1. This appeal was admitted by a Bench of two of our brothers. Having had the benefit of a careful argument from Bhattacharya, both my brother and I are of the opinion that had we been considering the question of its admissibility ourselves, we would have dismissed the appeal summarily. The appeal in question is preferred by the Crown against acquittals of 14 men on charges comprising those of riot, wrongful confinement and causing hurt. Originally there were a much greater number of the accused brought before a Magistrate. He, however, was not satisfied with regard to there evidence in ten or more cases and as a result only seventeen were sent up to stand their trial. Of these three alone were convicted and sentenced to six months apiece on charges excluding the riot and wrongful confinement.
2. It was a very difficult case to try indeed by reason of the fact that there was a. great deal of hard swearing apparently,, I should say a certain amount of suppression of evidence, and not only that but a value of high feeling between members of the police force and the members of the public with regard to the happenings at a certain Mela. Apparently a zealous executive official wished to suppress at this Mela which was being held in a village called Katunia in the district of Khulna not only the booths at the fair devoted, it is said, to prostitution but also all gambling and, in addition to that, a cinema show which was specially arranged. The Sub-Divisional Officer had enlisted the polices to come down on the fair ground and exercise pressure upon the populace to refrain from indulging in any of the three things I have mentioned and apparently the action of the police was greatly resented brawls took place, heads were broken and one man lost his life and a curious scene was subsequently witnessed of the dying man being taken together with two police officers who, it was said, were involved in causing the injuries he had sustained, going along in a boat together to the headquarters to which a report was afterwards made. In point of fact, I believe two of the officers were put on their trial in relation to his death and it is only right to say that they were acquitted. We only postponed the hearing of this Government appeal till that case which. I have just mentioned was disposed of which means that all the happenings here took place very nearly three years ago. Now, the appeals by the Crown against acquittals on questions of fact and fact alone are not often encouraged by appellate Courts. All attempt was made to argue that there was some point of law involved in relation to the riot charge. I listened carefully to the arguments supporting this contention and I am bound to say that I find it difficult to accept them. The learned Magistrate in a very sensible judgment did what most experienced Magistrates do when they are faced with conflicting facts and conflicting testimony as almost always arises out of these cases based upon troubles with crowds and crowd psychology he based his judgment on what he thought on the whole were the probabilities and that is all what he could do as far as I can see, and I have had to tell juries that they must do the same when there is a diametrically opposite case on each side between which they have to decide. In these circumstances, we shall not accept this appeal and it is dismissed. The accused respondents, who are on bail, are discharged from their bail bonds.
3. I agree. I do not desire to do more than to say a few words about the broad features of the case. I very much doubt whether the prosecution came into Court with completely clean hands and there are strong indications that they were guilty of both concoction and suppression. The learned Magistrate wrote an extremely careful judgment. The charges were in a way redundant. There was a specific charge of wrongful confinement and one of rioting, the alleged common object being to commit wrongful confinement. I am bound to say that in my opinion the story about the wrongful confinement is so improbable as to be almost grotesque, and I should require evidence of a very high standard of credibility before I could be induced to accept it. The learned Magistrate has gone into the matter very fully and he has given very cogent reasons in refusing to convict upon that charge. Then, again, the alternative common object as suggested by the police party is also based upon a highly improbable story. There is nothing in the prosecution evidence as produced before the Court to explain why this old man, respondent 1, should collect a large armed party and attack the police. On the other hand, the version given by the defence to the effect that the police were doing what they had no right to do, that is to say, forcibly stopping people from gambling, would explain the whole thing. In my opinion, the learned Magistrate was quite justified in refusing to accept that part of the prosecution case at its face value either. It is also difficult to believe that the police were acting in an entirely bona fide manner in their conduct of the investigation. It is not disputed that respondent 1 and some of his men arrived, accompanied by two police officers and a corpse. There can be no question that the respondent was at the time making a charge of murder. It is difficult to suppose that the police officers were acting bona fide in starting what they called an unnatural death enquiry. The fact that they did this suggests that they knew that the real facts were not consistent with the case which they were determined to bring into Court. The way in which they dealt with this matter suggests that the whole true case was not brought before the Court.
4. Then, there was a most extraordinary feature of the case. Everybody agrees that Suren Das is dead. He was actually made an accused by the police and it is, therefore, perfectly idle to pretend that he and his death had nothing whatever to do with this occurrence. Yet, the whole thing is wrapped in mystery, while a large number of witnesses were able to tell us in great detail about the assault on the members of the police party, nobody knew anything about the assault on this unfortunate man. This suggests that there was some suppression of the real facts in connexion with this matter. Now, before we could allow this appeal, we must not merely be satisfied that the prosecution case with regard to the origin of the occurrence and the course of events is true; we would have to go much further than that and say that we are satisfied that the individual respondents were members of the unlawful assembly. There can be little doubt that there has been gross exaggeration in the case. As the learned Magistrate has pointed out it is highly improbable that this old man, respondent 1, would himself deal the first blow when the fight took place. It is quite impossible to say that the evidence was of such a character that the learned Magistrate ought to have accepted it as sufficient to establish the guilt of the various respondents. On the contrary, his conclusion with regard to the occurrence as a whole, that is to say, that there was no premeditated attack but that a general melee broke out as a result of the attempts of the police to stop the gambling is in my opinion quite reasonable. The appeal accordingly must be dismissed.