1. The charge in the Magistrate's Court was of two separate offences laid in an alternative form. The first charge was that the accused, on or about the 1st November 1912, at Comilla, made preparation for committing dacoity in a particular manner which was assigned to be as follows, namely, by assembling together with arms, masks and implements which might be used for the commission of dacoity. The offence there charged was one under Section 399 of the Penal Code; all else in the charge than the allegation of preparation being merely particulars as to the preparation alleged. It then proceeded in the alternative to charge an offence under Section 402 of the Indian Penal Code in that on the said date, and at the same place, the accused assembled together for the purpose of committing dacoity. Judging from the record before us it would seem that before the Sessions Judge the charges were treated not alternatively but as additional. This appears both from the order sheet, the judgment, the written statement of the accused and from what learned Counsel has told us. Under the circumstances, however, the matter is of no practical importance.
2. The learned Judge and the assessors found that the accused were not guilty under Section 399. The learned Judge's view, as appears in the judgment, was that though the facts alleged by the prosecution had been proved they did not constitute an offence under Section 399, because he was of opinion that mere assembling would not constitute an offence under Section 399, and because he thought it necessary that it should be proved what part each particular member of the gang took in the preparation and bringing together arms and the like. As he was of opinion that this had not been shown, he held that the accused had not been guilty of an offence under Section 399. There may be a question whether he was right in this, for it may be argued that, if the facts put in evidence by the prosecution are true, they evidence preparation, and that it was not necessary that the prosecution should point out with their finger the exact part taken by each member of the gang as regards such preparation, provided that it were shown that the accused were members of a gang which had made in fact preparation for dacoity. Doubtless the, word 'whoever makes' in Section 399 may have been the pause of the contrary view. But Section 399, it is argued, assumed, a previous agreement to commit dacoity and refers not to individual but concerted action: see Reg. v. Shera (1868) 3 Punj. Rec. 43. It is, however, unnecessary in this case to discuss or decide the question, having regard to my findings on the other points raised. The question before us is not whether the accused might not also have been convicted of the major offence but whether their conviction on the minor offence should stand. The assessors were of opinion that the accused were not guilty under Section 402. Here I may observe that objection has been, and 1 think rightly, taken to the form of the assessors' verdict which was due to questions put by the learned Judge. The latter put a large number of questions to the assessors and then recorded their opinion on those questions. He should, however, have allowed the assessors, in the first instance, to have given their opinion in their own language and way, and then, when they had completed what they had to say, it would have been open to him to put to them such questions as were necessary to elucidate or supplement their opinion. To the method followed there is amongst others this objection that the questions which a Judge may call on an assessor to answer may not be exhaustive in extent nor crucial in character. Speaking generally the opinion of the assessors was that the accused Nos. 1, 5, 6 and 10 (I take the numbers of the accused here and later from the heading of the printed judgment) had offered a satisfactory explanation of their conduct, but that as regards the other eight they were assembled for a purpose which one assessor describes as 'immoral or illegal,' and the other as 'evil.' It is not easy to reconcile such a finding with the facts of the case whatever view be taken of them. 'The Assessors could only be justified in assuming the existence of some evil and illegal purpose on the evidence. If that evidence is not accepted there is no legal ground for such an imputation. If it is accepted, then the evidence itself discloses specifically what the purpose was, namely, preparation or assembly for the committing of dacoity. The learned Judge accepted the truth of that evidence, and consistently with such acceptance found that all the accused were guilty of an offence under Section 402.
3. Now, the first objection to this finding is one of law. It is said that the acquittal by the learned Judge of the accused under Section 399 involved an acquittal under Section 402, and, therefore, the conviction under the latter section cannot stand. There is of course no merit in this objection, for when we look at the judgment itself, apart from the order of acquittal following on it, we know why it was that the Judge acquitted the accused under Section 399. It was not because he found that there had Been no assembly when arms had been found and so forth, but because, though there had been such an assembly as would justify a conviction under Section 402, there was in the Judge's opinion no sufficient evidence of preparation under Section 399 of the Penal Code. The objection is a technical one and put forward as such. The accused are, however, entitled to put forward any defence open to them, technical or otherwise, and to have the Court's judgment on it. The objection, however, is ill-founded. I assume for the purpose of argument and without further discussion that we should, in determining this matter, not consider what the learned Judge had said in his judgment, but that we should determine the objection on a reading of his order of acquittal with reference to the terms of the charge which are incorporated in it. The objection then is this. It is argued that there may be preparation both before and after assembly, and that assembly itself is a form of preparation: that here the preparation alleged is the assembling with arms, etc., and that, as the assembling in terms of the first charge was negatived as preparation, assembling under the second charge was also negatived. It is argued that, as the accused were acquitted under Section 399, they should (having regard to the terms of the charge under that section) have been acquitted under Section 102, as the charges under the two sections contained, having regard to their form, the same essential elements. There is, therefore, it is said, a repugnancy in the judgment. If this were the case I am not prepared to accede to the argument that we could not ourselves alter the finding of acquittal under Section 399 into one of conviction maintaining the sentence. Mr. Nishith Sen has argued that the decision in Queen Empress v. Jabanulla (1896) I.L.R. 28 Cal c. 975 which admittedly entitles us to do so was wrongly decided. It is, however, now too late to question it, even if it was open to us and we wished to do so. That decision was given some seventeen years ago, and must have been followed in numbers of unreported cases. It has also been adopted in reported decisions. I think it may be said, as Mr. Sen has done, that the decisions in Satis Chandra Das v. Queen Empress (1899) I.L.R. 27 Calc. 172 in which no question of acquittal was involved, in Kunja Bhuiya v. Emperor (1912) I.L.R. 39 Calc. 896 in which the Court did not convict on a charge on which the accused had been acquitted, and in Emperor v. Sakharam (1905) 8 Bom. L.R. 120 in which the Court set aside the order except so far as it involved an acquittal, are not authorities on the particular point before us. But the decision in Nazimuddin v. Emperor (1912) I.L.R. 40 Calc. l63 clearly is such an authority.' It is true that the Judges in that case say that the trial was vitiated because the Assessor's opinion was not properly taken, but by this word 'vitiated' they did not mean that the trial was void, otherwise they could not have proceeded to have expressed the opinion which they did, namely, that it was open to them to convict the accused of an offence of which he had been acquitted. That they did not do that which they considered they had ordinarily jurisdiction to do was due to the fact that they could not enhance the sentence and, therefore, a retrial was ordered. The Madras High Court have followed the decision in Queen Empress v. Jabadnulla (1896) I.L.R. 23 Calc. 975 see Appanna v. Pithani Mahalakshmi (1910) I.L.R. 34 Mad. 545 Golla Hanumappa v. Emperor (1911) I.L.R. 35 Mad. 243 and the Allahabad High Court proceeds on the same principle: see Emperor v. Sardar (1911) I.L.R. 34 All. 115. For though that appears to have been a case where a Judge declined to convict, the affect of such an order is tantamount to an acquittal. It is, however, not necessary to invoke such powers as these cases speak of, as there is in my opinion no such repugnancy in the Judge's order as would require us to have recourse to them. Dealing only with the principal aspects of the offence of dacoity there may be, as is apparent from the Code itself, the actual commission of dacoity, a preparation for it, and an assemblage for the same purpose. As appears from the punishments awarded, as the first two are treated as the more grievous offence, preparation is the next grievous, and assembly is the least grievous. All the offences have this in common that they presume an intention or agreement to commit dacoity by five, or more persons. In a popular sense an assembly to commit dacoity may be a preparation for it. But a mere assembly without further preparation is not a 'preparation' within the meaning of Section 399. For if it were, Section 402 would be redundant. This section applies to the case of mere assembling without proof of other preparation, for which there is a maximum punishment of seven years, whilst the preparation which is the subject of Section 399 is punishable with ten years' imprisonment. A person can thus be not guilty of dacoity yet guilty of preparation, and not guilty of preparation yet guilty of an assembly. This appears also to be admitted by the argument for the defence that a band of dacoits might be convicted under both sections. However this be, and such admission does not affect my conclusion in this case, the argument substantially is that the form of the charges is such that the preparation alleged under Section 399 is such that if negatived it follows that an offence under Section 402 is negatived. On the other hand it is said that the gist of the offence of preparation is the assembly which is also the offence under Section 402. The argument though not without an air of speciousness appears to me to be fallacious. What the first charge says when parapharased is this. It says that the defendants assembled or came together with or bringing arms, masks and other implements. This is specifically alleged as the preparation. It is obvious that it is not merely the mere assembly as such which is charged as a preparation under Section 399, for in law it would not amount to such, and the use of the words 'with arms, masks and implements' would be unnecessary. It is true that in order to make out that the assembly under Section 402 was for the purpose of committing dacoity, it may be necessary to show that there were arms, masks, and implements found at the place' of assembly indicating such purpose, but in that case such evidence is not relied upon as indicating preparation, but to show the purpose of the assembly. No question of bringing arms, masks and other implements necessarily arises under the second charge, though the fact in this particular case that arms and so forth were found on the premises has been taken as evidence indicative of the purpose of the meeting. What, therefore, the Judge has done is to hold that the accused did not commit the offence of preparation under Section 399 by assembling together and doing something more, viz., bringing with them arms, masks and implements; but that they did assemble together within the meaning of Section 402, and that the presence of such arms, masks, and implements (by whomsoever brought and whether by the accused or by others), together with other circumstances of the case, showed that such assembly was for the purpose of dacoity. There appears to me to be nothings repugnant in such a finding, though, as I have already said, it might perhaps have been open to the learned Judge on the evidence to hold that there was not merely an assembly but that the circumstances of the case, if accepted, indicated that the presence of arms, masks and implements at the place of assembly was due to the action of those who took part in it. The learned Judge, however, took a coarse which I am not prepared without farther discussion to say was wrong and which was more favourable to the accused in that he convicted them only of the minor offence. Having now disposed of this argument on the order and charge only I may refer to the judgment which clearly expresses the ground of the learned Judge's decision on this point. He says 'with the possible exception of Kumud, in whose pocket a mask was found, I do not think that there is sufficient evidence of preparation by bringing together arms and weapons. I do not think it can be assumed that any individual actually made preparation for dacoity by bringing together arms. Nor do 1 think it can be said that under the circumstances of the case constructive preparation has been proved by the application of Section 149 of the Penal Code.'
5. I hold then that there is no such repugnancy as is alleged, that if there were it would be open to is to correct it; and now proceed to deal with the facts of the case....
6. [His Lordship then dealt with the facts of the case, and continued.]
7. It will be convenient to notice here an argument of Mr. Caspersz who appeared on behalf of the first accused Ramesh Banerjee. He contends that when. Mr. Ganga Charan Chatterjee arrived he should at once himself have taken cognizance of the Case, and as he did not, learned Counsel at first contended that all the subsequent proceedings were bad, and secondly, the accused were in any event prejudiced. I will assume for the sake of argument that in law it would have been open to Mr. Chatterjee to have taken cognizance of the case then and there, as also for the same purpose, that it was his duty to do so. It would' of course be impossible to hold that such a neglect of duty and refusal of jurisdiction by one Magistrate could possibly have the effect of preventing any other Magistrate doing his, with the result that subsequent trial and commitment before and by Mr. Rankin, the Magistrate, was bad. Ultimately learned Counsel conceded that this must be so, and that, even on the assumption which he asks us to make, the commitment and trial were not bad. I may here observe that nothing appears to have been heard of this objection before this appeal. The matter then ultimately resolved itself into a question of alleged prejudice. According to learned Counsel the Magistrate, Mr. Chatterjee, should have taken cognizance on his own suspicion from what he saw that an offence had been committed, and should then and there, and in this hut and in the hours between 2 and 6 at night, commenced proceedings, calling upon the prosecution to proceed with their case, asking the accused what they had to say and if necessary postponing further hearing. I have myself no doubt but that if the Magistrate had in this case done anything of the kind his conduct would have been severely assailed by the accused. His cognizance on his own suspicion would have been censured as precipitate, and his conduct in hastening on the proceedings and questioning the accused would have been challenged as oppressive. I think myself that under the circumstances of the present case had the Magistrate taken the course which Mr. Caspersz suggests it would have been open to objection. It appeals to me that what actually followed was right, namely, farther investigation by the police to see whether farther light or evidence could be had on the affair, and then the charge before Mr. Rankin. If Mr. Chatterjee should not have taken the course suggested, then it cannot be argued that the accused were prejudiced by his not doing that which he ought not to have done, but I may add that this objection of prejudice appears to be a shadowy one. It was suggested that the accused had no opportunity of making a statement then and there before the Magistrate. As a matter of fact they did make a statement on that same night to the Rai Sahib which has been recorded and of which they have had the benefit, and though a further statement might have been made before the committing Magistrate the opportunity was not availed of it is also made a grievance that, instead of sending up the accused at once for trial, the police took time for further investigation with a view, it is suggested, of discovering whether there was evidence of a wider conspiracy of which the dacoity in question was an incident. I can myself see nothing improper in this. In fact it was their duty to investigate the matter in this manner, and for the purpose of collecting all available facts before sending up the accused for trial....
8. [His Lordship then proceeded to state the remaining facts, and continued as follows.]
9. Before leaving the question of police investigation before trial it is to be noted that the police charge sheet of the l5th November, in giving the names of the witnesses and the points upon which they are Jo be called to give evidence, mentions two persons' names, Nagarbashi Rudra Pal and Ram Chandra De, who are expected to prove 'association of the accused and their conduct.' The former is the man who had been put up and discharged on the 8th November. These persons are not called and the circumstance is pointed out as one of suspicion, in what way is not clear. All that is before us is that the policy expected two witnesses to depose for the prosecution and for some reason or other they did not. We cannot assume that this indicates something wrong on the part of the police when it is quite possible that these two witnesses may have been willing to give evidence and for fear or other motive refused at the last moment to do so. Moreover, if any charge of crime in this matter was going to be made against the police it should, as I have already pointed out, have been cross-examined to when, as Mr.Sinha has argued, an explanation might have been forthcoming. The charge sheet was signed by sub-inspector Sashi, who was not questioned as to this. Upon this point I may make an observation which has application to other points on the case. It is of course no affair of the defence to supplement or explain deficiencies or suspicious circumstances appearing on the face of the prosecution evidence. It is open to it to say that the prosecution has not proved its case, and to refer to such deficiencies in proof' of the submission or to other circumstances appearing on the face of the prosecution evidence which show that it is so open to suspicion that it would be unsafe to accept it. If, however, not content with relying on such deficiencies and suspicious matter, the defence put forward a case of fraud, or if the evidence for the prosecution is not ambiguous, the defence should give notice of the point they intend to take so that the prosecution may have an opportunity of explanation.' The present is a case in point. If any charge of fraudulent practice was going to be based ON a circumstance which standing by itself is not necessarily suspicious, the defence should have cross-examined, the witnesses. I may here add in connection with the witness Sashi that I think that there is ground in the defence objection that the should have been called at an early stage, of the case and not at the very end as was the fact. He and the other sub-inspector are two of the more important if not most important witnesses in the case, and such should always be examined as early as possible. To some extent the matter has been remedied in this present case by the fact that the other inspector of police was called at an early stage being in fact the fourth witness.......
10. [His Lordship then discussed the question of the truth of the prosecution evidence, and proceeded to deal with the matter of the search.]
11. I turn now to that which is undoubtedly the most substantial point in favour of the defence, namely, the question of the manner in which the search was conducted. It is 'argued that there were grave irregularities in the conduct of the search and that, although the existence of such irregularities does not render evidence of what was discovered on such search inadmissible, it does affect the credit which we should give to such evidence.
12. In the first place reference is made to the provisions of the police rules that the party making the search should himself be searched. Sub-inspector Jotin says that he told the search witnesses to examine his person, but they said it was unnecessary. The muktear, Durga Charan Pal, however, says that no one searched him and that he did not search any nor did any one offer to be searched by him. Whether the evidence of the one witness or the other is correct it seems plain that the searching party were not for one reason or another themselves searched. I need not delay to consider the argument that the entry into the house was illegal, and which was sought to be justified on the ground that the sub-inspector Jotin may have had reasonable suspicion of an offence. The question is of no importance here whatever might be its value in an action for trespass on which I express no opinion. The sub-inspector however admits that after entry no notes were made of the places at which things were found at the same moment that they were found. It is said that people were allowed to come in and go out during search. This if it took place would be an irregularity, but is certainly no indication of the suggested dishonesty of the police which might be exposed by allowing any stranger to pass in and out of the room. Dealing, however, with the case of alleged irregularity, Lalit, the 'muktear, says that between the time of his arrival and the preparation of the search list police officers and others were coming and going through the door. This refers to a period extending from midnight till four in the morning. The point is who were these others. But this he was not asked. These may have included such persons as the Additional Magistrate, Deputy Magistrate and Mr. Watling. And this may explain the apparent contradiction between this evidence and that of sub-inspector Jotin who says that people did not come and go in and out of the room before the Additional Magistrate came. He may be speaking of persons other than those concerned in the search. The muktear may by the word 'people' refer to persons who though not police officers may have had a right to be there. The other search witness, Durga Charan Pal, similarly says that from the time that Sashi Babu arrived till the search list was completed people including officers and constables were coming in and going out of the room. When Durga Charan speaks of the children of his house coming he appears to be speaking of the time of his arrival and on cross-examination, he says the children were outside or rather in the doorway. Lalit's statements as to the presence of a post office employee living with Inspector Har Kumar Gupta refers to a period before the accused were removed. It cannot be said that the evidence is very clear or satisfactory on this point, but if it be possible that other than those properly concerned did have access to the room, then as I have said, though an irregularity it would go against the theory that the police amongst other things fabricated documents there or introduced those documents and other things from outside, for it is not likely that under such circumstances anybody and everybody would have been admitted access to the room. The police rules further provide that what is found should be sent up as soon as possible to the Magistrate. The reason given for the non-observance of the rule in this case is that the Magistrate had (as is the fact) already signed the search list. As, however, the object of this rule is to satisfy the Court of the identity of the objects found it cannot be said that in this case the matter was one of any importance, seeing that Mr. Ganga Charan Chatterjee, the Additional Magistrate, was himself in the hut and saw the articles which were entered in the search list.
13. It is not clear that the alterations in the search list were made whilst the document was in police custody, but in any case they are not of importance. The alteration of the numbering was due to the fact that the number 23 was written twice, and though the word 'Nogen' has been changed into 'Nayan'--'Nayan' appears in the original document entered' in the search list.' This document was in a bad light read as 'Nogen' and so entered at first in the search list, though in fact it is plainly 'Navan.' The most important matter in this connection is the fact that the accused were after the discovery of the gun (which was in their presence) and after Search of their persons sent out of the room. The Code permits the occupants of the room to be present at the search, and there was, therefore, a violation of this rule which is one not merely of technicality but of substance in that it is enacted to guarantee the reality of the search and the discoveries made thereat. It is unnecessary to determine whether all the accused found in the hut can be said to be 'occupants' within the meaning of the section, because the person or persons who were admittedly occupants were not present at the search. The reason for disregard of this rule is that the hut was, as is undoubtedly the case,.a very small one. It is said also that the accused though taken out of the room were kept near the south door facing the machan. This if a fact would have been of little service to them. Moreover, it is contradicted by the search witness Durga Charan Pal who says they were taken to the west of the wall which appears to be away from the door. Whilst I am not satisfied that, as has been argued, notwithstanding the alleged want of space, people of all sorts were allowed to come and go out of the room, I am unable to say on the other hand that it would not have been possible to continue the search in the presence of the accused by placing them in the eastern room and removing the mat screen between it and the western room or otherwise. However this be, the fact remains that the accused were not present at the search, and this is an irregularity, which they are entitled to ask us to consider. The evidence must undoubtedly be carefully scrutinized on that account. It is to be noted, however, that there were two search witnesses present. But after all if, upon a careful scrutiny of the evidence, we come to a conclusion that notwithstanding the absence of the accused, advantage was not, and could have been, taken of it, the irregularity, whilst serving to exact from the Court a careful scrutiny of the evidence relating to the search, has no further effect. It is not sufficient to suggest that articles might have been fraudulently introduced: we must see whether there are any reasons to suppose that this was done. The chief question therefore is, was it possible or probable that the arms, implements, masks and documents found on that night were either there or previously introduced or fabricated by the police as alleged. It will be here convenient to deal with the legal presumptions arising from possession if proved. If we take the single circumstance that arms were found under the machan and in the ceiling of the hut knowledge of that existence would not (without other evidence) be imputable to any other than the lessee of the hut, Probodh Karmakar, nor would the presumption operate even against him if it were shown that the circumstances were such that arms might be in his place without his knowing it--for instance if, as alleged to be the case here, they could have been introduced from outside. The evidence on this point is in some respects not as clear as it might be, but appears to me to establish that the arms could not have been introduced from outside......
14. [His Lordship then dealt with the evidence bearing on this question, and after disposing of the case of each accused on the evidence, concluded as follows:]
15. I have now dealt with the defence of all twelve accused. In my opinion for the reasons given I think that, notwithstanding the suspicion which attaches to them, we should acquit the accused Thakur Das Pal and Aditya Charan Dutta; the other circumstances of the case being insufficient to overcome the inferences which may be drawn from their position as subordinates of the Karmakar and the absence of their names from Exhibit XXA. As regards the rest of the accused they have in my opinion failed to meet the strong case which the prosecution makes against them and have not by their defence shown that their presence in the hut was, as they allege, of an accidental and innocent character. The two defendants I have above named, Thakur and Aditya, are accordingly acquitted, and I direct that they be set at liberty. The appeal of the other accused fails and is dismissed, and their convictions and sentences are confirmed.
16. In this case I had written a separate judgment, but my learned brother has dealt so exhaustively with the facts and arguments advanced, and my own views coincide so closely with his on almost every point, that a lengthy separate judgment would be a mere repetition of a great deal of his. I, therefore, propose to confine my remarks to a few only of the principal matters that have been argued before us.
17. I agree with my learned brother's views as to the scope of Sections 399 and 402. The contention that the conviction cannot stand by reason of repugnancy in the record must fail in my opinion for two reasons (1) that there is in fact no repugnancy, (2) that if the suggested repugnancy existed it would provide no good ground for setting aside the conviction. With the first reason my learned brother has dealt. I shall, therefore, confine myself to the second. The argument as to the repugnancy is based on the case Of Rex v. Plummer  2 K.B. 339 a case in which a person was acquitted though he had pleaded guilty to a change of conspiracy, because the jury acquitted the other two persons with whom he was alleged to have conspired. It seems to me that the principle which underlies that case is really this, that you cannot have contradictory results or decisions from one set of facts, as only one decision can be the right one. The verdict of the jury was 'no conspiracy,' that was conclusive and, therefore, the prisoner who pleaded guilty could not be convicted because his plea was inconsistent with established facts. It is true the learned Judges speak of the record being inconsistent and contradictory. But the record is merely the outward and visible sign of the facts found, and I take it that the underlying principle is that which I have stated.
18. In that case Bruce J. says 'the record of conviction can only be made up in the terms of the indictment,' and on that expression it is argued that in considering this matter we must look only to the indictment and ignore the facts actually proved. The reason for the rule in the case of a jury verdict is obvious, for the verdict is simply one of 'guilty'' or 'not guilty' on the specific indictment, and the facts found by the jury are unknown except to this extent that the allegations in the indictment are proved or not proved. But I emphatically dissent from learned Counsel's contention that such a rule can be applied to the case of a decision by a Judge. In such a case we cannot ignore the facts found. The argument amounts to this. The Judge has found certain facts, he has made a mistake in law in saying that those facts do not amount to an offence under Section 399, the facts do also amount to an offence under Section 402, yet because he has, though mistakenly, acquitted the accused of the charge tinder Section 399 and though he has rightly held the facts to be an offence under Section 402, the accused must be acquitted of the offence' under Section 402. It seems to me that the argument has only to be stated in this form to insure its instant rejection. The position is this. The judge finds certain facts, we agree with him in his findings as to those facts, yet if he makes an error in law in the application of the facts as to Section 399, we are not only to accept his error in regard to that section, but to add to it one of our own in regard to Section 402.
19. The accused are entitled to the benefit of any technicality that they can invoke in their favour, but a technicality which leads to such a farcical result as the above, must be clearly established, and it must be one which is to be found within the four corners of the Code of Criminal Procedure and not one borrowed from English law and founded on ideas as to the sacred character of a verdict by a Jury, whose findings of fact are unknown, a character which by the express provisions of law does not attach to jury verdicts in this country.
20. Now the tendency of modern legislation in general and of the Criminal Procedure Code in particular is to avoid technicalities, and I am aware of no provision in that Code which would justify interference with a conviction on the ground of repugnancy in the record. An instance will make it clear that repugnancy in the verdict of a Jury in India is not itself sufficient to justify the quashing of a conviction, and to anyone with much experience of muffassil juries, it will be evident that such repugnancies do occur. Suppose six persons are changed under Section 147 with rioting and, under Section 304 read with Section 149 in respect of acquitting homicide committed in the course of the riot. The Jury convicts all six under Section 447 but convicts, only three of the charge under Sections 304 and, 149 acquitting the others of this charge. They do this arbitrarily to distinguish the case of ringleaders from those who take less prominent part. The Judge considers that he can give a sufficient sentence in regard to the latter three, though he does not agree with the verdict. He cannot, therefore, refer the case under: Section 307, for it is not necessary for the ends of justice to do so. Nor on appeal could this Court interfere on the ground of repugnancy, for under Section 423(2) it could interfere only on the ground of misdirection by the Judge or misunderstanding by the Jury of the law, and both of these elements are absent in the case supposed. It is no answer to say that such verdicts ought not to be given, for the fact remains that they are.
21. If mere repugnancy in the verdict of a Jury is not by itself sufficient to ensure quashing of a conviction, much less can that result ha ensured by a repugnancy, which exists only in the formal decision of a Judge, whose actual findings of fact are known, in other words a repugnancy in form only and not in substance.....
22. [His Lordship then dealt with the preliminary facts of the case and continued.]
23. The finding of the gun and revolvers is not disputed, but it is urged that the manner of their finding shows that the police knew that these articles were there to be found, and one of the facts on which this theory had been based is that Jotin found the gun almost immediately after he entered the hut, an entry which, it is urged, was in itself unjustifiable. It is argued that under Section 47. of the Code of Criminal Procedure Jotin had no authority to enter the hut until he had asked permission from the occupant of it. This argument, in.my opinion, is based on a misconception of the scope of Section 47. It is not intended to restrict the powers of the Police on the contrary it is a provision compelling householders to afford the police facilities in carrying out their duties, and Section 48 provides that if difficulties are placed in the way of a police officer, he may use force to obtain ingress. Now no suggestion was made in the course of cross-examination to Jotin that he had done anything improper in entering the but What were the facts? He had been told about the occurrence on the road and led to the spot where the men had disappeared. He had been told that there was no one in the hut but the Karmokars, yet he sees a man as he says 'spring' from the south hut to the north hut. He followed the man through he open door and found a number of men in a room without any light. He was about to look under the machan to see if anyone was hiding there, when one of the men there made a statement to him. He then removed the basket which was' under the machan and found the gun. I do not see anything suspicious in this conduct of Jotin's, on the contrary it seems to me extremely natural. If his suspicions were not aroused before he entered the hut, it is a reasonable supposition to make that he entered to ask the inmates if they could throw any light on the point as to where the fugitives had gone, and it would be absurd to call such an entry illegal. If his suspicions were aroused before he entered, it is impossible to say that in the circumstances his suspicions were not reasonable, and if he had reasonable suspicion of the commission of a cognisable offence Section 54 would have been a sufficient authority for him to effect an arrest. In either case the contention that his entry was illegal is in my opinion an idle one.
24. There is, however, more 'substance in the Contention that at the time of the search the provisions of Section 103 of the Criminal Procedure Code, were ignored. The learned Judge slates, no doubt correctly, that the accused were not' prevented from seeing what was going on alter expressing a wish, to do so.' The language of the Code no doubt is, shall be permitted to attend during the search,' and on that language it might be argued that there is no breach of the Code in excluding the occupant of the place, if he does not demand to be present. But the occupant of a place searched is hardly likely to be aware of his rights and in practice the search is ordinarily made in his presence. In my opinion the spirit of the section is that he shall be present, and I take it to mean that he is to be given the option of being present and not that he is to be allowed to be present only if he demands it.
25. It is to be noticed, however that the right of presence given by Section 103 applies only to the 'occupant of the place searched or some person in his behalf.' I take it that the words 'occupant of the place' are not intended to cover every person who may happen to be in the place at the time, but that they refer back to the person mentioned in Section 102, 'a person residing in, or being in charge of, the place.' Strictly speaking, then the only persons entitled as of right to be present at a search are persons residing in, or in charge of, the place, and when that view is applied to the facts of the present case, it is evident that the majority of the accused were not entitled as of right to be present at the search. As a matter of practice it is doubtless desirable that any person against whom an inference may be drawn from the fact of certain articles being found in a particular place should have an opportunity of being present at the search, but if it is proposed to draw an inference against the bona fides of the police in respect a search on the ground that the provisions of the law have not been complied with, it must be shown that, those provisions have been ignored, and such an inference will not be justified from a mere failure to exercise a wise discretion. In the present case however, it is quite clear, that some one or more of the accused were in fact occupants of the hut, so that if they were improperly excluded there has been an ignoring of the provisions of the law.
26. Jotin says that the accused were taken out of the room and kept near the south door, that is the door facing the machan. He evidently intends to suggest that they were in such a position as to be able to see what was happening. In cross-examination he gives the reason for the removal to be that the presence of respectable witnesses made it unnecessary to keep them in the room. Sashi, being the person who had them removed, is the proper person to give the explanation. The reason he gives is that there was not sufficient room in the hut, and says they were standing in the passage between the huts in front of the door. Darga says they were taken to the west of the west wall. Lalit says they were taken out but he did not see where they were taken to.
27. Taking these statements together it may, I think, be'1 fairly inferred that they were taken to a place from which they were not in a position to see what occurred. It is possible that it was not Sashi, but the constables who were in charge of the accused, who removed them from the doorway to the west of the hut, but I think Sashi ought to have taken steps to see that they were not removed.
28. It is suggested that they might have been taken into the east room and so enabled to watch the proceedings from the opening between the two rooms. Neither of the police officers was asked why they were not taken there, and if they had been taken there the suggestion would doubtless have boon made that considering the position of that opening they were not able to see anything.
29. If the dimensions of the hut are considered it will be seen that Sashi's estimate that there was not sufficient space in the west room for them is reasonable. The west room measured 13' X 8', the machan took up 8' x 6 leaving an empty space of only 8' x 7'. In this space were three search witnesses, and three police officers, for the Inspector was also there, and it does not need much imagination to realize that there was very little space left.
30. Another consideration must also not be lost sight of. Two of the search witnesses were mukhtars, the third, Jadu Babu, is described as a civil-court commissioner. These witnesses doubtless knew their business and were not likely to be imposed upon.
31. To my mind the removal of the accused ought to be attributed to an error of judgment, and it must be remembered that it was an error of judgment shared in also by the Inspector as being the senior officer present, against whom not only has no suggestion been made, but it has been made a grievance that he was not examined as a witness, for it is suggested that he having formerly been a pleader and above suspicion, would have materially assisted the defence if called. However, the fact remains that the accused were not present at the search, and for that reason the evidence of finding of articles requires careful scrutiny. My learned brother has given reasons, in which I concur, for holding that the masks were not introduced by outside agency and that the two important documents Exhibits XVC and XXA were genuine documents.
32. The grievance of exclusion of the accused from the hut at the search is one which in regard to the earlier stages of the proceedings may fairly be termed Substantial, for it is not disputed that the bundle containing two revolvers, and a shirt, in the pocket of which a mask was subsequently found, and a hammer were found above the ceiling, or that a gun was found under the machan. As regards these things the contention is that, whether put in the places where they were found by the police or by some body else, the accused know nothing about them
33. When an article is found in a man's house the ordinary presumption is that he, as owner of the house, is aware of its existence. This is subject to the qualification that no other person has access to that particular place. It follows that if the house is in the occupation of more persons than one having access to the particular place, there is no presumption against them individually that they have put the article where it is found; though if it be proved that an article has been for a considerable period of time in a place to which all have frequent access, it might reasonably be presumed that all were aware of its existence. These propositions depend on ordinary common sense and do not require any authority to support them. Applying them to the present case the position is this. If it is shown that these articles could not have been introduced above the ceiling or beneath the machan from outside, there will be a presumption that some one of other of the persons using the hut put them where they were found, but there will not be a presumption as against any particular individual if the hut is used by more than one person.
34. It therefore becomes necessary to examine the possibility of the introduction of these things by outside agency.....
35. [His Lordship then dealt with the question and proceeded:]
36. The next stage in the proceedings after the finding of the bundle and hammers and the clothes on the machan was the examination of the contents of the pockets of the clothes after the arrival of the Additional Magistrate, who had been preceded by Mr. Watling: in fact it was Mr. Watling who sent for the Additional Magistrate and the Additional District Superintendent of Police,--and much argument has been devoted by all the learned Counsel appearing for the appellants as to the interval of time that elapsed between the arrival of Sashi and the arrival of Mr. Watling. The arguments are based on the estimate of the times given by the different witnesses when the various steps were taken. It is urged that no explanation is given of what was done during 1 1/2 hours. The estimates of time given by the different witnesses naturally vary somewhat, and it is impossible to suppose that men who have been suddenly called from bed will have any 'very clear idea of what the time was. Mr. Sinha, for the Crown, has argued that the interval was not more than about hour to f hour, i.e., from the time when the Inspector left to call Mr. Watling till the arrival of the latter. Considering the time that has been taken I do not think it makes very much difference whether it was 3/4 hour, an hour, or 1 1/2 hours.
37. The argument is this. Sashi having found the revolvers, etc., and the clothes, must have done something in the interval before Mr. Watling came; as it has not been stated what was done an inference must be drawn against the prosecution that the Police were up to no good, or at any rate that the absence of an explanation as* to what was done rouses such an amount of suspicion that no reliance can the placed on the subsequent finding of the papers, Exhibits XVC and XXA, and of the masks.
38. Mr. Sinha's suggestion is that what was paper most in the minds of Sashi and Jotin was the nature and condition of the clothes, for the circumstances showed that the accused found on the machan with wet clothes were out for no good purpose, and that they had no idea of the possible contents of pockets at that time, but thought only of showing the clothes as they found them to the superior authorities.
39. It seems to me to be futile to speculate as to what were the motives of the two police officers when not a single question has been put to them, the only persons who could state them, touching the point. It is suggested that that was a point which it was the duty of the prosecution to clear up. Now, not only is the argument based on a false premise that the police officers must have been doing something, but it is obvious that if the argument is to have any force it must be clear that the circumstances were such as to throw on the prosecution the duty of giving an explanation.
40. In cross-examination no stress was laid on the lapse of time and it was not suggested by a single question that there was a period for which some account should be given.. And if the cross-examination does not even lay the foundation of a suggestion that there is a period for which an account ought to have been but has not been given, an Appellate Court ought not in my opinion to pay any attention to suggestions made for the first time in appeal. If there is anything in the evidence which on the face of it requires explanation, the absence of an explanation may reasonably give rise to adverse comment, and an accused is entitled to the full benefit of the want of explanation of a circumstance which prima facie requires explanation. But the very argument that there has been no explanation implies the suggestion that something ought to have been done other than was done or what appears on the evidence to have been done. That, it is suggested, was according to the evidence nothing. Of the various counsel to whom I put the question what did they suggest ought to have been done, one alone had a suggestion to make; it was that the clothes ought to have been examined. Now, I have not the slightest doubt that if the two police officers had examined the clothes and found the masks and papers, the comment would have been that their haste was evidence of dishonesty, and that, in view of the fact that the Inspector had gone to call the District Superintendent of Police, they ought to have waited. In a case like this it is impossible for the police to do anything which will not be attacked and it is impossible to say, in view of the fact that their actions are so frequently subjected to hypercritical comment, that it would have been wiser to pursue one course rather than the other....
41. [His Lordship concluded as follows:]
42. I agree that accused Aditya Charan Dutt and Thakur Das Pal should be acquitted, and the convictions and sentences of the rest of the accused affirmed.