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Ambica Charan Roy and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1931Cal696
AppellantAmbica Charan Roy and ors.
- rankin, c.j. 1. in these four appeals, sight appellants are before us, and they wore tried, with two other accused persons who have been acquitted, by a special tribunal appointed under the bengal criminal law amendment act (supplementary), 1925. the trial took place in november last and apart from certain connected charges to which i will refer as necessary the main charge against all the appellants was a charge of conspiracy. the charge was that at various places mentioned they were parties to a conspiracy to make and possess explosive substance, to collect arms and ammunition, and to kill europeans and police officers; in other words, it was a charge of conspiracy which embraced offences under the explosive substances act, the arms act and the indian penal code, section 302. the time.....

Rankin, C.J.

1. In these four appeals, sight appellants are before us, and they wore tried, with two other accused persons who have been acquitted, by a Special Tribunal appointed under the Bengal Criminal Law Amendment Act (Supplementary), 1925. The trial took place in November last and apart from certain connected charges to which I will refer as necessary the main charge against all the appellants was a charge of conspiracy. The charge was that at various places mentioned they were parties to a conspiracy to make and possess explosive substance, to collect arms and ammunition, and to kill Europeans and police officers; in other words, it was a charge of conspiracy which embraced offences under the Explosive Substances Act, the Arms Act and the Indian Penal Code, Section 302. The time during which the conspiracy wag alleged in the charge to have subsisted was between December 1929 and October 1930.

2. I propose to begin by stating what, according to the case for the Crown, is the direct and substantive evidence against the appellants. First of all, the evidence for the Grown is that, in June 1930, the accused Bhupal, acting with one Rajani, went to the witness Niladri and, after various negotiations, gave orders for the making of what we now know to be aluminium bomb shells properly serrated so as to spread when the high explosive should take effect. These orders ware given calling the shells ''pipe pinions' and they were ordered on the footing that the articles were pipe pinions required in connexion with char-kas. Niladri's evidence is that 70 of these bomb shells of a smaller size and 18 or 19 of a large size were delivered between the end of June and the middle of July, some of the deliveries being to Bhupal and some to Rajani. The second thing which the prosecution claims to have established by direct evidence is that, on 6th September 1930, the accused Narain who had been arrested on 25th August, and whose laboratory and house had been searched on that day without any important consequences, took certain police officers to his house, No. 7 Kai-lash Bose Street and, there produced two test-tubes, certain bundles of glass tubes shaped in the form of the letter U, a copy of Cohen's Inorganic Chemistry and certain other articles. The prosecution evidence is that, out of the considerable number of U-tubes found, there were two which upon subsequent examination turned out to contain traces or small particles of fulminate of mercury and small pieces of cotton treated chemically so as to be in fact gun-cotton. This the prosecution claims to have established by the direct evidence of the police, of the search witnesses, of the Inspector of Explosives and of the Chemical Examiner's report. The third item is that on 10th September in the house at No. 8, Lal Madhab Mukherji Lane in the occupation of the accused Surendra Nath Dutt, the police on making a raid there seized a suit case which contained bombs, gun-cotton, fuses, five '38 revolver cartridges and five cartridges of the calibre '320 of Belgian make and having certain marks. They also at that time and place seized plans of various power stations in Calcutta. The fourth item is that on 10th September at 12-30 p. m. the accused Rohini Kanta Adhikari was arrested as he was entering No. 8, Lal Madhab Mukherji Lane, with a bundle wrapped ap in a gamcha and, on his being taken to the thana and searched, the gamcha was found to contain eight empty bomb sheila covered with some vegetable puisag so as to conceal them. The fifth item is that on that very day at 8-15 p.m. the accused Jyotish Chandra Bhowmick was arrested as he was entering this same house, No. 8 Lal Madhab Mukherji Lane, and when he was taken to the thana a Belgian cartridge of the same make as the '320 cartridges found in the suit case was taken from his person being tucked up in his kocha. The sixth item which the prosecution claims to have proved by direct evidence is that, on 14th September, the accused Surendra, took the police to his house, No. 8 Lal Madhab Mukherji Lane and pointed out to them one of several tin canisters under a wooden shelf on the ground floor. Some of these canisters were empty, while the others were full of scented oil, but one canister which was pointed out by Surendra to the police was found to contain four live bombs wrapped up in paper. It may here be observed that at this time neither Sitangshu nor Brojo, the approvers, had come on the scene. Sitangshu was not arrested until 1st October and Brojo was not arrested till 24th October.

3. The first thing which has to be considered is whether the facts which I have narrated have been established by the prosecution. As regards the find of the U-tubes, the case for the defence is that XT-tubes in themselves are not suspicious articles to be found in the house of a doctor who conducts business at a laboratory; and a good deal turns upon the two tubes which are alleged to have been found with traces of fulminate of mercury and small pieces of gun-cotton. Mr. Chaudhury for the accused Narain has contended before us that, as the search list contains a column for 'remarks,' and as it is stated that each of the articles seized was spread out and examined at the time, the fact that there is no note-about traces of fulminate of mercury or small pieces of cotton is a fact which ought to make us reasonably certain that no such traces appeared in any of the U-tubes that were at that time found. I may here say that a number of U-tubes was contained in bundles-there was a bundle of 32, another of 31, in another there were 20-and it is said, largely upon the absence of any note of anything special in these two tubes, that the proper inference is that the traces of fulminate of mercury and gun cotton powder have really been 'planted' by the police. There is, of course, no evidence of anything of the sort; but, in order to examine into this question, which is of some importance, it is very necessary to consider the conduct of the accused Narain at or about the time.

4. Narain had been arrested on 25th August. On 6th September when he took the police to his house and pointed out these U-tubes and the other articles, he was clearly for one reason or another, as Mr. Chaudhury puts it, of a confessing mind. We know that on 6th September the police set a watch on No. 8 Lal Madhab Mukherji Lane and we know further that on the same day Narain was produced before the Chief Presidency Magistrate. He was produced again before the Chief Presidency Magistrate on the 8th and, on that day, he was taken to the house of an Honorary Presidency Magistrate Mr. A. T. Ghose, where he made a statement. That statement is a confession in the fullest sense of the word being a detailed and circumstantial narrative to the effect that he had taken part in a conspiracy to manufacture bombs and with the object alleged. He gives a history to some extent of his political opinion and activities and says that his decision to take part in preparing explosives for political objects was come to about November 1929. Ha tells a story as to how he started purchasing chemicals in February 1930 and how in April 1930 he met the accused Rasik Lal Das; and he goes on to say how in the middle of May and at the end of May he took part in the manufacture of high explosives with which bomb-shells are prepared. He says that shells numbering two dozen were brought to his house, that he filled them with the assistance of Gobinda, that they were carried to No. 7 Bhim Ghose Lane by the accused Ambica, that another instalment was filled at the place of the accused Adwaita and that in this way a dozen shells were prepared. Ha further says-and this is important-that about the first week of August 1930 ha was given the address of No. 8 Lal Madhab Mukerji Lane, that he went there with Amatol and ready filled U-tubes and that he found there one dozen empty aluminium shells which he filled, and so on. Now, the confession goes on this way:

These properties which I am showing you now were produced by me to the police on 6th September 1930 at 7, Kailas Boss Street.

5. Then follows a numbered list of the properties referred to. No. (3) is this:

U-tubes three bundles produced by the accused. In one of these bundles, one tube showed trace of burnt fulminate of mercury and another tube showed a cotton plug at the base of the U-tube.

6. Mr. Chaudhuri for Narain says that this means that the Magistrate inspecting these bundles of U-tubes was in this passage taking upon himself not to record anything stated by the accused but to give his own opinion or information that the particles in one tuba wore burnt fulmiuata of mercury and he contends that the confession is not recorded verbatim, e. g., 'the accused says that in one of these bundles'' and so forth. Now, it is necessary before considering this important point to take notice of the statement of Narain on the occasion of his trial. On that occasion, Narain reputes the whole of his confession. Ha says that Inspector Moni Bose asked to make a confession and promised make him a witness, that ha did this two or three days; that failing the accused was taken to an empty house behind the special branch office where the Inspector with some constables began to assault him and that the assault lasted from midday until evening. Ha says that they handcuffed him and then made him get up and down, that this ill treatment went on until he nearly fainted and that ha was given a few more kicks and a few pinches. He then says that on that night and the next day he was kept without food and, drink and was promised food and drink if he would go to his house and produce test tubes and such chemicals as were bound to be found in a doctor's house; and in that way he explains how it is that when he was taken to his house he there produced the articles described in the second search list He does not dispute that he Produced them. He says that the assault of winch he speaks was some two days before the 6th, that is to say, : about 4th September. He goes on further to say that after going back from his house he was given a drink, that he was told that he must make a statement before a Magistrate, that he refused to make a statement before a Magistrate but that on the morning of the 8th he could not bear being starved any longer and agreed to go before a Magistrate. He says that he told the magistrate that he had been starving all the day and the day before. He says that he dictated his statement from a written document which had been prepared from the dictation of the Inspector. He further says that he was given two U-tubes with special marks, but he is quite sure that these two U-tubes ware not captured at his house and that he told the magistrate that the police had assaulted him.

7. We have as against Narain to consider whether upon this evidence, and taking into consideration this explanation we are satisfied that he did go to his house produced these bundles of U-tubes as being materials concerned in the conspiracy which he was confessing and, in particular, that the two tubes with the traces to which I have referred were brought out by him from his house and were confessed to before the magistrate. The Magistrate has been called. The confession itself purports to show that at 12.30 p.m. the Magistrate after asking whether the accused was prepared to confess voluntarily told him that he was not bound to confess and gave him three hours time to think the matter over be-lore he recorded the statement He did not begin to record the statement till 3-30 p.m. The confession further purports to show that the accused endorsed it. It is recorded by the accused 'I read over my whole statement which is correct; and there is also this statement over the signature of the magistrate

read over the whole statement to the accused who admitted it to be correct;

and, in the Magistrate's reasons recorded for believing that the confession was voluntary, he states this:

The accused made the statement in English and I recorded it verbatim. The accused read over each page himself and signed it. I also read over to him each page of the confession which he admitted to be correct. Last of all, the accused read over the whole statement himself and I also read over the whole statement which he admitted to be correct.

8. Now, the Magistrate in his evidence has explained that the accused himself wrote on it that it was correct after reading it over and in cross-examination he says that the accused was in his private chamber from noon to 3-30 p.m.

He says:

I was also there, but no one else. I was reading a book and had no talk with him except to give him some refreshments he asked for.

9. He ascertained from the accused that he had been kept in the Bhowanipur thana since the time of his arrest. He says that he asked the accused to open his coat to see if he had any marks of injury and the accused said that he had none and so he did not open his coat. The Magistrate states that Inspector Bose gave him a cover containing some U-tubes and other articles but did not tell him what the accused was going to confess. He then kept the cover containing the U-tubes on the table and did not examine the contents, except when the accused brought them out. Now, it has to be noticed that not only was this accused a doctor who must have known perfectly well that any signs of ill-treatment would be investigated on a complaint when he was taken to the Bhowanipore thana and that he would have the right himself to go for the purpose of complaint before a Magistrate, but we find that he was in fact brought before the Chief Presidency Magistrate on the 6th, on the 8th and on the 9th. In addition to that, it has to be observed that when on the 8th September this accused was making a confession the police could not know that when house No. 8, Lal Madhub Mukherji Lane, was raided on the 10th a suit case with bombs in it would be discovered; still less could they know that on the 14th there would be a canister of live bombs on the ground floor of that house. We have to consider on this evidence consisting entirely of direct evidence the statement and conduct of this accused whether we are satisfied that these two test tubes with traces of fulminate of mercury and gun-cotton powder were in fact obtained from his house on the 6th, whether he produced all the test tubes as being articles with which he had been concerned in making explosives and whether the confession which he made to the Magistrate on the 6th is to be regarded as a confession obtained without intimidation. In my judgment there can be no doubt on these facts that the Crown have made good their case against this accused. There is no question here of want of corroboration, no question here of lack of direct and specific evidence implicating the accused himself. The accused is a man of about 28 years of age, an educated man and not a man who would be in the least likely to be intimidated into making a confession. His story as to the ill-treatment, his story that because he was told to produce such articles as would be in a doctor's house he produced these test tubas, his story that confession is an imaginative thing produced by ill-treatment, all that must ha negatived. I have no doubt at all without considering the evidence of either of the approvers that the conviction of Narain must be sustained both upon the conspiracy charge and also upon the substantive charge under Section 4 (b), Explosive Substances Act.

10. The next matter to which I shall refer is the case as it stands against the accused Bhupal. He, too, is a doctor. As against him, there is the evidence of the man to whom he went in the coffee shop to make arrangements for getting these bomb-shells made. The witness is P. W. 3, Niladri, who says that Bhupal used to live behind the Kalighat tram depot. He says that in the end of May:

Bhupal brought an iron cask which I now know to be a shell which he described as pipepinion,

that Bhupal asked if the witness could make it, that ha removed an iron cap from the pinion and said that the pinion to be made should be of a little smaller size and should have 10 baths instead of 8, that he came to the workshop and showed an wooden pattern and gave verbal orders to prepare aluminium pinions and also gave the witness Rs. 50 in advance, that the wooden pattern had no circles, but ha gave instructions that the pinion should have four circles and also gave instruction to prepare caps with screw thread and make a hole at the bottom. A written order was insisted upon and this order dated 22nd June was signed by Rajani. The witness describes how he went to ask people, one Bhabani, one Kalicharan, and got these aluminium pinions made. The instructions were to make circles as was shown in one of the shells produced. Now, here we have to consider the statement of Bhupal at the trial. He does not dispute that he gave an order to Niladri for these things. His sole contention is that he did so innocently and that Rajani had come to him and got him to do this placing of the order for a commission telling him that these bomb-shells were pipe pinions for charka. He says:

At his request and after his design, I made over an object he described as a pipe pinion used according to him, for a spinning machine to Niladri Babu whom I knew as the owner of a mechanical workshop. I had no knowledge that such articles could be used in the preparation of bombs.

11. We are therefore asked to believe that some one who was minded to produce bombs and minded to have the shells so serrated as to get the maximum destructive effect from the high explosives entrusted the giving of the order to some one who was entirely innocent of any idea that the shells were, to be bombshells at all. If there were no evidence save this direct objective evidence, the defence of Bhupal would have been of very small substance; but, as against him, we have to take account of the fact that on 10th September the man caught entering No. 8, Lal Madhub Mukherji Lane, with a gamcha containing eight empty shells of this very kind was the man Rohini whom we know to have bean at one time in the employ of Bhupal. Bhupal says that he had dismissed Rohini for dishonesty; but save his word there is no evidence of that. Rohini in his confession tells an elaborate and circumstantial story as to how being out of work he went to Bhupal and was told to live about where ha could not be traced, in parks and other places, and come back from time to time,; how the shells were handed over to him surreptitiously covered with some vegetable on the top of them, and how he was told to take them to No. 8, Lal Madhub Mukherji Lane. There is in addition the evidence of Sitangshu who says that on one occasion he took some money to Bhupal's house from Narain. I lay no stress upon the evidence of Sitangshu on that point; but it does appear to ma that, apart even from the confession of Rohini, Bhupal's defence cannot be entertained for a moment. I am also satisfied that that confession of Bohini is in broad outline true and, in my judgment, Bhupal must be convicted of the charge of conspiracy.

12. As regards Rohini, and indeed as regards Surendra, on the evidence in this case and the confession of each, it is difficult to discover that there is any room for a reasonable doubt as to their complicity. Not only was a suit case found in Surendra's house on 10th September, but we' have the evidence as to how ha himself took the police to his house on the 11th and pointed out a canister containing these live bombs inserted among other harmless things. Surendra made his confession before Mr. A. T. Ghose on 15th September, the very nest day, implicating himself to the fullest extent in the conspiracy and showing that ha knew all about it. Rohini's confession was on 23rd September. He, like Surendra, was really caught red-handed and it is not a valid criticism to say that, according to Rohini's confession, ho was not admitting that he knew that the articles he was carrying were articles which were illegal for him to possess. It is quite plain that the confession is a confession in the fullest sense of the word. It speaks of his being told of the necessity of patting some vegetables over the bundle in. order to avoid suspicion. It is idle, in the case either of Rohini or of Surendra, in view of the direct evidence against them and in view of their confessions, to think that there is any reasonable doubt as to their complicity in the crime. Both Rohini and Surendra must be convicted of the conspiracy charge and also they have no defence to the substantive charge under Section 4 (b), .Explosive Substances Act.

13. So far it will be observed that the convictions depend in no way, in my judgment, upon the evidence of either of the approvers and they depend in no way upon making an exception to the principle that the evidence of an accomplice is not to be believed unless it is corroborated by independent evidence implicating the individual accused. When we come to the others of' the accused however it is important to take a careful estimate of the value attributable to the evidence of the approvers and the evidence of the confessing co-accused. The learned Commissioners in their judgment at p. 132 of the printed paper book say this:

This is not a case of a single specific crime committed in a specific place at a specific time in which in the absence of independent evidence as to his partners' active share an accomplice could justifiably be disbelieved. This is a case of a conspiracy extending over some months by its nature carried on in secret, and in such a case it is impossible to demand independent corroboration of every act ascribed to the conspirators. It is our firm conviction that the approvers are speaking the truth with regard to what they know. We are obliged to review the cumulative result of the evidence as a whole and the confessions of the accomplices amongst it, and we can find no reason for rejecting the story they tell as false. Even therefore if the evidence against an individual accused might rest only on the evidence of the accomplices and a retracted confession, if it is in itself sufficiently convincing to satisfy us that it is beyond the possibility of doubt true, we have acted on such evidence.

14. I do not misinterpret what the Commissioners mean to say; but I must refuse to follow the principle which they there lay down. In the case to which we were referred, namely, the case of The King v. . Baskerville [1916] 2 K.B. 658, the traditional English practice on the question of corroboration of approvers and accomplices has been very carefully laid down. When the Indian legislature passed the Evidence Act, it certainly reviewed the English cases and an Indian Court is entitled to take its law from the Evidence Act itself. Now, what the Evidence Act says by Section 30 about the confession of a co-accused is that the Court may take it into consideration. Certainly, it may. But it is another thing altogether to lay down that it is a reasonable thing to convict a man upon the confession of a co-accused without independent evidence implicating him. Section 133 says that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. That undoubtedly is the law. We are not here merely to record a conviction that is not illegal. We have to be satisfied that the conviction is properly based. Section 144 puts as one of the things that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars: and in a later portion of the section, certain qualifications are laid down which show that the legislature when it says ' may presume' means what it says and does not mean 'shall presume.' Nevertheless, the broad principle upon which the English practice has always proceeded is as plain and necessary as it ever was. Corroboration ought to consist of some circumstance that affects the identity of the parson accused. As an English case puts it, a man who has been guilty of a crime himself will always be able to relate the facts of the case and, if the confirmation be only of the truth of that history without identifying the person, that is no corroboration at all. We have always to be careful lest the names of the individual accused are introduced into the texture of a story the outline of which is true enough.

15. It is not a question of asking for corroboration of every act ascribed to the conspirator. No one has ever demanded that. Corroboration need not be sufficient by itself to prove the guilt of the man. It is sufficient if in some circumstance there is independent implication. I cannot think that it is correct reasoning to say that because the charge brought is a charge which it is difficult to prove therefore the Court may be justified in not insisting upon so high a degree of proof. It does not matter how difficult the charge may be to prove it must be proved, if there is to be a conviction. We have, I think, to look carefully at the evidence to see if there is independent evidence implicating each one of these other accused which would enable us to rely upon the general truth either of the approvers' evidence or of the confessions of the co-accused which seem to be in outline true. I would here say that, as a matter of fact, I am much more impressed with the truth of Narain's confession than with the story as told by either of the approvers. Apart altogether from the fact that he was corroborated by what was found at No. 8 Lal Madhub Mukherji Lane, Narain's confession reads to me like a confession which an educated man of his age might very well have made when his guilt was discovered. I notice for example, that after implicating some of the younger men he stated that these people acted under pressure and influence from him. But even so in dealing with these other accused, notwithstanding that I have a considerable degree of belief in the truth of what Narain says, I cannot in the case of those accused dispense with the reasonable caution which requires independent corroboration. As regards Ambica the evidence against him is the evidence of the two approvers and the confession of Narain. Narain says that ho took part in the filling of shells which were taken to 7, Bhim Ghose Lane. In another case, the shells were taken from Narain's house to the same place by Ambica. Sitangshu's evidence amounts to evidence of a guilty knowledge by report or conversation, a kind of evidence which from the mouth of an approver cannot be given much weight. But the main element alleged against Ambica is this : Brojo says that Narain asked Ambica, to prepare maps of the electric power houses and certain maps of the power houses were discovered at No. 8, Lal Madhab Mukherji Lane, on 10th September.

16. That is the only matter which can well be suggested to be independent corroboration of the evidence of Sitanghsu and Brojo and the statement of Narain. Is it independent corroboration such as this Court should act upon Mr. S.K. Sen has very properly pointed out to us that upon the evidence we cannot assume that Ambica is a man who had any connexion with No. 8 Lal Madhub Mukherji Lane any more than he had with the Saraswati Press or with the mess connected with that. If the presence of these maps is to be regarded as independent corroboration against Ambica, it is very necessary that it should be properly proved that these maps were in his handwriting. Brojo says that they are in his handwriting but the prosecution produces no evidence corroborating Brojo in this respect. There was no difficulty whatsoever in this particular case in getting evidence of his handwriting and in the absence of proper evidence of his handwriting, certainly it is not for this Court to speculate on the basis of a comparison between the counterfoils which were produced and the handwriting in these maps. The result therefore is that upon a proper analysis of the evidence in this case against Ambica, we have the two approvers and an accomplice implicating him. It is well settled practice that two or three approvers are the same as one in the absence of independent corroboration implicating an accused and, although the question cannot be put as a rule of law because it is in England a rule of caution to the jury, I am not prepared in the case of Ambica to depart one jot or tittle from the principle which it is the practice of this Court to follow. I am not prepared to sustain Ambica's conviction on the mere evidence of the approvers backed by Narain's confession. In my judgment, this accused should be acquitted.

17. As regards Adwaita, I need hardly say much because Mr. Banerji who very fairly conducted this appeal on behalf of the Crown has admitted that the case against Adwaita is very weak. As a matter of fact, it depends entirely upon a document found in his house which appears to contain the means of identification of different officers of police. It is an extremely suspicious document and it is difficult to see that it is capable of an entirely innocent construction. But we have to see whether the find of this document is independent evidence of this particular conspiracy - conspiracy to manufacture explosive substances to kill Europeans and officers of police and conspiracy which is limited in time between December 1929 and October 1930. The mere fact that there is no way of putting a data to this document renders it in my judgment impossible to rely upon it as independent corroboration. There again in spite of the fact that a good deal of value might be attached against this accused to the confession of Narain, it appears to me that the case against this accused Adwaita fails and that he should be acquitted altogether.

18. The next accused is Jyotish Bhowmick. Ho is a student aged about 23 who is said to have worked in the Saraswati Press and to have lived in a mess which was occupied by the proprietors of this institution. Ha was arrested in the evening of 10th September while entering No. 8, Lal Madhub Mukherji Lane and when taken to the thana a single Belgian cartridge. 320 was found with him. Mr. Santosh Kumar Basil has argued before us that this is a very small article, that it was probably planted by the police, that the evidence as to its discovery is not satisfactory and that the entries in the crime sheet where the marks are put down appear to have been corrected at least there was some difficulty in copying them out. I have carefully attended to these arguments, but I am not convinced for a moment by any one of them. It is reasonably plain that this man did have one of these Belgian cartridges on his person at the time he was entering this house. That in itself, means that the conviction under Section 19 (f), Arms Act, must stand. But the question is whether he ought to be convicted of the charge of conspiracy. The man is shown to have possessed one cartridge carefully hidden. It may be said that one cartridge would be of very little use of itself. I am not at all certain about that. One cartridge may be of very great use for certain purposes- specially as in this case we are dealing with ammunition of a mark or calibre that is not generally procurable in the shops. The trunk which contained Belgian cartidges also contained bombs, and the question is whether., upon the evidence as a whole, the presence of this cartridge is enough to enable us to say that Jyotish Bhowmick was not merely being used by the conspirators to collect small arms and ammunition, but was also one of the conspirators sharing in the objects set forth in the charge.

19. The case to that extant is somewhat on the borderline. This man was seen on 6th September hanging about as though he had just come out of No. 8, Lal Madhub Mukherji Lane. He was also seen and traced to the Saraswati Press and when we come to Surendra's' confession, we find that Surendra says that. Jyotish was the man who left the suit case at No. 8 on the 8th. Surendra however does not really identify Jyotish. He merely says that the man who left it was, he was told by an officer of the special Branch, the man Jyotish. We cannot therefore regard Surandra's confession as implicating Jyotish at all.

20. In these circumstances Mr. Basu for this accused says that if Jyotish had really bean one of the conspirators he would have known of the raid which had taken place in the morning at No. 8 and the fact that he did not know that looks very much as if he was not one of them. There may be some weight in that argument. On the other hand if a raid is made it very often dislocates the plan of the persons who are connected with the place, that is raided. A consideration which has weighed very much with me is that though there are two approvers in this case Jyotish Bhowmick: is not implicated by either of them, and in view of that fact, I am not prepared on the strength merely of the finding of the cartridge to hold that he has been. shown to be a participant in the conspiracy charge. He will therefore be acquitted of the charge of conspiracy and of all the charges save the charge under the Arms Act. He has been sentenced to two years' rigorous imprisonment on that charge which may stand.

21. Rasik Lal Das is the next accused and in his case I notice that he is of the age of 30 and a man engaged in business. The confession of Narain and the evidence of the approvers implicate Rasik Lal Das very heavily and in his case one cannot help suspecting that he is very probably one of the people who were really at the bottom of the conspiracy with which we are concerned. I cannot say that the evidence of Sitangshu-and Brojo is given in circumstances such that it is bound to be absolutely independent of the statements made in the, confession of Narain and in Rasik's case-as in the other cases I am not prepared to forgo the requirement of independent corroboration. The only corroboration that can be put forward in his case-is that Rasik lived in another house altogether but is shown to have been in the habit of staying for certain purposes and for a certain time at the house No. 7/1, Bhim Ghose Lane. It is to that house that the bombs are said to have been sent. According to the evidence of the approvers and Narain, Rasik is the was who arranged for the filling and the disposal of the bombs and getting them to this address No. 7/1, Bhim Ghose Lane. What evidence is there implicating Rasik by way of corroboration The only evidence is that when premises No. 7/1, Bhim Ghose Lane, was searched on 16th September certain articles of clothing were there found which showed that Rasik had been at one time or another in the habit of staying at that place. Of course, if there had been any independent evidence of bombs or small arms or ammunition being found at that place, the matter would have been altogether different, but that any bombs were ever taken to that place is an averment for which we have to depend entirely upon the evidence of the approvers and the confessions of Narain. Is it then independent evidence implicating this accused Rasik that the approvers said that the bombs were sent to him at that address and it turns out, as a matter of fact, that he did sometimes use that address. In my opinion that is not what is meant by independent evidence implicating the accused. Assuming that it was known to the approvers of Narain that this man was in the habit of using this address, they had only to introduce his name coupled with that circumstance and the case against him would be completed. In my judgment in this case also, it must be found that the prosecution evidence is not; sufficient and this accused must be acquitted.

22. It remains only to deal with the question of sentence upon the accused whose convictions in my opinion should be upheld. The special tribunal has awarded sentence by splitting up the charge of conspiracy into three convictions. That as is admitted on behalf of the Crown is wrong, and I propose to deal with the convicted accused on the footing that they are guilty of conspiracy to commit an offence under the Explosive Substances Act. Bhupal was not charged with the substantive offence under this Act, but only with conspiracy. Narain as we have seen must be convicted both of conspiracy and the substantive offence. The same is true as regards Rohini and Surendra. Now it is quite clear, and I do not propose to enlarge upon, it that persons who are engaged in manufacturing bombs of the type which have bean produced in this case are engaged in taking steps for indiscriminate murder, murder in conditions under which it is almost impossible to foresee that the effect of the acts done can be limited by the persons who are doing the same. A graver offence against society than to manufacture such articles as these with the intention to use them against officers of police and other persons, it is no doubt difficult to imagine. Bhupal and Narain are educated men and not very young as they are nearer 30 than 20. They have been prostituting their education and knowledge of chemistry which was acquired for purpose of the medical profession by utilizing it to produce the means of indiscriminate assassination. It is quite dear that they must be sentenced to a very heavy punishment indeed. I do not however feel it necessary, because 20 years transportation is the maximum, to impose that sentence. In the cases of Narain and Bhupal, I think that the sentence may be somewhat reduced. In those cases, the sentence of the Court will be that each be transported for 15 years. This will be on the conspiracy count-no separate sentence being imposed on the substantive charge on Narain.

23. Surendra appears to be a person of somewhat lower advantages and the sentence given to him may be reduced to 12 years' transportation. Rohini I regard, as his learned advocate invited us to do, as a parson probably out of work engaged by his old master to take a small part-though a dangerous part-in the conspiracy. Ho knew perfectly well that these were bomb-shells and I think that we are going to the utmost limit of leniency if we say that in his case a sentence of five years' rigorous imprisonment will be sufficient. In the case of Jyotish Chandra Bhowmick, the sentence of two years' rigorous imprisonment passed under the Arms Act will be sustained.

24. The sentences on Surendra and on Rohini are given on the conspiracy charge. There will be no separate sentence on the substantive charge under the Explosive Substances Act, and no separate sentence on Surendra under the Arms Act.

Pearson, J.

25. I agree.

S.K. Ghose, J.

26. I agree.

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