Lawrence H. Jenkins, C.J.
1. Forty-six accused have been, committed to this Court for trial under Section 6V(&) of Act XIV of 1908, and the charges against them are under Sections 121A, 122 and 123 of the Indian Penal Code.
2. Of these the principal charge is that under Section 121A, of conspiracy to wage war against His Majesty the King-Emperor, and deprive the King-Emperor of the sovereignty of British India, and to overawe by means of criminal force, or show of criminal force, the Government of India, as bylaw established. The charges under the other sections are subsidiary, and have not been discussed before us. The period of the conspiracy, as charged, is 'between the Christian years 1905 and 1910 both inclusive,' and the accused are charged with having conspired at Sibpur in the District of Howrah, and at other places in British India.
3. Of the 46 accused so charged, Bhuban Mukherjee is alleged to be of unsound mind, and consequently incapable of making his defence, and an application has been made to us, under Section 465 of the Criminal Procedure Code. As against him we have directed an adjournment of the trial subject to any objection that may be taken on his behalf.
4. The accused Satish Chandra Mitter and Haripado Adhikari have been discharged for want of jurisdiction, by reason of the failure of the prosecution to observe the provisions of Section 196 of the Criminal Procedure Code. The accused Bimola Deb has been acquitted at the instance of the prosecution, on the ground that there was no case against him.
5. The case against Kiran Rai has been dropped, not for lack of evidence, but because his mental condition appeared to be such that the prosecution against him could not properly be continued; and, in adopting this course, Mr. P.L. Roy was influenced, and properly influenced, by the fact that this accused had already been sentenced to eight years' rigorous imprisonment for the Haludbari Dacoity, which is alleged to be a part of this conspiracy.
6. Counsel for the Crown also determined not to proceed with the prosecution against Jotindra Nath Mukherjee and Nibaran Mozunadar alias Karuda, as the relevant evidence he was able to adduce against them was not sufficient to support a conviction.
7. The case for the prosecution is that the accused were members of a vast conspiracy, organised and working in secrecy, and aiming at the overthrow of the British Government: that, though the period of the conspiracy mentioned in the charge was between 1905 and 1910 both inclusive, the movement commenced earlier: that the principal centres of the conspiracy were Calcutta, Sibpur, Kidderpore, Nattore, Hooghly, Bankura, Midnapur and Jessore: that the scheme of the conspiracy required the collection of men, arms and money, and that an actual start in this direction was made: that men were recruited and arms and ammunition collected, that to obtain funds dacoities were committed, and swadeshi shops were started. As a part of the conspiracy, it is said, many crimes were committed, for the prosecution would ascribe to the conspiracy a number of dacoities attempted or committed, the murder of two police officers, and one informer, the endeavour made to seduce troops from their allegiance, and other minor offences. Many of these offences have actually been the subject of judicial investigation and adjudication, and several of the accused have already been convicted, acquitted or discharged, in respect of them. Where there has been an acquittal, there has of course been no further discussion, for the acquittal is conclusive, and indeed it would be a very dangerous principle to adopt to regard a judgment of not guilty as not fully establishing the innocence of the person to whom it relates: Rex v. Plummer [1902] 2 K.B. 339.
8. In other cases we have been compelled, by the course the prosecution have seen fit to adopt, to hear the evidence again, in proof of these same offences against the same accused. In other instances completed offences, as for instance the Netra Dacoity, have not been made the subject of a separate trial, as they could and should have been, but they have been thrown into this case, and we have had to investigate them in this trial. It may be that this course was inspired by the idea that, though the evidence at the disposal of the prosecution was insufficient to secure a conviction for the crimes committed, it might serve to secure a conviction for a conspiracy, the proof of which really rested on the establishment of those crimes; there can hardly have been the hope that the Court would be willing to suppose much had been proved, merely because much had been said. Of this, however, I am clear that the course adopted is not to be commended, and though it may be lawful, it unquestionably is not expedient. The result has been this trial, and with every effort to curtail its length, it has lasted, and necessarily lasted, for months, so that from the arrest of most of the accused a year and more has passed. The seriousness of this is the greater when it is borne in mind that, during the whole of that time, almost all the accused have been in custody, and that until the close of the magisterial inquiry, they were unrepresented by any legal advisers as a result of the application to this case of the special procedure provided by Act XIV of 1908, an Act 'co provide for the more speedy trial of certain offences.' I doubt whether, when that Act was passed, it could have been contemplated that a procedure was being sanctioned that would render it possible for accused persons to be incarcerated for months without any access to legal advice.
9. To establish their case the prosecution called, in the course of the magisterial inquiry, close on 450 witnesses, all of whom and more have been called or tendered in this Court, while the printed exhibits alone cover upwards of 1,100 foolscap pages. The evidence adduced in support of the prosecution's case is in part oral, in part documentary and in part real. The principal and most important oral evidence is that of the approvers Lalit Mohan Chuckerbutty and Jotindra Nath Hazra, but admittedly their testimony, before it can be acted on, must be corroborated in material particulars. The nature and extent of this corroboration is well settled; there must be corroboration not only as to the crime, but also as to the identity of each one of the accused; and ordinarily it must proceed from an untainted source. This is no technical rule, but one founded on long judicial experience, and this case affords a striking illustration of its wisdom, as will be made clear when I come to a discussion of the approvers' evidence.
10. The documentary evidence consists of books, newspapers, accounts, diaries and letters found for the most part at searches made in the course of this case, or of cognate or relevant cases. We also have before us arms and ammunition that the prosecution seek to connect with one or other of the accused. And finally we have the confessions, of which use is sought to be made under Section 30 of the Evidence Act against co-accused.
11. First, then, it has to be seen whether the conspiracy alleged by the prosecution has been proved. Was there a conspiracy 'to wage war against His Majesty the King-Emperor and to deprive the King-Emperor of the sovereignty of British India and to overawe, by means of criminal force or show of criminal force, the Government of India by law established'? A charge so phrased might, and probably would, to the lay mind, imply a political situation of the gravest character, and it is no doubt partly for this reason that the Legislature has prescribed that a charge of this description shall not be entertained except upon complaint made by order of, or under authority from, the Governor-General in Council, the local Government, or some officer empowered by the Governor-General in Council in this behalf.
12. The proceedings in this case have been initiated by complaint made by order of the local Government: with the policy of that order this Court has no concern. I have hesitated much as to whether it could with any show of reason be said that the evidence has disclosed a conspiracy for so serious an end as waging war against His Majesty, and I have hesitated the more when I have borne in mind the class of men arraigned before us as accused, and the arms that have been disclosed consisting as they do, for the most part of a few revolvers, some muzzle-loading guns, some antiquated and broken pistols and a handful of arrowheads. Even Lalit, when he says that the object was 'to make the country independent,' adds 'there was no immediate hurry.' Jotin Hazra seems to have regarded the movement as a means of livelihood, and in proclaiming his repentance he declared that he recognized that all this dacoity business was bad and that he had been worse off since the dacoities than before. Before us he expressed the view that 'these dacoities constituted a secret society.' Panna Lal, who also professes to have been a member of the conspiracy, declared in his confession to Mr. Patterson, 'all who entered the gang perpetrated swindles in the name of swadeshi.' Here he improved his story. Still the provisions of the law are comprehensive and it does not require very for midable elements either in men or means to satisfy its definition of a conspiracy to wage war. For the conspiracy with which we are concerned no act or illegal omission is necessary; the agreement of two or more will suffice, so that the determination of the Court that a conspiracy to wage war has been established does not imply, as its terms might suggest, the existence of a serious menace to the constitution or the stability of constituted authority in India. And I think it right to say this in explanation of my conclusion that a conspiracy to wage war has been proved.
13. So much is made of the evidence of the approvers and so closely and intimately is the success of the prosecution identified with it, that it will be convenient, to discuss its value at the outset.
14. Of the two principal approvers Lalit is the more important and I will deal with him first. His previous record has nothing to commend it: though he is poor and his family poor, he has frankly admitted that he 'has never tried to earn an honest penny.' He was arrested in Darjeeling on the 27th of October, 1909, and instead of being sent at once to Diamond Harbour, he was kept at Darjeeling for 'local enquiry,' and did not reach Diamond Harbour until the 2nd November. Then he had interviews with Inspector Shamsul Alum extending over several hours, and though it was understood Lalit was willing to confess even before he left Darjeeling, it was not until the 5th of November that he was taken to the Magistrate to have his confession recorded. No explanation of this delay is forthcoming, and it is a matter both for regret and for comment that the statement recorded by Inspector Shamsul Alum is not forthcoming. No such document could be found. This assurance we, of course, had to accept, but I feel that it might have materially assisted us, had it been possible for the prosecution to place before us either the original record, or a copy of Lalit's first statement to Inspector Shamsul Alum. How such an important document (if it -ever existed), and all record of its contents have become lost to the Police, it is difficult to understand. That such a statement was recorded seems clear, and counsel for the prosecution was asked by the Court to produce for our inspection some document from which we could learn what Lalit had said to the Inspector. Though it seemed to me improbable that the police authorities would not have somewhere in their possession either the original or a copy of this statement, Mr. P.L. Roy, after search had been made, informed the Court that he was instructed to say, no record of this statement could be found.
15. Lalit's confession to the Magistrate, Mr. C.C. Chatterjee, is a very remarkable statement, and it is the foundation on which practically the whole of this case is built. For the prosecution it is said that this statement is. not a full disclosure of all Lalit knew, and this has to be said, for it is silent as to the many matters to which Lalit has deposed before us.
16. Lalit's successive statements to the recording Magistrate, to the verifying Magistrate, before Mr. Duval who conducted the inquiry, and finally before this Court, afford so much room for comment that it is difficult to decide where to begin. His evidence-in-chief before this Court was conspicuous for the assurance with which it was given, and the intimate knowledge of the membership and doings of the conspiracy it professed. Offences and outrages that had baffled the detective powers of the police were explained and claimed by him as the work of the conspiracy, and he has painted himself before us as having had a considerable hand in the commission or abetment of dacoities, murder and theft. His knowledge of the personnel of the conspiracy appeared to be extraordinary; before the inquiring Magistrate he gave the names of over 170 persons, indicating in most instances their residences, and yet he has told us he was not an important member of the conspiracy, and to the verifying Magistrate he stated in explanation of his inability to give a particular name and address, 'the rule of our Samity is not to ask the name and residence of any member. On this account I do not know the names and residences of many persons.' Nor can the achievement of recounting this list of names and residences be explained by a good memory for facts within his experience, for when confronted in his cross-examination with one of his many inconsistencies all he could say was 'it is impossible for me to narrate these facts correctly each time.' Under the stress of cross-examination the assurance vanished, though he displayed considerable resource as he was dislodged from one after the other of his former statements. It would take too much time to do more than mention a few of the indications of untrustworthiness his evidence affords. First, there is his denial of the brick-burning letter, which it is difficult to regard as anything but deliberate falsehood. He may have felt he was safe in this denial, for the falsehood was one that could not have been discovered, but for the chance that brought this letter into the possession of the defence, a contingency Lalit could not have foreseen. His ingenious explanation of the letter, when he had to admit its authorship, did not impress me. Then there is the change of his story as to the receipt of Rs. 10 by Money Order from Jotin Mukherjee, from which it became necessary to resile when it was discovered that Jotin was at that time at Darjeeling. Next we have him deposing before the Magistrate that he had passed the Entrance Examination from the Diamond Harbour School in 1905, while here he denied that he had made any such statement, and declared that he left when he was promoted to the 2nd class. At one time he says it was his father that paid for his outfit at Darjeeling, at another time that it was Noni Gopal, and when he was confronted with the variation in his story he promptly said both were true.
17. Then the story of his connection with Benares is remarkable for its changes. At one time he deposes that he went with Haren and Behari Lal, at another that he preceded them: in his examination-in-chief, it seemed as though he went there only once, but in cross-examination, he escapes from the difficulty this involves, by saying there was more than one visit. At one time he says he, Haren and Behari Lal lived in Ambica's house at Benares for a fortnight, at another he says he thinks he never made any such statement: at one time he declares that he returned from Benares in 11/2 or 2 months, at another after working there for 5 months. His story as to his being sent to Dacca for the Barah loot is almost as full of contradictions: at one time it is Pabitro and Noni who sent him on this mission, at another Bimola takes Noni's place: at one time he declares that it was while he was living in Indra Nandi's house that he was so sent, although it appears that the dacoity had not then been committed, at another that it was when he returned from Benares in the Autumn of 1908, though the dacoity had then been committed not less than four months before : at one time he was given cartridges and a revolver on this occasion, at another no mention is made of this. Then as to the date of his first coming to Calcutta: before us he declared it was in October 1906, that he first stayed at 46, Machua Bazar Street, that he then moved to the premises of the Calcutta High School, No. 66, Nebutolla Lane; that in Asin or Kartic he was initiated; that he then went to the Yugantar and Chatra Bhandar Mess, No. 15-1 or 15-2, Bhowani Churn Dutt's Street; that on the very day of his initiation he was entrusted with a revolver to make over to Sakharam Ganesh Deoskar, that on the following day in accordance with instructions, he watched 7, Alipur Lane, and followed a man on a bicycle supposed to be carrying money, and that, after staying two or four days at the Yugantar and Chatra Bhandar Mess, he was sent by Indra Nath Nandi to Cheddapathar. Before the verifying Magistrate, however, he places his visit to Cheddapathar in 1907. It is true that the date in the Magistrate's record appears to have been altered to 1907, but if this alteration was subsequently made, one thing at any rate is clear, the alteration could not have been made by the defence, for the document was in possession of the police and it was only after repeated efforts that counsel for the defence saw it in the course of the trial in this Court, But more than this, if the alteration was subsequently made, it was one necessitated by Lalit's statement, at the time, for immediately afterwards he says, in the same statement that, after being two months at Cheddapathar, he returned to Calcutta, and he goes on to describe a long conversation he had as to the Changripota dacoity, and the disposal of the proceeds. And seeing that this dacoity was not committed until December 1907, it is at once patent that if 1907 is a later alteration, it was one necessitated by Lalit's own story. But if October, 1907, be taken as the date of his arrival, then all the events prior to that to which he deposes, - and they are both many and important, - must have been outside his experience. If, on the other hand, he came in 1906, then the conversation as to the Changripota dacoity on ins return, must be a fabrication, and it is difficult to repel the suggestion, very pertinently made, that it was a fabrication in which he was instructed for the purpose of bringing in this dacoity as the work of the conspiracy.
18. Then there is Lalit's story as to the assistance he gave in securing the murder of Nando Lal. If Lalit was in Benares in August, then his version as to how he came to know Nando Lal by sight is false and with that the whole of his story goes by the board. There are other serious difficulties in the way of accepting his evidence on this point, with which I will deal later, and I will now merely allude to the fact that, though he professes to have watched Nando Lal's house under instructions from Noni, the house he pointed out to the verifying Magistrate as Nando Lal's was No. 25, whereas in fact Nando Lal lived in No. 100-2. Then we have Lalit placing the Musapur dacoity in April, and so placing it, not as an isolated event, but for the purpose of accounting for the abandonment of the second Netra attempt, and yet we know that this dacoity was committed on the 27th February. Then we find that, while he claims an intimate knowledge of those who took part in the Netra dacoity, he points out as parties to it two persons who admittedly had nothing to do with it.
19. I have mentioned here only a few of the many indications which go to show how untrustworthy Lalit is, apart altogether, from the discredit that attaches to him as an accomplice or as the worthless character he obviously is. When I come to deal with the details of the case it will be necessary for me to refer to many other such instances, and indeed a close examination of his evidence goes to prove that almost all his statements, when capable of being checked, can be shown to be incorrect. There can be no question that Lalit has overdone his part, whatever the reason may be: and if it be said that had he been fabricating a false' story he would not have fallen into this error, then I would answer in the words of Lord Brougham: - 'This is a very tender argument before a Court, and too doubtful to justify the Court in placing any considerable reliance on it; for we do find, happily for the ends of justice, that men do fall into these inconsistencies, and by means thereof, the fraudulent character of the evidence becomes apparent.'
20. Jotin Hazra, the other approver, it is also urged on behalf of the defence, is, apart from his being an accomplice, an untrustworthy witness. There is certainly little in his general character to commend him for he seems to have been a ne'er-do-weel, and admits to having been a ganja smoker. He is a man of indifferent education, and I was not favourably impressed by him in the witness box. We first meet with Jotin in connection with the Morehal dacoity: he was arrested on the 5th February, on the 6th February he confessed, on the 29th of March he retracted; he was tried at the Sessions, and in the end he was acquitted on the 1st April, 1909. Proceedings were then taken against him under Section 110 of the Criminal Procedure Code for bad livelihood on the 29th June, 1909, and he was ordered to find sureties on the 17th 'August. He was not finally released till the 11th February, 1910, as he could not find sureties before. Prior to the 17th of August, however, he had been temporarily released on bail in July, but instead of going to his own house, he went to Kali Babu, a Police Inspector at Uluberia, and told him he would like to confess. But for a reason which has not been explained, the Inspector instead of taking Jotin Hazra to a Magistrate to have his confession recorded, took him to Inspector Shamsul Alum, and left Jotin with him. Jotin says he told all, and Shamsul wrote it down, but we have not been placed in possession of what was so recorded. On the 15th of February, 1910, he was arrested in this case, and he made a statement to Mr. Forrest on the 17th, two days later.
21. The defence have drawn attention to the fact that, in reference to the confession in the Morehal case, which was subsequently retracted by him, it was Jotin's contention that he had been tutored to make that confession by Behari Lal, and it is urged that it is significant that he should have made his statement to Mr. Forrest immediately after this same Behari Lal became his surety. Jotin's movements while in custody certainly are deserving of attention.' I will start with his being brought to the Presidency Jail, where at the time none of the accused were in custody. He was, however, removed from here to the Alipur Central Jail, where the accused then were. This was a few days before he was required to identify them in the Magistrate's Court, and not only was he removed to the Jail where the accused were, but he seems to have eaten and bathed with them. Almost immediately after he had identified the accused, with whom he was concerned in the Magistrate's Court, he was removed to another Jail. In considering the significance of these moves, it has to be borne in mind that, up to this time, there had been no identification by Jotin. For the defence it is asked, and I think reasonably asked, what is the explanation of all this. None has been vouchsafed, or attempted, and it is difficult to treat the matter as an undersigned coincidence.
22. This will be a convenient place at which to deal with the confessions.
23. Reliance has been principally placed on those of the accused Soilen Das and Susil Biswas, and these the prosecution would use not only against the persons making them, but also against the rest of the accused. The warrant for this is to be found in Section 30 of the Evidence Act, which provides that, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons, is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The language of the section is guarded, and the history of this Act leaves me in no doubt that this section was designedly framed in these terms. While admissions, a word which embraces confessions, are by Section 21 relevant, and may be proved as against the person making them, all that Section 30 provides is, that the Court may take them into consideration, as against other persons. This distinction of language is significant, and it appears to me that its true effect is, that the Court can only treat' a confession as lending assurance to other evidence against a co-accused. Thus to illustrate my meaning, in the view I take, a conviction on the confession of a co-accused alone would be bad in law. This reading of the section appears to me to gain confirmation from the language of Section 5.
24. Further, I think that only can be taken into consideration which is a confession, in the true sense of the term, of the offence for which the persons are then being jointly tried. But, in addition to this, the confessions with which I am now dealing, have been retracted, so that, to place any reliance on them against the co-accused would be most unsafe: Yasin v. King-Emperor (1901) I.L.R. 28 Calc. 689. Counsel for the defence however has gone further, and maintained before us, that there are points on which the confessions are absolutely false, and that these are points on which honest mistake was not possible.
25. First I will examine Susil's confession. He was arrested on the 7th November, 1909, at Beliasishi for the Haludbari dacoity, and he confessed on the following 14th of December. He speaks to the presence of Lalit Mohan at Beliasishi 8 or 9 days before the commission of the Haludbari dacoity, which was on the 28th of October, 1909, and to his I taking two swords away with him. He further speaks to having been initiated by Lalit 4 months before his confession. But Lalit's deposition is that he was not near Beliasishi at either of those dates, and according to his story he was not in Beliasishi after May. Further than that, Lalit in the witness , box never alluded to this alleged initiation, though he was questioned in his examination-in-chief as to initiations performed by him, and mentioned some, particularly, those in which he had taken part. So much for Susil's confession.
26. I now come to Soilen's confession. To begin, with, it is pointed out, that while Soilen in his first confession made on the 29th of October, 1909, the day after his arrest, gave the name of Ganesh Chandra Das alone, saying that he did not know the names of all the rest, In his, second confession he names all the Calcutta men and Bidhu, This, it is urged, shows an improvement designed to meet the exigencies of the case. Whether this be so or not is not directly material for the purposes of this case. But what has been most vigorously attacked is the third confession made on the 9th and 10th of March, 1910, after Soilen had been in custody for over four months. In this he purports to give a detailed list of conspirators, even naming 80 men who had not been mentioned by Lalit; he makes repeated reference to Noni Gopal, he gives an account of the Netra dacoity; he implicates some of the accused in the Morehal dacoity, and he deals with a number of other matters. Not only has this confession, as well as the two which preceded it, been retracted by Soilen, but a careful consideration of its contents, and a comparison of them with other materials in the case lead me to regard this statement as eminently untrustworthy, and I am unable to place any reliance on it against Soilen's co-accused. Without attempting a critical examination of the whole of this confession, it will suffice to refer to two matters. Towards the end of this confession, he throws in the remark that, 'Noni, Babu never keeps any incriminating thing in his house.' Now this he says on the 10th of March, 1910, while Noni's house had been searched on a previous date, the 20th of January, and nothing incriminating had been found. Then again Soilen almost immediately after this tells us, in the same confession, about the recovery by Noni of cartridges that had been thrown into the tank. It is conceded for the prosecution that this has reference to an incident of which witnesses named Sarna Bewa and Jamini speak. And yet, if Jamini is right in placing the occurrence in Aughran, i.e., November-December, it is difficult to see how Soilen, who was then in custody, could have known of it. This, however, is a matter which I will, discuss at greater length when I come to deal with the case against Noni.
27. For the prosecution it has been suggested that the verification proceedings in this case add a value to the approver's evidence and the confessions, and may be regarded as corroboration. With this I am unable to agree; on the contrary I feel that these proceedings are open to much of the criticism to which they have been subjected. I refrain from noticing in detail this criticism, as in the view I take, it is not necessary for the decision of the case, nor do I propose to discuss at length the comments that have been made on the methods of identification, though I regret that no satisfactory explanation has been given either of Jotin's being moved to and from the Alipur Central Jail where the accused were lodged, a matter to which I have already alluded, or of the under-trial prisoners having been photographed in Jail by the Police, a procedure for which no warrant or justification has been furnished us by counsel for the prosecution. Action of this class, if left unexplained, even after challenge in the clearest terms from the defence., is certainly calculated to occasion some degree of anxiety as to the methods employed is this case.
28. Considerable reliance is placed by counsel for the prosecution on a series of dacoities committed or attempted, and alleged to be a part of the scheme on which the conspirators embarked. The earliest, according to the prosecution was a dacoity at the Changripota Railway Station, committed on the 6th December, 1907, and followed by daeoities at Sibpur on the 3rd of April, 1908, at Barah on the 2nd of June, 1908, and at Bighati on the 16th of September, 1908. Then, it is said there was an attempted dacoity at Protapchuck on 14th October, 1908. On the 29th of November, 1908, a dacoity is said to have taken place at Raita, and on the 2nd of December at Morehal. In 1909 daeoities are said to have been committed on the 27th of February at Musapur, on the 23rd of April at Netra, on the 27th of July at Maharajpur, and on the 28th of October at Haludbari.
29. The incident which has been described as the Changripota dacoity occurred on the 6th of December, 1907; whether or not it was a real dacoity is not clear, but of this I am convinced, that the evidence does not establish the guilt of the accused Narendra Nath Bhuttacharjee and Bhusan Chandra Mitter. Shortly after the occurrence, a magisterial inquiry was held, with the result that the accused then before the Court were discharged. This, no doubt is not binding on this Court, for the discharge was not equivalent to an acquittal. Still the discharge meant that the Magistrate, after taking the evidence, found that there were not sufficient grounds for committing the accused for trial, and he recorded his reasons for that conclusion. No steps were taken at the time to have this order of discharge set aside, and now, more than three years after the event, we are asked to hold that the complicity of the two accused now before the Court has been established. It is not suggested that further evidence has been adduced : on the contrary, some evidence which was adduced before the Magistrate, and which appears to have been favourable to the accused, has not been placed before us. The evidence actually placed before us is open to considerable comment, and this, together with the circumstances to which I have alluded, in my opinion, clearly requires that Ave should hold the guilt of Noren Bhuttacharjee and Bhusan Mitter not proved, and the connection of this dacoity with the alleged conspiracy not established.
30. The Sibpur dacoity was on the 3rd of April, 1908, and though Lalit refers to it, his evidence in this connection can command no confidence, and Mr. P.L. Roy wisely refrained from placing any reliance on it.
31. Nogendro Nath Chatterjee, it is true, was arrested on the 4th or 5th of April, 1908, but no charge-sheet was submitted and he was discharged. Apart from this, there is no evidence that any of the accused took part in the dacoity, or that it was the work of those engaged in the alleged conspiracy.
32. The Barah dacoity was on the 2nd of June, 1908, and of the accused before the Court, Kartick Dutt was put on his trial for this offence, but was acquitted. There is no credible evidence to connect any other of the accused or the conspiracy with this dacoity. It is true that Lalit tells a tale in connection with the loot of this dacoity that implicate Pabitra Charan Dutt and Bimola Deb, but counsel for the Crown informed the Court that he did not rely on this, and, in my opinion, he had very good reasons for taking this course.
33. The Bighati dacoity was on the 16th September, 1908, and Kartick Dutt's participation in it is placed beyond question by his conviction. Apart from this there is no evidence of direct participation in the affair by any other of the accused. Lalit's attempt to connect certain of the accused with it by means of conversation he overheard, obviously fails. Mow far this dacoity can be treated as the work of the conspiracy under investigation will be considered when I come to deal with the case of Kartick Dutt.
34. The attempted dacoity at Protapchuck is not brought home by reliable evidence, either to any of the accused or to the conspiracy. Though there is reason to think that the Raita dacoity (November 29th, 1908) was committed by what have been termed 'respectable men, there is nothing which suggests that any of the accused took part in it, beyond the retracted confession of Susil Biswas, who names Manmatha, Ramapodo and Bhupen. But this obviously cannot take the place of legal proof.
35. The Morehal dacoity was on the 2nd December, 1908, and, as I have already said, Manmatha Nath Rai Chowdhry has been convicted as one of the offenders. It is said by the prosecution that Dasarathi Chatterji, Shibu Hazra and Atul Pal were also of the parley, and the approver Jotin no doubt names them. Not only however, is his evidence wholly uncorroborated, but it is at least doubtful whether Jotin was at the occurrence. He tells a story of bursting open a safe with gunpowder which cannot have escaped the notice of others, and yet is mentioned by no one; his name does not appear in Mamnatha's confession; and though put on his trial he was acquitted at the Sessions. In the circumstances it cannot be fairly said that 'this dacoity is brought home to any one except Manmatha Nath Rai Chowdhry, though it may be that some of the dacoits were bhadralog.
36. The Musapur dacoity was on the 27th of February, 1909. There is, however, nothing to connect any of the accused with the occurrence. Lalit seeks to connect it with the conspiracy, but his evidence is unreliable. As I have already pointed out he places the dacoity in April, though it occurred in February.
37. The Netra dacoity was on the 23rd of April, 1909, and it owes its importance in this case to the fact that it was in connection with this affair that the approver Lalit Mohan Chuckerbutty was arrested, and it is on his successive statements that the whole fabric of this case practically rests. He ultimately seeks to implicate no fewer than fifteen of the accused in this dacoity either as actors or instigators. The fact of the dacoity is beyond dispute, and if Lalit is to be believed it was preceded by two abortive attempts. These need not be discussed at any length, nor is it necessary to do more than point out that his evidence as to the second of them is open to considerable doubt, for, while he would place it within the month of April, he states that the attempt failed because the Musapur dacoity interfered, but in fact it appears that the Musapur dacoity was in February.
38. The first information of the Netra dacoity was lodged by Ham Taran Mitra, the owner of the looted house, within a few hours after the occurrence, and what appears there leaves little doubt that the dacoits cannot have been ordinary criminals, and it is peculiarly significant that the dacoits were at that early stage reported to have said, 'the money and ornaments that we are taking are meant solely for driving the English root and branch from this country. We are in want of funds, and therefore we are obliged to collect money in this fashion. When the time comes we will return the money with interest.' This points very clearly to the purpose and personnel of the party, and is in accord with the allegation that the dacoits were Hindus and the sons of bliadralogs. Though Lalit in his evidence deposes that the dacoits were 21 in all, yet, in the first information it is said there were only seven or eight young men.
39. It will be convenient here to recall Lalit's version of the whole affair. After detailing the instructions he received from Noni Gopal Sen Gupta, he states that he went by train to Dewla, where he alighted at 5-40 or 6-40p.m. with others, whom he conducted to a field. There five men of Joynagar and Mazilpur met them and about midnight, after the last train from Diamond Harbour had passed, the party proceeded to the scene of the dacoity, Ram Taran Mitter's house, led by Lalit. Arrived at the house Kali Chakravarti and Madaru scaled the wall, Lalit concealed himself in a drain, two men mounted guard and the house was looted. Then Lalit led them back again past the field, and, after they had gone 2 or 3 miles, the party sat under a tree and took count of the spoil of which a list was made. With certain trifling-exceptions the arms and loot were made over to the men of Joynagar and Mazilpur. The rest went in batches of 3, 4 or 5 up to Sangrampur Mat, the men with Lalit being, to use his own words, 'Soilen Das, Bistopodo Chatterjee, Atul Mukherjee and, I think, Upen De.' This batch went to Magra Hat Station and there they got into the third train from Diamond Harbour to Calcutta.
40. Such in broad outline is Lalit's story of the dacoity as presented to us in the course of his examination-in-chief. He then goes on to describe visits to Sarat Mitter and Noni Gopal, his expedition under Noni's instruction on the following clay, which must have been Sunday, the 25th April, his arrival at Mazilpur, and his return in the early hours of Monday with the plunder, accompanied by Chuni Lal Nandi and Rojoni Bhuttacharjee. Though there is reason to think that this dacoity was connected with some such conspiracy, as is charged in this case, I will reserve for consideration when I come to deal with their individual cases whether the evidence establishes the guilt of Chuni Lal and Rojoni, but against the rest of the accused the imputation that they were in this dacoity fails.
41. The Maharajpur dacoity was on the 27th July, 1909. The evidence discloses nothing that serves to connect the offence either with any of the accused or with the alleged conspiracy.
42. The Haludbari dacoity was on the 28th of October, 1909, and the accused Soilen Das, Susil Biswas, Atul Mukerjee, Kiran Rai, Gonesh Das, Sailendra Chatterjee, and Upendra Kristo Deb have on a previous trial been found guilty of this offence. The accused Bidhu Bhusan Biswas and Manmatha Nath Biswas, who were tried with them were acquitted.
43. One of the principal overt acts alleged in the complaint initiating these proceedings is, 'the seduction of and attempting to seduce certain men of the 10th Jats from their allegiance.' This, according to the prosecution, was a distinct and complete offence in itself, and it is much to be regretted that it has not been brought to trial as such. However, this has not been done, and we have therefore been compelled to try in this case the charge of attempting to seduce the sepoys of the 10th Jats from their allegiance and duty, and of conspiring in such attempt, so that, as far as the present accused are concerned, the judgment of the Court on that charge will be conclusive. The men of the 10th Jats involved in this offence are, according to the prosecution, Surjan Singh, Chunai Havildar, and possibly Ram Gopal; but it is Surjan Singh who figures most prominently in this connection, and the accused whom the prosecution would implicate in this affair are Noren Chatterji, Sarat Mitter, Bhutan Mukerji and Noni Gopal.
44. The specific acts alleged are (1) that Surjan Singh was initiated into the secret society at Bhutan's house at Sibpur, where he and Ram Gopal were taken by Noren Chatterjee, (2) that Surjan Singh was thrice given money, once by Noren Chatterji and twice by Lalit, and (3) that these men of the 10th Jats visited Sarat, and were in constant touch with Noren Chatterji. I may say at once that against Noni there is absolutely no evidence; of the payments by Lalit there is not a word of corroboration, and in fact these payments are opposed to Surjan's testimony; for Keren's payment to Surjan we have to depend on the unsupported evidence of Surjan who was, on his own showing a party to this alleged criminal transaction. But there is a more serious difficulty in the prosecution's way. One of the witnesses on whom the prosecution principally rely for the story of the initiation, is Ram Gopal, for his evidence at any rate, it is claimed, cannot be depreciated as that of an accomplice. Ram Gopal was a soldier in the 10th Jats, and his evidence is that he left the regiment in November or December 1908. The exact date must be a matter of record, within easy reach of the prosecution, and no attempt has been made to question the correctness of this date, and so presumably the prosecution accept it as correct. Now, Ram Gopal speaks to the visit with Surjan to Sibpur, and places it 5 or 6 months before he left the regiment, and though it would be wrong to tie him down strictly to this computation of time, it is reasonable to suppose that, according to him, this visit occurred some considerable time before November or December, 1908. Here again the prosecution could have fixed the date, as the excursion is said to have been made while Surjan was in hospital with a dislocated knee. No steps, however, have been taken to show that Ram Gopal was in error, so that here too it is fair to assume that the prosecution accept as correct the time approximately fixed by Ram Gopal. For what it may be worth, I may point out that it was said to be drizzling at the time of this visit to Sibpur, and this would agree with Ram Gopal's estimate of the time. At the same time the evidence of these Tat witnesses is, that before and after the Sibpur incident, they used, to go to Sarat's dispensary at 86-1, Diamond Harbour Road, 1 This is clear from the evidence itself, and is confirmed by the fact that it was this house that Surjan Singh pointed out to the verifying Magistrate. The evidence, however, is clear that Sarat was not living in Diamond Harbour Road at the date of this alleged visit to Sibpur, whether it occurred 5 months or even less than 5 months before November-December, 1908. This visit to Sarat's, it has to be borne in mind, is not an irrelevant incident; it is an essential and integral part of the story of the initiation, and the discrepancy, to which I have drawn attention, throws serious discredit on the whole story of the journey to Sibpur, which is in itself improbable. In expressing these definite and positive conclusions in regard to the Jat soldiers, it is right to state that, though they are the conclusions of the Court, they do not in all respects represent our unanimous opinion. But the divergence of view is not such as to qualify the unanimity of our opinion on the essential question whether the accused, alleged to be involved in this incident, are or are not proved to be guilty of the offence of conspiracy with which they are charged. On that we are all agreed.
45. Then it is claimed that the Chatra Bhandar affords strong evidence of the existence of the conspiracy, and is of value as incriminating several of the accused. It came into existence as far back as 1903 as a Students' Co-operative Stores Association, and it is conceded that, in its origin, it was a legitimate trading concern. In August, 1906, it was converted into a limited company, but whether it was before or after this that it was put to unlawful ends has not been formulated by the prosecution. The theory now advanced is, that the conspirators saw in its prosperity a useful instrument for forwarding their ends, and they accordingly captured the Association. The uses to which, according to this theory, the Association was put were, first, to earn money for the conspiracy, secondly, to afford a secure meeting place for the conspirators, and thirdly, to be the Bankers of the cause. But ingenious and attractive as this may be as a theory, it has no foundation in established fact; not one of these three suggestions is proved. But then it is said that a close connection existed between the Chatra Bhandar and the fugantar, and that, from this the true character of the Chatra Bhandar, is to be learnt. For this, reliance is placed on the fact that the proof of the Chatra Bhandar's blue prospectus was printed at the Sumati Printing Works. But it would seem that these printing works belonged to Nikhileshwar Roy Moulick, who was a Director of the Chatra Bhandar, so that the fact on which so much reliance is placed, is capable of an explanation which is not only innocent but probable. And, in this connection, it has to be borne in mind that Nikhileshwar has been conclusively acquitted of participation in the conspiracy set up by the prosecution. It is true that on the Chatra Bhandar prospectus the Jugantar was advertised, but of this an explanation has been suggested, and, in any case, it cannot be overlooked that the Chatra Bhandar had 10 Directors, and that, of these, two have been acquitted of being concerned in the conspiracy, while, of the remainder, it is only against Pabitro that any suggestion of complicity has been made. Moreover, at this time, it has to be remembered, the Jugantar had been in existence some considerable time, its popularity was great, and no objection had been taken to its tone and its teaching by the authorities. Precisely the same considerations apply to the alleged connection with the Mukti Kon Pathe. Then again, so far as the printing of Chatra Bhandar documents is concerned, it was in no sense limited to the Sadhana Press, but the accounts show that a large amount of printing work was done at other presses, even while the Sadhana Press was in existence.
46. Then it is urged that the Chatra Bhandar is condemned by the books it sold. True, it is, that Mukti Kon Pathe, Bartaman Rana, Niti, and Jaatiya Samasya were sold there, but they were not proscribed books; they were sold elsewhere, and it is not suggested that they were only sold at establishments in league with the conspiracy. Nor were the Chatra Bhandar's sales of books restricted to these three publications : on the contrary, it is clearly shown that a large number of different publications was sold to which no exception could be taken. There has been some discussion before us as to whether the three offending publications, to which I have referred, belonged to the Chatra Bhandar, or were merely sold by it in the ordinary course of business, and each side has referred us to the Association's books of account. But such of them as have been produced throw no conclusive light on the point, and as possession of all was taken by the police, the defence cannot be treated as responsible for the non-production of the rest, so all that can be said is that the prosecution have not proved that these publications belonged to the Chatra Bhandar. I do not overlook the expressions and sentiments contained in the blue prospectus to which our attention has been drawn, but giving to them all the force adverse to the Association to which they are fairly entitled, I find it impossible to regard them as establishing the Chatra Bhandar's connection with the conspiracy into which we are inquiring in this case.
47. It is the case for the prosecution that the Jugantar was an integral part of the conspiracy. It was started in March, 1906, and its origin and its purpose are matters of common knowledge. Its articles and its popularity have been brought to our notice, and the facts show that those who guided its policy managed to select writers possessed of a style so levelled to the popular taste that, even street traffic was impeded in the rush of would-be purchasers. Inspector Purno Chunder Lahiri has told us that people were amazed at the inaction of the Government, and the audacity of the paper, and this I can well understand, for notwithstanding its pernicious teachings no step was taken to check it until July, 1907. All this may be conceded and regretted, but our concern is to see how far the connection of the Jugantar with the conspiracy we are investigating, and the accused we are trying, has been made good. Taranath's connection with the Jugantar is established, but he holds an isolated position among these accused, as does Kartic, who, alone of the rest, is said to have had relations with that paper. Apart from this the accused are not shown to have been connected with the Jugantar in any sense that would justify us in holding that it was a (sic) of the conspiracy under trial. The mere discovery of copies of the paper at searches proves nothing, for admittedly, it had an unusually wide circulation. True it is that the Jugantar was a limb of the Muraripukur Garden conspiracy, but as I will show, that was distinct from the one which we are enquiring'. And this brings me to the prosecution's suggestion that the conspiracy with which we are concerned in this case is a part or branch of that which had its head-quarters at Muraripukur Garden. This was not the case for the prosecution as formulated in the complaint of the 4th of March, 1910, on which these present proceedings were initiated: there is no mention there of that conspiracy, and not even a reference to any of the overt acts which were a part of that conspiracy. And yet this can hardly have been due to oversight, for that conspiracy and the outrages that belonged to it were a matter of public notoriety.
48. It was not until the 25th of May, 1910, that a reference was made to the Muraripuluir conspiracy, or to the accused Taranath and Kartic, who are said to have been intimately connected with it. Now it is well known that the Muraripukur conspiracy was the subject of long and careful police investigation, and of subsequent judicial inquiry and trial, in the course of which a very large number of witnesses and an immense volume of documentary evidence was used. No pains were spared to secure an exhaustive inquiry, and yet it is not suggested before us that anything came to light that would establish the connection now sought; and it is remarkable that counsel for the prosecution has been unable to suggest that, in any of the mass of documents seized at the Muraripukur Garden, there is any trace of the connection now alleged. The suggestion made in counsel's opening speech that this conspiracy was linked with the Muraripukur Garden conspiracy, through an alleged connection between Kartic Dutt, and Hem Das, has absolutely not a tittle of evidence in its support. And the proposal to connect this conspiracy with the Muraripukur through Sirish Sarkar and Satis Sarkar, and the expedition from Pateia to Nepal, is far too fanciful and remote for serious acceptance.
49. Much evidence has been adduced to show association in music, gymnastic exercises and lathi play, and it is on this lathi play that the prosecution have principally relied. But when counsel was asked to formulate the part played by these lathi exercises in the scheme of the conspiracy, he was unable to advance any suggestion from which much assistance could be derived. It may be that these exercises would conduce to the acquisition of strength, agility, hardihood and discipline, all no doubt qualities useful in war, but it was not and could not be reasonably argued that the contemplated war was to be waged with lathis, or that these exercises standing alone could be treated as evidence of a conspiracy to wage war. To attach sinister significance to the mere association in play or pastimes of those who live in the same village or attend the same school, would, I think, be dangerous at any rate on the evidence that has been adduced before us. Evidently it did not occur to those who joined in these exercises that they were doing that which would bring them into their present predicament, for there was a complete absence of secrecy, and rather a courting of publicity in the performance of these exercises. The defence are not without a theory as to the significance of this, lathi play, but in the view I take, it is unnecessary to discuss it.
50. There is but one further point to which I would desire to allude before I proceed to deal with the individual cases. It is the charge of conspiracy that has been argued before us, and no other, and that charge is single and complete. At the same time there are many accused before us and they are we from different parts of the country. These accused have been described by the prosecution, and conveniently described, as falling into groups. But it is not open to us to find more conspiracies than one, for there is the highest authority that it is a legal impossibility when several persons are charged with the same conspiracy that some should be found guilty of one conspiracy and some of another. This proposition was accepted by counsel for the prosecution as one by which the Court must be governed. It is this only open to us to find one conspiracy, and for the prosecution to succeed against any one of the accused, they must establish by proper and sufficient proof that he is a member of that conspiracy.
51. Any accused not shown to be a member of that conspiracy is entitled to demand an acquittal at our hands, however bad his record may be and however much he may be suspected of this or that offence. Any other view would be intolerable..
52. His Lordship then dealt with the individual case of each of the accused, and proceeded as follows:
53. This then ends the case against all the accused, and the result is we all hold the charge under Section 121A, of the Penal Code, established against Soilen Das, Sushil Biswas, Atul Mukherjee, Gonesh Das, Soilendra Nath Chatterjee and Upendra Kristo Deb.
54. The rest of the accused must, in our opinion, be acquitted of the charges against them, and, with the exception of those at present serving sentences that have been inflicted on them, they must be set at liberty as the law directs.
55. It only remains to consider what sentences should be passed on those whom the Court holds guilty of the offence with which they stand charged. The sentence that they have merited is in our opinion eight years' transportation from this date, and that is the sentence we would have passed, but for the fact that they are already undergoing sentences as the result of their conviction in the Haludbari case; we must have regard to these sentences and to the somewhat inconvenient provisions of Sections 397 and 398 of the Criminal Procedure Code, and this accounts for the form in which our sentence is framed.
56. The Court sentences Soilen Das and Sushil Biswas to two years' rigorous imprisonment, and directs that the sentence on each shall commence at the expiration of the imprisonment to which he has been previously sentenced in the Haludbari case, and the Court sentences Atul Mukerji, Gonesh Das, Soilendra Nath Chatterjee and Upendra Kristo Deb to one year's rigorous imprisonment, and directs that the sentence on each shall commence at the expiration of the imprisonment to which he has been previously sentenced in the Haludbari case.
57. I would only add my appreciation of the admirable temper with which this long and anxious case has been conducted on both sides, and my acknowledgment of the assistance we have received.
Brett and Chatterjee, JJ.
58. concurred.,