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"The history of the attacks on the train while it was lying stabled at Asaoti is contained in the evidence of the Assistant Station Master, D. W. 5, the Station Master Ganga Saran Gupta, D. W. 10, and in the station diary for the relevant period which contains entries by both of them. According to this evidence the first attempt to loot the train was made by few persons on the night of the 1th of September, but the Station Master managed to scare them away. Some wagons, the numbers of which are given in the entry in the station diary of the 4th of September which were found to have been tampered with were resealed. Another attack by a small party was made on the night of the 6th of September when a wagon containing oil-tins was broken and some of its contents removed, but again the robbers were driven away, an entry being made by the Assistant Station Master-in the diary of the 7th of September regarding this attack. The same wagon is alleged to have been attacked again on the night of the 8th of September and again a note was made regarding this in the diary on the 9th of September.

11. It was urged by learned counsel appearing for the different appellants that the diary maintained by the station staff at Asaoti is unreliable and that if that diary is rejected there is no evidence to show that the wagons had been looted. We will keep the diary out of our consideration. There is, however, in the first place the evidence of the Station Master and the Assistant Station Master to the effect that the wagons had been broken open. This evidence was, no doubt, rejected by the trial Court but was accepted by the High Court and in our opinion the High Court was justified in accepting this evidence particularly because there is corroboration to their evidence.

41. As for the Assistant Station Master he certainly says that he ran away on 12th September but admitted that the higher authorities had not given any such advice. He also admitted that there was no communal tension in Asaoti at the end of August. The Station Master on the other hand prevaricated and said that he did not remember if the authorities had advised him that the staff should save their lives, though he practically admitted that he did make such a statement in another case relating to the looting at Asaoti. There is nothing to show that the higher authorities ever gave such advice and the Assistant Station Master admitted it.

42. Therefore, as I read the diary and the evidence of the Station Master and the Assistant Station Master I cannot accept that the case of the Union of India has been made out that there was widespread lawlessness in that part of the country and that mobs were going about bent upon looting goods trains, and that it was in those extraordinary circumstances which were beyond the control of the railway administration that the goods from this stabled train were looted. On the other hand it appears to me on a review of the entire evidence led on behalf of the Union of India that no arrangements were made for watch and ward of this stabled train by the Station Master at Asaoti as he should have done as required by rules. Further if the diary is to be believed there were a number of attempts at thieving from 4th to 9th September, 1947 from this stabled train. Even in spite of this nothing was done by the Station Master for the watch and ward of the train as best as he could. There was, therefore, persistent negligence in the matter of watch and ward of this stabled train. Further if the statement of the Station Master is true that he gent appeals to the higher authorities for help and they were not heeded in spite of information as to what had happened between 4th and 9th September it must be held that there was persistent negligence of the higher authorities also. In this case, therefore, on the evidence of the railway administration there is disregard of the rule as to watch and ward and if the diary is to be believed there was persistent negligence in providing for proper watch and ward both by the Station Master and by the higher authorities in case the Station Master's statement is true that they had been informed of the incidents which took place between 4th and 9th of September. Such disregard of rules would, therefore, amount to misconduct in the circumstances within the meaning of that word in risk-note form B. Besides such persistent negligence after the events of 4th to 9th September must amount to mismanagement even from the point of view of a businessman of ordinary prudence. I am not prepared to believe that there was a kind of dacoity committed on this stabled train between 11th and 12th of September by lawless elements who were bent upon looting the goods train. It seems to me that at the very best the station staff looked on supinely while the goods from the trains were stolen or it may be that they were themselves privy to the theft. It is true that theft was on a somewhat large scale and that may be responsible for the defence that there was looting and what amounts to a dacoity committed on the train. But on the evidence I am not satisfied that that was really so. All that seems to have happened was that the goods were stolen from the wagons day after day because there was no arrangement for watch and ward in spite of the warnings that the station staff and the higher authorities--in case they were informed had to take from what is recorded in the diary from 4th to 9th September even if it is true. On a careful consideration of the entire evidence for the railway administration I am satisfied that this is not a case where the train was looted by a large lawless mob bent upon looting goods train on account of the communal situation preceding the division of India in 1947. I cannot take judicial notice of there being such large mobs going about the country side bent on looting goods trains. All that a Court can take judicial notice of is that there were communal disturbances in those days which is a very different thing from general lawlessness resulting in looting of goods trains indiscriminately in that part of the country. The very fact that Evans had no information of any looting till 13th September seems to suggest that all this happened because of the station staff either looking on supinely or perhaps actually being involved in the thefts. That may also explain why at least the Assistant Station Master ran away on 12th to give colour to the story of lawlessness and looting. But the attempt to show that this was done at the instance of the higher authorities has failed; and there is no reason to suppose that the theft of goods which took place from this train could not be avoided if the rule as to watch and ward had been followed and if there was no persistent negligence assuming that the incidents between 4th and 9th September as recorded in the station diary were correct. I, therefore, hold on the evidence produced by the railway administration that the loss took place on account of the negligence of the railway administration or its servants and thus the Union of India -