1. The appellant has been convicted and sentenced by the learned Chief Presidency Magistrate, Calcutta, exercising jurisdiction as a Special Magistrate Under Section 24,Bengal Act 12 of 1932, for commission of offences Under Section 4(b) and Section 5, Explosive Substances Act (Act 6 of 1908). The offences charged in this case and in regard to which evidence was placed before the Court was very serious. It appears to be clear that the conviction of the appellant is based mainly upon the statement of a co-accused Taraprasanna Ghatak, who has been acquitted by the learned Magistrate; reference has been made to his statement at different places in the judgment recorded by the Magistrate; and it has been treated as evidence furnishing corroboration of the most material evidence in the case, a note alleged to be in the handwriting of the appellant (Ex. 3 in the case). The learned Magistrate in dealing with Ex. 3 has observed that there was no escape from the fact that Taraprasanna's statement was fully borne out by the fact of the note (Ex. 3) which was proved to be in the appellant's handwriting. The statement of the co-accused Taraprasanna Ghatak referred to above was one Under Section 342, Criminal P. C, and it appears that what he stated before the Court was this:
My statement to police may be taken as my statement (Ex. A). Adds--Jogen Banerjee is my cousin (Mamato Bhai). He used, to visit me regularly at 56/2, Nimtolla Ghat Street and later at 2, Nimtolla Ghat Street. One day he came and told me that he had sent his family to his village home and asked me if I could keep a box for him. I have no family. I agreed. Four or five days later he brought this box (Ex. 1) and left it in my room, in my presence. I asked him what it contained; he said 'homoeopathic books.' About three months later, a boy came with this note (Ex. 3). I think it was Parikshit, but as I had not seen him before, I cannot be sure; the note asked for return of box through bearer; it was from Jogen. I asked if he knew Jogen-he said he did not. I refused to return the box to him. The boy said Jogen was at Beliaghata. I had a suspicion the boy might be a common thief and refused to return the box-through him and told him to send Jogen to me himself. I had no work. I used to sell sweets in the Police Court compound.
2. The statement of the co-accused before the Court, of a person who was being tried jointly with the appellant, was a statement deprecating his own guilt; it was a statement seeking to dear himself at the expense of the appellant, and as such, the statement could not be taken into consideration Under Section 30, Evidence Act, or any other provision of the law as against the appellant.
3. The statement of Taraprasanna Ghatak, as an explanation exculpating himself from his share of the offence charged against him, was not evidence against the appellant jointly tried with him as a co-accused. In our judgment, the conviction of the appellant as it stands must be set aside, based mainly as it is on the statement of a co-accused recorded Under Section 342, Criminal P. C.
4. As indicated above, we give effect to the points raised before us in support of the appeal that the, statement of Tara-prasanna Ghatak, a co-accused not having been of a confessional nature, was not admissible as against the appellant, and that the appellant was prejudiced by the use of the same in the manner mentioned in the judgment of the learned Magistrate by whom this case was tried. In the events that have happened regard being had to the fact that Taraprasanna Ghatak has been acquitted by the Magistrate, it would be open to the prosecution to examine him as a witness in the case, and give such other evidence for the purpose of establishing the charge under which the appellant was tried, and on which he is to be retried. In sending the case back for a retrial we desire to mention that it would be satisfactory if the accused was made to write out the contents of the note (Ex. 3) in their entirety in the presence of the learned Magistrate holding the trial, and if such writing was sent to a competent handwriting expert for examination and opinion for consideration of the Court. In the result, the conviction of the appellant and the sentence passed on him are set aside, and the case sent back for retrial on fresh evidence in the light of the observations made in this judgment. The appeal is allowed; retrial ordered.