1. These are the appeals of of two persons Gour Chandra Das and Satish Chandra Dang. The two appellants were tried by a Special Tribunal appointed under Bengal Criminal Law Amendment Act, 1925 on charges under Section 120-B, I.P.C. of conspiring to commit offences punishable under Section 4-B and Section 5, Explosive Substances Act and also under Section 19-F, Indian Arms Act and also on substantive charges under the same sections and were sentenced to various terms of imprisonment on these charges.
2. The facts of the case are briefly these: the police in consequence of certain information received searched the house of Gour Chandra Das at 191, Babudanga Eoad on the early morning on 27th August when certain articles which the prosecution contend were bombs and pistols were discovered. Gour Chandra made a statement as the result of which the house of Satish Chandra Dang at 15, Kaldanga lane was also searched and Satish Chandra Dang was arrested. Satish also made certain statements. The result was that the two persons were put upon their trial as stated above. Gour Chandra pleaded not guilty to a conspiracy to commit offences punishable under Section 4-B, Section 5, Explosive Substances Act and under Section 19-F, Arms Act, and pleaded guilty to the other charges. Satish pleaded not guilty to all the charges.
3. The main evidence which may be considered as practically the whole evidence in the case is the statements of the two accused persons and also the finding of the articles in Gour Chandra's house.
4. The first point that has been taken is that the trial was bad for misjoinder, at any rate so far as regards the substantive charge of being in possession of explosive articles and being in possession of the pistol. The case on this point is that Satis was in possession of the articles in his own house during April while Gour Chandra was in possession of the same articles at a different place and at a different time. Hence the offences were separate and could not be tried together. The short answer to this contention is that it would appear on a consideration of the whole case that the prosecution case was that the possession of these articles at different places at different times by different persons formed part of the same transaction.
5. The next point that has been urged on behalf of Satish is that the charge as to the possession of bombs in both cases viz., the case against himself and also Gour Chandra related to the same bombs and that Satish understood that he was charged with being in possession of the bombs and pistol which were found in possession of Gour. It has been contended that there is nothing to show and that the prosecution have failed to prove that the bomb or bombs kept by Satish were the same bombs as were found with Gour. It has been contended on behalf of Satish that he was not charged with being in possession of bombs generally but of those specific bombs. I think it is quite clear, if I understand the Crown rightly, and it was not seriously contended that it was not the case of the Crown in the trial Court that Satish had been in possession of the identically same bombs that were found in the possession of Gour. This, I think, is quite clear from the fact that Satish was charged with being in possession of 11 bombs. Now it was the case for the Grown that 11 bombs were found in possession of Gour Chandra. Satish himself in his statement merely states that he was in possession of bomb without giving any number. It is then argued that the only evidence to show that they were the same bombs is the confession of Gour who stated that he had received the bombs found in his possession from Satish. The question then remains as to whether the confession of Gour can be used against Satish so far as the charges of being in possession of bombs and pistol are concerned. So far as the charges against Satish of being in possession of bombs and pistol are concerned Satish was no doubt being tried jointly with Gour Chandra on other charges. But Gour was not being tried on a charge of being in possession of explosives and arms at Kaldanga lane between April and May. Only Satish was being tried on those particucular charges. So far therefore as the charges against Satish under heads 2, 3 and 4 are concerned Gour and Satish were not being tried jointly for the same offence. The expression 'same offence' in Section 30, Evidence Act means, in my opinion, the identical offence and does not mean an offence of the same kind. If the legislature had intended the section to cover different offences in the same transaction by different persons it would have said so. The illustration to Section 30 which was added in 1891 makes the meaning of the section quite clear in my mind. The charges under headings 2, 3 and 4 related to the articles found in the house of Gour. There is no evidence to show that they were in the possession of Satish if the confession of Gour is excluded. Satish therefore must be acquitted on charges 2, 3 and 4.
6. It has further been urged that Gour's confession is not a confession but only a self-exculpatory statement and so not admissible and cannot be taken into consideration as against Satish. It is, I think, sufficient to read the statement of Gour to dispose of this objection. It is quite clear from a perusal of Gour's statement that he implicates himself equally with Satish.
7. It has next been argued that Gour retracted his confession and, therefore, it cannot be taken into consideration against his co-accused Satish. I am not aware that the Evidence Act makes any distinction whatever between a retracted or unretracted confession. Both are equally admissible and may be taken into consideration against the accused though it may be that less weight would be attached to a retracted confession. This, however, is not a question of admissibility but a question of weight to be attached to the confession which will depend to a great extent on the confession itself and the intrinsic evidence which may or may not be found in the confession showing that it was genuine.
8. Then it has been argued that Gour pleaded guilty to charges 2, 3 and 4 and so far as they were concerned he was no longer being tried jointly with the accused Satish. No doubt it is correct to say that Gour was not being tried jointly with Satish on those three charges. The point is not, however, of any importance, because I have already held so far as regards charges 2, 3 and 4 against Satish, the confession was inadmissible and Satish has been acquitted on these charges. But Gour pleaded not guilty to the charges of conspiracy to commit offences under Section 4-B and Section 5, Explosive Substances Act, and Section 19-F, Arms Act, and on this charge he was being tried jointly with Satish. As it was the same offence the confession of Satish was admissible against Gour and that of Gour against Satish and could be taken into consideration so far as this charge is concerned.
9. I now have to consider whether the-charge of conspiracy to commit the offences has been proved against the appellants. The evidence against these two appellants is their two confessions and the finding of an article in Gour's house. I see no reason to think that these confessions were not genuine and voluntary looking at the circumstances and the confessions themselves. There is internal evidence in the confession of Satish as has been pointed out by the learned Commissioners to show that it was his own untutored statement. It is suggested that it was a tutored confession put into his mouth by the police. In his confession we find these statements I did not do the moulding' and 'I do not know the work of moulding.' As the learned Commissioners have pointed out, had this confession been a tutored one it is unlikely that we should find those two statements in it. After a careful consideration of the evidence I am of opinion that the confessions of both these appellants are genuine and voluntary.
10. The question that now remains is whether these two confessions and the finding of bombs and pistols in the house of Gour are sufficient to establish that there was a conspiracy between these two persons. As has been pointed out in numerous cases direct evidence of conspiracy will seldom be forthcoming and it is necessary to look at the circumstances to see whether the conspiracy actually existed. Satish on his own statement kept the bomb, pistol and cotton wool for some three months in his possession and then for fear of the police made them over to Gour. If he was not keeping the bomb and pistol for some unlawful purpose where was the fear of the police. Then it will be found he made these things over to Gour. Surely Gour must have asked why he was making over these things to him. That is a fact that requires some explanation. Neither Gour nor Satish would seem to suggest in either of their statements that the bombs and pistols were to be used for any innocent purpose. Nor has it been suggested to us that the bombs could be used for any innocent purpose. Even if Gour knew nothing about the possession of these things by Satish before they were made over to him I think it is quite clear that from the moment that these things were made over by Satish to Gour there was an agreement between these two persons to keep the bombs, pistol and gun cotton and to keep them for the purposes described in Sub-section 4 (b), Explosive Substances Act, namely, with intent either themselves to endanger or to enable other persons by means of them to endanger life. I am therefore of opinion that the charge under Section 120-B, I.P.C. has been cleary brought home to both the appellants.
11. With regard to charges 2, 3 and 4 against Gour he pleaded guilty and it has not been shown that he did not understand what he was doing. Gour is a. person of education and not merely an ignorant or illiterate person. So far as Satish is concerned he is acquitted on charges 2, 3 and 4. But his conviction and also that of Gour under Section 120-B, I. P.C. and the sentence passed against both the appellants under that section must stand.
12. We have been addressed on the question of sentence. The sentence, no doubt, is a heavy one, possibly these young men were dupes of some other persons who have kept themselves in the back ground. Bu the offence is a most serious one and in view of the extremely serious nature of the offence we are not prepared to interefere with the sentence.
13. With the modification stated above in Appeal No. 823 both the appeals are dismissed.
14. I agree generally with the conclusion to which my learned brother has come. I should have thought that a charge of being in possession of 11 bombs on a particular date would have been sufficiently proved if evidence were given of less than 11 bombs being in the possession of the accused irrespective of the course which the prosecution took. I do not, however, think it necessary to disagree upon this point.