R.C. Mitter, J.
1. In this case five persons, Ram Sarup Singh, Lal Chand Pathak, Brijkishore Kuar, Jagannath Kholey and Ramadhar Chowbey have moved against the judgment of the Sessions Judge of Burdwan by which he has upheld the convictions and sentences passed on these persons by Mr. H.R. Sen, Magistrate of Burdwan having First Class powers. Ram Sarup Singh has been convicted under Sections 420/120-B, 411/120-B, 411 and 420/ 109, I.P.C. He has been sentenced to two years' rigorous imprisonment and a fine of Rs. 1,000 under Section 420/120-B and to one year's rigorous imprisonment under Section 411, I.P.C. These two sentences are to run concurrently. No separate sentence has been passed under Sections 411/120-B and 420/109, I.P.C. The other four petitioners before us have been convicted under Sections 420/120-B and 411/120-B and have been sentenced under the former section to one year's rigorous imprisonment, no sentence being passed under the last mentioned section. Against these five persons and 15 others the police submitted charges under Sections 420/120-B and 411/ 120-B. Some of these persons were also charged under Sections 411 and 411/109. One of these persons could not be tried because he was absconding, another was discharged during the trial, and another by the name of Julai Singh died during the course of the trial in the trial Court. Of the remaining 17 persons, three were acquitted by the learned Magistrate and 14 were convicted. Of these 14 persons who had been, convicted, one Deo Narain Pathak did not appeal to the Sessions Judge but the remaining 13 preferred appeals. The learned Sessions Judge acquitted two of them and maintained the convictions and sentences passed on the remaining 11 persons. Of these persons whose convictions and sentences have been maintained by the learned Sessions Judge, six have moved this Court, namely, the five petitioners in the present rule and the petitioner Kapoor Singh in the connected Rule 867 of 1936.
2. The case for the prosecution is this. That since 1931 or even before that, there was a wide-spread conspiracy to cheat the East Indian Railway Administration. The centre of the conspiracy was Ram Sarup Singh who was formerly an employee under the said administration but had been discharged. According to the prosecution the modus operandi of the conspirators was to obtain tickets which had already been used and after changing the dates of issue of these tickets to sell them to their friends and relations. It is not necessary for the present purpose to go into greater details about the way in which the conspirators carried out their designs which had the effect of depriving the Railway Administration of a large amount of income because on the evidence we have no doubt that operations were carried out by the conspirators on a very extensive scale. In the year 1931 the matter was taken up by the District Intelligence Branch and from 1931 its officers began to intercept large number of letters intended for Ram Sarup Singh who was then living in the town of Howrah. Some of these intercepted letters were retained by the police but some were sent on, after examination, in the usual course to be delivered to Ram Sarup Singh. But of the letters which were so sent to Ram Sarup Singh after examination the police kept either notes or photographs. Some of the intercepted letters and the notes and photographic copies of those letters which were examined but later on allowed to reach the hands of Ram Sarup Singh have been exhibited in this case. This interception went on for some time till Ram Sarup removed himself from Howrah to a place in Tollygunj. 'While he was living at Tollygunj only one letter was intercepted and that was produced in this case. In the year 1933 the matter was placed by the Government Railway Police in the hands of a Special Officer of the name of Prafulla Kumar Bannerji. That officer carried on his investigations, but an accidental circumstance placed further materials in the hands of the police and this was the immediate cause of the charge sheet against the 20 persons 19 of whom were placed on trial before the learned Magistrate of Burdwan, one being found absconding. The incident is this. On 23rd August 1934, a flying ticket collector of the name of Mr. S.C. Mitter was in charge of the Up Delhi Express. His duties were to attend the train from Howrah to Asansol. It is in evidence that the first stop of that train is at Burdwan. Just before the train left, his suspicions were aroused by the movements of Deo Narain Pathak. Deo Narain boarded the train just when it was leaving. Mr. Mitter boarded the next compartment and before the train reached Burdwan he demanded the ticket from Deo Narain for examination. After some hesitation Deo Narain attempted to bring out his ticket and in that attempt a bundle fell out from his pocket on the floor of the compartment in which he was travelling. The bundle consisted of 10 third class tickets with the date of 24th August 1934 punched on them. They were tickets from Alipur (a place near Jaunpur, in the United Provinces) to Howrah. There were also a notebook, a post card written in Nagri and three other pieces of paper. Deo Narain wanted to pick up these tickets or at least to conceal them but he was prevented and the tickets, the note-book, the three slips of paper and the post card written in Nagri were taken charge of by Mr. Mitter, the travelling ticket checker. Deo Narain produced another ticket which he said entitled him to travel by the train. It was a third class ticket which bore 19th August 1934 as the date of issue. It was a long journey ticket and if the checking took place at a place beyond Burdwan there would have been no means of detecting the fraud. It was this accidental circumstance that led to the arrest of Deo Narain. Deo Narain was taken down at Burdwan and a Memorandum in triplicate was made by Mr. Mitter containing the things which he found in the compartment in the manner stated above. This Memorandum was signed by the Station Master of Burdwan named Mr. Alexander and by another railway official, and Deo Narain was handed over to the police along with this memorandum. On the next day, namely, 24th August 1934, Deo Narain was produced before the Sub-divisional Officer of Asansol where he made his confession. It was recorded by that officer. That officer also signed the memorandum which had been prepared by Mr. Mitter and also initialled the ten tickets and the other things that had been seized by Mr. Mitter. This memorandam has its importance because during the course of investigation the said ten tickets and some other things were stolen from the Malkhana at Howrah during the temporary absence of Prafulla Babu from that place. A search followed thereafter and the houses of many of these accused persons were searched and letters and other things seized. It is not necessary for us to go into details about the searches but the only thing material for our purpose is the fact that two other persons, namely, Julai Singh and Jagannath Kholey, were arrested and they made confessions which were recorded by the Magistrate. On 26th August 1934, Julai Singh made a confession and Jagannath also made a confession which was recorded by the Magistrate on 19th September 1934. A large amount of documentary evidence was admitted on behalf of the prosecution and a large number of witnesses were examined by them. The defence also examined a large number of witnesses and there was a protracted trial in the Magistrate's Court. During the course of the trial Julai Singh died. He never retracted his confession but during his examination after the charge he adhered to the same. The trial ended in the convictions of 14 persons as stated above.
3. So far as the petitioner Ram Sarup Singh is concerned we do not think that he has got anything to say in the matter. (After discussing arguments, judgment proceeded.) We, therefore, uphold the convictions and sentences passed upon Ram Sarup. The next petitioner before us is Lal Chand Pathak. The learned Sessions Judge notices in his judgment two or three exhibits, namely, Ex. 14/21, Ex. 5 and other Exhibits, and also the confession of Julai Singh. In the last portion of his judgment he indicates in clear terms that if the confession of Julai Singh is not admissible in evidence, then there would not be enough evidence to support the conviction of the man. It is quite clear therefore, that Lal Chand Pathak has been convicted solely upon the confession of Julai Singh. This leads us to the consideration as to whether the confession of Julai Singh is admissible in evidence and if it is admissible in evidence, if the learned Sessions Judge was right in using it in the manner in which he has used it, namely, as substantive evidence and not as evidence intended to corroborate other evidence which would be sufficient for the conviction of this man. The learned Sessions Judge came to the conclusion that the confession of Julai Singh would not be admissible in evidence under Section 10, Evidence Act.
4. But he has said that this is evidence under the provisions of Section 30, Evidence Act. Mr. Mukherji appearing on behalf of Lal Chand urged that Section 30, 'Evidence Act, cannot help the prosecution inasmuch as Julai Singh died before the conclusion of the trial before the Magistrate. He says that in order that the confession made by a person may be used against others, it is essential that there must be a joint trial and he says that as soon as Julai Singh died it was no longer a joint trial of Julai Singh with Lal Chand and at the time the learned Magistrate delivered his judgment there was no joint trial within the meaning of Section 30, Evidence Act. I feel some difficulty in accepting this argument. Julai Singh was put on his trial along with Lal Chand under Sections 420/120-B and 411/120-B, that is to say, that the trial proceeded for some time and it is only about six months before the delivery of judgment when the trial had proceeded for more than a year or about a year that Julai Singh died and before his death his confession had been put on the record. It is for this reason that I am unable to accede to the broad contention urged before us by the learned advocate for the appellant. But we do think that even if the confession of Julai Singh is admissible against Lal Chand the learned Judge was not right in using it as substantive evidence. Such a confession could only be used for purposes of corroborating the other evidence which is on the record. We, accordingly, hold that the learned Judge was not right in maintaining the conviction of 3 Chand on the ground stated by him. We accordingly set aside the conviction and sentence passed on Lal Chand and direct him to be set at liberty.
5. The next petitioner before us is Brij Kishore Kumar. (After discussing certain evidence, judgment proceeded.) There only remains the confession of Jagannath which was retracted at the time of the trial. This confession is a very long document. In it many details are given which would be quite helpful to the prosecution, but would be unnatural in a confession. The details about searching and seizing certain letters are given and even the handwriting of a letter was proved in the confession by Jagannath. The learned Sessions Judge notices all these things and he says that the confession is no doubt somewhat extraordinary, but there is nothing wrong because the police must have examined Jagannath before he was sent to the Magistrate for recording his confession, that these details which are to be found in the confession of Jagannath came out during such examination and all that the Police must have told him was to make those statements before the Magistrate who was to record the confession because those statements would have the effect of supplying some gaps in the prosecution evidence both relating to the general conspiracy and the particular persons said to be conspirators. After giving our best consideration to this part of the case we are not satisfied that the confession of Jagannath was a voluntary one. That confession, therefore, cannot be taken into consideration. We accordingly hold that the evidence on which the learned Sessions Judge relied and maintained the conviction of Brij Kuar is not sufficient. We, therefore, set aside the conviction and sentence passed upon him and direct him to be set at liberty. (The remaining part of the judgment dealt with the evidence against Jagannath Kholey, Ramadhar Chowbey and Kapur Singh and in conclusion acquitted them.)
6. I agree and I only desire to say this: The learned Judge found that apart from the confession of Julai Singh the evidence was insufficient to prove the guilt of the petitioner Lal Chand. He has, therefore, treated that confession in a way which is not warranted by Section 30, Evidence Act, and on his own findings this conviction could not possibly be supported. In these circumstances I do not think it necessary to express any opinion on the point whether in view of the death of Julai during the trial his confession could be used at all.