JUDGMENT 1. The Appellants before us, Ram Sarup Rai, Sheo Golam Rai and Shukdeo Rai, were committed to the Sessions Court for trial under sec. 148, and sec. 304, coupled with sec. 149 of the Indian Penal Code. Two other persons were similarly charged, namely, Jogeswar and Sheo Golam Rai. These two persons, however, have been acquitted. The learned Sessions Judge, in respect of the particular charges upon which the Appellants were committed, has held that those charges have not been substantiated; but yet he holds that they may well be convicted under sec. 326, I. P. C., namely, of grievous hurt, he being of opinion that it is a charge minor to that under sec. 304, coupled with sec, 149, upon which they were committed. And, in this view of the matter, he has convicted them under sec. 326, and sentenced them to various terms of imprisonment. It appears that, on the 5th August last, shortly before dusk, there was a dispute between Ram Ratan and Dhanukdhari on the one aide, and Thakur and Chandradwip on the other, in respect of the cutting, and filling up the opening caused by the cutting of a certain watercourse, in the water of which both these parties seem to be interested, and the case for the prosecution, as disclosed in the first information lodged before the Police at about 3 o'clock the next morning, was that there was a tussle between Thakur and Dhanukdhari in connection with the said dispute, and that Jogeswar and Sheo Golam Rai, who, we may here mention, do not appear to have been at all interested in the dispute, called out "maro" whereupon Ram Sarup Rai, Sheo Golam Rai and Shukdeo Rai and another person, as also 25 or 30 other persons ran up, and Ram Sarup Rai gave a blow or cut to Dhanukdbari with a baisakhi or a long bamboo mounted with an edged iron-piece at the end, and thereupon that individual fell down, and Sheo Golam Rai and Shukdeo similarly attacked the man and some other persons, and that, shortly afterwards, Ramratan carried Dhanukdhari, the wounded man, on his shoulder to his own house, and later on, at midnight the wounded man was taken over to the police-station but in the meantime he died. 2. 2. On turning however to the evidence that has been given in this case, the story, or, at any rate, the beginning of it, seems to be rather different, and it is this that it was upon the order of a certain person, namely, Chandradwip, that the Appellants and the other men ran up, and so did Jogeswar and Sheo Golam Rai, clearly showing that the story, as set up in the first information, of the attack being made upon Jogeswar and Sheo Golam's orders, is not true. It appears that these men, the Appellants before us, were in no way interested in the dispute, which had occurred between Ram Rattan and Dhanukdhari on the one side, and Thakur and Chandradwip on the other ; and it is rather remarkable that, being in no way interested in the dispute, any of them should have come up at the beck and call either of Jogeswar and Sheo Golam Rai or of Chandradwip, and inflicted almost a fatal blow, as stated by the prosecution, upon the head of Dhanukdhari. But it is said by the prosecution that they were interested in this wise, namely, that they had a common interest, in the water of the channel, and that they had fields close by which were being irrigated with the water of the said channel. The learned Sessions Judge, however, was unable to accept that theory. He distinctly finds that these persons were not interested in the water of the channel ; and as regards the other matter, namely, that they had lands close by, and therefore they were induced to come up, the learned Judge does not seem to have quite accepted that theory. The learned Deputy Legal Remembrancer has, however, pressed upon us to accept that theory, but the evidence upon this part of the case is rather vague and uncertain, and we are unable to say that those persons were in any way interested in the dispute between the two parties. If they were in no way interested in the dispute, is it credible (and here the question is as to the sufficiency and credibility of the evidence in the case) that those persons should have come up and wantonly attacked the deceased, merely because Chandradwip or Jogeswar and Sheo Golam Rai called out "maro". If they were in no way interested in the dispute, is it credible (and here the question is as to the sufficiency and credibility of the evidence in the case) that those persons should have come up and wantonly attacked the deceased, merely because Chandradwip or Jogeswar and Sheo Golam Rai called out "maro". Upon the dispute occurring, in the course of which, we may here mention, not only Dhanukdhari, but also Thakur on the other side was wounded, it is quite possible that persons owning lands adjacent to this channel did come up to see what was the matter, but then what the prosecution is bound to prove is that these three men actually took the part which has been attributed to them and inflicted the blows which are said to have been inflicted upon the deceased. We have examined the evidence from this point of view, and we must say that we are in no way satisfied that the witnesses are correct in saying that these three men attacked the deceased in the manner alleged. In this view of the matter, we think that the conviction cannot be sustained. 3. Then as regards the offence itself of which they have been convicted, it seems to us that it is extremely doubtful whether the learned Judge was right in convicting the Appellants under sec. 326, I. P. C., upon the ground stated by him. Sec. 304 coupled with sec. 149 applies, and can apply only to such persons who, though not taking an active part in an unlawful assembly, are liable to be punished by reason of their being members of the unlawful assembly, and a person being killed in prosecution of the common object of the assembly. But sec. 326 can only apply to a person who does a substantive act himself, namely, inflicts a blow which causes grievous hurt ; and we are not prepared to say that the offence under sec. 320 is a minor offence, or an offence involved in the offence under sec. 304 coupled with sec. 149, I. P. C. 4. There is one other matter to which we desire to refer, and that- is that there is really no evidence upon this record to show that the hurt caused to Dhanukdhari was grievous hurt within the meaning of sec. 304 coupled with sec. 149, I. P. C. 4. There is one other matter to which we desire to refer, and that- is that there is really no evidence upon this record to show that the hurt caused to Dhanukdhari was grievous hurt within the meaning of sec. 326, I. P. C. There is no medical evidence recorded as it certainly ought to have been recorded. Under sec. 540, Cr. P. C., the Court was bound to summon and examine any witness whose evidence seemed to be essential to the just decision of the case. Now, in this case the Civil Surgeon should have been examined. The post mortem report could not be used as evidence at the Sessions trial, except by way of refreshing the memory of the person who made it, or to contradict him. We cannot but regret that the Sessions Judge did not take the evidence which the law required him to take. In these circumstances we set aside the conviction and sentence and acquit the Appellants.