Derbyshire, C.J.
1. In this case which has been known as the Lebong outrage my brother Judges and myself are of one mind and they have asked me to deliver the judgment of the Court. On May 8th of this year Sir John Anderson-the Governor of this province, visited the races at the Lebong race course at Darjeeling and at about half past three in the afternoon, after the races had finished and the horses were coming in, a man stepped up in front of His Excellency's box with a pistol in his hand, steadied his arm and shot from a distance of about 10 feet at Sir John Anderson. Almost at the same time,-perhaps a second or two later-another man standing somewhat to the side of His Excellency's box also raised a pistol and also fired a shot at Sir John Anderson from a distance of about six feet. It was a miracle that Sir John Anderson was not killed; one can only say it was an act of Providence. Unfortunately a by-stander, one Miss Beulah Thornton, was injured in the ankle from a bullet which had been fired by one or other of those pistols. The Police immediately opened fire on the assailants and at the same time two gentlemen-Mr. Tandy Green in one case and the Raja of Barwari in the other-very gallantly threw themselves on the assailants and prevented further damage being done. The assailants were both wounded by the Police fire.
2. They were overpowered and they were taken to the hospital and later on the next day, or the day after, they made confessions which were recorded, and from those confessions it appears that this attempt on the life of the Governor was the result of a conspiracy to murder him which had been hatched some time previously and in which a number of people were concerned. Some of those people were arrested, two of them within a day or two and the rest some time later in June and July. A great deal of evidence had to be collected and eventually in August and in September seven persons were charged before a Special Tribunal appointed to deal with this case. They were charged with various offences-conspiracy to murder and conspiracy to possess arms, and two of them with possessing arms with intent to murder-I think that is the phrase used in the particular Act under which these two persons were charged. The persons concerned were those who are appealing in this case together with another who has not appealed. The persons charged were Bhawani Prosad Bhattacharji, Rabindra Nath Banerjee alias Samarjit Banerji, Monoranjan Banerji alias Naresh Choudhury, Ujjala alias Amiya Mozumdar alias Malaya alias Malina Devi alias Lila, Madhusudan Banerji alias Amiya Banerji alias Sunil Sen, Sukumar Ghose alias Lantu and Sushil Kumar Chakravarti alias Ajit Kumar Dhar. They were tried before the Special Tribunal the proceedings lasting over some weeks and eventually the first two that I have mentioned, Bhawani and Rabindra, were found guilty of an attempt to murder and were under the law to which I shall advert presently sentenced to death. Monoranjan Banerji was found guilty of conspiracy to murder and conspiracy to possess arms, and he was, under the charge of conspiracy to murder, sentenced to death. Ujjala a girl of nineteen, was found guilty of conspiracy to murder and conspiracy to possess arms and she was sentenced to transportation for life. Madhusudan Banerji was found guilty of conspiracy to murder and conspiracy to possess arms and he was sentenced to fourteen years' rigorous imprisonment. Sukumar Ghose was found guilty of the like offence and was given a like sentence. Sushil Kumar Chakravarti was found guilty of conspiracy to murder and was sentenced to twelve years' rigorous imprisonment.
3. The first six have appealed in this case; Sushil has not appealed. Bhawani, Rabindra and Monoranjan have appealed against sentence only and not against conviction. They have been represented here by Mr. Mukherjee, Mr. Lahiri and Mr. Talukdar. The others who are appealing-Ujjala, Madhusudan and Sukumar alias Lantu-were not represented by counsel, but we thought it was essential that they should have their cases presented to us with fullness and with forensic knowledge, and we asked Mr. Mukherjee and Mr. Lahiri if they would be good enough to undertake their defence, and they, acting in accordance with the highest traditions of the Bar, agreed to give their services, and did give their services, in this appeal on behalf of Ujjala, Madhusudan and Sukumar without any fee or reward. This Court is very much indebted to them for what they have done, I ought to point out that at the trial before the Commissioners each of these accused was represented by a Pleader and the funds to provide fees to the Pleaders were paid by the Crown.
4. Now, as regards this case we of course have to come to the conclusion before doing anything that the conviction in this case and sentences in this case are right and proper. If we come to the conclusion that they are, it is our duty to confirm them. If we come to the conclusion that some of them are not, it is our duty to deal with them in such a way as we think proper and in accordance with law. I said at the outset that this shooting was not a mere spontaneous affair. A great deal of evidence was given and that evidence was reviewed in detail by the Commissioners who have given their judgment, and it is not necessary that this Court should deal with all that evidence in detail to the same extent as the Commissioners did. I said there was a conspiracy behind this attempt to murder, and the conspiracy, it appears, as far as the evidence shows, is this:
5. In 1932 a citizen of Dacca, Suresh Mozumdar had a daughter Ujjala who was then aged 17; he had a son who was generally known as Gopal who was two years younger. Suresh lived in Dacca. His first wife-the mother of these two children-was dead, and he married a second wife who was two years older than Ujjala. He spent a good deal of his time in Calcutta where he had a rick-shaw business. Apparently he had some other property in another part of this province and he spent some of his time there. The result was that he was not a great deal at Dacca and was not able to supervise and keep an eye upon those two children Ujjala and Gopal, as he otherwise would have done, and as he no doubt realizes now, would have been much better. The two children were reading for the Matriculation Examination. In 1932 Suresh looked for a tutor to help Ujjala with her studies and one Sukumar Ghose alias Lantu offered himself. Suresh however declined his services on the ground that he did not know enough Sanskrit. Lantu thereupon introduced another man Madhusudan Banerji (he did not introduce him by the name of Madhu Sudan but introduced him under the name of Amiya Banerji) and Suresh engaged him as tutor for his daughter. Madhu Sudan Banerji had a brother whose name was Monoranjan Banerji; he was introduced into Suresh's household not under his proper name but under the name of Naresh. Madhu Sudan seems to have tutored Ujjala for some time-about six months, and then Suresh dispensed with his services on the ground that his attendance was irregular; but unfortunately for Suresh and his family, Madhu Sudan Banerji continued to visit the house together with his brother Monoranjan and Lantu from time to time.
6. According to Suresh, at some later period, probably in 1933-he is not clear about it-he found his daughter Ujjala reading two books which he considered to be undesirable-books of revolutionary character. He asked her where she had got them from and she said she had got them from her tutor Madhu Sudan. He took the books from her, said it was wrong, advised her to mend her ways and forbade Madhu Sudan to come to his house again. He spent a part of his time in Calcutta with the result that when he was away the same three young men-Madhu Sudan, Monoranjan and Lantu-continued to visit Suresh's house. There is no doubt whatever from confessions that have been made (Lantu did not confess, but Monoranjan and Madhu Sudan confessed)-there is no doubt whatever, from those confessions and from the evidence of other people, which I shall refer to presently, that all these three young men were members of a revolutionary party whose object it was to murder members of the Government. Sometime in March-it may be in February-of this year those two children Ujjala and Gopal sat for the Matriculation Examination and they both passed. After the examination, when they were not occupied with their studies, then one notices that the conspiracy begins. Some time at the end of March or the beginning, of April, Lantu got into touch with a youth called Prithwish. It was suggested to Prithwish by Lantu that as he was a member of the party he should be prepared to do what is called an 'action'-to shoot some body. It was suggested that he should go to Shillong to do it and Prithwish says that following the discipline of the party he agreed to do it; but Prithwish, fortunately for himself, decided that he would not do it, and he betook himself off to another part of the province to one of his relatives. So Lantu did not get his services. A little later than that, in the beginning of April, we find that Lantu, Madhu Sudan and Monoranjan were going very frequently to the house of Suresh and talking to the daughter. According to Gopal they would go on to the roof with the daughter and they discussed matters there in private. Gopal who was called as a witness said that he was enlisted into the revolutionary party although he was only a boy of 16 or 17. He does not appear, however, to have been asked at that time in the beginning of April to take any part in any plot that was being hatched.
7. A little later in April things began to get a little warmer in point of view of the conspirators and one finds that the girl had it suggested to her that she should do some work for the party and the suggestion seems to have come from Monoranjan Banerji. She agreed that she would, with the result that she and Monoranjan Banerji at a later period towards the end of April or beginning of May-I think it was on 3rd May-went down to Calcutta. Before doing that they had to hoodwink the father Suresh, and the way in which they did it shows considerable cunning. Suresh had a business in Calcutta, but at that time he was at Dacca, and it was desired to get him out of the way so that Ujjala could go out without his interference. One finds that a man visited Suresh's business premises in Waliulla Lane in Calcutta and asked Bhelu, who was Suresh's brother-in-law and apparently his business manager, if Suresh was there. Bhelu said he was not, and this person told Bhelu that Suresh was wanted by a member of the Special Branch of the Police force. In order to get Suresh down to Calcutta it was suggested by Monoranjan who suddenly came on the scene that a telegram should be sent saying that his son Gopal who happened to be in Calcutta at the time was ill. Bhelu thought that that was probably the best way of doing it, and Bhelu gave a rupee to Monoranjan who went off and sent a telegram to Suresh saying that Gopal was ill. A telegram was sent in reply asking how Gopal was and the next day or the day after Suresh came down to Calcutta. He asked what the matter was; he found Gopal quite well and they said that the telegram was sent because he was wanted by some one of the Special Branch of the Police force. The man who purported to have come from the Special Branch of the Police force never turned up again. Suresh waited there for some days; he did not go to the Special Branch. Eventually he came to the conclusion that the matter was a hoax. But while he was there something else happened.
8. The two children discovered that they had got through the Matriculation Examination, and then the girl Ujjala suggested to her brother that they should go on a visit to a relative named Nanibala. A telegram was sent to the father in Calcutta asking for his permission that they might go. He was not in a position to make any further enquiry and he agreed that they might go. They did go, but they did not go to Nanibala's house. Ujjala and Monoranjan went together to Calcutta and the boy Gopal was taken by Madhusudan to Madhusudan's own home which is a place called Hashail, a considerable distance away. May 3rd is the date when Monoranjan took Ujjala down to Calcutta. He brought her to Calcutta to do some work for the party and on the way, according to her statement, she was told that the business was the shooting of His Excellency the Governor of Bengal. She was one day in Calcutta, and then she was picked up in a taxi by Monoranjan from the lodging where she was staying, and taken to the Sealdah Railway Station. When she got on the taxi she noticed that there were two suit cases there and Monoranjan told her that they were taking 'things' which means arms and ammunition with which the attempt on the life of the Governor was to be made. The girl realized that it was a very dangerous piece of work because she pointed out that if they were found with arms on them they would be under the law that had been passed very recently at that time liable to the death penalty. Monoranjan replied that the train would be searched before they got to Darjeeling and if the luggage were hers and if she was travelling with him there would be less suspicion. He was not taking the responsibility of carrying the arms and ammunition on himself; he was taking Ujjala with him to be used as a shield against any Police suspicion. He said that if there was any trouble they would say that they were not the owners of the suit cases. She agreed and they went to Darjeeling and they put up at an hotel which is known as the Snow View Hotel. At the railway station at Darjeeling they met an uncle or a relative of Ujjala's who seemed a little suspicious to find Ujjala travelling with this man. The suspicion of the relative was somewhat allayed and the two, Ujjala and Monoranjan, appear to have gone-there is no doubt that they did go to the Snow view Hotel and there they occupied one room together.
9. There appears to be no doubt about it that Ujjala was Monoranjan's mistress. Monoranjan not only seems to have inculcated criminal tendencies into Ujjala, but he seems to have debauched Ujjala as well, and made her his mistress. He seems to have taken her there partly for his amorous purposes, but mainly as a shield and a blind for the work that he proposed to do. When they got to the hotel they were visited in this room by two young men who were afterwards identified as Bhawani and Rabindra, and there was a discussion between them. There is no doubt about the fact that the girl knew why those two boys Bhawani and Rabindra had come there and she seems to have taken herself off for the time being to the room of her relative who was staying at the same hotel. We are told by the confession of Rabindra that while those two young men were there in that room Monoranjan handed over an automatic pistol and a revolver and ammunition to Bhawani and Bhawani took them back to the hotel where he was staying, the Sanatorium, and kept them there. One notes that it was the purpose of Monoranjan to take Ujjala with him as a blind so that he might carry the weapons. When they got to the hotel he got rid of the weapons. He seems to have known and appreciated more than the others the danger of having such weapons with him.
10. The next day Monoranjan and the girl Ujjala visited these two young men and during the course of the visit the two young men went out of the room (this is according to Monoranjan's confession) and the girl and Monoranjan between them cleaned the arms. The next day they went there and they had a discussion with the two young men. It was suggested that afternoon would be a suitable time to make an attempt on the life of the Governor as he would be going to a 'flower show' and the two young men were asked to go there. They asked how they would recognize the Governor, and Monoranjan replied that the Governor rode on a big horse, that he himself would go to the 'flower show' and point out the Governor to them. Bhawani and Rabindra went to the 'flower show;' they went there before the time of opening and were told that tickets were not being issued then. They then wandered in a park nearby where they found Ujjala and Monoranjan sitting some distance from them. Monoranjan and Ujjala shortly after left the place without giving them any signal or sign of recognition. Seeing that they could not get in Bhawani and Monoranjan went home. The other two went to the 'flower show' and had a good view of the Governor but the people who had the pistols and who were intended to do the mischief were not there; so that nothing happened on that day.
11. That afternoon the two young men were upbraided by Monoranjan and Ujjala for their lack of courage or lack of initiative, and they were told not to make any mistake on the day following. On the morning following Monoranjan and Ujjala visited the room of Rabindra and Bhawani at the Sanatorium and they seem to have taken every precaution that they could. The pistols were cleaned and the ammunition which was to be used was warmed up. It was warmed up over a fire made by burning papers. According to the first confession of Monoranjan the paper was burnt by the girl and then the ammunition was warmed in that way. It is a significant fact in corroboration of that confession that afterwards some paper ash was found in that room screwed up in a piece of paper under the carpet. That being done Monoranjan and the girl went back to the Snow View Hotel and then in the afternoon they all took their way to the race course. Bhawani and Rabindra first took two tickets for the Totalizator, but finding that they would not be admitted into the enclosure with those tickets they went back and bought two 4 rupees tickets. Then Monoranjan and the girl came along. Bhawani and Rabindra took up a position in the general stand close to the Governor's stand and according to Rabindra, Monoranjan pointed out the Governor to Bhawani and Rabindra and then he and Ujjala went away and left Bhawani and Rabindra to do the work. As I have said at 3-30 the shots were fired.
12. About the guilt of Bhawani there can be no doubt. He was recognized by several witnesses as being one of the men who fired. He was the man whom the police shot; he was the man who was taken to the hospital and who made a confession, and in the confession he said that he had done the deed. About his guilt there can be no doubt whatever. He was guilty of an attempt to murder Sir John Anderson, an attempt which is an offence under Section 307, Penal Code. About Rabindra equally there can be no doubt. He too was the man recognized by the by-standers who have given evidence. He was a man who made a confession. The difference between him and Bhawani is that he expressed some contrition, but about his offence in law, there can be no doubt. He was guilty of an attempt under Section 307, Penal Code, to murder the Governor.
13. Now we come to Monoranjan. Monoranjan's part is probably the biggest played by any one of these conspirators. Monoranjan appears to have been a member of a revolutionary society; for some time he was a frequenter at the house of Suresh Mozumdar in Dacca; he was one of the people who was seen by several witnesses to go up to the roof of the house of Ujjala from time to time and engage in secret conversations with her; he was seen by several witnesses going down to Calcutta with Ujjala on 3rd May, and he was seen by his own brother about that time in Calcutta. He was recognized by a relative of Ujjala's as being the man who was with Ujjala when she came to the Snow View Hotel; he was recognized by the waiter of the Sanatorium Hotel as being the man who along with Ujjala had come and had tea two days before the attempt on the life of Sir John Anderson with Rabindra and Bhawani at the Sanatorium Hotel. The bill has been produced in which four teas were charged against those two young men on that day. He was recognized as being with Ujjala in the train going down to Calcutta two days after the outrage. He was recognized by one Police Inspector who said that he had given a false name; he was recognized by another Police Inspector who said that he had given a false name. About Monoranjan's part in this affair and his complicity in the conspiracy there can be no doubt. There is his own confession which he afterwards retracted in part; there is the confession of Bhawani and of Rabindra and there is the corroboration of the whole evidence by those witnesses who saw him in association with Bhawani and Rabindra at Darjeeling, who saw him with Ujjala coming back from Darjeeling and who heard him give a false name. There can be no doubt about Monoranjan's guilt. We think he was properly convicted of conspiracy to murder the Governor of Bengal and we think he was properly convicted of conspiracy to possess arms contrary to certain sections of the Arms Act.
14. Then there is the ease of Ujjala. The position is quite clear from Ujjala's own confession which she has afterwards retracted. We are entitled to read and look at it although it is retracted but we may not give the same credence to it that we should have done if it had not been retracted. She says that she was a party to this conspiracy; she also gives an account of it which is almost identical with that given by Monoranjan. She was recognized going down to Calcutta with Monoranjan on 3rd May, recognized going to Darjeeling at the time with Monoranjan, and recognized in the hotel and at the Sanatorium with Manoranjan when they went there to have tea with Bhawani and Rabindra. We have no doubt that she was in the conspiracy and that she has been properly convicted of conspiracy to murder and to possess arms under certain sections of the Arms Act.
15. Then comes the case of Madhusudan Banerji. Madhusudan Banerji was not at Darjeeling at the time of the outrage. He was somewhere else. But one has to look at it to see why he was somewhere else, and it is quite clear, according to Gopal's evidence, that Madhu Sudan took Gopal away to his own house on 3rd May and kept him there until about 15th May when the outrage was over. He kept him there to give an appearance of truth to the tale that Ujjala and Gopal had gone to visit a relative. Gopal was to be kept out of the way in order that no complication might arise so that Suresh should not get alarmed, and get to know what was happening, and then search for Ujjala and spoil the conspiracy. The witnesses who speak to that are several and one has to regard not only their evidence but one has to look to the doings of Madhusudan after the outrage. On the 15th he came down to Calcutta and went to lodge in a quarter that was mainly inhabited by Mahomedans and when he was arrested it is significant that he was not wearing the sacred thread although he was a Brahmin. Why was he taking those steps to secrete himself? Why was he taking those steps to make it appear that he was not a Brahmin and what was it that he was afraid of? We, like the Tribunal below, have to use our judgment and we have come to the conclusion, like the Tribunal, that Madhu Sudan did play a part in the conspiracy, and his part was, once matters were set in movement, to take away Gopal so that Suresh might not come along and spoil the conspiracy, and so that Monoranjan might use Ujjala as a shield and protection against police suspicion in taking arms and ammunition to Darjeeling. Madhusudan was not present in Darjeeling to take a part in the conspiracy but he was taking a part in the conspiracy somewhere else. We have no doubt, nor had the Tribunal, of Madhusudan's guilt in this conspiracy to murder. We do not think however that he can on the evidence be convicted of that part of the charge which alleges that he conspired to possess arms.
16. Then there is the case of Sukumar Ghose whom we have referred to as Lantu. Sukumar Ghose is a very cunning man who seems to have kept himself in the background. We have got the evidence of Monoranjan in his confession that Lantu had suggested the buying of arms at some previous time. We have got the evidence of Prithwish that Lantu had suggested that he should play a part in the conspiracy. We have got the evidence that he was seen round about Suresh's house at the time in March, April and May when this conspiracy seems to have been first hatched. We have evidence that Lantu was seen visiting Madhusudan who was in hiding at a Mahomedan quarter in Calcutta; we have got evidence that he visited him on many occasions. We have also got the evidence of the girl Ujjala herself that after she and Monoranjan had come back to Calcutta on 15th May after the failure of the attempt, she and Monoranjan met Lantu at a place in Calcutta and they discussed this outrage and Lantu said that he was sorry that the job was not successful. Lantu, as I have said, is a very cunning man who managed to keep himself in the background and to thrust Monoranjan forward to do the work. Monoranjan in his turn thrust Bhawani and Rabindra forward to do it. There is evidence in the confessions that have been made and also there is evidence of other persons as to Lantu's behaviour before the outrage, after the outrage and at the time of the outrage. We are of opinion that the evidence in the confessions is substantially corroborated so that in our mind, as in the mind of the Tribunal, there is no doubt that he was guilty of taking a part in the conspiracy to murder Sir John Anderson. We do not find that he was actually engaged, as far as the evidence shows, in the conspiracy to possess arms, therefore we are not able to agree with that part of the Tribunal's finding.
17. I think I ought to mention the part that was played by Sushil who has not appealed. Sushil was a boy not of the same standing as the others in this case. He was a boy who at one time was workless and was unemployed, and used to sell soap. He was enlisted into the revolutionary party. Sometime in the end of April or beginning of May while he was living in his native village he was asked by Monoranjan Banerji to come to Calcutta for a job of work. When he got there Monoranjan told him that he had a job for him, and the job was to shoot the Governor of Bengal. Sushil was sent up to Darjeeling and told to make himself familiar with the place. He went and did make himself familiar with the place. He was there at Darjeeling until 6th or 7th May when Monoranjan arrived. By that time it appears that Monorajan was satisfied that he had got two men Bhawani and Rabindra to do the deed and there was no need to have a third man Sushil, so he sent Sushil back to Calcutta. Sushil has been convicted, and we think properly convicted, of conspiracy to murder and has been sentenced to 12 years' rigorous imprisonment against which he has not appealed. We have no further concern with Sushil except to say this: that it shows the pains the conspirators took to have somebody in Darjeeling (where as they said the police supervision was rather slack) to do the deed. When they found they had Bhawani and Rabindra there, Monoranjan sent Sushil back. Sushil has not appealed and so he goes out of the case.
18. That being the position what are the sentences which should be imposed in this case? The charges are at p. 157 of the paper-book. All the seven accused persons were charged with conspiracy to murder the Governor and conspiracy to possess or have under their control arms and ammunition in contravention of the provision of Section 14, Arms Act, and thereby to commit an offence punishable under Section 120-B read with Section 302, I.P.C., and Sections 19(f) and 19-A, Arms Act. Then there is a charge against Bhawani that on 8th May being armed with a loaded revolver he did an act, to wit, attempted to fire with such revolver at the Governor with intent to murder. We find that Bhawani has been proved guilty of that charge-attempt to murder. An attempt to murder is punishable under Section 307, I.P.C., which is as follows:
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to transportation for life, or to such punishment as is hereinbefore mentioned.
19. I want to point out here that in this attempt to murder the Governor, somebody was hurt, and that has some bearing on the sentence. Under Section 307 this attempt to murder might be punished in this case with transportation for life; but the legislature sometime ago as a result of attempts to murder passed a series of Acts-the Bengal Criminal Law Amendment Acts. The first Act-the main Act is Act 9 of 1925 which has been modified from time to time. It has now been modified by the subsequent Acts of 1932 and 1934. Section 6, Bengal Criminal Law Amendment Act of 1925, as now amended, reads as follows:
The Commissioners may pass upon any person convicted by them any sentence authorized by law for the punishment of the offence of which such person is convicted: Provided that where the Commissioners convict any person of any offence punishable under para. 1, Section 307, I.P.C., committed after the commencement of the Bengal Criminal Law Second Amendment Act, 1932, they may pass on such person a sentence of death or of transportation for life.
20. As I have said, Bhawani's offence of attempted murder clearly comes within Section 307, I.P.C., and by the Bengal Criminal Law Amendment Act of 1925 as amended by the subsequent enactments the Commissioners may pass on him the sentence of death. They have passed on him the sentence of death subject to confirmation by this Court. We can only say that no more serious offence than Bhawani has committed, could be committed under this section and we confirm the sentence that has been passed by the Commissioners on Bhawani, the sentence of death. Exactly the same conditions apply to the case of Rabindra. He was equally guilty with Bhawani in this attempt on the life of the Governor. It is quite true there is a difference in his case. The difference is something that happened after the incident. Bhawani said that he was sorry that the Governor was living unhurt, and Rabindra said that he was sorry that he made an attack on the life of the Governor and we believe he was sincere in his contrition. In our view, sitting here as a Court of justice administering the law that makes no difference in his offence. It was a very serious one. The Commissioners were justified in passing the sentence of death on him, and we confirm the sentence. It may be, as the Commissioners remark, that the contrition of this prisoner is something which those who exercise the prerogative of mercy will take into account.
21. Now we come to the case of Monoranjan Banerji. Monoranjan is the man who was the main spring of the working out of this outrage. He was the man who had ingratiated himself into the household of Suresh Majumdar. While Suresh was away, he had seduced and debauched his daughter, he used her for carnal purposes and he proceeded to use her as a screen for his criminal purposes. We can think of no conduct in this case more heinous than that of Monoranjan. The Commissioners have sentenced Monoranjan to death and their power to do so has been challenged in this Court. It is said that Monoranjan was not one of the men who attempted the life of the Governor; at the most he was only a conspirator and an aider or abettor and is only liable to be punished as an abettor and the maximum punishment of all abettors is not either death or transportation for life, but 14 years' rigorous imprisonment. We have given that argument a very careful consideration. The position at first sight is complicated by the fact that this offence, the offence particularly against Monoranjan is one which is compounded by reading Sections 307 and 109, I.P.C., and then as the Commissioners have done, reading those two sections together with Section 6 of the amended Bengal Criminal Amendment Act of 1925. It is just as well to consider what the provisions in those sections are. Section 307, I.P.C., as I have just read makes a person who actually attempts to murder where hurt is caused to any person liable to transportation for life. Section 109, I.P.C., makes a person who abets an office if the act abetted is committed in consequence of the abetment liable, to be punished with the punishment provided for that offence. But the section which confers very rigorous powers upon the Tribunal is Section 6, Bengal Criminal Law Amendment Act of 1925 as amended and that section reads as follows:
Provided that where the Commissioners convict any person of any offence punishable under para. 1, Section 307, I.P.C., committed after the commencement of the Bengal Criminal Law Second Amendment Act, 1932, they may pass on such person a sentence of death or of transportation for life.
22. Now, as we have held, the Commissioners were quite right in passing the sentence of death upon Bhawani and Rabindra. They were the doers of the act which was an attempt to murder. But they purported to pass the sentence of death on Monoranjan under the same Section 6, and that cannot be done. If Section 6 had read:
Provided that where the Commissioners convict any person of any offence punishable under the first paragraph of Section 307, I.P. C, and Section 109, I.P.C.,
23. If these words had been added, we think the Commissioners would have been able to pass the sentence of death; but the Bengal Criminal Law Amendment Act 1925, Section 6 does not say that. It is a penal enactment and as a penal enactment it has to be construed strictly. It is not open either to the Commissioners or to this Court to read Section 6 as if it says:
Provided that where the Commissioners convict any person of any offence punishable under the para. 1, Section 307, I.P.C., and Section 109, I.P.C.
24. It is not permissible to do that. That would be making the abettor in this case liable to the same punishment as would be passed on the persons abetted. It may be an oversight on the part of those who drafted the Bengal Criminal Law Amendment Act. Neither this Court nor any other Court has power to pass a sentence of death under the Bengal Criminal Law Amendment Act, 1925, on the facts found against Monoranjan. As far as we can see the maximum sentence that can be passed against Monoranjan with regard to that part of the charge which relates to conspiracy for an attempt to murder is one of 14 years' imprisonment. That is the power given by Section 307, I.P.C., read with Section 115, I.P.C.S. 115, I.P. C, reads as follows:
Whoever abets the commission of an offence punishable with death or transportation for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
25. Then follows the important part:
And if any act for which the abettor is liable in consequence of the abetment and which causes hurt to any person is done, the abettor shall be liable to imprisonment of either description for a term which may extend to 14 years and shall also be liable to fine.
26. So that on this part of the charge where the Commissioners, and we too, have found Monoranjan Banerji guilty of conspiracy to murder, the maximum sentence is one of 14 years' rigorous imprisonment. We are of opinion that the sentence of death cannot stand. That does not complete the charge against Monoranjan. The Commissioners have also found him guilty of conspiracy to obtain and to have possession of arms contrary to Sections 19(f) and 19-A, Arms Act, 1 think we have to deal with this in detail. The Indian Arms Act, 1878, Section 14 provides:
No person shall have in his possession or under his control any cannon or firearms or any ammunition or military stores except under a license and in the manner and to the extent permitted thereby.
27. Section 19, Clause (f) provides:
Whoever has in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of Section 14 or Section 15 shall be punished with imprisonment for a term which may extend to three years or with fine or with both.
28. That is the Indian Arms Act as it was passed in 1878. As we have said we have come to the conclusion that the Commissioners have properly found Monoranjan guilty of conspiracy with regard to the contravention of Section 14, Arms Act. 'Conspiracy' is dealt with in the Indian Penal Code in Section 120-B which provides:
Whoever is a party to a criminal conspiracy to commit an offence punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy be punished in the same manner as if he had abetted such offence.
29. Now comes the Bengal Criminal Law (Arms and Explosives) Act, 1932, (Bengal Act 21 of 1932) which adds an offence to the Indian Arms Act, 1878. Section 3, Bengal Criminal Law (Arms and Explosives) Act 1932 says:
After Section 19, Arms Act, 1878, the following section shall be inserted, namely 19-A. Notwithstanding anything contained in Section 19, whoever commits an offence under Clause (c) or Clause (e) or Clause (f) of Section 19 shall, if the offence is committed in respect of a pistol, revolver, rifle or shot gun, be punished with transportation for life or any shorter term or with imprisonment for a term which may extend to 14 years, or with fine.
30. In our opinion that section applies here, and we think there is ample evidence on which the Commissioner could come to the conclusion, as they did, that one of the offences committed by Monoranjan was one under Section 3, Bengal Criminal Law (Arms and Explosives) Act 1932 adding Section 19-A to the Arms Act. 1878, which makes him liable to transportation for life, The Commissioners did not pass this sentence upon him. We think the offence is so serious that a sentence ought to be passed under that section and we pass on him the sentence of transportation for life.
31. It was suggested to the Court that the guilt of Monoranjan was so great that he merited the sentence of death and it was suggested to this Court that as the sentence of death under the conspiracy to murder charge could not be upheld, this Court should under its powers as an appeal Court make a charge under Section 20-A Arms Act, against Monoranjan and convict him of that charge and sentence him to death. Section 20-A, Arms Act, 1878, is added to it by Section 4, Bengal Criminal Law Amendment Act, 1934, (that is Bengal Act 7 of 1934). Section 4 of that Act reads thus:
After Section 20, Arms Act, 1878, the following section shall be inserted, namely 20-A. Notwithstanding anything contained in this Act, whoever goes armed with a pistol, revolver, rifle or other fire-arms in contravention of the provisions of Section 13, or has any such fire arm in his possession or under his control in contravention of the provisions of Section 14 or Section 15, under circumstances indicating that he intended that such fire-arm should be used for the commission of any offence of murder shall, if he is tried by Commissioners appointed under the Bengal Criminal Law Amendment Act, 1925, be punished with death or with transportation for life or any shorter term of imprisonment for a term which may extend to 14 years, to which fine may be added.
32. Now, that section, of course, would allow a Court to pass a sentence of death. It is a curious thing in this case that the Commissioners alleged against Bhawani Prosad Bhattacharji and Rabindra Nath Banerji an offence under that new Section 20-A, Arms Act, but they did not allege it against Monoranjan Banerji. Why, we do not know. It was said by the Advocate-General that it was competent for us to substitute the charge under Section 20-A, Arms Act. We have considered that matter very carefully but we do not feel that we are in a position to do so. If that were done it would mean that Monoranjan Banerji would be convicted of an offence with which he was not charged at his trial, on which he had never stood his trial and on which he had no opportunity of making his defence. We think that if we do that we should be infringing what seems to us to be one of the most important principles in the administration of criminal law, namely that a man should not be charged, tried and convicted without being heard in his defence, and therefore we do not propose to use any power that we may have as an appellate Court to substitute a charge under Section 20-A, Arms Act, against Monoranjan Banerji and convict him and sentence him to death.
33. As regards Ujjala, the position as regards her is a very sad one. Here is a girl, 19 years of age at the time of the commission of the offence, left to her own resources by her father and at the mercy of a step-mother who was a little older than herself, put in charge of a tutor Madhusudan Banerji and under the influence of his younger brother, Monoranjan Banerji who completely debauched and debased her for his own sexual purpose and his criminal purposes as well. We think she was under the domination of Monoranjan Banerji but we think at the same time that she knew what she was doing and that she was a consenting party thereto and that she meant evil. We think in her case a sentence of 14 years' rigorous imprisonment is the proper sentence and therefore we reduce the sentence of transportation for life passed upon her to one of 14 years' rigorous imprisonment. Costello, J., reminds me that Ujjala is in the same position as Monoranjan Banerji with regard to the conviction for conspiracy to murder and we set aside the sentence of transportation for life as being excessive and we substitute therefor a sentence of 14 years' rigorous imprisonment. We also sentence her under that part of the charge which alleges that she was a party to a criminal conspiracy to possess arms, to 14 years' rigorous imprisonment, this sentence to run concurrently with the other sentence. With regard to Madhusudan Banerji we think ha has been properly convicted of conspiracy to murder, the maximum sentence for conspiracy to murder is 14 years' rigorous imprisonment and he has been given that sentence. That sentence will stand. At the same time although the Commissioners have convicted him of conspiracy to possess arms we are of opinion that there is no evidence to justify that conviction and we quash that conviction. That will make no difference in the sentence. Madhusudan Banerji has to undergo 14 years' rigorous imprisonment.
34. As regards Sukumar Ghosh alias Lantu we confirm the conviction against him of conspiracy to murder. We do not confirm his conviction of conspiracy to possess arms. The sentence of 14 years' rigorous imprisonment for conspiracy to murder that has been passed by the Commissioners will stand. The result is that we confirm the sentence of death on Bhawani Prosad Bhattacharji; we confirm the sentence of death on Rabindra Nath Banerji; we set aside the sentence of death on Monoranjan Banerji and in lieu thereof sentence him to 14 years' rigorous imprisonment, and under the charge against him of conspiracy to possess arms under Sections 19(f) and 19-A, Arms Act, we sentence him to transportation for life. The two sentences on Monoranjan Banerji are to run concurrently. As regards Ujjala Mazumdar the sentence of transportation for life is quashed, and in lieu thereof we substitute a sentence of 14 years' rigorous imprisonment. The sentence under Section 109.read with Section 307, I.P.C., and Section 6, Bengal Criminal Law Amendment Act, 1925 of transportation for life is quashed and in lieu thereof a sentence of 14 years' rigorous imprisonment is passed under Section 120-B read with Section 302, I.P.C. This sentence of 14 years' rigorous imprisonment will run concurrently with the sentence of 14 years' rigorous imprisonment that has been passed on her for being a party to a criminal conspiracy to possess arms. As regards Madhusudan, as we have said, we find him guilty of conspiracy to murder and sentence him to 14 years' rigorous imprisonment. As regards Lantu we find him guilty of conspiracy to murder and pass on him a sentence of 14 years rigorous imprisonment.
Mukerji, J.
35. I agree.
Costello, J.
36. I agree.