1. These four appeals are against a judgment of commissioners appointed under Sub-sections (1) and (2) Section 4, Bengal Criminal Law Amendment Act, 1925. Nine persons were convicted by this judgment; and out of these one has undergone sentence of death passed on him in connexion with the Alipore Jail murder. There remain eight persons. Five of them, namely Hari Narayan Chandra, Rajendra Lal Lahiri, Birendra Kumar Banerjee, Dhrubesh Chandra Chatterjee and Rakhal Chandra De are the appellants in appeal No. 89; Nikhil Bandhu Banerjee is the appellant in appeal No. 90; Debi Prasad Chatterjee is the appellant in appeal No. 91; and Shibaram Chatterjee is the appellant in appeal No. 99. Two of the appellants in the first of these appeals, namely Dhrubesh Chandra Chatterjee and Rakhal Chandra De, have been sentenced to transportation for life in connexion with the Alipore Jail murder; and the learned vakil who appears for them has moved us to exercise the powers vested in us by Section 397, Criminal P.C., and make the sentence passed in the case before us run concurrently with the other sentence, in the event of our finding these appellants guilty in the present case also. The learned Advocate-General has supported this request. This appeal in other respects, as far as these appellants are concerned, may be treated as sentimental.
2. All the appellants have been found guilty of the following offences, namely conspiracy, under Section 120B, I. P.C., to commit the offences specified in Section 4(b), Explosive Substances Act, and Section 19(f) Arms Act, and also substantive offences under both the last-mentioned sections. Hari Narayan Chandra, arid Rajendra Lal Lahiri have been sentenced to transportation for ten years under Section 4(b), Explosive Substances Act, and to rigorous imprisonment for two years under Section 19(f), Arms Act. Birendra Kumar Banerjee, Nikhil Bandhu Banerjee, Dhrubesh Chandra Chatterjee and Rakhal Chandra De have been sentenced to rigorous imprisonment for five years under the former section and rigorous imprisonment for two years under the latter. Shibaram Chatterjee and Debi Prasad Chatterjee have been sentenced to rigorous imprisonment for three years and 18 months respectively under the above two sections. The separate sentences passed on each of the appellants are to run concurrently.
3. The story of the case is to the following effect:
The police had been keeping watch over the house, No. 4 Sovabazar Street; and instructions had been given to shadow Ananta Hari Mitra. On the 6th November 1925, a watcher named Nalini Kanta Roy, who was standing at the junction of Sovabazar Street and Chitpore Road, saw Ananta Hari Mitra engage a taxi at about 1-45 p.m. and drive into Sovabazar Street. After a few minutes he saw the same taxi returning with Ananta Hari Mitra, Dhrubesh Chandra Chatterjee and another man inside. The taxi turned into Chitpore Road and went northwards. The watcher took down the number of the taxi.
4. That evening, at about 6 o'clock, the watcher came across the taxi and asked the driver where he had taken the three young men. The driver, whose name was Hiru, replied that he had driven them as far as Baranagore Bazar where they had alighted and engaged a ticca gharri. On being asked if he could point out the ticca gharri, he said he might and also that his friend, Shamser Ali, who had been with him, might also help in the matter. The watcher went with Hiru to Shamser Ali's house. They took Shamser with them in the taxi to Baranagore Bazar. There Hiru and Shamser made enquiries among the ticca gharri drivers and returned and said that the man who had driven the young men was one Mona, who was not there at the moment. Next morning, the watcher went to Baranagore and found Mona, from whom he learnt that he had driven the three young men to Bachaspatipara in Dakhineswar. The watcher made Mona drive him to the place where the young men had alighted. There Mona pointed out the house to which one of the young men had gone to get change for a rupee, while the other two had remained in the carriage. That house is the one referred to in the evidence as Dwaraka's house.
5. Early on the morning of the 10th November, Mr. Duckfield, Additional Superintendent of Police, 24-Parganas, went with a posse of police to make a search. He was taken by Nalini Kanta Roy, the watcher, to Dwaraka's house. That house is in two parts. The house was surrounded; and at such of the parts of the house one of the inmates was questioned. It was ascertained from them that the next house, separated from this one by a tank, was occupied by strangers, who kept very much to themselves. Mr. Duckfield inferred that that was the house he wanted; and he had it surrounded. One search witness was taken on the way to the place, at a distance of about half a mile from the house that was searched; and three neighbours were also summoned and made to attend as witnesses to the search. All the nine persons who have been convicted were found at the house that was searched. The police found the door closed, and they; knocked for admittance. Bakhal Chandra Deopened the door and stood in the doorway and Mr. Duckfield asked him his name : and he gave the name of Nimai Chandra Deb. Rakhal was put under arrest. As the rooms on the ground floor were unoccupied, Mr. Duckfield went tip the stairs, followed by some of the member's of his force. He found the door at the head of the stair closed and fastened. As no one complied with the-request that that door should be opened, a pick-axe was procured, and. the door was broken open.
6. On the first floor of the house there are three rooms and an enclosed verandah. The house faces south; and the enclosed1 Verandah is on the south side. As one goes up the stairs, one finds to the left a door leading off the enclosed verandah into the room that is referred to as the eastern room. On the right hand side as one goes up, there is the enclosed verandah, out of which two doors open northwards into the rooms which are referred to as the middle room and the western room. When Mr. Duckfield entered the enclosed verandah he found Bajendra Lal Lahiri at the foot of the flight of stairs leading to the roof, which lie between the stairs that lead to the1 ground floor and the eastern room. Mr. Duckfield arrested Eajendra Lal Lahiri, and sent him downstairs. Mr. Dackfield then went into the middle room. There he found Dhrubesh Chatterjee and Shiba-ram Chatterjee lying ill, with Ananta. Hari Mitra attending to them. The last named was put under arrest.
7. Mr. Duckfield then went to the eastern room. On the way there, he found Debit Prosad Chatterjee under arrest in the enclosed verandah. The latter had beera in attendance on the three persons who were lying ill in the eastern room. Those three persons were Birendra Kumar Banerjee, Hari Narayaii Chandra and Nikhil Bandhu Banerjee. None of the persons found upstairs gave his name, with the exception of Debi Prosad who also gave his father's name, and address. The eastern room was searched first. The articles found there were items 1 to 46 of search list Ex. B. The search of that room lasted till about 9-30 a.m. At about 9, o'clock, the five persons who were ill were seat in an ambulance and in a taxi to Alipore, to be produced before the District Magistrate.
8. The search of the middle room was-taken up after, that of the eastern room was concluded. In the middle room, amongst other things, there was art almirah which was padlocked. Those of the arrested persons who had been brought up and were present were called upon to produce the, key. As the, key was not produced, the padlock was forced open In that almirah were found most of the remaining articles specified in search list Ex. B. including, among other things, a live bomb. The Chief Inspector of Explosives was sent for; and he placed the bomb in a bucket of water, and took it away. The search of the premises was continued till 7-30 p.m. on that day and was continued on the next two days. Nothing of any importance was found in the western room upstairs, in the room on the roof, in the ground floor rooms or in the outhouses. The four accused persons in good health were present throughout the search of the middle and western room and were there for the rest of the day. They were produced before the Magistrate next morning.
9. Before proceeding to discuss the case on the merits, it is necessary to dispose of a preliminary objection to the validity of the trial, taken on behalf of all the appellants. It is contended that the provisions of Section 360, Criminal P.C. have not been complied with. Our attention is drawn to the fact that the certificates given by the commissioners at the foot of the depositions are in four different forms:
(1) Read over to witness in the presence of the accused or their lawyers, and admitted to be correct.
(2) Read over in the presence of the accused and admitted to be correct.
(3) Explained to the witness in the presence of the accused or their lawyers and admitted to be correct.
(4) Explained to the witness in the presence of the accused and admitted to be correct.
10. It is contended that only the second of these forms of certificates shows compliance with provisions of Section 860. As regards the reading over of the depositions in the presence of the lawyers representing accused persons, who were temporarily absent from the Court-room for necessary purposes at the time the depositions were read over (certificate form No. 1 above) it is urged that such reading over is not a compliance with the provisions of the section, the object of which is to enable both the witness and the accused to see whether or not the depositions have been correctly recorded.
11. As regards the certificates in forms Nos. (3) and (4) set forth above, it is contended that, in order to comply with the provisions of Section 360, it is the duty of the Court first to read over the recorded deposition in English, as provided in Sub-section (1) and then to have it interpreted to the witness as provided in Sub-section (3), and that as the certificate does not show that the deposition, where certificate in form No. 3 or No. 4 has been given, was read over in English, there was no compliance with the requirements of the section.
12. Before proceeding to discuss this matter it should be stated that all the accused persons under trial were represented by lawyers. Throughout the trial, all the accused persons were represented by a Solicitor named Delip Kumar Chakrabarti, witness 74 for the prosecution. Besides this, for the first five days of the trial, the appellant Nikhil was represented by a Mr. Mukherji and certain other legal gentlemen who appeared also for other accused persons. On the sixth day of the trial Mr. Mukherji and these other legal gentlemen made known to the Court that from that day forward they ceased to appear for Nikhil. All the accused persons admittedly knew English.
13. Two affidavits have been filed on behalf of the appellants, one by one Krishna Charan Chandra, brother of the appellant Hari Narayan Chandra, and the other by one Akhil Bandhu Banerjee, brother of the appellant Nikhil Bandhu Banerjee. On the side of the Crown, a statement signed by one of the commissioners, contradicting the allegations made in these affidavits, has been filed. In the first of these affidavits the commissioners are charged with having merely told some of the witnesses what purported to be the substance of the depositions that had been recorded; and it is further stated that all the accused persons were not present in the Court-room at the time that some of the depositions were read over. The other affidavit states that Nikhil was not present in the Court-room when some of the depositions were either read over or explained to the witnesses. The deponent states that he particularly remembers that Nikhil was absent from the Court-room when the deposition given by Jugal Kishore was explained to that witness. He further repeats the charge that in the case of some of the witnesses only the substance of their depositions was given to them in Bengali.
14. The commissioners' statement is to the effect that, whenever a witness deposed, in English the deposition was read over to him in English, that whenever a witness deposed in the vernacular, the deposition was read over sentence by sentence and then explained to the witness in the vernacular, and that if any accused person not repesented by a lawyer was absent from the Court-room, the Court invariably waited for his return before proceeding to read out the deposition to the witness.
15. The learned vakil appearing for the appellants were none of them present at the trial, and are not in a position to support the allegations made in the affidavits. None of the legal gentlemen who did appear for the appellants at the trial has sworn an affidavit to support the allegations that have been made. The persons who have sworn the affidavits are the brothers of two of the appellants who have nothing to lose by swearing falsely. The allegations made by them are amply refuted by the statement signed by one of the commissioners. The very record shows with what care and scruple the commissioners did their work. The commissioners have been at pains to record in each instance whether or not all the accused persons were themselves present in the Court-room at the time a deposition was read over, showing that they made a point of ascertaining each time whether or not all the accused persons were present in the room when depositions were read over. There can, therefore, be no doubt that whenever Nikhil, who was considered unrepresented, was out of the room, the Court did, as the commissioner has stated, await his return before reading over a deposition.
16. We are not prepared to accept the contention that Sub-section (3), Section 360 is an additional provision, requiring that the deposition recorded in English should be translated into the vernacular to a witness who has deposed in the vernacular, after having first been read over to him in English. It would be a grave insult to the Court to question its integrity in giving a true rendering in the vernacular of the deposition it has recorded. There is nothing in the wording of the section to indicate that it requires that the deposition shall first be read over as recorded in English and shall then be translated into the language in which the witness has deposed. If such had been the intention of the legislature, we should have expected the word 'also' to stand between the words 'shall' and 'be interpreted' in Sub-section (3). It is, however, not necessary for us on this occasion to decide whether or not the interpretation sought to be put upon the section is correct, as the commissioner who has made a statement has placed on record that whenever a witness deposed in the vernacular, the deposition recorded in English was first read out sentence by sentence and then interpreted to the witness.
17. As regards the objection that the reading over of a deposition in the presence of a pleader, during the temporary absence of the prisoner represented by such pleader, is not a compliance with the provisions of Section 360, we have been referred to the ease of Kasim Ali v. Sarada Kripa Laha (1) and also to the wording of Sections 360 and 361 of the Code. It is true that in the ease referred to we find that a Bench of this Court laid down as follows:
It is clear from the wording of the section, that if the accused is in attendance the evidence must be read over in his presence, and it is only when the accused appears by pleader that the reading over of the evidence in the presence of the accused's pleader is sufficient.
18. But the facts of the case do not appear from the report. It may be inferred that in that case the deposition had been read over before a pleader and that is all. There may have been more than one accused person in the case; and possibly the person in whose absence the deposition in that case was read over had no pleader appearing for him. We, therefore, cannot consider the case as an authority for the proposition set up by the appellants.
19. As regards the argument based on the wording of the sections, we are unable to accept the contentions of the appellants. The contentions are as follows:
20. Firstly, that the words in Sub-section (1), Section 360,
or of his pleader, if he appears by pleader
relate to cases where the personal attendance of an accused person is dispensed with under the provisions of Section 205 of the Code in which the words
permit him to appear by pleader
are to be found, and secondly that such interpretation is borne out by the provisions of Section 361, of which the first two sub-sections read:
Sub-section (1) : Whenever any evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him in open Court in a language understood by him.
Sub-section (2) : If he appears by pleader and the evidence is given in a language other than that of the Court and not understood by the pleader, it shall be interpreted to the pl6ader in that language.
21. Now, the words 'appear by pleader' are nowhere defined. In ordinary acceptance, these words mean 'represented by pleader,' that is to say, having a pleader to act and plead. In Section 205 the word 'appear' seems to convey a double meaning, seemingly connoting not merely authority to act and plead, but also authority to personate the accused; but there is nothing to show that double meaning was intended by the legislature. It is necessary that someone should be present at the trial to look after the interests of the accused; and all that Section 205 provides is that, when the Magistrate sees fit, a person against whom a summons has issued may be exempted from personal appearance, provided he engages a pleader to attend and see that the proceedings are properly and legally conducted. The law considers that the interests of the accused will be completely safeguarded if his pleader is in attendance. This is all that can be gathered from the provisions of that section. A similar intention is to be gathered from the provisions of Section 361.
22. But even if the double meaning of the word 'appear' in Section 205 were intentional, there is nothing in the provisions of Sub-section (1), Section 360 to indicate that the legislature intended that the reading over in the presence of the pleader should be a compliance with the provisions of that section only in cases where the personal appearance of the accused is dispensed with by the Court. The words used are:
It shall be read over to him (the witness) in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader.
23. The natural meaning of these words is that if an accused person has engaged a pleader, who is in attendance, the reading over of the deposition in the presence of the pleader will be a full compliance with the provisions of the section, if the accused himself does not happen to be present at the time the deposition is read over. We, therefore, hold that the provisions of Section 360 have been complied with.
24. Turning to the facts of the case : we find a number of young men, not all of one caste, hailing from different places, none of them with any ostensible means of livelihood, and only one of them apparently possessing some money, living together in what is practically a village on the outskirts of Calcutta, a place which is admittedly malarious. These young men keep very much to themselves. They hardly go abroad and even will not make use of the privy standing within the compound of the house, using instead a rain-water pipe leading from the roof of the house. They have no intercourse with neighbours. They keep their door closed all the time. When1 one of them visits the grocer's shop to buy groceries, he does so late in the evening and tells the grocer to make haste and hand over the goods. They live under assumed names. Even when some of them are ill, rather than call local medical men, they go to the expense of bringing one from a distance, paying him a high fee and the expenses of conveying him to Dakhineswar and back. At the-Search of the house they occupy, the police found a stolen revolver, a muzzle-loading pistol, cartridges for revolvers, for an automatic pistol and for a shotgun, a live bomb, a large quantity of chemicals used in the preparation of explosives, hand-written and type-written instructions for the preparation of explosives of various kinds, cloth masks, written instructions about disguises, inflammatory literature and have, hand-drawn maps of the neighbourhood.
25. All these young men profess to have no connexion with the incriminating articles found at the search. Every one; of them, except Nikhil, who made no statement, gives some excuse for being in that house. Hari Narayan says that he is an ex-internee, and that as the police were always on his tracks he decided to live in a quiet place outside Calcutta. He came to hear of the house at Dakhineswar through his friend Dhrubesh, and took it at the beginning, of August, and went to live there with Birendra and Shibaram. Birendra says that the people of the house where he had worked as a private tutor in Howrah had calumniated him and that he had to leave Howrah on that account. His friend, Hari Narayan, suggested living at Dakhineswar; and he went there to live with his friend, who also promised to take him into partnership in a business he was going to stare. Birendra, however, was ill most of the time.
26. Shibaram says he had quarrelled with a professor of Ashutpsh College and had gone to St. Xavier's College, against his father's wishes. He failed in his annual examination; and his father, expressed annoyance at this. He, therefore, left home. His friend, Hari Narayan, took him to live at Dakshineswar to save him expense and also promised to have him instructed in short hand. Dhrubesh says he had a quarrel with his uncle over money matters and left home and lived at one or two places and then went to the Dakshineswar house, where his friends had started a cheap mess. Rakhal De had a quarrel with the manager of a business called the Chittagong Chemical Industries, for which he had been working. He was on the look-out for other employment and wrote to his friend, Ananta Hari Mitra, who invited him from Chittagong to Krishnagar and then took him to live at Dakshineswar early in November.
27. Rajendra Lahiri, Debi Prosad and Ananta Hari say they went to the house on the 8th November, two days before their arrest, and found several people lying ill. They were asked to stay and help; and that is how they happened to be present at the time of the search. Rajendra claims to have come to know of the place through his friend Dhrubesh, whom he had met near the Dakhineswar temple, and had been invited to go and visit the mess whenever he could. Devi Prosad also had quarrels. He had formerly lived at the house in Dakshineswar in which he has a share. As he had quarrelled with his co-sharers he had gone to live at Bally, on the other side of the river. The letting of the house to Hari Narayan and his friends was arranged through him, but his relatives tried to deprive him of his share of the rent. He, therefore, went to the house on the 8th November to collect his share of the rent direct.
28. That the incriminating articles were found in the house and that all the appellants were arrested there on the 10th November 1925 are not questioned. The case sought to be set up for all the appellants is that they had no connexion with the incriminating articles, and that those articles must have been introduced into the house by the police; and if that theory is not accepted, it has not been proved which of the appellants was in possession of the incriminating articles.
29. As regards individual appellants, it is urged that, in the absence of evidence to the contrary, it should be believed that Rajendra and Debi did not go to the house till the 8th November, and that their purpose in staying there was merely to help in nursing' people who were ill. For Shibaram it is said that he was too ill to know whit was taking place in the house.
30. Touching the first part of the general defence set up in argument before us, it his been urged that firstly the search was not conducted in accordance with law; and secondly that, as Mr. Duckfield has said that the appellants who were in good health were brought up from downstairs when the middle room was searched, that is to say at 9-30, and the men who were ill were removed at 9 o'clock, the police had had half-an hour in which to 'plant' the incriminating articles in the middle room. At the time of the trial, the suggestion that was thrown out was that the things had been carried into the house before the arrival of the local search witnesses. This suggestion will appear only from the following passage in the deposition of the friendly search witness Makha'n Lal Chatterji, P.W. 5, who is related to the appellant Debi Prosad. The question put to this witness was:
Had you any conversation with the accused there.
('There' refers to the door of the house, where according to the witness he found Rajendra and Debi under arrest).
I shall recall it to you. Did the accused say this. 'Mahashay, why have you come so late? They have done what they wanted to do,'
31. And the answer was 'yes.'
32. From this it is argued that the suggestion then was that the incriminating articles were carried into the house by the police before Makhan's arrival. Yet neither Rajendra nor Debi said anything about this in his statement on examination before the commissioners. The learned vakil appearing for the appellants naively states that these persons could not make such statements in their answers to the commissioners, because they were downstairs and could not see the things being put into the almirah upstairs. They may or may not have been in a position to say that they saw things put into the almirah; but they must have been in a position to see things being taken upstairs. Considering the enormous number of articles taken at the search and the bulk of several of these articles, it certainly would have been impossible for the police to have taken these things upstairs without being seen. This matter will have to be referred to further in connexion with the comments that have been made about the searching of the persons of the police and of the search witnesses before they entered the house. The failure of the appellants to state that they saw articles in the hands of the police or indications that they were carrying articles concealed in their uniforms is a complete refutation of the, suggestion that anything was carried into the house by the police at any time.
33. The enclosed verandah upstairs is only about five feet wide. According to the search witness Makhan the contents of a tin-box found in the eastern room were examined on that verandah. The officers conducting the search, some constables and the search witnesses were present. In such circumstances it is difficult to understand how it could have been possible for the police to carry to the middle room the large number of articles that were found there. If aspersions are made on the police, it should be shown that such aspersions are justifiable. It is not sufficient to say that on certain occasions the police have been known to fabricate circumstances. It must be shown that in the present case there are at least indications that the police put the incriminating articles into the house. The indications point the other way. When the key of the padlock to the almirah in the middle room was asked for, had those of the appellants who were present been innocent, one would have expected them to say;
How should we know where the key is? You have yourselves put the padlock on the almirah.
34. They would have made similar remarks when the incriminating articles were taken out of the almirah. Instead of which we find that when the bomb was found, the appellant Rajendra Lahiri offered to remove the fuse and make the bomb harmless.
35. Further, the nature of at least two of the articles makes it extremely improbable that the police had any connexion with them. The first is the bomb, which, as Dr. Robson has deposed, was in a sensitive condition. He describes the mixture of chemicals contained in the bomb as a dangerous mixture and says that there is considerable probability of ammonium chlorate being formed from such a mixture, which might lead to a premature explosion. It is not reasonably probable that, in order to gain promotion or reward, the police would carry about on their persons such an extremely dangerous article as this bomb. The other item is the revolver. This weapon was unlicensed. Whenever that weapon might have been discovered by the police, the person with whom it was found would have been prosecuted. The weapon, moreover, is an expensive one; and it is unreasonable to suggest that subordinate members of the police establishment keep expensive weapons of this description by them for the purpose of 'planting' them on persons whom they intend charging with possession of unlicensed arms. The suggestion that the police smuggled the incriminating articles into the house does not bear investigation.
36. In the same connexion the learned vakils for the appellants have drawn attention to certain discrepancies in the evidence on the subject of the searching of the persons of the police and of the search witnesses; they have characterized the search of the eastern room as illegal, because, according to Mr. Duckfield's evidence, the four men who were not ill were not present at that search; and they have asked us to disbelieve the evidence of the search on the ground that two of the search witnesses were not examined.
37. The witnesses agree in saying that the police were searched, although there are discrepancies concerning the manner in which they were searched. Some say hands were not laid on their persons; others say that the clothes were felt; and one police officer says that his pockets were searched. Mr. Duckfield offered himself for search and asked the search witnesses to search his force before he entered the house. As regards the search witnesses, they were four in number. Makhan was well disposed towards the appellants; and there is no suggestion that he took anything into the house. The other two witnesses to the search must also have been free from suspicion, since complaint is made that those persons were not placed in the witness-box. The suggestion, therefore, is that the remaining search witness, Jugal, must have smuggled things into the house. This is nothing but a suggestion. Suspicion is sought to be cast on Jugal because he was brought by the police from a distance of about half a mile from the place. This circumstance is not calculated to create any suspicion unless it can be shown that Jugal was in any way connected with the police. There is absolutely nothing to show this. The place where the house stands is more or less a village, well away from the Barrackpur Trunk Road. The house at which the police went to make the search was one near which it must be more or less difficult to secure persons to attend a search. It is not every one who is willing to be dragged into a police case. Therefore the mere fact that Jngal was found nearly half a mile away from the house that was searched is no ground for suspicion. There is also nothing reasonable about the suggestion. As already stated, the articles found were bulky. There were a great many bottles of acid, glycerine and other chemicals; there was glass apparatus of various kinds and a large number of small phials, packets containing different substances and papers, besides the bomb, the revolver, the pistol and the cartridges. It cannot be seriously suggested that Jugal Kishore could have smuggled any appreciable portion of this bulk. We are not told what clothes the man was wearing; and there is nothing to show that he wore any more clothing than Makan, who says he had on nothing more than a dhoti and a chadar. There is no force whatever in the suggestion that anything was smuggled into the house.
38. Nothing turns on the other two objections made concerning the, search. With regard to the absence of Ananta Hari, Rajendra, Debi Prosad and Rakhal, the four persons who were in good health, at the time of the search of the eastern room, Mr. Duckfield may or may not be mistaken; but assuming that he is right in saying that all the four persons were downstairs when that room was searched, their absence can make no difference to the else. Our attention has been drawn to the remarks of Mr. Justice Breachcroft in the case of Ramesh Chandra Banerjee v. Emperor  41 Cal. 350, where the learned Judge observes that in his opinion the spirit of Section 103, Criminal P.C. requires that the persons whose premises are searched shall be present and that he must be given the option of being present. This view of the meaning of the word 'permitted' in Sub-section (3), Section 103 was not accepted by Mr. Justice Woodroffe, the other learned Judge who decided that case. We are not prepared to agree with the interpretation put on the word 'permitted' by Mr. Justice Beachcroft.
39. As regards the failure of the prosecution to put the other two search witnesses into the witness-box, our attention has been drawn to the case of Munui Sonar v. Emperor  9 C.W.N. 438, where it was laid down that every search witness should be put into the witness-box, unless the prosecution are of opinion that such persons would misrepresent facts and would mistate what had happened. With all the respect to the opinion of the learned Judges who decided that case, we must hold that no such duty is cast on the prosecution. Sub-section (2), Section 103 expressly lays down that
no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
40. The reason of this provision is obvious. Many persons would be unwilling to attend searches if, as a matter of course they had to attend Court at the trial of the case, possibly two Courts, if the case is committed to the Sessions. The discretion is, therefore, left to the Court to require or not the attendance of such witnesses. It does not even appear that the appellants moved the commissioner to have those witnesses produced; and they certainly did not call them as witnesses for the defence, which it was open to them to do, and which they should have done, since they profess to have a high regard for the truthfulness of these persons. There is no substance in the grievance sought to be made out. Be those things as they may, the important question is whether or not the incriminating articles were in the house when the police went to search it. If this is so, as we must find it to be so, it would not matter in the least, whatever irregularities might have been committed in the conduct, of the search.
41. The other important question in the case is the question of possession of the incriminating articles. At the trial, an attempt was made in cross-examination to suggest that the chemicals and the chemical apparatus were the property of a medical practitioner who had previously lived in the house. This suggestion has not been seriously pressed before us and it is entirely negatived by the evidence. It appears that the medical practitioner who had occupied the house was one Govinda Gopal Mukherjee, Debi's maternal uncle. He had lived in the house for about twelve months and had been in the service of a neighbouring mill. He was away at his work the greater part of the day and had no private practice. He kept no chemicals in his house and had no laboratory. These facts are deposed to by Debi's relations, who are witnesses in the case. One of them, Nabin Kali, Debi's aunt, states that after the house had been let to the young men she had cleaned out the almirah in the middle room and left it open.
42. As far as concerns the bomb, there can be no question about its manufacture within a few days of the date of the search. There is unimpeachable proof that it was manufactured after the 23rd October 1925, because the circular slips of paper found within it, serving as a covering to the explosive powder, have been proved conclusively to have been cut out of the Amrita Bazar Patrika of that date.
43. A cash memo was also found among the papers in the house, showing purchase of extra pure nitric acid of the gravity of 1.42 on the 3rd November 1925, and among the bottles of acid found in the almirah was one such acid. The cash memo has been proved by the chemist who sold the acid. The purchaser had given the name of Asok Chandra Boy, being one of the names that one of the appellants had assumed. The address given to the chemist by the purchaser was 70 Balaram Ghose Street, a totally fictitious address. There is no room for the suggestion that the incriminating articles had belonged to the medical practitioner who had occupied the house. Possession of these articles can only be attribute to the occupants of the house at the time of the search. The only question is whether any of the persons found in the house can claim the benefit of the doubt in regard to this matter.
44. All the circumstances of the case leave no room for doubt that the occupants of the house were members of a conspiracy with anarchical designs. The persons found in the house belonged to different places. Hari Narayan belonged to Chinsurah; Biren to Salkia; Dhrubesh to Nandigram in the district of Hooghly; Nikhil to Joypur in the district of Jessore; Rakhal to Chittagong; Bajendra to Pabna; Ananta Hari to Krishnagar in the district of Nadia; Debi Prosad to Bally in the district of Howrah; and Shibaram to Bhowanipore, Calcutta. Some explanation is necessary for the presence of such persons in the same house several of them admittedly living together. The absence of explanation, which would be forthcoming if the appellants were innocent, undoubtedly corroborates the case for the prosecution. These young men, moreover, were doing nothing; and, according to their own account of themselves, the majority of them had quarrelled with their relations. They have none of them even stated that they had been making, efforts to find employment. Only Birendra, has said that he had had it in his mind to rejoin his appointment in the office of the E.I. Railway.
45. The fact that these young men were living in a place which is admittedly a hotbed of malaria does not suggest that they chose the place for the sake of their health. If they had been living honestly, there was no occasion for the extreme secrecy observed by them - secrecy carried to the point of making their lives disgusting. As already stated, these young men actually used a rain water pipe leading from the roof of the house as a latrine, when they had a privy outside. It is idle to say that people who do such a thing as this can have any but nefarious ways. Their only object in doing anything as disgusting could be to escape observation from neighbours. The inmates of the house went under false names. We have nothing but the statements of the majority of them that for one reason of another they had fallen out with their relatives and guardians and that they did not wish to be traced by them. This story is not consistent with the story that. Rajendra who is supposed to have become stranger to the bulk of the occupants of the house, was invited to visit the house as often as he could go, or that Ananta Hari, a person who is said to have had no sort of connexion with the establishment, took Bakhal to live there as a matter of course, We have nothing but the word of the appellants about the reasons for their being where they were found, with all the incriminating articles. People living in the house were collecting materials for the manufacture of explosives, had in their possession directions for the preparation of explosives of various kinds and at least one live bomb and also unlicensed arms. That persons who were engaged in doing such things would have as their mess mites any but fellow conspirators is utterly inconceivable. It cannot be believed that any person could have been admitted within the house unless he was a safe person. Since the occupiers of the house would not even associate with neighbours in the street and were so careful about avoiding even being seen by their neighbours, it is utterly unlikely that they would admit people within the house, least of all have people to stay with them, unless such people were co-conaspirators.
46. Of the co-owners of the house, Hari Sadhan Chatterjee, Satish Chandra Chatterjee and Nabin Kali, each was admitted upstairs once. On the occasion of their visits, they found the door of the house closed and had to knock for admittance. Satish visited the house in the first part of August, and Hari Sadhan visited it in the first week of September. They went there to collect the rent. Nabin Kali went to the house on four or five occasions. She used to go to the garden to collect be I leaves for worship. She used to find even the door of the outer wall of the house fastened and had to shout for admittance. She went upstairs once. That was at the time of the Ananta Chiturdasbi in the month of Bhadra (end of August). That was the occasion on which she cleaned out the almirah in the middle room. It does not appear that any of the co-owners of the house went there after the first week in September; and we find that Debi paid the rent to Hari Sadhan at the beginning of November.
47. Whether or not chemicals for the manufacture of explosives bad been introduced into the house before the end of the first week of September, it is impossible to say. There is one circumstance that seems to indicate that they had not, namely that apparently the house was not occupied during the Durgs Puja festivities, which occurred in that year between the 24th and the 27th September. Nabin Kali states that the boys told her they were going home for the puja and would lock up the, house. During the Puja festivities she noticed that the door of the house was padlocked Three days after the puja she noticed that the door was still padlocked and it seemed to her that there was no one in the house. The real activities of the conspirators seem to have started after the Puja. There is no definite evidence of this. The only circumstances that seem to indicate this are the one stated above, the manufacture of the bomb subsequent to the 23rd October, the apparent purchase of nitric acid on 3rd November, as evidenced by the voucher found in the house, and the increase in the number in the house.
48. Over and above the grave improbability that any persons other than fellow conspirators would have been admitted into the house when the conspirators had become active, there is the want of plausible explanation of the presence of the persons who were admitted there after the Puja and there is the further fact that the prosecution has established a connexion between the house at Dakshineswar and 4 Sova Bazar Street, the house that Ananta Hari Mitra used to frequent. That house also was searched on the 10th November, and amongst the things found there were a five chambered revolver with cartridges, six large bottles of nitric acid and inflammatory literature. A bicycle was found at that house ; and the bill for repairs done to that bicycle was found in the almirah in the middle room of the Dakshineswar house, and has been proved by the owner of the shop where the repairs were done. The established connexion with 4 Sova Bazar Street and the repeated appearance in the accounts found in the almirah of mysterious names, including the assumed names of some of the persons found in the Dakshineswar house, prove that the establishment at Dakshineswar was a branch of a larger organization; and this fact makes it all the more impossible to believe that tire conspirators at work at Dakshineswar would admit within their house any but persons who were members of the conspiracy.
49. As we have no means of discriminating between the cases of the various persons found in the house, and as the circumstances point to the conclusion that every person found in the house was a member of the conspiracy, absence of proof that a particular person was there innocently leads to the conclusion that no one's presence was innocent. The explanation offered on behalf of Bajendra is palpably false. The improbability of persons who kept themselves so very much concealed as the immates of the house inviting people to go and visit them has already been noticed. But, apart from this, we have clear indications that Bajendra had been in the house for some time and had not, as he says, only gone there on the 8th November. He stated that, because he knew he could have to stay with the sick persons for a day or two, he went away and fetched a cloth, a chadar and Bryce's Democracy. At the search of the house at Dakshdneswar, various articles were found which he claimed as his own - shaving materials, a blanket, a panjabi and other things. His admitted belongings were found in various parts of the house. Over and above this, we find that his panjabi bore the arrow mark, which the dhobi who had washed the clothing of the inmates of that house had been putting on those clothes. The dhobi has also identified Bajendra as one of the persons whom he saw at the house when he went there in connexion with the washing of clothes. The dhobi says he was not allowed to enter the house, and that the clothes used to be thrown to him from upstairs.
50. The only appellants besides Bajendra who claim to have been recent arrivals are Bakhal and Debi Prosad. The former, as already stated, had come from Chittagong. The fact that according to his own case he was introduced to the establishment by Ananta Hari Mitra, who was connected both with this establishment and the one at 4 Sova Bazar Street makes it all the more necessary that he should prove his statements. There is nothing but his own uncorroborated statement to show that he was a recent arrival. But, even if he was a recent arrival, the inferences arising from the facts of the case have to be rebutted; and there is absolutely nothing to rebut them.
51. As regards Debi Prosad, it may be said that he was co-owner of the house and had occasion to go to there to collect rent. There really appears to have been no reason why he should have collected his share of the rent for himself as his uncle Hari Sadhan, and his cousin, Satisb, who lived close by could have collected it. Both these men have said that there was no quarrel between them and Debi Prosad. They admit that they wished to have the family properties partitioned, and that Hari Sadhan had caused notice to be served on Debi to that effect through a pleader. Nabin Kali states that Hari Sadhan had wished to apply the rent of the house towards repairs. It is possible that if there was a difference of opinion between Debi and his uncle on that matter, Debi might have decided to realize his share of the rent for himself. If Debi had merely gone to the house to collect the rent once a month, some sort of doubt might have arisen in his favour; but it appears from the evidence of the neighbours that he was seen going to and from the house fairly frequently. The excuse for his staying in the house from the 8th November onwards is anything but satisfactory.
52. According to his own story there were already three persons in the house to look after five persons who were ill. The story that he was asked to stay and help would have been an improbable one even if the inmates of the house were not involved in a criminal conspiracy. As matters stand, his story is incredible. There is no excuse whatever for Debi's failing to produce witnesses to prove that ho had come from his house at Bally, on the other side of the river, only two days before the search of the house. The fact that he is a co-owner of the house is not sufficient to rebut the conclusions to be drawn against him from the circumstances of the case. On the contrary, the fact that he was a co-owner tells against him. He could not help being aware of the filthy use to which the rain pipe was put; and, had he been innocent, he would have strongly objected to such misuse of the premises. As part-owner of the house he would have sought an explanation of the extreme secrecy observed by the persons who were his tenants. He offers no explanation in regard to these matters; and his silence clearly indicates guilty knowledge. Having such knowledge it is incredible that he should have consented to stay in the house when asked to do so, unless he was himself a member of the conspiracy. The appellants were all of them in possession of the explosive, and the unlicensed arms and were members of the conspiracy to possess them. They have been rightly convicted.
53. As regards the sentence: the commissioners have not stated why they classed Rajendra Lahiri with Hari Narayan and not with Birendra and the other three who were sentenced to rigorous imprisonment for five years. We have nothing before us to show who were the leaders of the conspiracy except the statements of the appellants themselves. Hari Narayan admits that he was the prime mover in the starting of the establishment at Dakshineswar; and he fully deserves the sentence passed upon him.
54. As regards Rajendra there is no evidence to prove that he was a leader; and we do not find anything on the record to justify his being punished more severely than Birendra, Dhrubesh or Nikhil. The only thing that suggests itself is that the commissioners have punished him more severely because he offered to take the fuse out of the bomb, but this in itself does not make his case more serious than that of Birendra and the others. His sentence is, therefore, reduced to that imposed upon those three persons, namely rigorous imprisonment for five years under Section 4(b), Explosive Substances Act, and rigorous imprisonment for two years under Section 19(f), Arms Act, the sentences to run concurrently. Considering the nature of the conspiracy, the sentence passed on the other appellants do not seem to be severe. The sentences passed in the present case on Dhrubesh and Rakhal shall run concurrently with the sentences passed on them in the Alipore Jail murder case. In other respects, except the above the appeals are dismissed.
55. I fully agree with my learned brother in his decision on questions of law and in the observations on the evidence made by him in his lucid judgment. There is one matter on which I should like to lay some stress. When appearances are against the accused in a case, and the prosecution has established prima facie the existence of incriminating circumstances, it is the duty of the defence to rebut the presumption arising from them by some tangible evidence other than by mere criticizm and suggestions or untested and uncorroborated statements from the dock. The idea that. the defence is not bound to adduce any evidence is dangerous. In jury trials the last word may have some value, but; in a trial before three experienced Judges the prosecution and the defence stand on the same footing. In this case there are matters that are within the special knowledge of the prisoners which, if they want; the Court to accept, they must substantiate them by evidence. For instance, the prisoner alleged that some of them were students, gone to the house at Dakshineswar to prosecute their studies and that some others were either looking for work or making arrangements to start a business. These are matters which only the defence could prove and the absence of such proof lends strength to the case for the prosecution.
56. While I concur generally with my learned brother, I am unable to persuade myself that the evidence against the accused Debi Prosad Chatterjee is sufficient for conviction for possessing and conspiring to possess explosive articles which offences, my learned brother holds, have been proved against him. I am not sure that the facts proved against him are not at all consistent with his innocence though they also make it probable that he was one of the conspirators. To my mind, the most the evidence against him proves is that he was friendly with the inmates of the house and possibly was aware of their nefarious designs and practice. He may even have attempted to shield his friends from suspicion. But to convict him of possessing, manufacturing or conspiring to possess explosive articles within Section 5, Explosives Act, something more need be proved than his occasional visits to the house or his statement about the inmates of the house to Satis, P.W. 22, which is not true. There is another fact which apparently tells against him, but it is not enough to prove his possession of the articles, found in the house. It is proved that he made a certain statement to Mr. Duckfield, Superintendent of Police, which he subsequently tore up. We do not know how far that statement incriminated him, and though it was of such a nature that it could not be legally proved, we cannot presume that it contained confession of the guilt of possessing the articles found. If such presumption can be made, it will frustrate the very object of the law which keep's out statements made to a police officer. Such a presumption may be more damaging than the statement itself. This incident, therefore, cannot be used as evidence against him.
57. The very fact of his occasionally visiting the house proves that he was not in possession of the things inside the house. It is probable that his statement that he was in the house for two days previous to the raid to help nursing the people who were admittedly very ill is true, for no article belonging to him was found in the house at the search. I am not convinced that temporary residence in a house containing explosive articles, even with the knowledge of their existence there, is possession, within the meaning of Section 5, Explosives Act. Conspiracy to possess, I take it, connotes some act of possession or attempted possession. On all these grounds I hold that the evidence for the prosecution falls short of bringing home to the accused Debi Prosad Chatterjee the charges under which he has been convicted, and in my opinion he should be given the benefit of doubt and acquitted. As my learned brother has taken a different view let the case of the accused Debi Prosad Chatterjee be placed before the Chief Justice for proper orders under Section 429, Criminal P.C. Let copies of our judgments be given to Babu Mrityunjoy Chatterjee, the vakil' for the accused Debi Prosad Chatterjee.
58. [Appeal No. 91 was then placed before Buckland, J., for hearing, whose judgment was as follows.]
59. The appellant Debi Prosad Chatterjee has been convicted by the commissioners appointed under Sub-sections 1 and 2, Section 4, Bengal Criminal Law Amendment Act, 1925, of offences, under Sections 120-B, I.P.C., 4(b), Explosive Substances Act, and 19(f), Indian Arms Act and sentenced to three years rigorous imprisonment under Section 4(b), Explosive Substances Act, and to eighteen months' rigorous imprisonment under Section 19(f), Indian Arms Act, the sentences to run concurrently. Nine persons in all of whom the present appellant was one were convicted. They all appealed. One of them was executed upon conviction in another case and the appeals of the others have been dismissed and the convictions and sentences have been affirmed except as regards Rajendra Nath Lihirr whose sentence has been reduced. But as regards Debi Prosad Chatterjee, owing to a difference of opinion between the learned Judges who heard the appeal the matter has been referred to me under Section 429, Criminal P.C. In these Circumstances, it is unnecessary that I should state all the facts at length, They are to be found fully stated in the judgment of the commissioners and again in the judgment of my learned' brother Mr. Justice Cammiade.
60. The question is whether the evidence supports the conviction of the particular appellant. The test is, I think, as the learned vakil who appears for him has put it, whether there is evidence upon the record of the commissioners upon which the conviction and the sentence can be supported. The point depends upon whether the evidence as to the appellant's association with the other persons convicted shows' that he was at Dakshineswar at the times stated for a legitimate purpose or that he was there for the purposes which the prosecution alleges. There is evidence referring to instances more or less isolated when he was seen at Dakshineswar. But, without going into all the evidence in detail, there is in addition a considerable body of evidence of some five or six witnesses which, if believed, in my opinion, establishes the case for the prosecution. We first of all have the evidence of Nabin Kali Debi who describes how the house was taken for these persons and how it was arranged by the present appellant. The matter is narrated at some length and Debi Prosad answered various questions by her as to whether the womenfolk would come and so forth. The story is not, in my opinion, one which one would expect to heir, if it was a simple matter of Debi letting the house in which he had an interest to his friends for a legitimate purpose. The evidence is not very strong, but there is indication that in letting the house there was something that he wished to conceal. This is carried further by the evidence of Satish Chunder Chatterjee, a cousin of this appellant. To him the appellant made, disingenuous statements, for, he said that he had got tenants for the house and; that they were boys who messed together, that they were cousins and two of the them had business, and, the others, were students. He said that they were five three brothers and two cousins - and they were acquaintances of his.
61. On that evidence, I should say, he was endeavouring to keep Satish Chunder Chatterjee in the dark and to make it appear that there was nothing which would give rise to any suspicion on the part of Iris relatives as to the persons to whom he was letting the house and at the same time endeavouring to conceal their identity; for his case is that he did not know all these persons and that they were not all his acquaintances before he let the house in August. Then, when we come to the time when the house was occupied by these persons, we find that there is evidence by the witness Norendra Nath Chatterjee who lived at Dakshineswar that he saw young men washing their faces in the tank and among them was the appellant whom he saw entering and leaving the house, but never going to the houses of the neighbours. Then we have the evidence of Sumira Mahato Koiri who says that he saw Debi Prosad taking Ins bath in the tank in front of the house which was afterwards searched. These facts show that Debi Prosad must have been on terms of some degree of intimacy with the occupants of the house; and the frequency with which he went there appears from the evidence of Suresh Chunder Chatterjee who said that he had seen Debi Prosad passing his house with other boys, that Debi Prosad had been seen there about two or three times a month and that the occupants of the house did not associate with the neighbours. If this evidence is believed, it is quite clear that the appellant was not frequenting the house at Dakshineswar for any of the purposes for which it is contended his object was in going there. It is suggested that he visited a sister living at Dakshineswar. There is no evidence that he went to her house and, even if he did so, it is quite consistent with the evidence to which I have referred.
62. A stronger argument has been based upon the fact that he was a co-sharer in the premises and went there to collect Tent. But it is obvious that the evidence, if it is believed, proves that he went there in excess of what would be expected of a co-sharer landlord who simply went to collect rent. As regards the collection of rent, the evidence is that until the month of November various other parties who were interested - and not only the appellant - went to collect rent. The point, in my opinion, does not bear close investigation having regard to the rest of the evidence. It is further suggested that he simply went to see his former acquaintance; but there is also evidence showing that he was seen about with persons other than the one with whom, he says, he was formerly acquainted.
63. He endeavours to account for his presence en the day of the search - 10th of November and two days earlier by stating that some of the inmates of the home were ill and he was asked to stay and help to watch them. That statement might possibly have been accepted, had there been no such evidence against him; for, it appears that some of the inmates' of the house were actually ill and it is conceivably possible that the appellant having gone there on the 8th November to collect rent was asked to stay and watch the sick and in his kindness of purpose did so. But it is difficult to believe that that wholly explains his staying there in the face of the other evidence as regards his association with these persons. If the evidence to which I have referred be believed, there can be no question as to the guilt of the appellant. In my judgment, no sufficient reasons have been advanced for showing that the view taken by the commissioners who tried the case was wrong or that I should take a different view of the evidence on appeal. In my judgment, the appeal must be dismissed and the conviction and sentence must be affirmed.