Iqbal Ahmad, C.J.
1. This is an appeal by Kedar Nath and Lachhman Das against their conviction by Dr. L.D. Joshi, Special Judge, Meerut, under Sections 3 and 4(b), Explosive Substances Act, 6 of 1908. The learned Judge sentenced each of the appellants to ten years' rigorous imprisonment under the former and, to seven years' rigorous imprisonment under the latter section. The sentences were ordered to run concurrently.
2. On the promulgation of Ordinance 19 of 1943 numerous appeals against the decisions of Special Judges and Special Magistrates were filed in this Court and, as in most of the appeals the validity of the Ordinance was assailed, the hearing of the appeals was deferred till the decision of the question by a Pull Bench A Pall Bench of this Court recently held that the Ordinance was valid. The consideration of the present appeal must, therefore, be approached on the assumption that the trial of the appellants, which culminated in the sentences passed by the Special Judge, had been held in accordance with the Code of Criminal Procedure (5 of 1898) by a Sessions Judge, and the only question that remains for consideration is whether the evidence justifies the conclusion arrived at by the learned Judge.
3. The appellants are the sons of one Babu Ram and they, along with their father and brothers, carry on business in the town of Hapur in the district of Meerut under the name and style of Babu Ram Kedar Nath and also under the name and style of Babu Ram Musaddi Lal. They have a shop in Hapur and there are some rooms on the upper storey of the shop. The incident that led to the prosecution of the appellants took place in the Kothi of L. Piyare Lal at Hapur on the morning of 19th October 1942, at about 6 A.M.L. Piyare Lal is apparently a respect, able resident of Hapur. He is an ex-Honorary Magistrate and is the Vice Chairman of Hapur Municipal Board. The evidence shows that, during the disturbances of 1942, the police had to fire at a mob in Hapur on 11th August and L. Piyare Lal was with the Government officials at the time of firing. This was resented by a certain section of people and they suspected that Piyare Lal had instigated the firing. On 10th October 1942, when L. Piyare Lal was not present at his Kothi, the main doors of his house were sprinkled with kerosene oil and set on fire. A report about this incident was lodged with the police. On the morning of 19th October, there was a bomb explosion in the gallery of his Kothi. Piyare Lal, who was sleeping close-by, woke tip and discovered that the Kothi was full of smoke. Ganga Sahai, a head-constable attached to a police outpost in Hapur, went to the Kothi of Piyare Lal on hearing the report of the bomb explosion and he collected the pieces of the exploded bomb. A report about the incident was forthwith made in the Hapur police station by Ganga Sahai and Sub-Inspector Kishore Chand Mehta (P.W. 8) immediately commenced investigation of the crime. The same day Kishore Chand conducted a search of the shop of the appellants and of the upper storey over the shop. One of the rooms in the upper storey was locked, and it appears from the statement of Kishore Chand that lock was opened by a key that was given by the appellants. A number of articles were recovered from the room and a search list was prepared. Some of the articles were sent to the Chemical Examiner and it appears from the Chemical Examiner's report that traces of arsenic sulphide, potassium chlorate, sulphur and potassium nitrate were found on some of the articles. The appellants were then prosecuted and were tried by the Special Judge in accordance with the provisions of Ordinance 2 of 1942, and, as already stated, were convicted under Sections 3 and 4 (b), Explosive Substances Act.
4. The appellants pleaded not guilty and denied that they had planted the bomb in the Kothi of Piyare Lal. While admitting that they carried on their business in the shop on the groundfloor they alleged that they were not in possession of the room in the upper storey from which the incriminating articles were recovered, and asserted that they had let out that room to one Babu Ram Halvai who was in possession of the same. They, there, fore, disclaimed all responsibility with respect to the articles that were recovered from the room in the upper storey. The learned Special Judge, on an examination of the evidence in the case, came to the conclusion that the appellants were in possession of the room on the upper storey and were in possession of the explosive substances that were recovered from that room. In this connexion he observed that
the report of the Chemical Examiner shows that from the articles recovered in the upper storey the kunda and one brick bore the traces of explosive substances. Potassium, Chlorate, sugar and some waxy substances were detected in the two fuses. The argument that some one may have prepared fire, works in the room leaving these traces behind cannot be accepted nor do I think that these things were planted in this room by anyone. It is interesting to notice that of the two pieces of iron wire Ex. 18 recovered from the room in the upper storey of the shop of the accused the smaller piece is remarkably similar to the four pieces of the iron wire Ex. 2 collected by Ganga Sahai at the place where the bomb exploded.
5. The learned Judge accordingly found the appellants guilty under Section 4(b), Explosive Substances Act.
6. As regards the charge under Section 3, the ease for the prosecution was that, close to the place where the bomb had exploded, Ganga Sahai found two letters, one in urdu addressed to firm Babu Ram Kedar Nath and the other in nagri addressed to firm Babu Ram Musaddi Lal. Both the letters were of the year 1940 and it was suggested on behalf of the Crown that these pieces of paper were used 'to tighten up the cap of the bomb.' The defence case was that these letters were not part of the bomb and were not found by Ganga Sahai at the place where the bomb had exploded. The learned Judge rejected this contention of the accused and held that
these details were not subsequently added to the report No. 19 in the general diary. It is clear in this case that suspicion against the accused was aroused in the very early stage after the bomb explosion. The basis of this suspicion was the recovery of the two letters...near the gallery where the bomb exploded. The search of the upper storey of the shop of the accused followed logically the recovery of the letters...there can be no reason otherwise why of all the people in Hapur the accused were singled out for search.
The learned Judge, however, observed in the course of his judgment that
by itself the recovery of these letters would have been quite insufficient to implicate the accused.
But he concluded that
the false denial by the accused of the recovery of articles Exs. 8 to 24 from the room in the upper storey is suggestive of a guilty conscience. Their denial about the receipt of letters Exs. P 2 and P 3 also assumes a sinister significance.
He, therefore, held that the charge under Section 3 was also brought home to the appellants.
7. The learned Counsel for the appellants has assailed the propriety of the conviction of the appellants and has contended that the evidence on the record is not enough to warrant a finding of guilty. The question of proof or evidence is always a difficult question, particularly in a case of the present character, and I propose to deal with it at some length.
8. The cardinal principle of jurisprudence that an accused is to be presumed to be innocent, unless the contrary is established, is the bedrock of our system. From that principle, no departure is permissible or desirable. The equally important principle must be kept clearly in view that, to quote the well-known observation of their Lordships of the Privy Council in Attar Singh v. Thakar Singh ('08) 35 Cal. 1039, 'conjectures cannot be accepted as substitute for proofs.'
9. But after saying this, it is also necessary to take into account the circumstances which brought into being the repealed Ordinance 2 of 1942. Acts of incendiarism had been committed; sabotage was rampant. These are matters of which, I consider, I can take judicial notice, vide Probodh Chandra v. Emperor : AIR1933Cal186 . To continue the narrative, telegraph wires had been cut; all means of communication between man and man came to an end.
10. If I am bound to take judicial notice of these, the next question which falls for consideration is the nature and quantum of proof. Here again, one must keep the line clear between 'legal proof' and 'moral conviction.' But once the evidence comes before the Court and stands the test of severe legal scrutiny, that evidence constitutes the legal proof. Then the dividing line vanishes. 'Legal proof,' in my judgment, is neither more nor less than what is indicated by the definition of the word 'proved' in Section 3, Evidence Act, 1872, that is to say,
a fact is said to be proved when after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
It is the duty of the Court in each case to concentrate its attention on the relevant and admissible evidence and then to decide whether or not a particular fact has been proved from the evidence adduced in the case. While the Court is entitled to insist that the best possible evidence should be produced, no hard and fast rule as to the quantum of evidence required for the proof of a particular fact can be laid down as this must necessarily vary with the circumstances of each ease. In the case before me the learned Special Judge has, in the course of his judgment noticed the evidence in detail and that evidence leaves no room for doubt that the room on the upper storey, from which the incriminating articles were recovered, was in possession of the appellants. It is however argued that the evidence of those witnesses (Ganga Saran Sharma, Amba Prasad, Benarsi Das and Kishore Chand Mehta) was not sufficient to prove that the appellants were in possession of the room and that the articles were recovered from that room. I am unable to agree with this contention. Bearing in mind the principles that I have enunciated above, bearing in mind the nature and extent of the disturbances of 1942 and the reluctance of the people to enter the witness-box, I cannot but hold that the 'legal proof' on the record is enough to warrant the belief in the guilt of the accused not only as a matter of 'moral conviction' but as a matter of legal deduction. I have therefore no hesitation in upholding the conviction of the appellants under Section 4(b), Explosive Substances Act, 6 of 1908.
11. I however entertain doubt about the propriety of the conviction of the appellants under Section 3 of the said Act. I have examined the two letters that were found near the scene of explosion. They bear no marks of burning or charring, and, as such, it is impossible to say that they were part of the exploded bomb. Apart from this, even if it be assumed that they were used, as observed by the learned Special Judge, 'merely to tighten the cap of the bomb,' this by itself cannot lead to the conclusion that the appellants had either planted the bomb or were responsible for the planting of the bomb in the Kothi of Piyare Lal. For the reasons given above, I allow this appeal to this extent that I set aside the conviction of and the sentence passed on the appellants under Section 3, Explosive Substances Act. I however maintain their conviction under Section 4(b) of the said Act and to that extent dismiss this appeal. A certificate under Section 205, Government of India Act, limited to the question about the validity of ordinance 19 of 1943 will issue.