Harington, Holmwood and Doss, JJ.
1. The prisoners in this case stand charged with offences under Section 121 A of the Indian Penal Code. It is the case for the Crown that there exists a wide-spread conspiracy to effect a revolution by violence and by force of arms to deprive the King of the solvereignty of British India. The allegation is that the thirteen persons who now stand in the dock are participators in that conspiracy; and to justify the inference that the conspiracy exists and that the persons, who have been placed upon their trial before us, are engaged in that conspiracy, the Crown relies upon certain facts. The first important fact on which the Crown relies is that there was found in the possession of some of the prisoners a trunk containing documents advocating revolution by violence, describing how secret societies to that end should be organized and the lines on which they should carry out their operations, how high explosives were to be manufactured and how, when prepared, they could most readily be employed for the purpose of murder and the destruction of property.
2. All the prisoners, it is said, were in close association with those in whose possession those documents were found, and with each other, and they were found to be pursuing the line of action laid down in the documents which were discovered in their possession. For example, the minds of persons peaceful and contented were to be inflamed by Seditious writings, by songs and by speeches and such methods; and from the prisoners, it is alleged, emanted seditious writings, seditious speeches and seditious poetry, directed to the end laid down in the documents found in their possession. Further, bands of men were to be organized for the purpose of actively propagating doctrines of revolution, and these bands were to be trained to warlike exercises, and to undergo physical drill and instruction in the use of weapons. It is said that the prisoner were parties to the organization of, or were members of, such bands, and that amongst these bands seditious speeches were made, and the youth of the country who were attracted to them were trained in physical exercise (lathi play) with intent that they should be able to take their part in the revolution by force, which it was intended, at some future time, to bring about. Funds were to be collected for the purpose of propagating the doctrine of the conspirators and for the collection of arms and ammunition. These funds were to be collected by the associations, or were to be obtained by means of robberies committed on the peaceable inhabitants of the country. It is alleged that the prisoners were parties to various robberies or attempts to rob, and, lastly, the Crown relies upon the fact that the correspondence and documents found in the possession of the various prisoners disclose that they were engaged in some secret design which they were unable to express openly. And it is contended that the literature in the possession of the prisoners and the acts done by them point to one conclusion, and that is, that they were parties to the design which is charged against them in the indictment.
3. Now with regard to the evidence which has been placed before us, the first piece of evidence to which we think it right to refer is the statement of one of the accused persons, namely, Abani. This man was arrested on the 2nd of September; and on the 13th of September, he made a statement to a Magistrate named Kumud Nath Mookerjee. In that statement he implicated himself and a large number of persons in the conspiracy which is charged against the prisoners; and out of the number that he implicated eight of the persons who now stand in the dock were included. Later, in company with another Magistrate, he went to the various places he had referred to in his statement and pointed out the scenes of the different incidents to which he referred, and, later still, before the Magistrate he made depositions against his co-accused in certain proceedings which were instituted against them under Sections 400 and 395 of the of the Indian Penal Code. While in jail he held surreptitious communications with another person who was in jail, a man named Lalit, and intimated in those communication that he intended to what he withdraw what he said when he was called as a witness in the trial of the persons against whom he had depositions before the Magistrate. In fact when called witness he retracted the statements he had made and suggested that what he had said had been taught him by the late Shamsul Akin. Now Shamsul Alum was murdered on the 24th of January. The communication which Abani held with Lalit was in February, and it is a very striking and singnificant fact that in the communication with his friend Lalit there is no suggestion that the late Inspector taught him anything. That appears to us to be a pure afterthought, and the suggestion is made by Abani because the man against whom it is made cannot be called to contradict it. It is clear to us that the statement made by Abani in the presence of the Magistrate, Kumud Nath Mookerjee, was a perfectly voluntary statement, and that, with the statement made before the other Magistrate and the deposition, it can be regarded, at any rate, as evidence against Abani himself. That is the first part of the evidence on which the Crown relies.
4. Another piece of evidence, to our minds the most important piece of evidence in the case, is the discovery of the documents in the possession of the principal persons amongst the accused. Now these documents were discovered at No. 15, Jorabagan Street, on the occasion of the search made in the room there occupied by Bidhu, Aswini and Brojendra on the 2nd of September. In the trunk which was then found were documents which, in the ordinary course of things, would have been the property of the different persons who were found together in that room. The trunk was locked. The key was in a tin box and was pointed out to the search party by Aswini. 'When the trunk was unlocked there were found in it, amongst a great number of papers, two sets of documents which are of the first importance, one, a set of three small paper books entitled Mukti Kon pathe, and the other, a set of documents which may be described shortly as the Confidential exhibits. Now the Multi Ion pathe consisted of a reprint of articles originally published in a seditious newspaper called the 'Jugantar.' These articles, amongst other matters, in supporting the view that there should be a revolution, point out that the revolution is to be prepared for in two definite stages. One of these is the formation of public opinion, and the other, to use the words of the writers, ''by brute force and the collection of arms.' The Mukti kon pathe goes on to show how public opinion is to be formed, and it recommends publications in newspapers, music, literature, preaching, the formation of secret meetings and socret associations. The second branch of the preparation for revolution, namely, brute force and collection of arms, is also dealt with, and the paper sets out that the arms must be collected being purchased with money obtained to that end by robbery: further, that bombs should be prepared and that the attention of the youth of the country should be directed to the attainment of physical strength for the coming struggle. That, very briefly, is the more important portion of the Muhti kon pathe.
5. Then there are the other documents to which we have referred as the confidential exhibits. In these exhibits are to be found the details as to the organization of secret societies, There are to be found instructions as to how high explosives and bombs are to be manufactured, and these instructions are illustrated with beautifully executed pencil drawings, which must have been made by draughtsmen of very considerable skill. There is no evidence as to when the Muhti kon pathe was published, but the confidential exhibits contain internal evidence that a portion of them, at least, has come into existence since April 1908. In that month an attempt was made to murder the Mayor and Mayoress of Chandernagore by Throwing a bomb into the room in which they were sitting. Mercifully it failed to explode. A reference in one of the confidential documents to this abortive attempt to murder, and a discussion as to the reason why the bomb did not explode, establish clearly that that particular document must have come into existence since that attempt was made. Now these were the most important of the documents found in the possession of the prisoners at Jorabagan Street, and on the occasion documents, when found, were signed by the prisoner Bidhu who explained that he took the precaution to guard against any documents being subsequently interpolated by evil-minded persons. To meet the difficulty which the accused find themselves in by the production of those extremely incriminating documents, it was argued by the defence that what we have described as the confidential exhibits were brought to No. 15, Jorabagan Street, on the day previous to the search by a person named Jogi Rai. It was suggested that Jogi Rai was a police spy, and, though I do not think it was stated in express terms, the insinuation was that those documents were put in there by the police spy for the purpose of getting the prisoners into trouble. Now it becomes necessary to examine carefully the evidence as to what took place at the search to see if there was any foundation for such a suggestion or not and, before dealing with that evidence, one is bound to make the observation that the confidential exhibits in a very remarkable way form what may be called the complement to what is to be found in the Mukti kon pathe. The Mukti kon pathe advises in general terms the organization of bands. The confidential exhibits give the details of the manner in which those bands were to be organized. The Mukti kon pathe recommends bombs. The confidential exhibits show how those bombs were to be manufactured; and, in short, the confidential exhibits would enable those who studied them to carry out the directions which are to be found in general terms in the Mukti kon pathe. Now to establish the suggestion that these documents were something separate from those which belonged to the prisoners, it was first sought to make out that they were tied up together in n bundle by themselves. Out of the three witnesses the two officers engaged in the search were cross-examined on this point, and they were both confident that these documents were not tied up in a separate bundle. The third person present, that is, the independent witness, was not asked any question on this point. Then, if it were true that these documents contained matters unknown to the prisoners and had been brought by another nian the night before, one would have expected a statement to that effect to be made at the time. No such statement appears to have been made, and moreover, if it had been desired to preserve evidence of such a statement, it was within the power of Bidhu to have recorded it. He was supplied with pen and ink, he affixed his name to each document as it was produced from the trunk. It is impossible to believe that, if these documents stood apart from the other papers found in this trunk, Bidhu would not have made some endorsement to that effect upon them. But, as it is, they are treated in precisely the same way as all the other documents found in the trunk. Moreover, it is significant, with regard to the prisoner's knowledge of the contents, that in some pi the documents, namely, those giving illustrations of the bombs, the signature appears in close juxtaposition to the pictures and descriptions found in that document, further, there is no evidence at all that Jogi Rai or any stranger came to this room on the day before the search; and it appears that the first time that it was suggested that these documents had been brought by Jogi Rai was in the statement made by Bidhu on the 8th of September, that is, six days after the search. Taking all these facts into consideration and especially in view of the fact that the documents were treated by Bidhu just as the other documents found in the trunk, we have no hesitation in coming to the conclusion that the discovery of the documents was a perfectly genuine one, and that these documents were, like the other papers in the steel trunk, in the joint possession of the prisoners, who were in occupation of No. 15, Jorabagan Street.
6. The next branch of the case which it is necessary to refer to is the evidence of association. It is unnecessary at this stage to discuss that evidence. It consists in letters found in possession of the different prisoners, in a diary found at the house of Bidhu and in a mass of oral evidence. But it is unnecessary to discuss it because no serious attempt has been made by the defence to deny that these persons were, in fact, in association as alleged by the Crown. But what the defence says is that the prisoners, Kalidas and Nagendra, are uncle and nephew, that Mohini and Aswini are brothers-in-law, that the two Nagens, Kali Dass and Mohini, are all inhabitants of Solepur and that Sudhir and Aswini are fellow villagers; and it is pointed out that, with the exception of Kumira and Dacca, all the villages from which the prisoners come are within moderate distances from each, other. It is contended that from these facts it is to be inferred that the association was a natural and innocent association of persons who come from the same part of the country and are, in some cases, related to one another. Now the statement of Abani, the possession of the documents' to which we have referred, and the association of the persons who were in possession of those documents, lead us to the conclusion that the Crown has established that a conspiracy existed, having for its aim the objects stated in the charge.
7. It now becomes necessary to see how far the evidence affects each of the prisoners who stand in the dock as indicating that they are implicated in this design.
8. The first piece of evidence we have to consider is the statement of Abani to which we have referred a short time ago. It is argued on behalf of the Crown that that statement comes within the provisions of Section 10 of the Indian Evidence Act, and is, therefore, to be treated as evidence against Abani's fellow-prisoners. It is said that, if it does not fall within Section 10, at any rate, under the provisions of Section 30, it is a confession of one of the co-accused and may be referred to in the course of the trial. It is argued by Mr. Roy with very considerable force that, in any case, its value can be no higher than that of the evidence of an accomplice, and that, indeed, it is of less value than the evidence of an accomplice, because an accomplice can be cross-examined for the purpose of testing his accuracy, while this confession of Abani made when he was a prisoner cannot be subjected to that test. There is, of course, very great force in that argument. We have come to the conclusion that the statement of Abani cannot properly be treated as evidence under Section 10 of the Evidence Act. That section, in our view, is intended to make evidence communications between different conspirators, while the conspiracy is going on, with reference to the carrying out of the conspiracy. No doubt Section 10 is wider than the law of England as to evidence in cases of conspiracy. But we do not think that that section is intended to make evidence the confession of a co-accused, and put it on the same footing as a communication passing between conspirators, or between conspirators and other persons, with reference to the conspiracy. But with regard to Section 30 in our opinion the statement, being the confession of a co-accused, can be looked at under that section. But its value is discounted by the fact that it cannot be tested by cross-examination. We do not think for a moment of putting it any higher than the statement of an accomplice, nor can we in any way allow ourselves to be influenced by the statements in it, except where those statements are corroborated by independent testimony implicating the accused persons in the design with which they are charged.
9. Their Lordships then discussed the evidence against each of the accused and concluded as follows:
10. Bearing in mind that the offence charged is complete when the facts are proved from which it can be inferred that there is an agreement come to for the purpose 6f carrying out the objects stated in the charge, arid bearing in mind the nature of the documents found in the possession of some of the prisoners, and that persons in association with them were doings acts which, in fact, promoted the objects laid down in these documents, we are satisfied that the charge has been made out in respect of the 11 persons with whom we dealt in the earlier part of our judgment.
11. With regard to the sentences which we are bound to inflict, we shall avail ourselves of the provision which is to be found in Section 121 A, which permits transportation to be awarded for periods shorter than those for which transportation is permitted in other cases. With regard to the prisoners Abani Bhushan Chuckerbutty, Aswini Kumar Bose, Kali Das Ghose, Nagendra Chandra Chandra, Sachindra Lal Mitra and Bidhu Bhusan Dey, we have come to the conclusion that these persons are the most deeply implicated and are the most prominent members of the conspiracy which we have had to investigate; At the same time the fact that they have not been shown to have carried out their operations to the length which has been disclosed in other cases of conspiracy: of a similar nature which have recently-been tried, justifies us, we think, in passing less severe sentences than the Court was bound to pass in other cases which have been brought before it. But at the same time, the sentences must be severe, and these persons must be removed from the scene of their criminal activity for a considerable period. The sentence which we pass on, Abani Bhushan Chuckerbutty, Bidhu Bhusan Dey, Aswini Kumar Bose, Nagehdra Chandra Chandra, Kali Das Ghose and Sachindra Lal Mitra is that they be each of them, transported for a period of seven years. In the case of Abani Bhushan that sentence will be concurrent with the sentence which he is at present suffering in respect of a dacoity carried out in pursuance of this conspiracy.
12. With regard to the next three persons, Nagendra Nath Sarkar, Sudhir Kumar De and Prio alias Kinu Pai, whom we consider as occupying less prominent positions in the conspiracy, the sentence which we award is that each of them be transported for a period of five years.
13. The next two men, Brajendra Kumar Dutta and Satish Chandra Chatterjee, who in our view occupied even a less important part in the conspiracy than the other persons to whom we have referred, but who were yet parties to the agreement which was come to, we direct that they be each transported for a period of three years.
14. The remaining two persons, Mohini Mohan Mitra and Manmatha Nath Mitra, are acquitted, and we direct that they be discharged.