1. We have heard the evidence in this case, and have considered the arguments addressed to us by the learned Counsel who appeared on behalf of the appellant, and we think that the proper course to take will be to set aside the conviction, and direct a new trial of the prisoner Ram Sahai Lall; and for this reason, Pokhan, the brother of the deceased Gandauri, gave the first information to the Police station. Pokhan was not speaking from his own personal knowledge in giving an account of the transaction which resulted in the death of Gandauri, but he did give certain details, and he stated that he had received these details from three persons, Tiloke, Jitan and Chita, and he proceeded to add that these three persons were his witnesses. These three persons were examined by the Deputy Magistrate, and their evidence did not support the case for the prosecution. It would appear, and it is so stated in the judgment of the learned Sessions Judge, that the Police officer who had charge of the case did not wish these persons to be examined, and that the Deputy Magistrate, notwithstanding this expressed wish, proceeded to examine them, and this is given by the Sessions Judge as a good reason for not calling these witnesses in the Court of Sessions, or tendering them for cross-examination in that Court. Now, it must be understood, and it has recently been pointed out in more than one judgment of this Court, that in conducting a case for the prosecution, all the persons who are alleged, or are known, to have knowledge of the facts, ought to be brought before the Court and examined. No doubt, it may happen that certain witnesses will conceal facts which they know, or alter their account of what they have seen. Nevertheless, these witnesses should be before the Court, and the Judge and the Assessors, or the Jury, if the case is tried by a Jury, should have an opportunity of forming their own judgment as to their credibility or otherwise. This course was not followed in the present case, and we think that the learned Counsel has rightly pressed upon us that the prisoner has been prejudiced in his defence in consequence On this ground we set aside the conviction, and direct that the prisoner be retried.
2. I am of the same opinion. I would only add that I think the learned Sessions Judge has, subject to this omission, tried this case with remarkable ability, and I trust that when the case goes back to him, he will look upon it as an entirely new ease, and not allow his mind to be at all prejudiced by the fact that the case had been previously tried.