured persons themselves no doubt implicate the accused*, but they implicated all the five accused and there is nothing in their statements to show why their evidence ought to have been believed against the applicant only when it was not believed in the case of other four accused. It was, also argued that these two witnesses did not go to court for the purposes of further cross-examination under sec. 256 of the Criminal Procedure Code and, therefore, their evidence is incomplete and ought not to have been relied upon by the lower courts. It was conceded by Mr. Ram Avtar Gupta appearing for the State that the only evidence against the accused is that of Sheo Narain and Siriya P. Ws. 2 and 3. He, however, argued that their evidence was sufficient to bring home the charge under sec. 325 to the applicant. As regards their non-production for the purposes of further cross- examination under sec. 256 Criminal Procedure Code, it was argued that summons were sent thrice to them but they were not available. The prosecution was therefore, unable to produce them, and, therefore, their evidence was rightly accepted under circumstances of the case. I have considered the arguments of both the learned counsel. The case against the applicant rests upon the evidence of Sheo Narain and Siriya only. These two witnesses could not be produced by the prosecution for further cross-examination under sec. 256 of the Criminal Procedure Code. Sec. 256 is mandatory and the accused has a right to cross-examine the prosecution witnesses after the charge. No doubt the accused is at liberty to cross-examine the prosecution witnesses even before the charge, but this does not do away with his right of further cross-examination under sec. 256 of the Criminal Procedure Code. If the prosecution witnesses are not produced for the purposes of further cross-examination under sec. 256 Cr. P. C. their evidence cannot be made use of against the accused. Of course, there-may be cases in which it is not possible for the prosecution to produce such witnesses either on account of their death or their being untraceable in spite of search. In the present case no doubt summons were sent thrice to these two witnesses but they were not served. The process server reported that Siriya and Sheo Narain had left the village and there was no trace of them. This report is not a sworn report and the process server was not examined before the court in order to substantiate his report. It would be very dangerous to act upon an un-sworned report of the process server. I do not think that the lower courts were justified in acting upon the evidence of Sheo Narain and Siriya who could not be further cross-examined under sec. 256 Criminal Procedure Code in spite of the request of the applicant. Neither of the two lower courts has given any reason why the evidence of these two witnesses should have been acted upon when they were not produced for further cross-examination under sec. 256 of the Criminal Procedure Code. The conviction and sentence cannot, therefore, be sustained. Ordinarily, I would have liked to send the case back for re-trial after quashing the conviction and sentence, but in the present case, I find that all the five persons were equally implicated in the first information report out of whom four have been acquitted. The report was made about a week after the alleged occurrence. Besides, this, I find that the applicant has been in jail for about a month. Under the circumstances, I would not like to remand the case for re-trial. The application for revision is allowed and the conviction and sentence are set aside. The applicant need not surrender to his bail. . ;