1. The appellants before us were tried by Commissioners appointed under the Bengal Criminal Law Amendment Act of 1925. They were all charged with conspiracy to wage war against the King (Section 121-A, I. P. C.) and with waging or abetting the waging of such war (Section 121, I. P. C.) The appellant Sen was further charged with the murder of Capt. Cameron at Dalghat on 13th June 1932, and with the abetment of the murder of Mrs. Sullivan at Pahartali on 24th September 1932. The appellant Dastidar and the female appellant were charged with the attempted murder at Gahira on 19th May 1933, with the unlawful possession of explosives [Section 4(b). The Explosive Substances Act, 1908] and with the unlawful possession of arms and ammunition on the same date and at the same place [Section 19(f), Indian Arms Act 1878]. There is a further charge against the appellant Dastidar of attempting to murder Assistant Sub-Inspector Sasanko Bhattacharji on 6th March 1931.
2. The trial began on 15th June 1933. The Commissioners examined 170 witnesses, and in the course of the proceedings 346 documentary and material exhibits were tendered. The Commissioners delivered their judgment on 14th August 1933, convicting the appellants on all charges framed against them with the exception of the charge of attempted murder at Gahira of which the appellant Dastidar and the female appellant were found not guilty and acquitted. They sentenced the male appellants to death under Section 121, I. P. C, and the female appellant to transportation for life under the same section. They passed no separate sentences in respect of the other offences of which the appellants were convicted.
3. The only objection taken before the Commissioners as to the form and conduct of the trial was with reference to the charge under Section 4(b), Explosive Substances Act. The Commissioners overruled this objection, and when Mr. Basu for the appellant Dastidar was taking the point before us, the learned Advocate-General for the Crown stated that, inasmuch as no sentence had been passed under that section, he would have no objection if, in order to save the time of the Court, the convictions of the appellant Dastidar and the female appellant under it were set aside, and we thereupon decided to accept this suggestion. We have now to deal with the convictions under the other sections, against all of which the appellants have appealed. In addition, as the male appellants have been sentenced to death, the propriety of their conviction under Section 121, I. P. C, and of the sentences imposed upon them has to be considered by us under Ch. 27, Criminal P. C. The Commissioners have given a detailed account of the events at Chittagong during, the period beginning with the preparations for the Armoury Raid of 18th April 1930 and ending with the arrest of the appellants Tarakeswar Dastidar and Kalpana Dutt on 19th May 1933.
4. There is no need for us to recapitulate this account, for much of it is common ground, since counsel appearing for the appellants have generally speaking not sought to question the events themselves, but have argued that the connexion of their clients with them has not been established. We will deal first with the case of the appellant senior. Mr. Chatterjee, if he will permit us to say so, showed very great wisdom in abstaining from putting his client's case too high. He did not dispute the fact that the appellant was arrested at Gairala on 16th February 1933 and that being then in unlawful possession of a revolver and ammunition, he was guilty under the Arms Act. He further stated that documents found upon his person at the time of his arrest showed that he had been on terms of close association with one Pritilata Waddadar. This person is a girl of about 20 years of age, who admittedly took a leading part in the attack on the Pahartali Railway Institute on 24th September 1932, and whose dead body was afterwards found in the vicinity of the Institute. A post mortem examination showed the cause of her death to be poisoning by cyanide of potassium presumably self administered. Mr. Chatterjee also conceded that the watchers' reports established that the appellant had for some months prior to the Armoury Raid been constantly associating with persons, some of whom have since been killed in conflict with the forces of the Crown, while others have been convicted of waging war against the King. Finally he did not dispute the fact that the revolver found on the appellant was one of those stolen in the Armoury Raid. He indicated that in view of these circumstances he did not feel justified in sub-mitting that the Commissioners were wrong in convicting his client of conspiracy to wage war under Section 121-A, but at the same time he maintained that the evidence did not show that the appellant was guilty of any of the acts of war alleged against him.
5. We will first deal with the appellant's alleged connexion with the Armoury Raid. It is pointed out that, although the appellant was under police observation, there is no evidence at all that he was in Chittagong on 17th April. With regard to 18th April Mr. Chatterjee says that the language of the watcher's report (Ex. 124/31) suggests that the presence of the appellant on that date was a matter of inference rather than of direct observation. He also criticises Ex. 112, the personal diary of a police officer named Ramani Mohan Mujumdar, P. W. 64, on which the Commissioners have relied. In dealing with the case of the appellant Dastidar, we shall give our reasons for holding that this is a document which should be regarded with considerable suspicion. However, even if we eliminate the direct oral evidence of the appellant's presence in Chittagong after 16th April, we consider that his actual participation in the Armoury Raid is established beyond all doubt. That he was deeply involved in the conspiracy is scarcely disputed and it is hardly conceivable that he should have been absent when the active campaign was launched. Moreover no suggestion has been made as to where he was, if not at Chittagong, nor has any reason been assigned for his leaving the town. The evidence however of his presence goes far beyond these general considerations of probability. For reasons which we shall give shortly, we are in entire agreement with the finding of the Commissioners that among the conspirators the appellant passed by the name of 'Masterda.' In the so-called mobilization lists (Ex. 91) found at the search of the house of Gonesh Das the conspirator on the morning of 19th April 1930, Masterda is shown as in charge of the largest group of raiders. The matter is finally concluded by the statement of the appellant himself in Ex. 199, a document which the Commissioners have in our opinion rightly held to be in the handwriting of the appellant senior. The material passage is as follows:
Alter the Puja Vacation myself and my coworkers at Chittagong were so much engrossed in the arrangement for action that we all cleanly forgot about Rani. After an extensive preparation for six months the Chittagong revolution manifested itself on the night of 8th April 1930. Every leader joined it. On 22nd April there was a fight for about two and a half hour with the British soldiers at Jalalabad Hills, and the British Army was vanquished at last. We sustained 12 casualties in that hand to hand fight. After the Jalalabad fight we came down from the hills and concealed ourselves.
6. Our conclusion is that the appellant took a leading part in the raid and his conduct amounted to waging war against the King. It will be here convenient to deal with the evidence proving that when Masterda is mentioned in documents written by members of the conspiracy, the appellant is meant. There is firstly direct oral evidence that the appellant was called Masterda by his friends. Perhaps if this was all, the fact could not be held to be satisfactorily established, although not a suggestion has been hazarded before us as to who Masterda can be if not the appellant, in spite of the fact that Masterda is unquestionably an important, if not the most important, member of the conspiracy. What puts the matter beyond the region of conjecture is Ex. 199, where the appellant speaking of his introduction to Pritilata writes:
When Rani came home during the Puja. Vacation in 1931 she saw Anita. This time she had come with a firm determination that she would tell everything fully to Anita and try to meet me (Masterda).
7. In view of these facts no importance can be attached to the absence of the name 'Masterda' in the admitted letters in the handwriting of Pritilata found on the person of the appellant at the time of his arrest in which the writer addresses him not as 'Masterda' but as 'Dada.' We have referred to Ex. 199, which is said to have been found at Gairala at the time of the appellant's apprehension, tied up with other documents in a bundle in a ditch. An analysis of these documents is to be found in the Commissioner's judgment at p. 247 of the paper book. We are however at the moment concerned with the circumstances in which these documents were found and the question of their authenticity. It is not apparent that any very vigorous attack was made on the bona fides of the search before the Commissioners. Be that as it may, the point has been pressed before us.
8. It is pointed out that the Havildar, P. W. 103, states that at sunrise after the arrest of the appellant he noticed a small tank, from which one of his men recovered a dhoti and a sari. He adds: 'We did not find anything else then. We searched and did not find anything more.' The Sub-Inspector of Police accompanying the party states that he found the bundle of papers tied up in a towel on clearing hyacinth from a ditch. The search witness P. W. 111, who describes himself as a zemindar, identifies the bundle in question as found in a ditch. He also says in cross-examination that he was present when things were found 'in the tank on the first day.' To the Court he stated that the ditch was
about 50 cubits from the tank to the west.
I am sure the things found on the first day were found in the ditch. Chemise, cloth, pair of white canvas shoes, were found in the ditch on the first day.
9. The search list is Ex. 187. Counsel has drawn our attention to the fact that items 37 and 38 appear to be the garments found by the Havildar, and they are described as recovered from the water of a ditch on the north-west corner of the tank' a description substantially the same as that given of the place where the bundle of papers was found. The argument is that the police claim to have found the bundle in a place already searched by the Havildar without any bundle being found. Therefore the bundle was put there after the Havildar's search. Therefore it was put there by the police. We do not find it possible to accept this contention. The confusion between 'tank' and 'ditch' is easy enough, and having regard to the evidence of the search witness it appears to us that the place, where he saw the bundle recovered, is at some distance from the place where the Havildar recovered the clothes.
10. We may add that, if there is any inconsistency, it is only of importance if it is serious enough to raise a reasonable suspicion, that the Police Officer accompanying the military party had provided himself with a bundle of forged and incriminating documents for the purpose of 'planting' it on the appellant. In our opinion there is nothing to justify such a suspicion. Once the Court is satisfied of the bona fides of the discovery of the bundle, there is no reason to entertain suspicions as to the authenticity of its contents. Apart from this consideration however it has in our opinion been clearly demonstrated that the documents alleged by the prosecution to be in the appellant's handwriting are in fact in his handwriting. They have been submitted to Mr. Bennett, P. W. 170, the handwriting expert who, after comparing them with the admitted handwriting of the appellant, gives as his opinion that they were written by him. Our attention has not been drawn to any passages in this witness's cross-examination which discredit his testimony. Mr. Bennett's evidence is corroborated by that of Umesh Chandra De, P. W. 129, who is acquainted with the appellant's handwriting and has seen him write both in English and Bengali.
11. Finally we have ourselves examined considerable portions of the documents in both scripts, and we entertain no doubt that the Commissioners were right in coming to the conclusion that the documents are genuine. We will now deal with the Pahartali raid of 24th September 1932, in the course of which several persons were injured and Mrs. Sullivan, a lady of 60 years of age, was murdered. Counsel has found it impossible to argue that his client was not connected with it. On Pritilata's dead body was found a document Ex. 56, which, it is not disputed, is in her handwriting. In it she states that she was summoned by 'Masterda' to join in the raid, but that, when asked to lead it, she felt diffident on account of her sex. But 'Masterda soon convinced me and I took my leader's command.' The appellant's own version of his connexion with the Pahartali outrage is to be found in Ex. 189 which was found at Gairala, and has been satisfactorily proved to be in his handwriting. It is headed 'Bejoya,' and it was clearly written on the Bejoya day at the end of September 1932. After referring to other revolutionaries, who have been killed or convicted, he writes of Pritilata as follows:
To-day I remember more that emblem shed, pure and beautiful, whom I immersed fifteen days ago, putting weapon in her one hand and nectar in the other. The remembrance of her is predominant today. I have not been able to forget her remembrance even for a moment during these fifteen days, whom I sent to the field of battle dressing her up with my own hands in battle attire whom I permitted to jump into the sure jaws of death. When I told her piteously after I had dressed her up that I had dressed her for the last time and her dada would never in his life dress her again the idol smiled a little.
12. It is admitted that the reference is to Priti, the 'nectar' can only mean the poison, and ''battle attire,' the male dress she was wearing at the time of her death. All who joined in the raid or personally directed it were in our opinion guilty of the murder of Mrs. Sullivan. Any person who instigated a raider or leader of the raid is therefore guilty of abetment of murder. Accordingly the appellant was rightly convicted of that offence under Sections 302/109, I.P.C. It was suggested before the Commissioners that the Pahartali raid was not waging war, because only one of the persons playing whist in the Institute was an official. The same argument was hinted at here and quickly abandoned. No contention could be more ludicrous. The Institute was attacked because the persons using it were Europeans and Anglo-Indians, who might be expected to be supporters of 'the Government. The conspirators' own statements make this plain. Prithi writes in Ex. 56 that the revolutionaries have 'been compelled to take up arms against the lives of any and every member of the British community, official or non-official.
13. That such had been the policy of the conspirators from the outset is established by leaflets found after the Armoury Raid. Ex. 51 is one of such leaflets. It concludes as follows:
The Indian Republican Army further declares that any person who will be able to produce any Englishman, woman or child of any age to its headquarters, dead or alive, will be amply rewarded.
President in Council,
Indian Republican Army
14. With regard to the case of this appellant it only remains to consider whether the Commissioners were right in finding him guilty of the murder of Capt. Cameron at Dhalghat on 13th June 1932. The case for the prosecutiou is that both Priti and the appellant were in the house at Dhalghat, in company with Nirmal Sen and Apurba Sen, who were killed by rifle fire on that occasion. It is said that when the shots were fired from the upper room which killed Capt. Cameron, who was about to enter it, the appellant was inside with Nirmal and 1934 C/29 & 30 Apurba, Priti being downstairs. The direct evidence on the point is that of P. W. 26, a girl Snehalata Debi, described as about 14 years old, the daughter of the woman to whom the house belonged. It is undisputed that on the first occasion on which she gave an account of the incident before any Court, she mentioned the appellant 'Masterda' and indentified him by means of a photograph. Her veracity is however attacked because her deposition on that occasion (Ex. 333) contains no reference to the presence of any woman. She admits that she made no mention of Priti before the Magistrate, and gives 'lojja,' or delicacy, as the reason of her silence. We agree with the Commissioners that this fact, coupled with the tender years of the witness, would, as a matter of prudence, prevent the Court from acting on her evidence, if it were unsupported by material corroboration. We are not troubled by the minor discrepancies in her story. They are only to be expected in view of her age, and in view of the fact that before the Commissioners she was describing an event that had happened a little more than 12 months previously. One piece of corroboration on which reliance is placed by the Crown is Ex. 257.
15. This document was discovered on the person of a boy named Anil Dutt, who was arrested on 4th March 1933 at a village named Vidagram for disobeying the Curfew regulations. It is useless to speculate from whom he had obtained it or what he intended to do with it. The fact remains that it has in our opinion been satisfactorily proved to be in the handwriting of the appellant by the witnesses, Bennett and De, to whom reference has already been made. It purports to be the copy of a record made by Priti of her introduction to Nirmal Sen and subsequently to the appellant and their actions thereafter. We know from Ex. 199 that Priti had put it on record in writing that when meeting the appellant for the first time she felt that she was going to see her god. This very language is used of the first meeting with 'Masterda' in Ex. 257. We consider it a fair inference that this exhibit is a copy of the writing by Priti to which reference is made in Ex. 199. As regards the particular incident we are now considering a detailed account of it and the events leading up to it is given in the document, corresponding in all material particulars with the story told by P. W. 26 before the Commissioners,' and, as far as the appellant is concerned, with her story before the Special Magistrate; It is not unlikely that questions put to the girl in the course of the investigation, by some one with Ex. 257 at his disposal, have had the effect of making her think she has a clear recollection of details than at this distance of time she possesses.
16. But the points with regard to which this may have occurred are of no material importance, since as to the part played by the appellant her story has through Out remained substantially the same A special value attaches to Priti's account, of which Ex. 257 is a copy, from the fact that the handwriting of the exhibit is the appellant's who may therefore in the circumstances fairly be considered to have adopted the story set out in the original, at any rate, in so far as it relates to himself. Priti's presence at Dhalghat is also established by certain documents found there by a European and an Indian police officer on 22nd June 1932. Among them we need only mention Exs. 178 and 179. It has not been denied that these are letters written by Earn Krishna Biswas to Priti in July 1931. Earn Krishna was then a prisoner in Alipur Jail, having been sentenced to death for the murder of Inspector Tarini Charan Mukerji at Chandpur on 1st December 193Order Priti's statement in Ex. 56 is that while Earn Krishna was awaiting execution in the jail she visited him 40 times. The jail registers corroborate this, and also prove that he did in fact write and ....... despatch the two letters found at Dhalghat. As Prithi is proved by the documents in the case to have entertained the highest regard for Earn Krishna, the finding of these letters shows that Priti had been at Dhalghat and had been compelled to leave there in haste.
17. In our opinion the Commissioners were right in holding that the appellant was at Dhalghat on 13th June 1932, that he was an occupant of the upstairs room when the shots which killed Capt. Cameron were fired, that those shots were fired in pursuance of the common intention of all the Occupants, and that by the application of Section 34, I. P. C:, the appellant was, guilty of murder. We have now dealt with the case of the appellant Sen and must consider that of the appellant Dastidar. As regards his alleged connection with the conspiracy, the evidence is that in December 1928 he attended the Calcutta Congress in the company of other conspirators, and that in September of the following year he took a prominent part in the celebrations in honour of Jotin Das, the hunger striker. In the early part of 1930, the watchers reports prove his association with the conspirators, but it has very properly been pointed out that the last mention of him in these reports is on 20th March 1930. Subsequent to that the only evidence of his presence in Chittagong is that of P. W. 64, who proves his presence there on the afternoon of 18th April. In support of his oral testimony he produces his personal diary, Ex. 112. As we do not propose to rely on it, it will be sufficient to say that its-language is consistent with the contents-being the result of information and not of observation. Further we cannot exclude the possibility that the entry was made after the Armoury Raid, and the names appearing there are those of the persons who, in the opinion of the writer, were the most likely to be concerned in it.
18. To sum up, we are not satisfied that the appellant was in Chittagong at the time of the raid or indeed after 20th March. It has perhaps some significance that the only positive defence put forward by any of the accused in this case on any of the charges is this appellant's defence of alibi in respect of the Raid. He states that on 18th April he was at Rajshahi attending a conference. There is no evidence in support of this alibi, which was put forward when the appellant was examined under Section 342, Criminal P. C, but we need not consider it critically, as the learned Advocate General admitted in the course of argument that he had not been able to establish affirmatively that the appellant was in Chittagong at or about the time of the Raid. The prosecution place considerable reliance on the association of the appellant with Ram Krishna-Biswas, of whom mention has been made, and they prove that in) March 1930 when Ram Krishna was suffering from injuries received in a very suspicious accidental explosion, the appellant was concerning himself with the management of his (Ram Krishna's) private affairs.
19. Another piece of evidence used to establish the appellant's connexion with the conspiracy is a document (Ex. 105) written by Prithi and found at Dalghat. In it, describing her conversations with Ram Krishna in jail, she says that he told her that among his revolutionary friends was one Futyada, whom he held in high regard, and who had recruited him and to whom he was accustomed to turn for guidance. It is nob now denied that 'Futu' was the name by which the appellant was known to his intimates, and the small difference in form between 'Futu' and 'Futya' does not in our opinion affect the matter. It appears that there is a Kaviraj, who comes from the same village as the appellant and Ram Krishna, called Futu, but there is no reason to suppose that he had anything to do with the conspiracy. For reasons that we are about to give, we think the document admissible in evidence and we also think that the Futyada referred to, in it is the appellant Dastidar. At the same time having regard to the fact that it is the report of the conversation of a third person, we do not attach great evidentiary value to it, and expunging it from the record would make no difference to our finding that the appellant has been shown to be a member of the conspiracy. On the question of the admissibility of the document the opinion we have formed is as follows:
20. We consider the reference by Ram Krishna to Futya admissible under Section 10, Evidence Act, for the following reasons: Such statement, if proved, is in itself a relevant fact by virtue of Section 10, Evidence Act. The statement by Pritilata is again a relevant fact under Section 10, Evidence Act, as against Ram Krishna Biswas (and other conspirators). The statement by Pritilata has been proved. Hence the statement by Pritilata is evidence against all the conspirators including Tarakeshwar Dastidar, to the effect that Ram Krishna Biswas made his statement concerning Tarakeswar Dastidar. The statement concerning Tarakeswar Dastidar is therefore in our opinion proved.
21. On the question of the appellant's connexion with the conspiracy, it must always be remembered that his former associations with proved conspirators must be construed in the light of his subsequent actions. He disappeared after the raid, and all we know of his movements since that time is that he participated in acts of violence. At the time of his apprehension he was, as we shall show, the directing mind of the conspiracy, and was considering the possibility of committing further outrages.
22. We may also refer to Ex. 186 found on the person of the appellant Sen at the time of his arrest. We have no doubt that the Futu there referred to is the appellant Dastidar; if so, association between the two appellants is established. The conclusion we have arrived at is that in all probability he was in the conspiracy from the start. If however this is open to reasonable doubt, it is beyond question that immediately after the Armoury Raid he threw in his lot with his former associates, and was an active member of the conspiracy, and a rebel in arms against the Crown up to the moment of his arrest at Gahira on 19th May 1933.
23. We can deal very briefly with the conviction of this appellant for the attempted murder of Sub-Inspector Bhattacharji (P. W. 72) at Barama on 16th March 1931. It is not now contended that the witness is not stating what he believes to be the truth, when he says that as he was pursuing the appellant, the latter fired a revolver and hit him in the chest. Neither is it contended that the appellant was not present in the company of another armed man, when the Sub-Inspector in broad daylight met with his injuries. What is suggested is that as the Sub-Inspector knew the identity of the appellant, but did not know the identity of his companion, it is possible that a process of what the Commissioners describe as 'autosuggestion' has induced him to attribute to the appellant injuries in fact inflicted by the appellant's companion. We see no ground to suppose that anything of the sort has happened, and we are prepared to accept the evidence of the Sub-Inspector as not only honest but accurate. That being so the appellant has been rightly convicted of attempted murder under Section 307, I. P. C.
24. We may here say that the Commissioners have held that the appellant's conduct at Barama, although it amounted to an offence under this section, was not an act of waging war, inasmuch as the appellant's primary motive for attempting to murder the police officer was the desire to escape apprehension, and not the desire to weaken the forces of the Government. The appellant's counsel has argued in support of that view, and has pointed out that by similar reasoning opening fire at Gahira should be held not to amount to waging war, because the Commissioners have held that the common intention of those who fired may have been to drive away the forces of the Crown and escape, and therefore they have declined to convict under Section 307 in respect of that occasion.
25. We need not stop to consider whether the one finding would follow logically from the other; for in our opinion both acts were overt acts of waging war. We concede that it is possible to imagine a case where, after the conspiracy has been abandoned as failure, attempts to arrest former conspirators are made and forcibly resisted. It may be correct; we do not say that it is correct, that such resistance does not amount to waging war, as the intention to wage war is no longer entertained. Such however was not the situation either at Barama or Gahira. The conspiracy was still in active existence, and the appellant was still a member of it. It was his intention to use violence when occasion demanded it, and he did use violence. He was, as we have said, a rebel in arms against the Crown and in the unlawful possession of deadly weapons. In these circumstances it appears to be immaterial whether he used those weapons in acts of aggression or of resistance.
26. With regard to the actual occurrences at Gahira, there is no need to say very much. Counsel has argued that we should not believe Prosonno Talukdar (P. W. 122) who says that the three revolvers were made over to him by the appellant. This argument is based on his failure to make a definite statement to this effect at the time, and to the language of the search list. For the reasons given by the Commissioners we are prepared to accept this witness's version of the incident. Moreover the mere question of physical delivery seems to us of no great importance. Having regard to the position occupied by the appellant in the conspiracy, and to the fact that the revolvers have been shown to be part of the Armoury Raid booty, we think that the appellant has been rightly held to have been found in joint possession of them and of the explosives recovered at Gahira, independently of the part he is said to have played in surrendering the weapons.
27. A word should here be said as to the documents seized by the police at Gahira. The most important of these are Ex. 223, found on the person of the appellant, Exs. 226, 227, 235, 239 found in the 'ghar' of Purno Chandra Talukdar, and the Ex. 127 series, which consists of documents which were dropped from the sari of the female appellant at the time of her arrest.
28. As to this series we may say that we agree with the Commissioners that the account given of the circumstances in which the documents were found by Sepoy Samendar Khan of the Jat Regiment, P. W. 80, and put in his shoe and not made over to the sepoy's jamadar until the afternoon of the next day, is reliable. Samendar Khan is not a police officer, and has no experience in criminal investigation, and having regard to a sepoy's standard of education, it is by no means surprising , that he should not appreciate the importance of documents found on arrested persons, and the necessity of making such documents over to his superiors at the first opportunity.
29. The effect of these documents is in our opinion damning. It is not necesary to assign a meaning to every line. For example in Ex. 127(d) it is unnecessary to decide whether 'D. M.' stands for District Magistrate, or 'baby' for revolvers or whether the existence of a plot to assassinate the District Magistrate of Chittagong is disclosed. Such are the Advocate-General's suggestions and they possess a high degree of probability. But even if we discard them, this document and others clearly establish that in May 1933 the revolutionaries at Gahira were receiving letters from an inmate of the jail discussing a scheme for a jail rising and the rescue of the appellant Sen. This particular document is stated by Mr. Bennett to be in the handwriting of Amulya Biswas, detenue confined in Chittagong jail at that time. For our purpose the precise identity of the writer is of no particular importance, for the internal evidence clearly proves that, whoever he was, he was then an inmate of the jail and was in communication with the appellant Dastidar and his companions with regard to plans of the nature we have mentioned. Ex. 223, which, as we have observed, was found on the appellant's person, proves in our opinion that at this stage the appellant Dastidar was, to adopt the language of the learned Advocate-General, at the helm of the conspiracy. It was from him that the revolutionaries and their sympathisers sought directions as to the best manner in which their unlawful activities could be employed. Mr. Basu has described the inferences, that we hold, have been rightly drawn, as 'mere speculation.' In our opinion however they are irresistible, the more so as there is no attempt at a rival interpretation, although the writers would presumably frame their communications in terms intelligible to the recipient. We are satisfied that, after the arrest of the appellant Sen, his mantle fell upon the shoulders of Tarakeswar Dastidar and that in May 1933 he was the leader of the conspiracy and was so regarded by the other conspirators.
30. We have finally to consider the case of the female appellant, with regard to whom we have not thought it necessary to call on Counsel for the Crown. The suspicions of the police, that she was a possible conspirator, were first aroused by the fact that she was arrested dressed as a boy in Pahartali on 17th September 1932. She was released on bail on 23rd November 1932 and thereafter disappeared. At that time a bad livelihood case under Section 109, Criminal P. C, was pending against her. She is said to have been at Dhalghat at the time of the capture of the appellant Sen and to have succeeded in evading arrest. At the time of her apprehension at Gahira an important document, Ex. 156, was found on the premises. It has been proved by Mr. Bennett, after comparison with admitted documents, to be in the handwriting of the female appellant. We have made a similar comparison ourselves, and see no reason to doubt the correctness of the expert witness's opinion. The document is in a mutilated condition, but the substance of it can for the most part easily be ascertained. In it the writer states that while a student at the Bethune College she became imbued with revolutionary ideas and 'joined the organization.' She says that after the Armoury Raid she devoted herself to the organization and she describes a plot for rescuing the undertrial prisoners and the introduction of arms and explosives into the jail for this object. Owing to the mutilated state of the document it is not possible to say whether she claims to have taken an active part in this. She next says that she was summoned by the 'venerable leader' to take part in the Pahartali raid and describes how her participation therein was prevented by her arrest. She states that she absconded 'to fulfil her hankering after some revolutionary action.' She refers to an engagement with the police at Gairala 'where .... great .... rda was arrested.' It is not clear whether she was personally present on that occasion, but she says 'the tragedy' touched her heart, and her hankering for practical action grew more intense. She says her desire is going to be fulfilled 'to-day' by the newly elected President, that what she is about to do is not 'a whimsical act,' and that she is going to sacrifice her life.
31. Now, that is a highly important document and it is significant that it nowhere appears that the writer has ever put forward any explanation of it or repudiated the admissions contained in it. Counsel for the appellant has complained that the prosecution have failed to corroborate the statement contained in it. We shall consider at a later stage the correctness of this assertion, but at the moment we feel compelled to observe that this line of criticism in our opinion proceeds on a wholly erroneous assumption. If a person voluntarily elects to put on record a statement of his criminal activities, and thereafter neither repudiates that statement nor offers a reasonable explanation of it, ha has no grievance whatever if the Court regards that statement as conclusive against him. In such circumstances there is no burden placed on the Grown of (establishing the truth of the admissions of guilt aliunde.
32. It has been suggested by counsel that the document may be a fiction composed for purposes of publicity, and it is pointed out that Ex. 56 (Pritilata's statement) was in fact printed and circulated in the form of a leaflet, a specimen of which is on the record. This explanation has never been definitely advanced by the writer of the document even in her grounds of appeal and represents at the most an ingenious surmise on the part of her counsel. It may be conceded, that the arrangement and language of Ex. 156 render it highly probable that the appellant had Ex. 56 in her mind when she composed Ex. 156, and that to this extent the former document served as a model for the latter. But from this it is quite impossible to draw the conclusion that the statements of fact in Ex. 156, which to a large extent deal with events as to which Ex. 56 is silent, are untrue. Finally, if we apply the test of corroboration, though in our opinion it is in the circumstances altogether unnecessary that this test should be satisfied, we find the appellant's assertions as to her activities corroborated in a most remarkable manner. Reference must again be made to Ex. 199 which, it will be remembered, is the appellant Sen's account of the way in which girls and women were introduced into the revolutionary movement. It describes in great detail the doings of one Anita, who is said to have been in October 1929 a first year student in Calcutta. After dealing with the Armoury Raid there is a statement that 'a few months after the raid' the writer established communication with Anita, who procured in Calcutta materials for the projected dynamite outrage in the jail and managed to arrange for the introduction of arms, money, etc', into the jail. The document states that the writer decided to see Anita personally towards the end of the summer vacation of 1931, but that there were difficulties as she was 'being looked on with suspicion by the I. B. by this; time.' In fact the police records show that it was in the middle of July 1931 that the female appellant was placed under police observation.
33. The meeting, was finally brought about clearly in the: rainy season of 1931, and before the Puja vacation of that year or at any rate before the arrival of military reinforcements in December 1931, which rendered meeting difficult. Referring to this period the writer states: 'Anita was reading in Chittagong College then.' Now the records of the College have been put in and proved by the accountant of the College and they show that not only is this statement true of the female appellant, but it is true of no other woman in the world. The witness states that the appellant was admitted in September, 1931, and that prior to her admission there had been no female student since 1927. After the appellant's admission there was no female student admitted until March 1932, that is to say, until a time considerably later than the period of which the writer is speaking.
34. In our opinion it has been conclusively shown that the Anita of Ex. 199 is the female appellant, in spite of the fact that there is no positive evidence that she was ever called Anita, and the fact that it is common ground that her nickname or pet name is 'Bhulu'. We consider that the appellant's admissions as to her connexion with the dynamite conspiracy find full corroboration in the contents of Ex. 199. This being so it is unnecessary to decide whether, as is claimed by the prosecution, the document Ex.317 signed'Ajit', is in the handwriting of the appellant, or, if it is, what inference can be drawn from it as to her complicity in the first dynamite plot.
35. The statements in Ex. 156 as regards the intention of the female appellant to participate in the Pahartali raid are clearly corroborated by the facts relating to her arrest on 17th September, with which we have dealt above. As regards her presence at Gairala, on 16th February 1933, we do not feel justified in drawing any conclusion from Ex. 156, since the part of it which is concerned with this incident is so seriously mutilated as to make satisfactory deduction impossible. It is true that female garments were discovered at Gairala, which would indicate that there was a woman among the party of which the appellant Sen was one. There was also found here a letter in Bengali addressed to the female appellant's brother, Phaya. This is Ex. 197; and in its present state it bears the English date 16th February 1933. The Bengali portion has been shown to be in the handwriting .of the female appellant, who, it is proved, has a brother who is known as Phaya. Doubt however is cast on the genuineness of the English date; attention is drawn to the fact that when the document was photographed the portion containing the date was not reproduced. It is said that this was due to an oversight on the part of those responsible for the photography.
36. We do not think it necessary to go further into the matter, and we clearly hold that in the absence of oral evidence we are unable to say that the presence of the female appellant at Gairala on 16th February 1933 has been conclusively established. It is common ground that she was arrested at Gahira on 19th May 1933, and having regard to her writings and her general conduct prior to that date, we have no doubt that her reason for being at Gahira was her determination to take an active part in the conspiracy and to carry on the war the conspirators were waging. We have no doubt therefore that she has been rightly convicted of waging and abetting the waging of war against the King. We may however notice that as a last resort a suggestion was put forward that her reason for associating with the appellant Dastidar was not that she wished to co-operate with him in carrying out the object of the conspiracy, but that her connexion with him was solely of a sentimental nature. Again this explanation has never been put forward by the appellant herself and there is nothing at all to support it.
37. Reference was made to Ex.186 found on the person of the appellant Sen at the time of his arrest. There is a statement in the exhibit that Bhulu has been playing tricks, and that she appears to be cheerful because Futu and others are expected. The most this document could possibly be said to indicate is the wounded vanity of a middle aged man on discovering that a young woman naturally prefers the company of a man of 23 to his own. In any case Ex. 186 cannot possibly be used as a ground to support the suggestion of sentimental association, made as far as we can see for the first time in this Court. We have now considered the merits of the case of each appellant, and after setting aside the convictions of Tarakeswar Dastidar and Kalpana Dutt, under Section 4(b), Explosive Substances Act, we are of opinion that the convictions of all the appellants under the other sections must be maintained.
38. As to, the question of sentence, the commissioners state that with regard to the appellant Sen, they are unanimously of opinion that nothing but the extreme penalty will meet the ends of justice. We are in entire agreement with them on this point. We have no doubt that ever since his release from internment in 1928 this appellant has been planning and plotting against the King's Government. His plans were put into active operation on 18th April 1930, and up to the date of his arrest they were pursued with complete ruthlessness and disregard for the sanctity of human life. He has been found to be personally responsible for the deaths of Capt. Cameron and Mrs. Sullivan, and we consider him responsible for the death of victims of the Armoury Raid. We therefore confirm the sentence of death passed by the Commissioners under Section 376, Criminal P. C. The Commissioners state that the case of the appellant Tarakeswar Dastidar presents more difficulty, but after anxious consideration they have unanimously come to the conclusion that the extreme penalty should be imposed. We also have considered the matter, with great care, and we are of opinion that the Commissioners rightly thought it inconsistent with their duty to award a less severe punishment. Since April 1930, and probably before, Tarakeswar Dastidar has been an active member of this conspiracy, in pursuance of which a considerable number of the King's servants and the King's subjects have lost their lives. He has rightly been found guilty of attempting to murder Sub-Inspector Bhattaeharji, and of an overt act of waging war at Gahira where on his arrest he was discovered to be in the unlawful possession of arms and explosives. So far from the arrest of his co-appellants in February 1933 putting an end to his criminal activities, he thereupon assumed a more prominent position among the conspirators, and, as the documents show, he was up to the very last entertaining and discussing plans for further outrages. These facts make it quite impossible for us to disagree with the Commissioners and reduce the capital sentence which we confirm under the section referred to. The sentence of transportation for life passed on the appellant Kalpana Dutt is the lightest penalty which the law permits for the offence of which she has been convicted. It has not been suggested that the sentence should be enhanced, and so we are not called upon to offer any observations with regard to it. The result is therefore that except with regard to the convictions under Section 4(b), Explosive Substances Act, to which we have referred, the appeals of all the appellants are dismissed. In their judgment the Commissioners have commended the work of the police in investigating the case. We think their commendation well merited. In conclusion we wish to place on record our appreciation of the care and ability displayed by the Commissioners in the performance of their task. In spite of the mass of material the conduct of the trial was in all respects satisfactory, and the judgment delivered by the Commissioners is remarkable for its clear analysis of the evidence and for the sound reasoning by which the conclusions set out therein have been reached. Moreover it is abundantly clear that every submission made on behalf of the accused persons was most carefully and anxiously weighed by the tribunal.