1. These appeals are from the judgment of a Special Tribunal constituted under Government Order No. 13011-P dated 31st October 1935, which was made under the powers conferred by Sub-sections 1 and 2 of Section 4, Bengal Criminal Law Amendment Act, 1925. The tribunal was constituted with the following Commissioners : Mr. H.G.S. Bivar, I.C.S., District and Sessions Judge, Mr. K. C. Das Gupta, I.C.S., District and Sessions Judge, and Rai N.C. Bose, Bahadur, Deputy Magistrate and Deputy Collector, Bankura. The tribunal was set up for the trial of 31 persons whose names are set forth in the order itself and who were accused of offences specified in Schedule 1 of the Act we have mentioned. Mr. Bivar was appointed to be the President, of the Commissioners. The trial began on 16th November 1935 on a complaint which. was filed before the tribunal by the Deputy Superintendent of Police, Rai Saheb Kant Chandra Mookerjea. The complaint was marked as Ex. 1203 in the proceedings. The other necessary legal requisites for the trial of the accused were supplied by : (1) - Government Order authorizing Rai Saheb' Katni Chandra Mookerjee to file a petition; of complaint - Ex. 1204; (2) Government, Order authorizing a trial under the Explosives Act-Ex. 1207; and (3) District Magistrate's order authorizing a trial under the Arms Act - Ex. 1208. Of the 31 accused, named in the Government Order, 30 were produced before the tribunal on the opening, date. Accused 31, Sitanath De, was not present as at that time he was absconding. He was, however, arrested in the District, of Tripura on 3rd May 1935 while the trial was going on and on the basis of Government Order, which is Ex. 1209 of the proceedings, Sitanath was put on his trial. before the tribunal jointly with the other accused persons on 12th May 1936. The fact that Sitanath was not present on 8th May but was subsequently put into the, dock with the rest of the accused persons did not necessitate a de novo trial because Sitanath was given certified copies of the evidence which had already been given and so under Section 7-A, Bengal Criminal Law; Amendment Act, it was not necessary to commence the proceedings over again and. the trial proceeded as if Sitanath had been present from the very beginning. Certain witnesses were, however, recalled and further examined-in-chief and cross-examined.
2. It should be stated that before the commencement of the trial (as the Commissioners state) upon the application of the Public Prosecutor, the Court tendered pardon to two of the accused persons, viz. Santosh Kumar Sen and Bejoy Kristo Pal Chowdhury upon condition of their making a full disclosure of all the facts within; their knowledge. That was done under the. provisions of Section 337, Criminal P.C. And after the Public Prosecutor had made his opening address to the Court, these two persons were put into the witness-box and. they appear on the record as witnesses 1 and 2 called on behalf of the prosecution. After the examination and cross-examination of these two approvers as they had then become, certain other witnesses were examined on behalf of the prosecution and charges were afterwards framed against all the remaining 29 accused persons. These charges were framed on 3rd October 1936. The trial then proceeded and a large number of witnesses were called (502 in fact) and their evidence was finished by 4th December 1936. The next stage was, that on 5th December 1936, on 7th December 1936, 8th December 1936, and 9th December 1936, the statements of the accused were recorded. It is a significant but not an unusual feature in this case that none of the accused attempted to call any evidence on their own behalf. Arguments on behalf of the prosecution began on 9th December 1936 and went on until 3rd February 1937 and two days later, that is on 5th February 137 the arguments for the defence began and they went on for a whole month and finished ultimately on 6th March 1937. The judgment in this case, that is the judgment with which we are now concerned, was delivered on 27th April 1937. It is note, worthy that all the findings of the learned Commissioners were unanimous. We are now in the position of having to consider the evidence given in the case and the arguments put forward on behalf of the accused persons in order to determine whether the findings arrived at by the learned Commissioners and the verdict and sentences which they thought fit to give are correct.
3. It must be obvious to every one that in a matter of this kind the appeal turns, largely if not altogether, upon plain questions of fact. Therefore, the Appeal Court from the outset is at a great disadvantage as compared with the learned Commissioners who saw the witnesses in the witness-box, were in a position to observe their demeanour and to form an opinion as to their reliability and veracity from the manner in which they gave evidence and the way in which they answered and reacted to the questions put to them in cross-examination. We are in the position of having to give a decision on a perusal of the evidence recorded in cold print with however the assistance of the very able, cogent and complete arguments put forward by Mr. Dines Chandra Roy and the other learned advocates appearing on behalf of the appellants in this appeal. We have stated that this is largely, if not entirely, a matter which depends upon the view one takes on the questions of fact, but certain considerations of a legal character were raised before the tribunal and they have been canvassed again before us. Before dealing with those arguments, we must first of all refer to the charges which were made against these accused persons. A primary and principal charge was made against all the 29 accused persons who stood on their trial before the learned Commissioners and they were charged (it is perhaps convenient to use the exact words of the charge) thus:
That you between 1929 and 31st October 1935, at Titagarh, Police Station Titagarh, District 24 - Parganas, and other plades mentioned in Schedule A and other places unknown, along with Santosh Kumar Sen (P.W. 1) and other persons mentioned in Schedule B and others unknown, were parties to a criminal conspiracy to wage war against His Majesty the King-Emperor or to deprive His Majesty of the sovereignty of British India or of any part thereof or to overawe by means of criminal force or show of criminal force the Government of India or the Local Government, and thereby committed an offence punishable under Section 121-A, I.P.C.
4. To the charge were appended two Schedules A and B. Schedule A contains a list of the provinces and districts and the places in which the accused persons were said to have taken part in the conspiracy charged against them. Four provinces were referred to, namely, Bengal, Bihar, Assam and U.P. and in the Province of Bengal fifteen districts were referred to specifically and these districts were sub-divided into various places. Actually, as it appeared from the evidence in course of the trial we are concerned mainly with certain places in the district of 24 - Parganas. Schedule B contains a list of names of alleged co-conspirators and that list contains no less than 336 names. It is to be seen therefore that the conspiracy charged was said to be of a very wide spread character. Against the accused Shyam Benode Pal Chowdhury, who is described also as Suresh alias Pranad Kumar Roy alias Romesh Mazumdar alias Satis Bose alias Pronob of India, there was a further charge that he on 29th January 1935, at Goalpara, P.S. Tittagarh, had in his possession and under his control arms and ammunitions, to wit, the pistol and cartridges without having a license and thereby he committed an offence punishable under Section 19(f) read with Section 19-A, Arms Act (11 of 1878). There was a third charge and that was made against three of the accused persons, namely, Purnananda Das Gupta, otherwise known as Buroda, Shyam Benode Pal Choudhury with the aliases we have mentioned and Miss Parul Mukherjee also known as Nihar alias Santi alias Arati alias Sovarani Bose alias Bani alias Khuki alias Suroma Debi. This accused was a young girl who seems to have been carried away by the idea of adopting revolutionary methods for liberation of her country with the result that she served either as an inspiration or a comfort, or again more probably in a sense, as a cloak for the operations carried on by some of the other accused. The charges against these persons were (we use the exact words of the charge):
That you on or about 20th day of January 1935, at Goalpara, Police Station Titagarh, knowingly had in your possession and under your control explosives, to wit, Sulphuric Acid (Ex. CXXIX), Nitric Acid (Ex. CXXX), Toluene (Ex. CXX), Meta Nitraniline (Ex. CXVIII to Ex. CXVIII/3), Absolute Alcohol (Exs. CXIV to CXIV/2), Mercury (Ex. CXIX) Aluminium Chloride, Potassium Chlorate and Barium Nitrate (Exs. CXXIII to CXXIII/2), Sulphur Precipitatum (Ex. CXXI), Potassium Nitrate (Exs. CX to CX/3 and Ex. CXII) Charcoal (Ex. CXXII to CXXII/2), and other materials for making explosive substances under such circumstances as to give rise to a reasonable suspicion that you did not have these or any of these in your possession for a lawful object and under circumstances indicating that you intended that such explosive substances or any of them should be used for the commission of any offence and thereby committed an offence punishable under Section 5 read with Sections 5-A and 5-B, Explosive Substances Act (Act 6 of 1908).
5. The result of the trial was that 17 of the 29 accused persons were convicted and sentenced, as to two of them to terms of transportation and as to others to terms of varying periods of rigorous imprisonment with the exception of one Sudhansu Bimal Dutta who, on account of his age, was sentenced to three years' detention in a Borstal institution. All the persons, who were convicted, were convicted on the main charge and in addition, Purnananda Das Gupta was convicted under the Explosive Substances Act and Shyam Benode Pal Chaudhury under the Explosive Substances Act and also under the Arms Act. No separate sentence was passed upon them in respect of the secondary convictions if we may so describe them. The position at the end of the trial therefore was that there were 17 persons convicted. All of them have as a matter of course in a case of this kind appealed to this Court both against their convictions and sentences passed upon them. Before the appeal came on for hearing however, one of the appellants, Harendra Nath Munshi, died apparently as a result of his own ill-treatment of himself by going on hunger strike. Further at an early stage of the hearing of the appeals before us Mr. Dines Chandra Roy announced that he did not propose to press the appeal of the young lad Sudhansu Bimal Dutta having regard to the fact that the only sentence passed upon him was one of detention in a Borstal institution. There remain therefore for our consideration the cases of the other 15 convicted persons. The majority of them have been ably represented by Mr. Dines Chandra Roy. Of the others, Deba Prosad Banerjee was represented by Mr. Talukdar, Jagadish Chakrabutty by Mr. P.K. Roy, Bibhuti Bhusan Bhattacharjee by Mr. K.K. Chakravarty and Miss Parul Mukherjee by Mr. Jitendra Mohan Banerjee. If it is any consolation or comfort to the appellants to know this, we desire to say that everything that could possibly be urged on behalf of these appellants has been put forward by Mr. Dines Chandra Roy and the other leading advocates appearing for the accused in these appeals.
6. We proceed now to deal with such points of law as were raised and fully discussed before us. The first of them might conceivably have some weight in it. There were two significant aspects touching the point which was raised, namely (1) that it was raised chiefly on behalf of certain of the accused persons who escaped from jail or from custody while they were under trial in the substantial conspiracy case which is generally referred to as the Inter-Pro, vincial Conspiracy Case, the judgment in the appeal which has been printed in the record of the present proceedings and (2) that as regards one of the accused persons on whose behalf this particular point of law was taken, it had no substance in it because of the difference in the jurisdiction of the Courts before whom he had appeared. The point of law to which we are referring is the contention which was originally set up as regards six of the accused at the trial that the present charge of conspiracy under Section 121-A, I.P.C., was barred by reason of the provisions of Section 403, Criminal P.C. The accused on whose behalf this point was taken were Purnananda, Niranjan, Sitanath, Ajit Majumdar, Jiban Dhupi and Dinesh Bhattacharjee. Purnananda, Niranjan and Sitanath were not only tried in the Inter Provincial Conspiracy Case but they were convicted under Section 121-A, I.P.C., and sentenced. Ajit was tried and convicted by a Special Magistrate under Section 6(1), Bengal Criminal Law Amendment Act, and was sentenced to undergo five years' rigorous imprisonment. We are no longer concerned with him because in the present proceedings he was acquitted by the learned Commissioners. Jiban Dhupi was tried by a Special Magistrate at Faridpur under Section 36(a), Bengal Suppression of Terrorist Outrages Act. He was convicted by a Special Magistrate but on appeal the conviction was set aside and he was acquitted.
7. Now as regards Purnananda, Niranjan and Sitanath, the argument put forward was that as they had previously been tried and convicted on a charge of conspiracy to wage war against the King-Emperor, they could not now be tried on the same offence, particularly having regard to the fact that it was the prosecution case (so it was argued in the present instance) that the conspiracy now charged is connected' with the conspiracy for which the accused persons have been convicted in the Inter Provincial Conspiracy Case. It must have been conceded at the trial that if after the period for which these accused had been convicted in the previous trial, they agreed with a different and distinct set of persons to wage war against the King, that would undoubtedly be a different conspiracy for which they would be liable to be tried again and Section 403, Criminal P.C., could not be prayed in aid as a bar to the second proceeding. But the argument was put forward in the present appeal that when the accused persons had entered with some other person into a conspiracy and they had been tried in respect of that conspiracy, they could never be tried again for conspiring with the same person. It is to be observed in connexion with this argument that the prosecution case in the present proceedings was not that the conspiracy by Purnananda, Niranjan and Sitanath was with exactly the same set of persons with whom they have been charged and conspired in the previous case. No doubt many of the persons are the same, but there was a considerable addition to the list of the so-called co-conspirators. The learned Commissioners point out in discussing this point that the prosecution here definitely set out to prove that the conspiracy which a man named Probhat had organized at Barisal amongst other places was continued by the accused, Profulla, and other persons and that it was with respect to this conspiracy that Purnananda, Niranjan and Sitanath again started carrying on operations after they had escaped from custody. The learned! Commissioners pointed out:
That this is the prosecution case appears from the evidence of the approver, Santosh, where he speaks of the activities of Provat Chakrabarty and Jogesh Mazumdar at Barisal and also from the interpretation the prosecution wants to put on the mention of the name of Satya, Biren Bose and Jagadish Chakravarty in the cipher lists, Exs. 117 & and 1176 found in Provat's possession. The Inter-Provincial Conspiracy Case was with regard to this conspiracy formed by Provat Chakravarty with Purnananda Das Gupta, Niranjan Ghoshal and Sitanath De and others;
and then the learned Commissioners say that it is on these grounds that the defence counsel argues that the earlier trial was for the same conspiracy as the present trial. Now the learned Commissioners took the view and in our opinion quite rightly that:
The whole argument put forward by the defence counsel appears to be based on the assumption that if a man has once agreed with another to do an unlawful act, that agreement is for all time to come; and we cannot consider that if after having agreed for a certain time to do a thing, he is removed from the scene of action, thereafter he can agree afresh with the same men or other men to do the same unlawful act. This assumption is in our judgment entirely fallacious.
8. With that expression of opinion we entirely agree. It was conceded in the present trial quite frankly by Mr. Dinesh Chandra, Boy that the gist of the offence of conspiracy is the agreement of entering into the conspiracy. What Section 403 merely lays down, if it is a conspiracy matter to be considered is that a man cannot be tried again for; that particular entry into the conspiracy; for which he has already been tried. Section 403 does not say, and indeed it would be clearly disastrous if it did say, that for any fresh entry into the conspiracy he cannot be tried. As we pointed out in the course of the argument before us that if it were to be held that because a man has once been tried for participating in a particular conspiracy, he can never be tried again for participating in the same conspiracy; that would quite obviously mean that the effect of the trial and the sentence in such circumstances would be to confer an immunity; against any subsequent criminal proceeding, no matter how active and how vigorous the man might revert to be in connexion with the same conspiracy after he had undergone his sentence. To put the matter in another way, a conviction on a conspiracy charge would operate as conferring an unqualified license on the persons convicted to resume his nefarious activities in connexion with the same conspiracy and continue so doing for the rest of his life. The learned Commissioners put the matter thus:
The learned defence counsel who argued this point before us at considerable length has repeatedly told us that agreement is the gist of the offence of conspiracy. We agree that this is so; but what we are unable to accept is his contention that if a man has once agreed to do a thing in 1900, he cannot be considered to agree again to do the same thing ever afterwards.
Clearly, such fresh agreement would not be necessary if nothing had occurred to cut him off from the agreement, a journey abroad or incarceration in goal would however equally take him out of the conspiracy, even though the mental state of intention remained all along. After the return from abroad or after release or escape from jail, he may, in our opinion, as already indicated above, express a fresh agreement and if he does so, that will be a fresh participation in the conspiracy.
We think therefore that Section 403, Criminal P.C., is of no help to these three accused, with respect to a fresh agreement expressed by them to the objects of the conspiracy. They cannot be tried for their participation in the conspiracy up to December 1933, as they had already been tried for that. But for the period starting from the date of their escape from jail, the 31st July 1934 to the 31st October 1935, if they have entered the conspiracy afresh they are liable to be tried again. The prosecution does in fact allege such fresh agreement, and has sought to prove this, by facts and circumstances. Accordingly, we hold that these accused are liable to trial for their participation in the conspiracy, during the period indicated above. If no fresh agreement is proved they will be entitled to an acquittal. But this trial is not barred in itself while nothing done by the prisoners prior to their escape from jail can be used to substantiate the charge.
9. It seems to us that the learned Commissioners took an entirely sensible and correct view of the situation and so far as the position of Purnananda, Niranjan and Sitanath is concerned vis a vis the provisions of Section 403, Criminal P.C., the point taken on their behalf has no substance in it. Further, one may emphasize this aspect of the matter. The conspiracy charge in the present case was not wholly with the same persons : it was not said to have been in operation in precisely the same places as the conspiracy charge in the Inter Provincial Conspiracy Case and moreover, and this is a decisive factor in the matter although the charge in form covered the period from 1929 to very nearly the end of 1935, what was really charged against them, speaking now of these particular accused, was that they had re-participated in the conspiracy and taken an active part in it after the date on which they escaped from jail, that is to say the month of July 1934 up to the time of their arrest round about the beginning of 1935. We are not now concerned with Sitanath because he was one of the persons who were acquitted. We are concerned with Purnananda and Niranjan and we hold that there is nothing in this point of law so far as they are concerned. A similar point was raised at the trial on behalf of three other accused, viz. Ajit Mazumdar, Jiban Dhupi and Dhanesh Bhattacharjya. The argument put forward on their behalf was that their position brought them within the ambit of Part 2 of Section 403, Sub-section (1), Criminal P.C. Again, it may be stated that we are not concerned with the case of Ajit or Dhanesh, because they were acquitted by the Tribunal. As regards Jiban, as we have already stated, he was tried but was ultimately acquitted of an offence under Section 36(a), Bengal Suppression of Terrorist Outrages Act. He had been charged with being in possession of certain literature of a revolutionary character. But as the learned Commissioners point out, it is very difficult to see how it could be argued that an acquittal on a charge of that kind involves so to say an anticipatory acquittal on a charge of conspiracy to wage war against His Majesty.
10. The learned Commissioners point out that the true test of deciding whether a subsequent trial comes under Part 2 of Section 403, Sub-section (1) has been laid down in several cases decided by this Court and quite recently in the very matter of the Inter Provincial Conspiracy Case itself which is to be found reported under the title of Jitendra Nath v. Emperor : AIR1937Cal99 where this proposition was approved. Whether the acquittal or conviction from the first charge necessarily involves an acquittal or conviction on the second charge, that is the test to be applied. In the present instance however, as we have already indicated, there was a further difficulty in the way of a successful plea on behalf of Jiban Dhupi under Section 403. It is to be observed that the Section requires that the Court of the first instance should have been competent to try the charge put forward at the second trial. It is quite obvious in the present case that the Court of the Special Magistrate of Faridpore was not competent to try a charge of conspiracy under Section 121-A, I.P.C., and so in consequence Section 403 would have no application at all. Mr. Roy when dealing with the particular case of Jiban Dhupi invited us to hold that in some way or other the principle laid down in Section 403 could be extended and to give to Jiban Dhupi the benefit of the spirit underlying the provisions of that Section rather than to apply the clear and precise words of the Section itself. We are unable to take that view of the matter. We think the principles underlying the English Common law pleas of autrefois convict and autrefois acquit have been embodied so far as this country is concerned within the limits, however narrow they may be or have been stated to be, of the language of the statute itself. In our view, it would be bewildering and, indeed, might result in great injustice to the community at large were we to endeavour to stretch the language or extend the principles in the way we have been invited to do by Mr. Dinesh Ch. Roy. The summing up it this matter therefore is that we entirely agree with the learned Commissioners that the plea under Section 403, Criminal P.C., fails as regards all the three appellants whose case we have now considered, namely Purnananda Das Gupta, Niranjan Ghosal and Jiban Dhupi.
11. The next point of law, if it can be so described, is really more of a question of fact. But it was raised by Mr. Roy as being an argument applicable to most of the accused and was to the effect that even if the case for the prosecution is taken to have been established, the evidence was still insufficient and indeed the case of the prosecution was insufficient to establish a charge under Section 121-A, I.P.C. In other words, it was strenuously argued by Mr. Roy that even assuming the truth of the prosecution story, there was still not enough to entitle the Commissioners to come to the Conclusion that these accused persons or any of them had been guilty of conspiracy to wage war against His Majesty the King-Emperor; that is to say the facts proved would not warrant a conviction under the provisions of Section 121-A, I.P.C. Mr. Roy argued that the conviction under Section 121-A is bad, because there was no evidence or not sufficient evidence to indicate that even if there was a conspiracy, there was a conspiracy of the particular kind charged, namely a conspiracy to wage war against the King. Mr. Roy urged that the finding of the explosives, books and the other articles in the house at Titagarh did not necessarily indicate that the persons residing in the house were persons who had taken part in a conspiracy of the kind alleged against them. This matter is dealt with at some length by the learned Commissioners in what they have described at Ch. 13 of their judgment and the conclusion at which they arrived is stated in these words:
We are of opinion that the papers and things found at Titagarh, without any other circumstance, prove beyond reasonable doubt the existence of such a conspiracy to wage war against the King between Purnananda Das Gupta, Profulla Sen and the persons named as sources, supplying the names of suitable recruits in Exs. 297-301. As further facts illustrating the existence of this conspiracy, we may mention the close connexion established by evidence between the Belghoria House where we have found a number of young men were living in the last part of December 1934, and the activities at the Titagarh House. First of all, we should mention a letter in the handwriting of Purnananda Das Gupta, instructing one Kanu to engage a house and arrange a meeting at a place, cryptically referred to V3B.
12. Finally, in summing up their conclusions, the learned Commissioners at the end of the chapter say:
Furthermore, as discussed in Ch. 8, it is clear that the cipher list Ex. 115, found with Debaprosad Sen in Belghoria, was similar in nature to Exs. 291-301, found at Titagarh. The same inference as to the conspiracy may be drawn from them, as there could be no doubt about the connexions of the Belghoria Den and the Sukchar finds with the Titagarh conspiracy to wage war against the King. The question to be decided is, which of the accused, if any, are proved to have been members of this conspiracy.
13. Put quite shortly, the position was this. In the Titagarh house were found explosive materials, books on war and on revolution and also the remnants of torn fragments of what seems to have been intended to be a discourse or monograph on the uses of revolution. The Commissioners themselves point out the significance of the existence of such books as 'infantry Training', 'Field Gunnery' 'Machine Gunners Handbook', 'War Equipment' 'Aeroplane Construction' and so on as being indicative of the fact that the explosives which were being provided were not intended to be used for wrecking private vengeance on some enemies of Purnananda or any of these other people but must have been intended to be used for the purpose of something much more extensive and something much more of a public character, and the very nature of the books found were indicative of what the common object of the conspiracy really was. The learned Commissioners have discussed this matter at very great length and it is not necessary that we should say anything more about it except that we entirely endorse the conclusions at which the learned Commissioners have arrived and the reasons, considerations and deductions which induced them to come to those conclusions. As already stated, the question whether the evidence was sufficient to establish a charge of conspiracy laid under Section 121-A, I.P.C. was argued by Mr. Roy almost as if it were a point of law; whereas when one comes to look at the matter it seems quite manifest that actually it is much more a question of fact, because the solution of the question depends upon the view which the trial Court takes of the evidence adduced before it and of the inferences reasonably to be drawn from that evidence. What would be sufficient to show that there was a conspiracy to the mind of one man may not be sufficient to indicate a conspiracy to, the mind of another man and a concatenation or conjunction of circumstances may be sufficient to induce one tribunal to come to the conclusion that a number of conspirators had as their object the waging of war against His Majesty; whereas another tribunal might think that the facts and circumstances did not warrant any such conclusion. In the present case, we can only say that the learned Commissioners have beyond all question devoted an almost excessive care certainly all possible care and attention to the consideration of the facts proved before them and they have arrived at their conclusion. We say, without any hesitation that we think not only that the Commissioners were justified in coming to the conclusion they did on this particular point, but having regard to the evidence, they could rightly have come to no other conclusion.
14. Before saying something about the evidence as it bears on each of the individual accused, we should like to make one or two general observations with regard to the judgment as a whole. The learned Commissioners have produced a judgment which is not only careful and complete but is comprehensive in the highest degree and one which can, not unreasonably be described, we think, as voluminous. We make this observation for the purpose of enabling ourselves to say that no one who has read this judgment, and has heard the arguments put forward on behalf of the appellants in these appeals can, in our opinion, come to any other conclusion than that the Com-missioners have, in every respect, discharged their functions in a manner which is wholly satisfactory and, indeed, admirable. If one does permit oneself to make any sort-of criticizm at all, it can only be to the effect that these Commissioners have been over scrupulous and, we might almost say, unnecessarily careful to ensure that no single one of the 29 accused persons before them should be convicted by them except upon evidence in regard to which there could be no possible doubt whatever. We have heard in the course of the argument before us the 'normal' argument (we use the word 'normal' in preference to the word 'usual' because it has almost become a rule of law as regards defences in Criminal cases of this character), with regard to the evidence of 'approvers' and the necessity for corroboration of their evidence and of the evidence of persons who accurately or inaccurately may, in some way or other, be described as the 'accomplice witnesses.' It is a little difficult to understand what precisely, for the purpose of a lengthy argument of this kind, is the difference between the evidence of an approver and the evidence of the witnesses of the kind whom the learned Commissioners have characterized as 'accomplice witnesses.' The learned Commissioners have however made a differentiation in Ch. 14 of their judgment-which deals with 'approvers', and Ch. 15, which deals with accomplice witnesses. But whether that nicety of distinction is necessary or justifiable, to my mind, makes no difference at all for practical purposes, because whether a witness is stigmatized as an approver or as an accomplice, he is as regards the matter of corroboration on one and the same footing.
15. Mr. Roy in the usual fashion gave us the benefit of a lengthy argument upon the law applicable to the evidence of an accomplice and the necessity for corroboration, and we were treated to what may perhaps be described without any want of respect to the learned advocate as a stock and. somewhat jejune argument with regard' to corroboration. It was once more emphasized before us that the evidence of an. accomplice or an approver is tainted evidence and ought not to be accepted unless it is corroborated in some material particulars. We are told that the evidence given? by one accomplice witness cannot operate in corroboration of the evidence given by another. An attempt was made to re-agitate the whole question of 'corroboration.' Mr. Roy once more put before us a number of authorities dealing with this question. We need say no more than that we reiterate the views on this point expressed in the judgment in Nirmal Jiban Ghose v. Emperor : AIR1935Cal513 . We are of opinion that the propositions of law laid down by Sir Arthur Page in Aung Hla v. Emperor (1931) 18 A.I.R. Rang. 235 are sufficiently wide to cover the whole of the law dealing with the question of corroboration. In the present instance, the Commissioners in their obvious desire to err, if at all, on the side of caution have acted on the assumption not only that the evidence of an approver and the evidence of an accomplice require corroboration as a matter of precaution to put it no higher, but also that they ought not to accept the evidence of one accomplice witness which is only supported by the evidence of another accomplice and nothing more. The result of that course of action is that the question so far as there is any law about the matter entirely disappears. Taking it to be the law that an accomplice witness including an approver ought to be corroborated and that at any rate it is unsafe in ordinary cases to treat the evidence of one accomplice as (corroborating that of another. Assuming all that, it appears that the learned Commissioners acted strictly and scrupulously in conformity with those assumptions. We find accordingly that in no case is any one of the convictions based on tainted evidence with regard to which there was lacking corroboration. In other words, the Commissioners acquitted every one of the accused persons with regard to whom corroboration of accomplice evidence was not forthcoming. We find at the end of the general observations in the judgment at the end of Ch. 15, p. 363, this statement:
The evidence of the approver and the accomplice witnesses has been set out at rather great length in this judgment. This is to show how much the prosecution set out to prove by their evidence. It will be seen however, that in most cases, the corroboration of this evidence is very scanty, and it will also be seen in this and other chapters of the judgment that we have mostly been loath to rely upon this evidence and we have only done so, where there has been strong corroboration.
16. (Not only corroboration, but strong corroboration.) That was the principle laid down by the learned Commissioners for their own guidance and to at they have strictly adhered. Had it been otherwise, it would have been extremely difficult to-understand why so many of the 29 accused persons were in fact acquitted. An examination of the record seems to show that quite a number of the acquitted persons-were in all probability just as guilty as those of the accused who were, in fact, convicted. The comparatively high percentage of acquittals is plainly and obviously due to the rigid and conscientious manner in which the Commissioners applied the principle of no conviction without corroboration. We have listened with great care and attention and we hope with due patience to the arguments put forward in this appeal on behalf of the appellants. We have considered them, examined them carefully, almost microscopically for ourselves and we have considered the manner in which the learned Commissioners have dealt with that evidence as disclosed in their elaborate and comprehensive and altogether satisfactory judgment. The result-is that certainly as regards the majority of the cases with which we are now concerned, the canvassing of the matter by Mr. Roy and the other learned advocates has only served to bring into prominence the points-telling against the accused which make it abundantly clear that the verdicts of the Commissioners were correct. It is only as regards the case of one of the appellants that there could be any kind of hesitation whatever and that was the case of Jagadish Chandra Ghatak. We will say a word or two with regard to his case before we deal with the rest of the appellants. The learned Commissioners pointed out that the principal evidence against this accused was his own confession, that is to say the statement which he made before one of the Presidency Magistrates of Calcutta on 15th March 1934 and which is on the record as Ex. 44. This confession was retracted at the outset of the trial. Apparently, at the time when the accused were being called upon to make answer to the charges laid against them, Jagdish said in answer to a question put to him after the charge was explained:
I am innocent. The confession that I made before the Magistrate was not of my own accord. I was compelled to say what the police tutored me under their torture. I have told the Magistrate at Bank-shall Street Court that I wanted to 'retract the confession.' On that lie said that nothing could be done there.
17. Thus, the array of common form defences to be found in a case of this kind was complete, because here is one accused who makes a confession and then retracts it on the hackneyed ground that he was tortured by the police, we say the array of common form defences in appeals of this kind having in mind the observations of Sir George Rankin C.J. that 'no criminal defence in this country is complete without a retracted confession.' It seems tolerably clear that what really happened was that it must have been brought to his notice that he could not very well hope to be acquitted as long as there was a confession on the record. It seems that the confession was sufficiently wide or sufficiently explicit to implicate him in the particular conspiracy to which the charge related. The learned Commissioners obviously did not pay any serious attention to the somewhat threadbare and unconvincing allegations of torture by the police. The very phrase torture by the police' has been so often used on behalf of the defence in similar circumstances that any sting it might ever have had has long since departed from it and a scepticism is engineered something like that aroused by the frequent and false cry of alarm 'wolf, wolf.' This excuse of torture by the police is used so often without any justification time and again that it has become very difficult for any Court to pay serious attention to it and indeed no Court should pay any attention to it unless it is supported by evidence. In the present case there is not a scintilla of evidence that Jagadish was improperly treated by the police and consequently the Commissioners said that:
We cannot brush aside the statement merely because the accused now says that what he stated then was not true.
18. Then they proceeded to say very properly:
Nor we convict him on the basis of the confession unless we are satisfied of its truth as regards himself by corroboration from independent evidence in material particulars.
19. That was, of course, because it was a (retracted confession. If a confession is made land is not withdrawn, that may furnish the strongest possible evidence of guilt of an accused, because unless there is something to raise a different inference what a man says about his own actions and his own intentions, must be even more potent evidence against him than what others may say as to that man's intentions. Therefore, normally a confession of guilt is the most conclusive evidence which one can have. But if that confession is 'retracted', to use the word which has almost become a word of art, then it is certainly desirable, if not absolutely necessary, that there should be some corroboration of what the accused has said about himself even in respect of his own actions. But, as the Commissioners pointed out, an accused person cannot get rid of a statement merely by saying that he retracts it. He cannot get rid of it by saying that he withdraws it.
20. Now let us deal with the point on the question as to whether there was really a confession, namely whether there was a statement designed to implicate the man who made it in the particular conspiracy which was charged against him. In the course of the statement which is to be found in Vol. 3, Part 1, p. 128 of the paper-book, Jagadish sets out the history of his connexion with a person who was afterwards accused or at any rate, alleged to be a conspirator in the particular conspiracy with which we are concerned. In the course of his statement, Jagadish said that he originally came to Calcutta to No. 127, Amherst Street, and he began the work of picture framing at the studio of one Nihar Babu. While he was there he was approached by a man named Nagen who seems to have started with the usual technique of revolutionary organizers by suggesting that the person approached (in this case Jagadish) ought to go in for physical exercises and start serious reading. Subsequently Jagadish shifted his lodging to Mechuabazar Street along with Nihar Babu and while they were there, the other man Nagen gave him a sealed envelope and asked him to keep it until it was wanted. Later on, [When the house was searched this envelope was found in a suit case belonging to Jagadish with the result that he was arrested and Nagen was also arrested. It is true that Jagadish stated that he did not know the contents of the envelope but it seems only reasonable to suppose that he must have suspected that the information contained in it was something in connexion with some unlawful activities. The statement also sets out how he went to various places one of them occupied by Makhan, an accused in the case, and another man Kanai. It seems obvious from this statement that Jagadish was associated with and was assisting in domestic matters, a number of young men who were said to be participators in the conspiracy. The statement concludes thus:
When I first came to Calcutta some two years ago, Nagen told me that the name of our party was 'Anushilan Samity' and our object was 'freedom'.
21. It is to be noted that it is not the case of the prosecution here that the conspiracy charged was co-extensive with the organization of the 'Anushilan Samity'. No doubt a considerable number of those designated as the co-conspirators were members of that (body; but, it does not necessarily follow that because Jagadish said that the name of our party', that is to say the party to which he attached himself, was the Anushilan Samity, that he was actually participating in the particular conspiracy which was the subject-matter of the charge, and therefore taken by itself, the confession even if it had not been retracted, might not have been sufficient to justify the conviction of this particular accused. But there was other evidence given in the case which the Commissioners treated, and, in our opinion rightly, as affording not only corroboration of the confession but as going much further and so putting of this accused beyond all reasonable doubt. The Commissioners in dealing with the effect and the scope of the confession said this:
While in the confession he has not said directly in so many words that he joined this Samity, he bas mentioned the Samity as Anushilan Samity and has mentioned a number of acts done at the instance of Nagen and others, whom he came to know through Nagen, which if believed, would leave no manner of doubt of his having joined the Samity.
22. It is not very clear whether the Commissioners were using the word 'Samity' as being strictly limited to ' Anushilan Samity' or whether they were using it a little more loosely as meaning 'The Revolutionary Organization'. Then they set out the acts which were mentioned by Jagadish in his statement:
(1) At the request of Nagen, he kept a closed envelope at 42 Machua Bazar Street, where he was living with Nihar Babu, and this was seized by the police, inside a suit case.
(2) As instructed by Nagen, he went to Scottish Churches College, and made the acquaintance of one Kartick, who asked him to see him again after the Puja holidays; and when he went there again he met another person, who took him some days later to a house at Belgharia, where he saw many young men and also two bearded gentlemen who used to come there.
23. This is significant because it appears from the evidence given by the approver that Ptirnananda was there as well as another of the other accused, namely Ajit, who was supposed to have grown his beard for the purpose of accentuating the superficial resemblance between himself and Purnananda and so make it more difficult for any witness to identify the one or other of them. The importance of this particular statement, apart from this aspect of the matter is that Jagadish says that he went to the house at Belgharia and he was in fact shadowed by the police to within a short distance from the Belgharia house. Evidence to that effect was given by a witness of the name of Sunil Kumar Bose who is an Assistant Inspector of Police. He said:
On 24th December 1934 I was on watch duty at the Dakhineswar Bus Stand with Assistant Sub-Inspector Arabindo Mozumdar of the Special Branch from 5 P.M. Then Assistant Sub-Inspectors Janaki and Dwijen came there by bus; in the same bus arrived suspect Jagadish Ghatak. Cha alighting from the bus Jagadish Ghatak went near a lake, after taking a road to the north which turned east. We followed Jagadish up to the lake and after a while another boy with a cloth round his face came to meet Jagadish. Jagadish and this youth had a talk but we could hot hear what they said. After going along the railway line together for a short distance Jagadish came back but Jagadish's companion went to a brick built house in Belgharia.
24. But the most potent piece of evidence which was given against this particular accused and which, in our opinion, clinches the whole matter, is the evidence of the Homoeopathic, Medical Practitioner, Prohlad Saha, P.W. 207, who said:
In Falgoon 1341 Profulla De was tenant of room No. 15. I don't remember if he came alone or accompanied by anyone else. He used to pay Rs. 4-8-0 a month for room No. 15. On the day he came he paid me Rs. 3 and agreed to take the room. He occupied the room on 9th Falgoon that very day.
25. Then he said:
I granted two receipts on 14th Palgoon. The printed receipt was for 9th to end of Falgoon. The kutcha receipt was for the advance of next month which would be taken into account when rent for the next month was paid. The receipts are Exs. 1007 and 1008. The tenant left without notice.
26. And then he made a dramatic identification by saying:
This man is Profulla Kumar De (identified Jagadish Ghatak from among the accused in Court).
27. He identified Jagadish from among over a score of persons who were then in the dock, fie picked out Jagadish as the man who rented the house and whom he knew as Prafulla. As regards the evidence of this witness the Commissioners said that they had no reason to disbelieve him. The result the Commissioners arrived at as stated by them was,
with the truth of the story of his principal acts mentioned in the confession established we think it proper that the implication in the confession that he did all this for the Samity of which Nagen spoke to him should be accepted as true.
28. The Commissioners no doubt seem to have assumed that to a large extent the Samity was the same as the conspiracy. Whether that is so or not, in our opinion although if taken by itself the mere association of Jagadish with members of the conspiracy at various places and his functioning at those places in a semi-domestic character might not necessarily be sufficient to put the matter beyond all reasonable doubt, the evidence given at the trial, and in particular the evidence of the witness from whom the room was rented affords ample proof of guilt. In any case it seems a little difficult to imagine that it would be possible for this man to have been an associate with the other conspirators over a period of six months or more and it is almost inconceivable that he could have done what he did in combination with some of the conspirators without knowing full well the nature and objects of the conspiracy. When one takes the evidence to which we have referred, there is no doubt whatever that this man was rightly convicted. With regard to the cases of the rest of the accused persons we do not think it necessary to go into any detail. It is, we think, sufficient to point out that the learned Commissioners have taken the case of each individual accused one by one and have carefully related and tabulated those pieces of evidence given by the different witnesses in the course of the trial as they told against each of the several accused. We need only say that we have been taken through the evidence and we have considered in detail each of the episodes, circumstances and facts on which the learned Commissioners relied as establishing the guilt of the accused taken severally and individually, and one by one, and we are in complete accord with the views expressed by the learned Commissioners and the conclusions at which they arrived.
29. As regards the three accused, namely Purnananda, Shyam Benode and Parul the evidence seems to be not only conclusive but overwhelming, and concerning these three accused, there is, in our opinion, more than sufficient evidence to justify the conviction of them, apart altogether from any evidence given by the approver. The learned Commissioners, as regards Purnananda, have stated that they were clearly of opinion on a consideration of the circumstances that he rejoined the conspiracy and re-assumed the position of a leader of the conspiracy during the period he was living, at the Titagarh house. So the charge of conspiracy under Section 121-A is complete. Then there was the other charge under Section 5 read with Sections 5-A and 5-B, Explosive Substances Act. It was found that the explosive substances were found in the house where-Purnananda was living and that they were-in his possession. The learned Commissioners have also found from the circumstances that these explosives were procured, and were intended for the purpose of waging, war against the King. They hold that the circumstances under which Purnananda. had been found in possession of these things-were such as to warrant a conviction under Section 5-A, Explosive Substances Act. We mention Purnananda or rather we single him out as for special mention, because he was one of the persons who were convicted on one of the secondary charges. For the same-reason, we would refer to the case of Syam Benode Pal Chaudhury. With regard to him, the learned Commissioners said that; the circumstances proved against him were these:
(1) He engaged rooms in the house at Khardah Jeliapara, and lived there with Purnananda Das Gupta, Sitanath De and Prafulla Sen (Chap. 11).
(2) Under the assumed named of Satish Bose of Patna, he engaged the Titagarh house, and lived there with Purnananda Das Gupta and Parul Mukherjee (Chapter 7).
(3) When the police came to raid the house, he got on the top of the house with Purnananda Das. Gupta and after throwing away the pistol Ex. 6, followed Purnananda, when the latter jumped into, the courtyard of Jotin Sarkar's house, and by dragging from behind P.W. 99 who had caught, hold of Purnananda, tried to help the latter to escape.
30. The Commissioners said that they found it proved that the Titagarh house was the headquarters of the conspiracy and there the sinews of war and the explosives were found and they said that it was a reasonable deduction from the circumstance of Syam Benode living in the house and helping Purnananda to escape that he was an active partner of Purnananda in the conspiracy.
It is to be noted that Purnananda himself was not even known to the landlord, it was Syam Benode in the name Satish Bose, who was the tenant and who paid the rent to him. It is not possible to hold for a moment that Shyam Benode might have been doing all this, without having agreed to the purpose for which the explosives were collected.
31. Those observations of the learned Commissioners really dispose of the argument put forward by Mr. Roy to the effect that he might have had explosives in his house and he might have books on revolution and yet he not have been a conspirator. No doubt the house at Titagarh was the general headquarters of the conspiracy. Whether or not Purnananda lived there for the whole time or whether or not Shyam Benode was there all the time makes no difference as they undoubtedly used it as the heart and centre of the conspiracy during the time it was occupied by Parul. The Commissioners finally said this:
We find it proved quite apart from the testimony of the approver Bejoy and the accomplice witnesses as regards his previous activities, that Shyam Benode during his residence at the Titagarh house was an active member of the conspiracy. We have found it proved that when from the top of the house, he threw away the pistol, Ex. 6, it is not his case that he had any license for this firearm. Evidence is given by P.Ws. 323, 442 and 443 the Gun License Clerks that neither Shyam Benode nor Purnananda nor Parul, had any license for any firearm in the Districts of 24-Parganas, Dacca or Calcutta. We hold therefore that he was in possession of the pistol without any license and thus clearly committed an offence under Section 19-(f), Arms Act. As regards the charge against him under Section 5 read with Section S-A and Section 5-B, Explosives Act, we think that while, as we have already said, Purnananda was certainly in possession of these, Shyam Benode who, we find from the circumstances, took part in bringing these to the house, should also be considered to be in possession of these jointly with Purnananda. We have also found from the circumstances that these explosives were brought and kept in furtherance of the conspiracy to wage war against the King.
32. The Commissioners accordingly found Shyam Benode guilty under Sees. 5-A and 5-B, Explosive Substances Act. The evidence against the girl Parul was also overwhelming. The items on which the Commissioners acted are set out on p. 373 of the paper-book and they show that there was quite enough evidence to demonstrate beyond all doubt whatever that she was an active member of the conspiracy. We do not think it necessary to recapitulate in detail the evidence which related to the other accused individually. It is clearly and admirably set out in the judgment. All we need add is that we have considered this matter with the utmost care and we are satisfied beyond all questions whatever that the decisions arrived at by the learned Commissioners as regards each and every one of the accused persons was correct and therefore these appeals must be dismissed. Mr. Dinesh Chandra Roy and other learned advocates as a last resort in each case invited us to reconsider the question of the sentences which the learned Commissioners thought fit to inflict upon the accused who were convicted. We have considered them and discussed them in detail and we have on a careful review of the whole case, come to the conclusion that there is no reason why we should interfere with any of the sentences which the learned Commissioners in the exercise of their discretion have passed on each and every one of the accused.