Rankin, C.J.
1. The appellants are two First Bhabananda Banerjee whose home is in Kali Banerjee's Lane, Howrah, whose age is 24 years and who is employed as a typist in a mercantile firm. Secondly Monmohon Adhicary known as Naba who lives in the same lane, is aged about 20 years and has had no occupation since leaving school. They are charged in respect of an occurrence which took place at Sibpur at about 345 in the early morning of Friday, 16th May last, when a bomb was thrown at a first floor window of the house 51, Baje Sibpur Road, occupied by the Sub-Inspector of Sibpur Police Station, Fanindra Mohan Das Gupta. Naba has been found guilty of throwing the bomb and convicted upon charges laid under Sections 3 and 4(b), Explosive Substances Act (6 of 1908). Bhabananda has been found guilty of supplying arsenic and certain shots as materials for the making of a bomb and has been convicted under Section 6 of the same Act. Both have been convicted of conspiracy to commit an offence under Section 4(b), viz., to make and possess explosive substances with intent to endanger life or cause serious injury to property. Each has been sentenced to five years rigorous imprisonment.
2. The main evidence against each is his own confession and we have to scrutinise these carefully. Bhabananda was the first of the two to be arrested. He was arrested at his house on the morning of the 17th. Several other persons including Sachindra Nath Khan (P.W. 14) were arrested that morning. They were all brought before the Magistrate at 10 a.m., on the following morning (18th) and all except Sachindra were remanded to hajat, but Sachindra was remanded to police custody. So they were all in police custody on the 17th, and on that day Sachindra made some statements to the police. On the 17th the accused Naba was not found: he was arrested on the afternoon of the 18th at his house and was brought before the Magistrate next morning (19th) when he was remanded to hajat with a direction that he was to be segregated from the others. On the 18th he made a statement to the police and on the next day (19th) his confession was recorded by the Magistrate and a confession or statement was also recorded from Sachindra who was thereupon sent back to hajat. On the 21st Bhabananda who had been in jail since the 17th was directed to be made over to police custody. The Inspector says that he wanted him in order to investigate the truth of certain information as to his being seen to buy certain articles at a shop and that Bhabananda did take the Inspector to a shop, but at that shop no arsenic was found by the Inspector and it had no license for selling it. In the afternoon of the 22nd Bhabananda made his confessional statement before the Magistrate and was remanded to hajat. So that Naba when he made his judicial confession had been in police custody since the previous afternoon, and Bhabananda, since he had gone to jail on the 18th, had only been in police custody from the morning of the 21st at earliest. Sachindra's confession is not in evidence and need not be considered. On these materials it was contended before us that there was something highly suspicious about the circumstances under which these confessions were recorded. So suspicious, indeed, that the Magistrate who gave each of these accused very full and proper cautions to say nothing out of fear of the police and that they need not say anything unless they wanted to do so, had failed in his duty by not asking them more detailed questions first as to the time they wore in police custody and secondly whether the police had been threatening or ill-treating them. As the Magistrate had himself made all the orders as to the custody of Bhabananda and as Naba had only been arrested the previous day there is no substance in the first point. As neither made any complaints against the police and both professed most emphatically to be speaking of their own free will the second point is equally unreasonable.
3. There is nothing to suggest that either accused would be readily cajoled or terrorised by the police or that the police would be likely to try such methods. In retracting their confessions the accused stated to the tribunal that the police told them what to say. Bhabananda says he was threatened and tortured by blows and slaps and pulling his hair. Naba says he was told he would be let off if he told the Magistrate that he had thrown the bomb and would not be tortured by the police. Before us their learned advocate abandoned these allegations of ill treatment but contended that the statements of the accused did not relieve the Court from considering whether upon other grounds the confessions should be excluded under Section 26, Evidence Act. With this proposition I entirely agree [Emperor v. Panchkaurie Dutt : AIR1925Cal587 ], but the fact that the accused, willing to make out a grievance against what was done, put forward false and not very probable allegations, cannot be ignored when we are considering whether they were properly treated in this matter. In the present case neither accused had been in illegal custody for a single moment and the period of their police custody had been exceedingly short.
4. I see no ground for saying that it appears to the Court that these confessions were caused by any inducement, threat or promise within the meaning of Section 24. Sachindra's confession is not before us (though parts of it wore used in cross-examination), but the learned advocate endeavoured to use Sachindra's evidence in support of his contention. Now Sachindra says distinctly that he was not tutored by the police and had no idea that he would be let off if he made his statement. He says that he was kept separata from Naba. So that the argument under Section 24 gets no support from him. What Sachindra does say is that the Magistrate asked him questions from a piece of paper and this, if it were true at all, and were true of the confessions of Bhabananda and Naba, might raise a different question, viz., whether those confessions were properly recorded. But under Section 342 neither accused suggests that what he said was in any way different; from what was recorded and Naba distinctly states that he told the Magistrate that he threw the bomb. There is thus no reason for assuming that the Senior Magistrate of Howrah did not carry out his duties properly, and much to show that he took the greatest care. Only in the case of Bhabananda was he asked whether he put intermediate questions while recording the statement and his answer is that he did not.
5. We come then to the confessions themselves, and to the question of their value as distinct from their admissibility. Naba states that he was a Congress volunteer and had been engaged in breaking the salt laws and picketing. That he used to have talks on the Howrah Maidan with Hrishi Kesh Dutta against the police and also with Sachindra. That on the Tuesday before the bomb was thrown Hrishi told him he had manufactured a sort of bomb and asked him to test it by throwing it against wood or tin. That on the Thursday at night Hrishi gave him the bomb in a cylinder; the bomb being of the size of a tennis ball and the mouth of it wrapped in jute fibre. That he put the bomb among some bricks behind Jatin Dutt's house and went to that house about 10 p.m. and slept there till 3-30 a.m. meaning to throw the bomb at Fanindra's house. That he got up at 3-30 and threw the bomb at the half open widow of that house and ran away to a lane, from which he made his way back to Jatin Dutt's house and lay down again. That at 6 a.m. he went to Sachindra's house and told him what ho had done and about 7-30 they both went and had a look at the place, after which he remained at home for the whole of the day (Friday). That he left home early next morning and made his way to Chandernagore where he had a class friend but failed to find his house; that about 4 in the afternoon as he was returning to the station he met an old woman whom he knew and who said she had been staying with her son-in-law Jiten Adhikary at Palpara, so ha found out the place and wont there. That ho met Jiten's son and told him there had been a bomb explosion at Sibpur and the police were searching for him. That Jiten's son would not let him stay the night and advised him to go back and confess; and that he got home again about 9 p.m. on that day (Saturday 17th). He was arrested the next afternoon (18th) at his house and was making this confession on the 19th before the Magistrate.
6. Now the story of his being at Chandernagore on the 17th is corroborated as follows: Naba says nothing about the old woman having or not having any companion, but P.W. 12, Mohesh Mohan Chunder, gives evidence that he was with his grandmother at Chandernagora Station at 4 p.m. when they were returning to their home at Howrah after staying at her daughter's house at Palpara for a marriage ceremony. That there they met Naba. That the witnesses' uncle, the police, officer was at home that day. P.W. 11, Barindra Adhicary, is his cousin and son of Jatindra, the police officer. He says that at 5-30 on the day his grandmother left the house with P.W. 12, a boy came to their house, said that he lived near the witnesses' grand-mother's house, and wanted shelter as he was going on to the salt campaign where he had been before. That he refused to give the boy shelter. That the boy gave his name as something Adhikary. He says however 'neither of the accused in the dock is that boy' and on the strength of this we are asked to hold that in spite of Naba's account of his movements two days before, and notwithstanding that at Chandernagore station at 4 p.m. on the 17th P.W. 12 Mohesh who knew him from before met him and heard him talk with the old woman about her coming from that very house in Palpara, it was some other boy called Adhicary who in fact sought shelter there at the time the police were looking for Naba. I think this will not do.
7. The next witness whose evidence I shall notice is Sachindra Nath Khan. He had made a statement before the Magistrate on the 19th and was cross-examined upon some point in it at the trial. So we may expect to hear if there were any serious discrepancies. He says that he Naba and Hrishi used to talk about oppression by the police. That on the evening of the 15th they met on Howrah maidan and Hrishi said that a bomb had been made and that an experiment was to be made with it. That on the 16th at about 7 a.m., that is after the bomb had been thrown, Naba came to him at his house and told him that there was an arrangement with Hrishi to test a bomb and he had thrown it at the house of the police officer at Sibpur. That he mentioned the deceased Manik and how he used to visit and sleep at Jatin Dutt's. That the witness and Naba then went together to see the house that the bomb had been thrown at and then they parted company. As regards Naba's statement, that he slept at Jatin Dutt's house the prosecution gave as reason for not in the end calling Jatin though he had been summoned, the fact that he was seen speaking to the defence pleader. Sachindra says that Naba's friend Manik died about a year ago, that Naba was very intimate with that family, and used to visit them after his death. The police, late on the 16th, got some information which led them to get a search warrant to search Jatin Dutt's house as being Naba's temporary residence and this house was searched in the early morning of the 17th. Some books and papers of a harmless sort were then found which clearly belonged to Naba. Beyond Sachindra's evidence as to what Naba told him there is no direct corroboration of Naba's statement that he slept there that night, but it is clear enough that if Naba meant to throw a bomb at Fanindra's house it would be both easy and convenient for him to do as he said he did. It appears to me that the expert evidence as to the nature of the bomb fully supports Naba's description of it.
8. Though it is not a rule of law that an accused cannot be convicted upon a confession if he has retracted it, it is very necessary as a rule to make certain before acting on it that corroborative evidence supports the confession. In my judgment the confession of Naba has itself several features which make it difficult to regard the statement as an invention and which show that it is not infected with a desire to placate the police or curry favour with the authorities. In my opinion also it is sufficiently corroborated upon a number of material points. In the circumstances of this case it cannot be suggested that Sachindra's evidence was concocted to fit in with Naba's confession and this circumstance deprives of almost all its weight the criticism that as Sachindra knew on the evening of the 15th that a bomb had been made and that an experiment was to bo made with it, he should be regarded as an accomplice whose corroboration is of small account. Mr. S.K. Basu has very properly enlarged upon the fact that certain witnesses whose evidence might be material have not been called, particularly as regards the fact of Naba's passing the night at the house of Jatin Dutt. But when all allowance has been fairly made for such criticism of the prosecution evidence I am of opinion that the guilt of Naba is clearly proved. The Commissioners seem to me to have taken a very just view upon the question of sentence and his appeal should therefore be dismissed. The case against the older prisoner Bhabananda is not so clear. His confession is to the effect that about 10th May Hrishi and a man whom he did not know talked with him at his house about the manufacture of bombs for use against the police. That they asked him to get red arsenic. That Hrishi had brought some potassium chloride and that Bhabananda gave him some shots and also bought 6 pice worth of red arsenic and gave it to him. That the task of making the bomb was given to a man called Ganesh. That bomb was given to Hrishi and that Hrishi gave it to Naba. Bhabananda says:
Our intention was to try the bomb first at the Ganges Ghat but then I cannot say why they threw the bomb in Sibpur.
9. Now Naba's confession says nothing about Bhabananda and Sachindra merely states that he knows this accused. As corroboration of Bhabananda's statement that he gave some shots (bullets) for the bomb we have only the bare fact that when his father's house was searched on 20th May it was found that though he had a muzzle loading gun and some gunpowder and percussion caps there were no shots (bullets) in the house. This is not in itself enough to show that Bhabananda had appropriated any bullets. It would not astonish me to be told that his father living in Howrah kept a gun but did not always have a supply of bullets which are after all easily lost and are in any case expendable ammunition. Bhabananda's confession does not even say that he got them from his father's house though it suggests this. As regards the supplying of red arsenic by Bhabananda we know that Bhabananda on 21st May took the Inspector of Police to a shop where he said he had bought the arsenic but no arsenic was found there and the shop-keeper had no license to sell arsenic. So far the corroboration seems almost entirely to consist in the facts that the bomb was a roughly made article, that red arsenic was used in its manufacture, that it did contain bullets, that it was used against the police, and that it was made and used at a time which fits in with the confession. For evidence outside Bhabananda's confession that the bomb was so made and used by young men of this neighbourhood who would be known to Bhabanarida we have to go to the evidence of Sachindra and for what it is worth against a co-accused to the confession of Naba. Looking at Sachindra's evidence in this way we find that he states that Naba and Hrishi were friends and were concerting together over getting a bomb so as to use it against the police, that Hrishi told him on the 15th that he had got the bomb made and that they were going to experiment.
10. According to Sachindra, Hrishi had been talking of bombs for some time and had told him that Ganesh could manufacture bombs. All this, if it be believed, is direct corroboration of Bhabananda's confession and the times mentioned by Sachindra fit in exactly. Naba's confession, as I have already pointed out, is to the same effect in great detail, and neither Naba nor Sachindra can possibly be accused of trying to injure Bhabananda or trying to save themselves at his expense. Neither mention Bhabananda as concerned in the matter or profess to know or to suspect or to have heard that he ever supplied Hrishi with bullets or with red arsenic at all. Looking at the evidence as a whole I think it unreasonable to say that Bhabananda's confession is insufficiently corroborated as against himself. The evidence convinces me of its truth. On this footing however Mr. S.K. Basu contends that whether the Court proceeds upon Bhabananda's confession or upon Naba's confession or upon Sachindra's evidence, the charges of which Bhabananda has been convicted are not made out; because it appears that though the object of the whole scheme was to use bombs against the police, it does not appear that more than one bomb was made; and it appears that, until Naba decided otherwise on the 15th May it was intended to use the first bomb for a teat or experiment. Mr. Basu very properly admits that on this hypothesis Bhabananda would be guilty of a criminal conspiracy against the life of police officers and thus of a heinous offence against the ordinary law. But he contends that under C1. (b), Section 4, Explosive Substances Act, 6 of 1908, the offence is:
makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life or cause serious injury to property in British India, etc.
11. The charges upon which Bhabananda has been convicted are conspiracy to commit an offence under Section 4(b) and being accessory to offences under Section 3 and Section 4(b). Bhabananda says:
Our intention was to try the bomb first at the Ganges Ghat, but then I cannot say why they threw the bomb in Sibpur.
12. Naba says Hrishi asked him on the night of 15th May, when the bomb was handed over, to test it by throwing it against wood or tin, and that his own intention was at first to throw the bomb somewhere on the road, but that while going along the road he decided to throw it at the Inspector's house. Sachindra says that when he met Hrishi and Naba at 5 or 6 o'clock on the evening of the 15th at the maidan Hrishi told him that a bomb had been made and that an experiment was to be made with it. Now it seems to me that even if we confine ourselves to Bhabananda's own confession and even if we assume (1) that when Bhabananda supplied the shots and red arsenic he supplied them for one bomb and no more, (2) that to try that bomb at the Ganges Ghat means not merely to try it without being detected but also that no danger to life or serious injury to property was involved or intended, (3) that this intention existed at the time when the shots and red arsenic were supplied to Hrishi, Bhabananda had not defence to the charge of being party to a criminal conspiracy to commit an offence under Clause (b), Section 4, Act 6 of 1908, and is clearly shown to have done overt acts in furtherance of such conspiracy. If the first bomb was to be tested this was clearly to be done in order that more bombs might be made and used more effectively against the police or with greater chance of safety or secrecy for the conspirators. The conspiracy was to make and use bombs to endanger life and cause serious injury to property and the first bomb was only the first stage in carrying out that purpose. So far as Section 6 of the Act is concerned Bhabananda seems to me to be within the meaning of the words in any manner whatsoever ... counsels ... the commission of' the offence of making bombs with the intention of endangering life etc., even although the persons concerned had not yet got to the stage of making a bomb for actual use against the police but were arrested before they could put their experience of the test bomb into practice. It is not even necessary therefore to consider whether Section 237, Criminal P.C., should be applied to the case. This defence fails altogether. Nor does it give ground for any objection to the conspiracy charge that Hrishi and Panchanan were on 23rd June 1930 discharged by the Magistrate. Bhabananda's appeal against his conviction fails and a consideration of his age and of all the circumstances leads me to think that the sentence of five years rigorous imprisonment passed upon him by the Commissioners is reasonable and even lenient. His appeal must also be dismissed.
C.C. Ghose, J
13. I agree.
Buckland, J.
14. I agree.