Nasim Ali, J.
1. The seven appellants before us, Nitai Chandra Jana, Radharaman Adhikary, Sasadhar Chatterjee, Sudhasindhu Dey, Chintamoni Addya, Durgadas Mukherjee and Jaladhar Banerjee, along with four others, Hari Pada Mukherjee, Asoke Chandra Ganguly, Nirmalendu Das Gupta alias Nimai and Birendra Nath Roy Choudhury, were placed on trial under orders of the Local Government before Mr. Kumud Behari Mullik, Special Magistrate appointed under Sections 24 and 25, Bengal Suppression of Terrorist Outrages Act. During the said trial Asoke and Haripada were granted pardon under Section 337, Criminal P.C., and were examined as approvers. The remaining nine of the accused were convicted under Section 121-A, I.P.C., and under Section 120-B, I.P.C., read with Sections 19(f) and 20, Arms Act, while five of them, namely Chintamoni, Sasadhar, Sudbasindhu, Radharaman and Nitai Jana, were also convicted under Section 395, I.P.C. On appeal to this Court it was held that the trial was without jurisdiction inasmuch as the alleged offence under Section 395, I.P.C., was really one under Section 396, I.P.C., and that the accused should therefore have been given the privilege of a trial either by the Court of Session or by a Special Tribunal. The convictions and sentences were accordingly quashed. The Local Government thereupon ordered a re-trial of the same 11 accused by a Special Tribunal and authorized Mr. Wood, Superintendent of Police, Hooghly, to lodge a formal complaint against them.
2. Mr. Wood accordingly filed a petition of complaint on 10th August 1936 before a Special Tribunal appointed under Section 4, Bengal Criminal Law Amendment Act. The material allegations in this complaint are these: The 11 accused persons mentioned above, with several others known and unknown, were parties to a criminal conspiracy to wage war against the King and to deprive His Majesty of the Sovereignty of British India or any part thereof, to overawe by means of criminal force the Government of India and the Local Government, to commit murder and dacoity, and to collect arms and ammunition in contravention of the provisions of law. In pursuance of the said conspiracy the members of this terrorist party collected men, arms and ammunition and committed and attempted to commit dacoities in the District of Hooghly and other places. On the night of 17th June 1933 a dacoity was committed in the house of one Nanda Lal Karmakar of Baidyabati where he had a money-lending business and a goldsmith's shop and lived with his old mother. In the course of this dacoity valuables were removed from his house and Nanda and his mother were murdered. One Haridas Addya, father of accused Chintamoni, lodged an information to the Police Station and the local Police after investigation submitted a final report on 28th August 1933.
3. On certain secret information obtained by the Intelligence Branch, several houses were searched between 17th July 1934 and 19th July 1934 at Baidyabati, Chatra and other places, and some revolutionary literature consisting mainly of pamphlets and manuscript writings and newspaper cuttings of the reports of the trials of terrorists was seized. Chintamoni, Jaladhar and Badharaman were arrested in connection with the Hazigunj Mail Robbery Case, Tipperah. On 8th August 1934, 16th August 1934 and 18th July 1934 respectively, and on 25th August 1934 the investigation in connection with the occurrence at Nanda Lal's house was re-opened under order of the Superintendent of Hooghly. Accused Chintamoni Addya made a confession before the Magistrate on 27th August 1934, disclosing the existence of a terrorist organization and his complicity in the dacoity in the house of Nanda Kamar which was committed in pursuance of the said conspiracy for providing money for the purchase of arms and ammunition. On the statement of Chintamoni, accused Sasadhar was arrested on 1st September 1934 at Jubbulpore (C.P.): he made a confession which was recorded on 4th September 1934. Asoke Chandra, an M.A. student and a resident of Baidyabati, was arrested on 2nd September 1934: he made a confession which was recorded on 6th September 1934. As a result of disclosures made by the aforesaid Sasadhar and Asoke, accused Nimai, Durgadas, Haripada and Birendra were arrested on different dates between September and the beginning of October 1934 and all of them made confessions which were duly recorded. Nitai Jana had already been arrested under the Bengal Criminal Law Amendment Act on 26th April 1934 and had been sent to Hijli Detention Camp as a detenue. The confessions of the accused persons disclosed that they with many others, known and unknown were members of a terrorist organization and used to meet at various places in Baidyabati, Sheoraphuli, Bhadreswar, Calcutta and elsewhere for the furtherance of their objects, that they recruited members to the terrorist party, collected arms, ammunition and explosives, obtained money by committing dacoities, attempted to commit other acts of robbery, and planned to murder the District Magistrate of Chinsura. On 18th December 1934, Sub-Inspector Bidhu Bhusan Das who was specially deputed to re-investigate into the dacoity in Nand Kumar's house submitted a chargesheet under Sections 121.A, 395, I.P.C. and Section 120-B, I.P. C read with Section 19(f). Arms Act, against the 11 accused persons.
4. Mr. Wood was examined and the tribunal took cognizance of the alleged offences under Section 5, Bengal Criminal Law Amendment Act of 1925. Pardon was tendered to Asoke and Haripada on the prayer of the Public Prosecutor under Section 8 of the Act. They accepted this pardon and were thereafter removed from the dock and examined as witnesses for the prosecution. After 25 witnesses for the prosecution, including the two approvers, had been examined-in-chief, charges were framed against the remaining 9 accused persons under S.121-A, I.P.C., and under 8. 120-B, I.P.C. read with Sections 19(f) and 20, Arms Act, and a further charge was framed under Section 396, I.P.C. against Chintamoni, Sasadhar, Radharaman, Sudhasindhu and Nitai. All the accused persons pleaded not guilty to the above charges. At the commencement of the trial Chintamoni, Sasadhar, Nimai, Birendra and Durgadas retracted their confessions. After the charges were framed the prosecution witnesses examined and were cross-examined by the defence. Thereafter the prosecution examined other witnesses. The defence declined to adduce any evidence.
5. By the prosecution evidence the following facts were sought to be proved: (1) That a formal meeting was held in the house of Dr. Girindra Nath Banerji at Bhadreswar at which Jaladhar, Nitai, Radharaman, Sudhasindhu, approver Asoke, approver Haripada, Sailen Biswas, Girin Doctor himself and two or three others were present, and they all adopted the path of violence and decided to bring about a mass armed revolution for making the country free by causing the disappearance of the British Government. (2) That the accused persons were associates and were on very intimate terms. (3) That Nitai Jaladhar, Radharaman and Sudha induced, Asoke, Haripada, Sasadhar, Chintamoni, Durgadas and Sripati Biswas to accept the creed of violence and join the terrorist party and that they also attempted to recruit Sib Sankar, Amrendra and a lady named Amalarani to their party but failed. (4) That Nitai used to realize sub-scriptions from the members of the party and that accused Durgadas paid Rs. 220 to Nitai for the purposes of purchasing a revolver. (5) That they attempted to commit dacoities at the houses of Nanda Dulal Das (P.W. 36), Ananta Lai Sen (P.W. 43) and a prostitute of Serampur (P.W. 47), but failed. (6) That approver Asoke was given pistol to keep by the accused Nitai. (7) That accused Radha kept a revolver and some cartridges concealed in the drawer of an almirah in the shop of his father. (8) That Nitai sent Radha three revolvers to keep. (9) That Nitai brought down from Santragachi for treatment a man who had been wounded while practising revolver shooting. (10) That Nitai used to take Haripada and Asoke to the house of one Kabi Sahib of Mechuabazar, Calcutta, to negotiate the purchase of smuggled arms. (11). That Sasadhar managed to snatch away a gold chain at the point of a revolver from the neck of a young boy named Kali Charan Chatterjee (P.W. 61). (12) That the accused Nitai, Radha, Sudha, Jaladhar, Sasadhar and Chintamoni committed dacoity with murder in the house of Nandlal Karmakar and took away some cash and ornaments. (13) That Radha and Sasadhar planned to murder Mr. Macpherson, the District Magistrate of Hooghly.
6. The Commissioners have believed the prosecution evidence relating to the association of the accused, the meeting in Dr. Girin's house and the recruitment of members to the terrorist party by Nitai, Sasadhar, Sudha and Radha. They have also found that the accused Durga paid Rs. 220 to Nitai for the purposes of the party and that Nitai, Radha, Sudha, Sasadhar and Chintamoni along with Asoke committed dacoity in the house of Nanda Lal. They have however held that the other facts alleged by the prosecution against the accused have not been proved. They also came to the conclusion that the prosecution failed to substantiate the charges against Nimai and Biren beyond reasonable doubt. In accordance with these conclusions they acquitted Nimai and Biren and convicted the remaining accused persons who are appellants before us under Section 121-A, I.P.C. and under Section 1-20-B, I.P.C., read with Sections 19(f) and 20, Arms Act. They have also convicted Nitai, Sudha, Radha, Chintamoni and Sasadhar under Section 396, I.P.C. The learned Commissioners have sentenced Nitai to suffer seven years' rigorous imprisonment, Radha to six years' rigorous imprisonment, Sudha to five years' rigorous imprisonment and Chinta and Sasadhar to five years' rigorous imprisonment under Sections 396 and 121-A.I.P.C., the sentences to run concurrently. Accused Jaladhar has been sentenced to five years' rigorous imprisonment and Durgadas to two years' rigorous imprisonment under Section 121-A, I.P.C. No separate sentence has been passed on any of the appellants under Section 120-B, I.P.C.
7. The finding of Tribunal that Nitai, Radha, Sudha, Sasadhar and Chintamoni committed dacoity in the house of Nanda Lal is based on the evidence of the approver Asoke, P.W. 7, and the confessions of Chintamoni (Ex. 12) and Sasadhar (Ex. 8). The prosecution case is that the accused Nitai, Radha, Sasadhar, Chintamoni, Sudhasindhu and the approver Asoke took part in the dacoity in Nanda's house. The approver Asoke describes the occurrence in detail. According to him one evening in June 1933 Nitai's elder brother Ananda called him from his house and took him to Nitai's house. He met Nitai, Sudha, Radha on the terrace of Nitai's house. Nitai then told him:
We have now got a press and we have advanced a little in our work. We want some more money. We have made arrangements to secure money. One of our party has given us a clue. We shall have to secure the money by committing dacoity.
8. Asoke thereby understood that the house to be raided was near by. He however expressed the opinion that they might be recognized during the raid. Nitai assured him that there was no danger of being recognized as the only inmates were an old man and an old woman. At this stage Chintamoni appeared and after some discussion it was decided that the raid would be carried on the next evening. Next day at about dusk Sudha called Asoke to Nitai's house. Asoke went up to the terrace and found Radha, Nitai and Chintamoni there. It was then decided that Chintamoni would go to the old man and keep him engaged in conversation after opening the khirki door, and that Sudha, Nitai and Radha would enter the house through the khirki door, while Asoke would stand outside at the side of the khirki door and wait till those who had entered the house would bring out money, etc., and hand over the same to him and then he would run away with the same. Asoke also stated in his evidence that he called in Sasatdhar and it was decided that Sasadhar would stand near him outside the khirki door. Asoke further states that Nitai produced three daggers. He himself kept one, Sudha and Radha took the other two. Sudha had a phial of chloroform with him and it was decided that if any of the inmates would raise an alarm he would be made unconscious with the aid of the chloroform. The chloroform remained with Sudha. The party then left Nitai's house at about 9-30 p. m. Chintamoni left 10 or 15 minutes in advance. On their way Nitai and Asoke met a person who was known to them from before. Asoke thereupon told Nitai that the attempt should be given up that night as the man might recognize them and might later on give out that he had seen them there. Nitai agreed and they returned. Radha, Sudha and Sasadhar did not proceed to the house to be raided, as they saw that Nitai and Asoke were returning.
9. Next day at about 7-30 or 8 p.m. Asoke again went to Nitai's house and on the terrace met Nitai, Sudha, Chintamoni and Sasadhar. The same arrangements were made as on the previous night to carry out the raid. Nitai and Asoke came to the back of the house at about 9-30 or 10 p.m. and found Sudha, Sasadhar and Radha already waiting for them behind plantain trees on an open plot. Chintamoni who had been sent ahead of the party arrived at the place where they had assembled, and informed Nitai that he had already opened the khirki door and that he would go and talk with the old man and would give a low whistle which would be a signal for them to go in. 10 or 12 minutes later they heard the sound of a low whistle and started for the house and reached the khirki door. A little later Sudha pushed the door which opened. Nitai, Sudha and Radha entered the house through the open door. Asoke and Sasadhar waited outside the khirki door. Soon after Sasadhar entered the house and Asoke was left alone. A little later Radha and Sudha came out and asked him to go in. Asoke refused, whereupon Sudha and Radha went again into the house. Asoke returned home after this. (On considering the confessions of the accused the judgment proceeded.) By Section 133, Evidence Act, an accomplice is a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. By Section 30 of the said Act a confession made by a co-accused affecting himself and other persons with whom he is being jointly tried for the same offence is evidence against himself as well as such other persons: see Empress v. Ashootosh Chuckerbutty (1879) 4 Cal 483. A confession however is not made on oath and is not tested by cross-examination. Under Section 114, Illus. (b) of the Act, a Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. The requirements of this corroboration are: (1) there must be corroboration as to the commission of the crime (that is of some one or more but not of all the material circumstances, otherwise the evidence of the accomplice would be superfluous) and the connection of the accused therewith. (2) Where there are several persons there must be corroboration of each one. The Statute law in India does not require that the Court is bound to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. The Statute says 'the Court may presume'. It therefore leaves the matter to the Court to decide whether such a presumption should be raised in view of the facts and circumstances of a particular case.
10. The facts of this case are very peculiar. The evidence of the approver Asoke and the statements in the confessions of Chintamony and Sasadhar relating to some matters which according to the prosecution case had material bearing on the other charges against the accused have not been accepted by the Commissioners. The learned Standing Counsel appearing for the Crown did not contend before us that the appreciation by the Commissioners of these portions of Asoke's evidence and of the confession of Chintamoni and Sasadhar was wrong. The question then is whether the evidence of Asoke and the statements of Chintamoni and Sasadhar in their confessions relating to the dacoity should be believed. The Commissioners have found that the confession of Chintamoni was voluntary and that it is true. Chintamoni no doubt was not in police custody at the time when he made the confession before the Magistrate. But he had made certain statements before the police while he was in police custody, which according to the prosecution case revealed certain facts on the basis of which the investigation into the dacoity in Nanda's house was re-opened. He told the Magistrate that the reason for making the confession was that he was repentant. His feelings of remorse and repentance however disappeared as soon as the trial commenced. In his confession Chinta stated that Nanda Kamar after talking with him for sometime went to take his meals. Within 15 or 20 minutes when Chinta was sitting on the ledge of his shop after finishing his meals, Nanda opened the window apparently of his bed room opening on the veranda to the east by the side of the Strand Road and enquired about Chinta's brother Babu. This statement does not appear to be true. The post mortem examination of Nanda's dead body and the evidence of S.I.P.W. 19 indicate that Nanda did not take his meals before he was murdered. The place at which his dead body was found next morning indicates that he must have been throttled to death while he was entering the inner apartments of his house. The things inside Nanda's bed room were not at all disturbed.
11. In Chintamoni's confession it is stated that four or five days before the dacoity he informed Nitai that Nanda used to keep his money in a big taktaposh to which a box was fitted. This information was rather vague, as it did not disclose where this taktaposh was. Asoke in his confession stated that before the dacoity was committed it was arranged that after four of their party had entered the house and chloroformed Nanda's mother, Chinta was to point out the place where the money was, and Nitai was to bring it out. This story however was dropped by Asoke when he gave his evidence in Court. If the present accused committed the dacoity, how did they locate the taktaposh within such a short time? Again, from the evidence of Gourirani, Nanda's daughter-in-law (P.W. 84) it appears that Nanda's mother used to keep her money in the box fitted to the taktaposh, and that Nanda who used to give loans on pledge of ornaments had a big iron safe about 4 feat; in height in his bed room. From the evidence of S.I. (P.W. 19) it appears that the box attached to the taktaposh was not kept locked as there were cobwebs in the key hole of the box. Evidently therefore Nanda did not keep his valuables in this box. It is the prosecution case that Chinta knew where Nanda used to keep his valuables and he gave information to Nitai about Nanda's money. If that is so, why would Chinta give a false and misleading information? Chinta's statement in his confession that he told Nitai that Nanda used to keep his monies in the box attached to the taktaposh does not therefore appear to me to be true.
12. Chinta in his confession stated that on the night of occurrence at about 8 or 8-30 p.m. the accused Radha and Sasadhar took away two daggers and a sack for carrying the things to be looted, which Radha had left in his shop at the noon. Sasadhar however does not say a single word about this in his confession. This story in Chinta's confession does not appear to me to be consistent with Asoke's evidence that the party left Nitai's house with the three daggers on the night of the occurrence as well as on the night previous. Chinta's confession shows that the only part he took in the actual dacoity was that he kept Nanda engaged in conversation in accordance with the directions given to him by Nitai after he was called by somebody on a vacant land on the back of Nanda's house where the other accused had already assembled. It cannot be disputed that Nanda was found talking with Chinta that night before the dacoity. This fact became known to the police the next day. The question is whether Chinta was talking with Nanda as he was asked by Nitai to do so. If Chinta really went to the vacant land before the dacoity one would naturally expect that Sasadhar who according to the prosecution case was at that time on the vacant land along with the other accused would implicate Chinta also in this dacoity. Sasadhar in his confession does not mention the name of Chinta at all in connection with the dacoity. He does not say that Chinta on the night of occurrence came on the vacant land behind the house of Nanda or that he had any talk with Nitai. I am therefore unable to hold that Chinta kept Nanda engaged in conversation in pursuance of directions given by Nitai as stated in his confession.
13. The Commissioners have found that Sasadhar's confession was voluntary and that it is true. Sasadhar when asked by the Magistrate, who recorded his confession, to state the truth said that he would state the truth as he was very much repentant and that sufferings in jail were insignificant in comparison with the pains of repentance. At the time of the trial however these pangs of conscience disappeared. He pleaded not guilty to the charge and retracted his confession. He also told the Magistrate that if he was given any chance of reforming himself he would do so. This statement may be interpreted to mean that when he made his confession he was expecting to be pardoned. According to Sasadhar's confession, before 8 p.m. on the night of occurrence when Asoke took him to the house of Nitai, he did not know anything about the plan for committing dacoity in Nanda's house. This is wholly inconsistent with Asoke's evidence that the plan of the dacoity was settled in his presence on the previous night. The approver Asoke in his evidence states that when Nitai told him that his party was going to commit a dacoity he understood that the house to be raided was nearby. In his confession however he stated that at that time he had absolutely no idea where they had to go. Asoke's story in his evidence that before the accused started for dacoity Nitai produced three daggers of which he himself kept one and made over the other two to Sudha and Radha is not to be found in his confession.
14. The prosecution case is that the dacoits entered Nanda's house by the khirki door. In the confession of Chinta and Sasadhar there were no materials to indicate who opened this door and how it was opened. Asoke in his evidence stated that Chinta was sent in advance on the previous night as well as on the night of occurrence, evidently for the purpose of opening the khirki door. In his confession however this arrangement is not mentioned. The evidence of Asoke is that the accused assembled on an open plot behind the plantain grove on the back of Nanda's house. In his confession however he stated before the Magistrate that they had assembled near a pucca wall. There is no evidence to indicate that the plantain grove was near a pucca wall. Again Asoke in his evidence stated that a low whistle by Chinta was a signal for all of them to enter the house. This story however is not to be found in his confession. The learned Standing Counsel appearing on behalf of the Crown contended before us that the mere fact that certain statements which were made by Asoke in his evidence are not to be found in his confession does Dot show that those statements were false; the confession did not contain the particulars of the dacoity in full, and this was due to the fact that he himself narrated the story and there were no lawyers to elicit from him all the particulars of the occurrence. I am unable to accept his contention inasmuch as some of the omissions were very important. If the additional facts stated in Asoke's evidence were really true, Asoke would certainly have mentioned them in his confession.
15. The learned Standing Counsel also contended before us that the evidence of approver Asoke and the confessions of Chinta and Sasadhar were corroborated in material particulars by the following facts: (1) the presence of cotton wool and the cork of a phial in the house of Nanda after dacoity; (2) the time at which and the clumsy method by which the dacoity was committed; (3) the topography of the place. It is argued by the learned Standing Counsel that the time at which the dacoity was committed and the fact that the dacoits took away things only from the wooden box attached to the taktaposh leaving other things undisturbed indicates that the persons who committed the dacoity were not professional dacoits but amateurs. But these facts do not necessarily lead to the conclusion that the present accused were those amateurs. Corroboration must be, as has been already pointed out, as to the commission of the crime as well as the connexion of the accused with the crime. The accused are all local men. The topography of the place is known to them all. That chloroform was used by the dacoits who committed the dacoity must have been known to them as well as the other people of the locality and the police long before the confessions were made. The above is the nature of the evidence in this case as regards the charge of dacoity against Nitai, Radha, Sudha, Sasadhar and Chintamoni. This evidence in my opinion does not prove beyond reasonable doubt that these accused committed dacoity in the house of Nandalal Karmakar. The conviction of these accused under Section 396 cannot therefore be upheld on this evidence.
16. In order to substantiate the charge of conspiracy against the appellants the prosecution adduced evidence to prove that the appellants held a meeting in Dr. Girin's house at which they adopted the path of violence and decided to bring about a mass armed rebellion for overthrowing the British Government in this country and making the country free. This evidence comes from the approvers Haripada and Asoke. According to Haripada this meeting took place in February or March 1931 while according to Asoke it took place in July or August 1930. Asoke in his confession however did not say a word about this meeting. Haripada in his confession said that at that meeting he, Nitai, Jaladhar, Radha, Sudha and Dr. Girin were present. In his confession Asoke is not at all mentioned, though in his evidence before the Commissioner he stated that Asoke was also present at that meeting. In his confession Haripada said that at that meeting it was decided that every one of the party would have to swear by touching weapons, and the night having much advanced, the meeting was closed. In his evidence before the Court however Haripada said that a dagger was produced in the meeting and all the members of the party touched it and took a vow that they would be faithful to one another and to the country's cause until the country was made free. The evidence of the approvers Haripada and Asoke relating to some important allegations against the accused has not been accepted by the Commissioners and for the reasons mentioned above, I do not accept their evidence relating to the alleged meeting at Dr. Girin's house.
17. To prove conspiracy however there need not be evidence of direct concert nor even of any meeting together of the conspirators. The agreement can be inferred from collateral acts but these acts must show a common plan so as to exclude a reasonable possibility of the acts of the conspirators having been done separately and connected only by coincidence: see Emperor v. Benoyendra Chandra Pandey : AIR1936Cal73 . During the years 1929 to 1930 Nitai was connected with the labour movement. The Civil Disobedience movement was started in 1930. Nitai was arrested in connexion with a flag hoisting ceremony on 26th January 1932 and convicted in that connexion on the next day and sentenced to four months' imprisonment. He was released from jail on 26th April 1932. P.W. 14, Amarendra Nath Mitra, joined the Civil Disobedience movement and was sentenced to six months' imprisonment for picketing opium and ganja shops at Bhadreswar. He was in the Dum Dum Jail along with Nitai and other prisoners who were convicted in connexion with the Civil Disobedience movement.
18. Amarendra in his evidence states that he had talks with Nitai in the Dum Dum Jail and that he used to discuss with him political questions, as for instance Gandhism, Terrorism, Communism. Nitai used to say:
The Gandhi movement is of no use and it would lead to no result; we will only be imprisoned or assaulted by following the Gandhi cult. If we get prepared to retaliate when we are assaulted, it is only then that we can achieve some result.
19. After he and Nitai came out of the jail he became intimate with Jaladhar who was then staying in a rented house near his house. He used to go to Jaladhar's house where he used to meet Nitai and Radha. He used to have talk with Jaladhar and Radha in Jaladhar's house as well as on the bank of the Ganges. Nitai used to say that the Gandhi movement had totally failed to achieve anything and that armed rebellion was necessary for ending the British Government in this country. Nitai also informed him that they had a large collection of arms and ammunition and had a centre at Baidyabati and that the head-quarters were at Calcutta. Nitai also said:
We shall have to issue and distribute leaflets among the mass and convince them that the nonviolent movement will lead nowhere and that the country should agitate on violent lines. Violence means that high Government Officers would have to be murdered and losses would have to be inflicted on the Government by looting Government money and other acts done which would make the position of the Government insecure.
20. Jaladhar used to be present at these discussions and used to support Nitai by saying that what Nitai said was correct and that they should proceed like that. Nitai and Jaladhar in the course of these discussions asked him to join their party of which was a centre at Baidyabati. The witness, however, did not agree to join their party. Amarendra also stated that Jaladhar attempted to induce his aunt Amalrani, P.W. 27, to join the revolutionary party. Much comment was made on the evidence of this witness by the learned advocate appearing on behalf of the appellants. The substance of these comments is that his evidence about Jaladhar's attempt to recruit Amalrani to the party is contradicted by his statements in his confession and that his evidence to the effect that Jaladhar told him one or two and half months before his arrest that he was going to be arrested as he took part in the dacoity at the house of Nanda Kamar is false, as it is not the prosecution case that Jaladhar committed that dacoity. In other words, the contention is that Amarendra tried to implicate Jaladhar falsely in the conspiracy. Amalrani, P.W. 27, in her evidence however stated that while she was living in Bhadreswar in Aswin 1340 B.S. in the house of her second sister, the mother of Amarendra, Jaladhar used to visit the house during that period and he used to call her sister 'Ma'. She was unmarried at the time, though she was sufficiently grown up. Jaladhar advised her not to marry saying: 'You have the example of your sister before you, she is entangled with her household work. She cannot go out to do any other work. Household is not the entire field of activity of women. Women can do a lot of work being outside. You can do work for the country. If men and women work together for the cause of the country, only then will the country become free. Revolution will have to be brought about in the country; men alone cannot bring it about. Both men and women must work together in order that it may be achieved'.
21. Jaladhar explained to her that by 'revolution' he meant collection of arms and ammunitions and murdering European officers and held out instances in which other women of the country had joined such revolutionary activities. Jaladhar also named the name of the District Magistrates who had been murdered by women. The evidence of this witness supports Amarendra's evidence that Jaladhar attempted to recruit her to the revolutionary party. The contention of the learned advocate for the appellants is that her evidence is false inasmuch as there was a great delay in the examination of this witness by the police and this delay was due to the fact that time was necessary to induce her to give false evidence by way of bargain with the police for releasing Amarendra. Amarendra was arrested on 7th September 1934. He made his statement before the police on 14th September 1934. His statement was recorded by the Magistrate on 17th September 1934. In this statement he stated that though he was asked by Nitai and Jaladhar to join the revolutionary party many times, he never agreed to join their party. There was nothing in his statements to implicate him. In fact he was released in the middle of October 1934. Police however got the information from him that Jaladhar and Amalrani used to go out for a walk frequently. Bidhu Bhusan Pal, Inspector of Police, says in his evidence that he asked Amarendra to write a letter to Amalrani requesting her to come so that she might be examined. In his evidence he stated that he wanted to avoid her examination by the Police in her home as that might create a sensation. From his evidence it appears that he waited for sometime in expectation that she would turn up. On the next date fixed for the case when he met Amarendra again, the latter told him that he had written to his aunt but had received no reply. He however did not take any drastic steps for her production as she was an unmarried girl of a respectable family. This Police Officer also states that after Amarendra's report to him he had some information that Siddi Babu, husband of Amalrani's sister, had promised to produce Amalrani before him and so he did not take any farther steps in this connection.
22. The evidence of S.I. Bidhubhusan Das shows that before Amarendra was discharged, he asked him about the whereabouts of on 14th September 1934, when apparently Amarendra made his statements before the Police. He informed the D.I.O. of this matter. On 14th September 1934 he could not ascertain Amala's and Siddi's whereabouts. On 11th November 1934 he made further enquiries as to the whereabouts of Amalrani and Siddi Babu and got this address on Strand Road, at Calcutta. Inspector Bidhu Bhusan Pal states that on 15th November 1934 an attempt was made by him to get a statement from Amalrani in the house at Strand Road. He however failed in his attempt as Siddi Babu got excited and began to abuse Amalrani as soon as she mentioned Jaladhar's name and the Police Officer left the place as he thought that Siddi Babu was keeping the witness away although she was willing to make a statement. He however directed Siddi Babu to produce Amalrani at the Chinsura Police Office where she would be examined by him. He did not mention any definite date but instructed him to produce her at an early date. He waited till 20th November 1934 and as Siddi Babu till then did not turn up with Amalrani, he sent S.I. Bidhubhusan Das to go to Siddi Babu's house in Calcutta with instructions to direct Siddi Babu to produce Amalrani at Chinsura and in case Amalrani was not produced by Siddi Babu, to search the house for her. On 23rd November 1934, S.I. Bidhu Babu returned and reported that Amalrani could not be found in Siddi Babu's house. She was however ultimately produced on 29th November 1934 by Siddi Babu and a brother of hers when she gave her statements. These statements of Inspector Bidhu Bhusan Pal, in his evidence before the Commissioners were not challenged in cross-examination by the accused. The Commissioners have believed the evidence of Amalrani. They have observed:
Amalrani gave her evidence in a convincing and straightforward manner. We have not the least cause of suspicion that her statements were the result of tutoring.
23. They have also relied on the evidence of Amarendra. I see no reason to disbelieve these two witnesses. P.W. 55 Sib Sankar Mallik, states in his evidence:
Nitai and Sudha used to describe the condition of the country saying that the country is in a bad plight. The Police are oppressing us.... I paid subscription to Nitai ranging from 4 annas to rupees two or three at a time on three occasions. Nitai used to demand heavy subscriptions as for instance Rs. 30 or Rs. 40.... I asked him why he wanted so much money. Nitai said that they would purchase revolver with the money for murdering highly paid Government Officials and for terrorising them. He explained that by this means the country would be made free from foreign rule. During such talks Sudhasindhu and Asoke used to be nearby.... I used to remark. We are only 3 or 4 persons, how can we do all this? They used to reply: 'We have a party in Calcutta'.
24. He then states that Nitai suggested to him to steal ornaments from his house and hand them over to him. He however did not agree to this. He also states that Sudhasindhu one day at the Howrah Railway Station demanded money from him for the work of the country. Sripati Biswas, P.W. 40, says that Jaladhar, Radha and Sudha used to be with Nitai when Nitai used to discuss revolutionary matters with him in order to induce him to join their party. It may be said that Sib Sankar and Sripati are accomplices. But their evidence finds material corroboration from the evidence of the independent witnesses which I have held to be substantially true. The learned Commissioners have relied on the evidence of the approvers Haripada and Asoke also for their findings on the charge of conspiracy. Their evidence regarding some of the activities of the accused Nitai, Jaladhar, Sudha and Radha, which show a common plan and conspiracy, finds material corroboration from the evidence of persons who were attempted to be recruited to the party but could not be recruited, and also from the evidence of persons who were rather luke-work members and drifted away from the party gradually for various reasons. The evidence of these witnesses shows that there was a terrorist organization in Calcutta of which there was a branch at Baidyabati. The object of this organization was to bring about the end of the British Government in this country by armed rebellion, and their programme was to collect arms and ammunition and to recruit young men and women. Nitai was the leader of the branch organization at Baidyabati. He with the assistance of Jaladhar, Sudha and Radha recruited and attempted to recruit members to the party by denouncing the non-violent creed and extolling the creed of violence. The charge of conspiracy in my opinion has been sufficiently made out against these four accused. The case of the remaining three accused Sasadhar, Chintamoni and Durgadas however stands on a different footing. So far as Durga is concerned the case for the prosecution is that he paid Rs. 220 to Nitai for the purchase of a revolver for the use of the party. The evidence no doubt establishes that Durga withdrew Rs. 220 from the Savings Bank on 7th November 1931. The question is whether this money was actually handed over by him to Nitai for purchasing a revolver for his party. (After examining the evidence his Lordship held that the prosecution failed to prove beyond reasonable doubt that Durga paid Rs. 220 to Nitai for purchasing a revolver for the party. The judgment then proceeded.) The approvers Haripada and Asoke both said that Durga was a member of the party. Haripada in his evidence stated that Durga attended the meeting at Dr. Girin's house. I have already found that there was no meeting in the house of Dr. Girin as alleged by the prosecution. Asoke in his evidence no doubt implicated Durga as having been present at various discussions on party matters in the company of the other appellants. In his confession however he did not say so. The other allegations against Durga by the prosecution witnesses have not been accepted by the Commissioners. Sasadhar in his confession stated that two or three years ago Sudhasindhu showed him a pistol and gave it to him to keep and informed him that Nitai had purchased the pistol with Durga's money. This statement of Sasadhar in his retracted confession in view of the facts and circumstances of this case has got very little evidentiary value. The prosecution, in my opinion, has failed to substantiate the charge of conspiracy against Durgadas Mukherjee by reliable evidence.
25. Chintamoni's conviction by the Commissioners is based on his own confession and the evidence of the approver Asoke. The material part of his confession relates to the dacoity in the house of Nandalal Kamar. I have already dealt with it and have held that this confession is not true. Excepting this dacoity, no other act of Chinta has been proved by the prosecution from which it can be reasonably inferred that he was a party to the conspiracy. He did not take part in the recruitment. The evidence of Asoke implicates Chinta in the dacoity in Nanda's house and also in the general conspiracy. I have already dealt with Asoke's evidence regarding the complicity of Chinta in this dacoity. Asoke implicates Chinta in the conspiracy in his evidence by stating that Chinta used to take part in the party discussions regarding the object of the party for making the country independent by violence. In his confession however he did not make any such allegation against Chinta. The prosecution in my opinion has failed to prove the charge of conspiracy against Chintamoni.
26. The learned Commissioners appear to have convicted Sasadhar on his own retracted confession, the confessions of Chinta and Durga, the evidence of the approver, Asoke and P.W. 55, Bib Sankar Mallik, and his admission of his complicity in this dacoity in the previous trial before the Special Magistrate Mr. Mallik. The learned Standing Counsel however did not rely on this admission of Sasadhar in the previous trial. I have already found the prosecution has failed to prove the charge of dacoity against Sasadhar. The approver Asoke no doubt implicates Sasadhar in the conspiracy. According to him Sasadhar attended some of the meetings and discussions of the party and called him to Durga who complained about the non-payment of the money paid by him to Nitai. This story however is not to be found in Asoke's confession. The other allegations of Asoke about Sasadhar relate to dacoity in Nandalal's house and I have already held that those allegations have not been corroborated by any reliable evidence.
27. The learned Commissioners were of opinion that P.W. 55, Sib Sankar Mallik named Sasadhar as being one of the party who tried to recruit him in the terrorist organization. The evidence of Sib Sankar however indicates that Sasadhar, Nemai, Nitai and Asoke asked him for subscription for doing work of the country and they handed over to him for reading certain revolutionary literature. It is however not clear from his evidence whether Sasadhar handed over any books to him and if so what books. He also said that the party asked him to become a Congress volunteer and to do work for the country. It is not very clear from his evidence whether Sasadhar asked him for any subscription. His evidence shows that Nitai realized this subscription from him. He no doubt proves association of Sasadhar with Nemai, Nitai and Asoke. The evidence of Sib Sankar against Sasadhar stands on the same footing as that of Nemai who has been acquitted by the Commissioners. Sib Sankar in his evidence says that when Nitai used to tell him that revolvers would be purchased with the subscription for murdering highly paid Government Officials and for terrorising them, Sudhasindhu and Asoke used to be nearby. He also says that he does not remember if anybody else used to be there. The evidence of Sib Sankar in my opinion is not sufficiently clear to prove the association of Sasadhar with Nitai in connexion with the object of the terrorist party.
28. Chinta in his confession states that Sasadhar accompanied Radha when the dagger and the bag were taken away from his shop on the night of the occurrence in Nanda's house. I have dealt with Chinta's confession relating to this dacoity already. Durga in his confession mentioned Sasadhar as one of the members of the terrorist party of Nitai. It has been already pointed out that the substantial portion of Durga's confession is not true and Durga himself was not a member of the terrorist party. The relevant statements in Sasadhar's retracted confession are these:
The Civil Disobedience Movement was going on when I was a student in the school in the year 1929-1980. I became friendly with Nitai at that time. He used to give me books on politics to read and I used to read them. On reading them I came to form this idea that the condition of the labourers and cultivators of our country should be improved. I decided to exert myself in this direction. Once I went to the office of the Peasants and Workers Party in Calcutta with Nitai. There I saw two boys named Jamal and Momim. At that time I became acquainted with Jaladhar Bandopadhya, Sudhasindhu Dey and Asoke Ganguly. I made this promise before Nitai that if any help was required for the sake of the country I was prepared to take any risk.... Myself, Nitai Jana and almost all the persons whose names I have mentioned, used to discuss about making the country free and about 'effecting improvement in the condition of the cultivators as also about how the mass of the country could be awakened and how freedom could be secured for the country. Nitai's idea was that money was necessary to liberate the country and that money was to be secured by any means. Actuated by that idea alone we went to commit dacoity in the house of Nanda Kamar.
29. I have not accepted Sasadhar's statements in his confession relating to the dacoity in Nanda's house as true. The confession has been retracted. Under these circumstances it is very difficult for me to believe the above statements in his confession. It has been already stated that Nitai was connected with the labour movement. Even if there be any truth in the statements in Sasadhar's confession to which reference has just been made, these statements are not sufficient to prove that he agreed to accept the revolutionary creed of the terrorists and to be a member of the terrorist party. There are no other collateral acts of Sasadhar proved by any reliable evidence from which it can be inferred that he was a party to the conspiracy. Under these circumstances I hold that the charge of conspiracy against Sasadhar has not been made out by any reliable evidence. The result therefore is that the appellants Nitai, Radha, Sudha, Sasadhar and Chintamoni are acquitted of the charge under Section 396, I.P.C., and Sasadhar, Chintamoni and Durgadas are acquitted of the charges under Section 121-A, I.P.C., and under Section 120. B, I.P.C. read with Sections 19-(f) and 20, Arms Act. The convictions of appellants Nitai, Radha, Sudha and Jaladhar under Section 121-A are affirmed. I also find them guilty under Section 120-B, I.P.C. read with Sections 19-(f) and 20, Arms Act.
30. I have given my anxious consideration to the question of sentence on the four appellants whom I have found guilty under Sections 121-A and 120-B, I.P.C. Nitai was evidently the local leader of this party. Jaladhar attempted to recruit an unmarried young girl of a respectable family to the terrorist party. Radha was in possession of a book of a highly revolutionary nature and he along with Sudha actively helped Nitai in recruiting young men to the terrorist party. Sudha's right hand has however been permanently damaged and made partly useless and he is also suffering from a disease which is suspected to be tuberculosis. The activities of the party have moreover not been proved to extend beyond recruitment of, and attempts to recruit, some members to the party. Considering all these facts and circumstances, I think that the ends of justice will be sufficiently met if the appellant Nitai be sentenced to rigorous imprisonment for five years, the appellant Jaladhar to rigorous imprisonment for four years, the appellant Radha to rigorous imprisonment for three years and the appellant Sudha to rigorous imprisonment for two years under Section 121.A, no separate sentence being passed on them under Section 120-B read with Sections 19.(f) and 20, I.P.C. Arms Act. The appeal of the appellants Sasadhar, Chintamoni and Durgadas is allowed and I direct them to be released forthwith. The appeal of the other appellants is dismissed subject to the modification in their sentences indicated above.
31. I agree and have nothing to add.
32. I agree in the judgment just delivered, and would add only a few observations regarding the evidence of the approvers and accomplices, and the retracted confessions of some of the accused, as a good deal of argument was addressed to us on the question. As regards the evidence of an accomplice, Section 133, Evidence Act, lays down that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. This amounts to no more than saying that an accomplice may be put into the box as a witness, and his testimony will not be ruled out as inadmissible. But to say that evidence is not inadmissible is not to say that the Court should or ought to act upon it. The question whether evidence is admissible or not is after all important only in so far as such evidence can be acted upon. As to whether the evidence of an accomplice ought to be acted upon, the Evidence Act itself lays down an unerring guide in Illus. (b), Section 114, which says that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. The words in the section no doubt are 'may presume,' and not 'shall presume'. All the same, as Rankin, C.J., pointed out in Ambica Charan Roy v. Emperor AIR 1931 Cal 697, the Court is not concerned with merely recording a conviction that is not illegal, but is to be satisfied that the conviction is properly based. That being so, it seems to me that the rule of caution embodied in Illus. (b) to Section 114 is as good as a rule of law for all practical purposes. If I may say so with respect, I entirely agree with the observations of S.K. Ghose, J. in Bimal Krishna Biswas v. Emperor (1935) 39 C W N 761 at p. 766. Technically, the view put forward by Page, C.J. in Aung Hla v. Emperor AIR 1931 Rang 235, as explained at p. 427 of the report, may be accepted as correct. All the same, it would in my opinion be wholly unsafe in any case to proceed solely upon the uncorroborated testimony of an accomplice. Taking the two sections of the Evidence Act, namely Section 133 and Section 114 together, I think it may be safely laid down that the Statute law of India did not intend to introduce a different rule for the guidance of the Courts from that which may be now taken as the accepted rule of law in England, as explained by Lord Beading, C.J., in Rex v. Baskerville (1916) 2 K B 658. The same rule is reaffirmed in Mahadeo v. The King AIR 1936 P C 242. These cases further lay down that the evidence of an accomplice must be corroborated in some material particulars, not only bearing upon the facts of the crime, but upon the accused's implication in it, and further, that evidence of one accomplice is not available as corroboration of another. In my opinion, these rules are equally applicable in India. As regards retracted confessions, as my learned brother has pointed out, they stand on a much weaker basis than the evidence of an accomplice. I respectfully adopt the view laid down by Jenkins, C.J., in Emperor v. Lalit Mohan Chuckerbutty (1911) 38 Cal 559 at p. 588. After stating that the prosecution in that case sought to use the confessions of two accused persons not only against them, but against the rest of the accused, the learned Chief Justice proceeded:
The warrant for this is to be found in Section 30, Evidence Act, which provides that where more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons, is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes the confession. The language of the section is guarded, and the history of this Act leaves me in no doubt that this section was designedly framed in these terms. While admissions, a word which embraces confessions, are by Section 21 relevant, and may be proved as against the person making them, all that Section 30 provides is, that the Court may take them into consideration as against other persons. This distinction of language is significant, and it appears to me that its true effect is, that the Court can only treat a confession as lending assurance to other evidence against a co-accused. Thus, to illustrate my meaning, in the view I take, a conviction on the confession of a co-accused alone would be bad in law. This reading of the section appears to me to gain confirmation from the language of Section 5.
33. I have not found anything in any later case which in any way tends to weaken the force of the observations of the learned Chief Justice, and I must accordingly hold the law to be as pointed out in the concluding portion of the above quotation. As regards the question, whether and how far a confession may be evidence against the person making it, I should like only to add that what Section 21 makes relevant is an admission, and while an admission includes a confession, the confession must still be an admission within the meaning of Section 17, Evidence Act, before it can be held to be relevant under Section 21. Section 17 says that:
An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
34. It is necessary therefore that the statement of an accused person, to be relevant as a confession under Section 21, must be shown to have been made by a person and under circumstances mentioned in any of the sections following Section 17. Sections 18, 19 and 20 refer to civil suits or proceedings and cannot therefore apply to statements made in or with reference to a criminal case. Section 23 also expressly refers to admissions in civil oases. Confessions made by accused persons in criminal proceedings are, for the first time, referred to in Section 24, which lays down in what circumstances such confessions are irrelevant. Section 25 refers to a confession made to a Police officer and lays down that it shall not be proved as against a person accused of any offence. Section 27 lays down how much of a confession may be proved in certain contingencies, but says nothing about the circumstances under which the statement is made. The two following sections also hardly throw any light on the question. 8. 26, which refers to a confession made by a person while in Police custody and says that no such confession shall be proved, unless made in the immediate presence of a Magistrate, appears to be the only section which gives any indication of 'circumstances' under which the statement is made within the meaning of Section 17. Beading the terms of Section 17 along with the succeeding sections, the question therefore is not free from difficulty as to how far Section 21 may be applied in order to make the confessions relevant, without showing how the confessions are admissions as defined in Section 17. As however the point was not argued on behalf of the appellants, I refrain from expressing any final opinion. As to the confessions made by the approvers, I need only say that they are not substantive evidence, but may be used only for the purpose of contradicting or corroborating their depositions in Court.