1. By a Government of Bengal Notification dated 15th December 1933 a Special Tribunal was appointed by the Governor-in-Council under the provisions of sub-Ss. (1) and (2) of Section 4, Bengal Criminal Law Amendment Act, 1925, for the trial under that Act of thirteen persons who were accused of offences specified in Schedule 1 of the Act. The accused persons were the following: 1. Nirmal Jiban Ghose; 2. Kamakhya Charan Ghosh; 3. Brojo Kishore Chakravarty; 4. Ram Krishna Roy; 5. Sonatan Roy; 6. Nanda Dulal Singh: 7. Sukumar Sen Gupta; 8. Bijoy Krishna Ghose; 9. Purnananda Sanyal; 10. Manindra Nath Choudhury; 11. Saroj Ranjan Das Kanungo; 12. Santi Gopal Sen and 13. Sailesh Chandra. Ghose. When the trial of the case began the Commissioners were informed by the Public Prosecutor that one of the accused persons, namely Santi Gopal Sen, was absconding and could not be produced before the Tribunal. At the same time on an application made on behalf of the Crown the Commissioners tendered a pardon on the terms and conditions imposed by Section 8, Bengal Criminal Law Amended Act, 1925, to the accused Sailesh Chandra Ghosh, namely on the condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof. He accepted this condition of pardon and was made an approver in the case. The Commissioners then proceeded to the trial of the other eleven accused persons.
2. The persons tried by the Commissioners were charged with the commission of an offence under Section 120-B, I.P.C., read with Section 302, I.P.C. The specific charge against them was that between 2nd March 1931 and 2nd September 1933 at Rajardighi Abash, Gope, Kedan, Babu's house, Sukumar Sen Gupta's house, Golekua chak, Old Jail, College Ground, Police Ground and other places in or about the town of Midnapur and Kharagpore within the District of Midnapur, Calcutta and other places in. Bengal, they along with Anath Panja, Mrigendra Dutta, Santi Gopal Sen, Sailesh Chandra Ghose, Bimal Das Gupta, Jyoti Jiban Ghosh, Parimal Roy, Phani Das, Pravangshu Pal, Prodyot Bhattacharjee and others, were parties, to a criminal conspiracy, the object of which was to commit murder of District-Magistrates and other high Government officials of the District of Midnapur, and in pursuance of the said conspiracy, Mr. Burge, the late Magistrate of that District, was murdered on 2nd September 1933.
3. All the accused persons were defended by counsel and the matter was gone into in great detail, and as far as we can see the Commissioners took into consideration all the arguments advanced on behalf of the accused. In the result the findings of the Tribunal were that the following accused persons, namely Nirmal Jiban Ghosh, Kamakhya Charan Ghosh, Brojokishore Chakravarty, Ram Krishna Roy, Sonatan Roy, Nanda Dulal Singh, Sukumar Sen Gupta, were guilty of the offence of criminal conspiracy to commit murder punishable under Section 120-B read with Section 302, I.P.C. The rest of the accused, namely Bijoy Krishna Ghose, Purnananda Sanyal, Manindra Nath Choudhury and Saroj Ranjan Das Kanungo were found not guilty of the offence charged against them. They were acquitted and set at liberty. The Commissioner stated that they gave their very anxious consideration to the question of sentence. They said that they could conceive of the circumstances in which a young man might join a terrorist organization which had murder for its object, join in wild talk and even take part in plans for the projected murder without fully facing the fact that action would really be taken to carry out that murder. They then said:
In the case before us, where two previous District Magistrates had already been murdered, no possible ground could exist for any youth who joined in the conspiracy to fail to be aware that it was a conspiracy in deadly earnest. The evidence shows that the accused persons Brojo Kishore Chakravarty, Nirmal Jiban Ghosh and Ram Krishna Roy had already joined the party before the murder of Mr. Douglas. It shows that after the murder of Mr. Douglas, Brojo Kishore became the leader of the party and that he throughout took a directing part in arranging the murder of Mr. Burge. The evidence shows moreover that both Nirmal and Ram Krishna were active in pursuing the object of the conspiracy and that they both took a leading part in all the activities of the conspirators. We are aware that Nirmal's intimacy with the approver seems to throw the activities of Nirmal into disproportionate prominence. But even making allowance for that fact, it is clear that Nirmal was one of the most enthusiastic and active members of the conspiracy.
4. The Commissioners then said that they have taken into consideration in their favour the extreme youth of these three boys as well as the insidious propaganda by which their minds were slowly poisoned:
We feel however that these circumstances cannot weigh against the deadly object of their activities which were carried on and indeed carried on with greater vigour even after at least one District Magistrate had been murdered during their membership of the party. In these circumstances we feel that we should be doing less than our duty in awarding any other punishment than the maximum which the law allows.
5. The sentence of the Tribunal, accordingly, was that Nirmal Jiban Ghosh, Brojokishore Chakravarty and Ram Krishna Roy should be hanged by the neck until they be dead. As regards the other four accused Kamakhya Charan Ghosh, Sonatan Roy, Nanda Dulal Singh and Sukumar Sen Gupta, the Commissioners considered that their activities in pursuance of the conspiracy were a little less pronounced and in their case the extreme penalty of the law need not be exacted. They accordingly sentenced them to suffer transportation for life. All the convicted persons have appealed against their convictions and the sentences passed upon them. The matter comes in pursuance of appeals on the part of all the convicted persons and by way of a reference under Section 3(2), Bengal Criminal Law Amendment (Supplementary) Act of 1925 for confirmation of the sentences of death which were passed by the Commissioners. We have therefore imposed upon us the responsible duty of deciding first of all whether the convictions of all or any of the appellants were justified by the evidence adduced before the Tribunal and, secondly, whether the three sentences of death or any of them ought to be confirmed.
6. The case for the prosecution as put forward at the trial has been sat out by the learned Commissioners in the opening paragraph of their very lengthy and detailed judgment and we do not think it necessary to recapitulate the events and the incidents which, as the prosecution said, demonstrate that all the appellants were active participators in the conspiracy charged against them. As already stated one of the persons originally accused, was tendered a pardon upon the condition of his making a full and true disclosure of all the facts in connexion with the conspiracy and its object. That person is Sailesh Chandra Ghose. He gave evidence before the Commissioners and a large number of other witnesses gave evidence on behalf of the Crown not only for the purpose of corroborating the evidence given by Sailesh as the approver in the case but for the purpose of furnishing independent and extraneous testimony to establish the existence of the criminal conspiracy described in the charge and in addition the complicity in it of the accused persons. We shall later on deal in detail with the evidence adduced before Commissioners. But before so doing we think it desirable to make some observations of a general character. At the outset we would say that as it is no doubt the fact that the Crown relied to a very large extent on the evidence given by the approver, one of the most important points before the Commissioners, and a point to which we have to direct our attention with great care, was the question whether the evidence of the approver had been sufficiently and satisfactorily corroborated by the evidence given by other witnesses. We can state with confidence that it seems clear and certain beyond all controversy that the learned Commissioners in arriving at their decision and in dealing with the case throughout had well in mind the importance and the desirability and, indeed, the necessity for corroboration of the approver's story. That this was so appears from the Commissioner's own statement in their judgment (at p. 171) in which they said:
We have been constantly mindful of the position in which the approver stands. The approver has given his evidence in the hope of pardon and we are aware that he is under the temptation to depose in accordance with what he may have thought to be to his own advantage. We have no reason to suppose that he has deposed by reason of repentance for his own past activities or that his motives are anything but motives of self-interest. We have received his evidence with great caution and have scrutinized it with all the care of which we are capable. Bearing all those considerations in mind we are nevertheless of opinion that he has deposed with substantial truth.
7. In this connexion we were referred by the learned Advocate-General to the decision of this Court in Madhu Sudan Sen Gupta v. Emperor, 1934 Cal 114 where it was held that
In a jury trial, the Judge must tell the jury that they may, if they choose, convict on the evidence of an accomplice alone, but that it is dangerous to act upon such evidence unless there is corroborative evidence implicating the accused. If such warning be given, but the jury nevertheless convict solely on the evidence of an accomplice, the conviction will not generally be set aside; but if such warning be not given, the conviction will be quashed. Similarly, a Judge sitting without a jury must bear the same considerations in mind. If they be not present to his mind and if there be no sufficient corroborative evidence, the conviction will be set aside.
8. Therefore, if a Judge sitting without a jury bears in mind the same considerations with regard to corroboration of the evidence of an accomplice as he would be bound to put before the jury were he sitting with a jury, then if those considerations are present in his mind, it is really a matter for him to decide whether or not there is sufficient corroborative evidence. The learned Advocate-General argued in the present case that the question of how far the tribunal could have acted on uncorroborated testimony or the degree of corroboration required, was really a matter to be left to the good sense and prudence of the Commissioners themselves. He urged that the Commissioners who constituted the tribunal at Midnapur and whose decision we are now reviewing did fully appreciate what was required of them concerning the question of corroborative evidence and as he put it, they did not in any sense misdirect themselves upon this point. The learned Advocate-General further said that if bearing in mind for their own guidance the kind of warning which a Judge would have to give to a jury, they came to a particular conclusion then they were quite within their rights in coming to that conclusion. With that proposition we entirely agree, but inasmuch as the whole case was before us for determination both as regards the facts as well as the law this point is really of little more than of academic interest. The learned Commissioners, if anything, were over cautious. They went so far as to say:
The law is well settled that the evidence of an approver should not be acted upon unless corroborated on material particulars not only against persons who are charged but with regard to the participation of each individual accused in the commission of that offence. The law does not require that the approver should be corroborated on all particulars, for in that case the evidence of the approver would be entirely superfluous. What the law requires is corroboration on material particulars. The nature and extent of the corroboration that should be required must be determined to a certain extent by the nature and the circumstances of each individual case.
9. No doubt as a broad proposition it is correct to say, as was reiterated in the case above mentioned, that in spite of Section 133, Evidence Act, the rule of practice that an accused person ought not to be convicted on the uncorroborated testimony of an accomplice has become virtually equivalent to a rule of law. But, the proposition is subject to various qualifications, and we do not assent to the proposition that in no circumstances can the evidence of an accomplice corroborate the evidence of another as suggested in the recent case, Hafijuddi v. Emperor, 1934 Cal 678. We are of opinion that the legal position as regards the evidence of an accomplice or an approver as deduced from the relevant sections of the Evidence Act and the English and Indian judicial decisions is comprehensively summarised by Sir Arthur Page, C.J. of Burma in Aung Hla v. Emperor, 1931 Rang 235 at p. 427, where after quoting sections of the Evidence Act, and after having considered a large number of authorities he stated:
We are of opinion that the effect of these sections which are to be read together, is (1) that an accused person can legally be convicted upon the uncorroborated evidence of an approver; (2) that whether an accused person should or should not be convicted upon such evidence is left to the prudence and good sense of the tribunal after considering all the circumstances of the case; (3) that prima facie the evidence of an approver, being tainted evidence, is unworthy of credit unless it is corroborated in some material particular tending to show that the accused committed the offence with which he is charged; (4) that it is for the Court to determine in the particular circumstances of each case whether the 'matter' before it, tending to corroborate the evidence of the approver (which may or may not be evidence strictly so-called and as defined in the Evidence Act) is worthy of credence, and is sufficiently reliable to be treated as evidence against the accused, and acted upon; (5) that the evidence of an approver may be corroborated by the evidence of another approver, or by the confession of a person who is being tried jointly with the accused for the same offence implicating both himself and the accused; (6) that it is the duty of the Court to scrutinize with care such corroboration as that mentioned in (5), but that whether it is to be treated as evidence against the accused or not is to be determined by the Court having regard to the circumstances of the case.
10. We entirely agree with these propositions and respectfully adopt them as constituting a correct enunciation of the law. The question of what are the circumstances in which corroboration is required and the question of the amount of such corroboration are in the present instance, largely matters which are on the whole purely academic, as the independent evidence, if believed, leaves no doubt whatever that all the appellants were members of the conspiracy. The learned Commissioners rightly had before them the criterion to be applied by them as appears from the passage in their judgment (at p. 167) where they said:
The nature and extent of the corroboration that should be required must be determined to a certain extent by the nature and the circumstances of each individual case. The question that the Court is called upon to decide is whether having regard to the evidence of the approver and other evidence in the case, that is to say whether in taking a judicial view of the whole evidence it can be said that the approver's evidence has been so corroborated that on the whole it is safe to act upon his evidence. The points on which and the extent to which the approver's evidence has been corroborated are, we think, apparent from the review of the evidence which we have already made.
11. Having indicated the points on which they considered there was corroboration, they stated their conclusions in this form (p. 172):
We should however not have been prepared to act upon his evidence unless we were satisfied that it had been sufficiently corroborated in material particulars and we now declare that we are of opinion that his evidence has received sufficient corroboration so far as the general story of conspiracy is concerned.
12. The appeal was argued before us on behalf of the accused in great detail and at considerable length for the hearing extended to a period of no less than 11 days. The learned Counsels who appeared for the accused subjected the evidence and the observations of the learned Commissioners to the most minute and detailed examination and criticism. We were taken through the evidence by one or other of the learned Counsel from end to end not only once, but as regards some of the evidence, several times. The whole of the testimony given before the learned Commissioners was examined microscopically and meticulously with the result however that this process, of sifting the evidence only served to throw into high relief the undoubted truth of the prosecution story. We have since the hearing of the appeal, once more examined the evidence for ourselves and reconsidered all the arguments put forward by learned Counsel on behalf of the appellants and in the result, we can only say that the more we looked into the evidence and the more we considered the arguments put forward on behalf of the appellants, the more solid and the more substantial and indeed, unassailable became the case for the prosecution. After very careful examination of the case and consideration of all the arguments put forward, we are definitely of opinion that the learned Commissioners were quite justified in coming to the conclusion and indeed they could have come to no other conclusion that the evidence of the approver was in every way sufficiently and satisfactorily corroborated. Moreover in the present case the question of corroboration of the approver's evidence assumes less importance than in other circumstances it might have done because as we have already observed, apart from the evidence of the approver, the facts proved by the other witnesses established beyond all question that there was a conspiracy as alleged by the prosecution and that all the appellants were active participants in that conspiracy.
13. Mr. N.C. Sen who appeared on behalf of three of the appellants namely, Kamakhya Charan Ghosh, Nanda Dulal Singh and Sukumar Sen Gupta, strenuously put forward on their behalf the contention that the approver was an entirely false witness and that even if there was a conspiracy the evidence given by the approver with regard to it was solely the result of 'tutoring' on the part of the police. We have considered with care all Mr. Sen's suggestions and comments on the evidence and we now proceed to discuss them. One of Mr. N.C. Sen's arguments was that inasmuch as the names of certain persons who were mentioned by the approver in his confession as being amongst the conspirators were omitted altogether from the evidence given by the approver in the witness box, the inference is that the approver had deliberately made the omission at the nefarious instigation of the police because it was intended by the prosecution to call these same persons as witnesses at the trial. The learned Commissioners evidently had before them a similar argument at the trial and they seem to have allowed themselves to be misled by it because it appears that they thought fit to accept this contention in that they took the view, as appears from a passage in their judgment (p. 150) that
The fact that he did omit the names in examination in chief rather suggests to our mind that the approver had accepted a hint from the prosecution not to bring the names of those persons into his evidence unless questioned on the point, and to this extent we are bound to hold that the approver, in our view, accepted tutoring from the prosecution side.
14. We may observe in passing however that the learned Commissioner also said that 'this circumstance however in no way indicates that the approver has deposed in respect of the matter.' We find it difficult to understand how it could have been imagined that any advantage would accrue to the prosecution from any such manoeuvre seeing that it would afford an obvious means of discrediting their principal witness. The opinion arrived at by the Commissioners was however based upon an erroneous view of the real facts; for unless it could be shown that all the witness in question were mentioned in the confession and that all the persons whose names were omitted were examined as witnesses, the whole basis of this somewhat curious argument completely disappears. The witnesses in question are Gouranga Mohan Roy (18), Jitendra Mohan Hazra (25), Jagadish Chandra Chandra (31) and Parimal De (39). Of these four witnesses the approver in his examination-in-chief did in fact mention Gourang Mohan Roy and Parimal De. It seems that the learned Commissioners must have confused the name of Gouranga Roy with that of Gouranga Das and the same name of Parimal De with that of Parimal Roy (p. 203). Incidentally it may be observed that this would appear to be an explanation of the otherwise apparently meaningless re-examination of Gouranga Roy who was solemnly asked whether his name was Gouranga Roy. Moreover the approver in his cross-examination actually mentioned the name of Jitendra Hazra explaining that he had previously omitted his name by mistake. He moreover in his cross-examination mentions the name of Jagadish Chandra. Obviously, he would have been careful not to have made any mention of these persons even in cross-examination if he had succumbed to any form of tutoring with the object in view suggested by Mr, N.C. Sen. Of all the four persons the only one mentioned in the confession is Jagadish. The other person mentioned in the approver's confession and referred to in the argument is one Abul Fazle and he was neither a witness nor is he in the confession specifically mentioned as a conspirator. The result is that none of Mr. Sen's premises have any existence and this argument fails accordingly.
15. Mr. Sen's next argument was based upon the not uncommon suggestion that the approver was induced to make a false and 'tutored' statement by improper means employed for the purpose by the police. (His Lordship examined the evidence and held that it was not a result of tutoring. The judgment then proceeded). No serious attempt was made to dispute the approver's testimony that there was a conspiracy and his statement is confirmed by circumstances altogether apart from the actual evidence given by the approver. The basic feature of the whole case-one which cannot be controverted-is that three District Magistrates of Midanapur were in succession foully assassinated. Prodyot Bhattacharjee who was hanged for the murder of Mr, Douglas belonged to the student class and so did the assassins of Mr. Burge. In Prodyot's pocket was found a paper showing that he committed the murder from no motive of any personal animosity against Mr. Douglas and it has never been suggested that Anath Panja or Mrigendra Dutta who killed Mr. Burge had any private animosity against him. The truth of the approver's story that there was a conspiracy is also proved by the fact that some of the cartridges and bullets found at places where the approver says revolver practice took place, are proved to have been fired from the identical revolver used by one of the assassins of Mr. Burge. The learned Commissioners came to the conclusion that the evidence regarding the three murders left not the slightest doubt in their minds that all the three murders were connected and were the acts of one party. They further said that they were satisfied that this party was a continuing one. We have no doubt whatever that the Commissioners were entirely right in coming to the conclusion that in the main and on all material points the evidence given by the approver was true. In this connexion they said:
We have to remember that the approver has told a long story covering a very large number of points and that he has stated it with a considerable wealth of detail. He was in the witness-box for about a week and was subjected to searching cross-examination by experienced lawyers for upwards of four days, It is difficult to think that a boy of his age could have stood the test if the story he told was in the main a tutored one. In such a case we think he would have been likely to break down under cross-examination, but on the contrary he, on the whole, stood the cross-examination well.
16. In our opinion it must be manifest that once the theory of tutoring is rejected, there would then be no reason at all why the approver should have falsely implicated any one of the accused persons. No grudge or ill-will on the part of the approver towards any one of the accused was proved. Vague suggestions of the approver seeking to wreak vengeance by reason of some real or fancied grievance were, it is true, put forward on behalf of Nanda Dulal Singh and on behalf of Sonatan Roy, both of them based on allegations founded solely upon their own statements before the tribunal but on no other evidence whatever. Nothing of the kind had been suggested in the course of the cross-examination on behalf of these two accused persons respectively or during the course of the case for the prosecution and it was only after all the evidence on behalf of the prosecution had been given that they were put forward. The learned Advocate-General rightly argued that the suggestions were trivial and in any event inadequate. The learned Commissioners with regard to Nanda Dulal's complaint said:
The allegation that Monmohan (father of Nanda Dulal) refused to lend money because Nanda told him that Sailesh was a bad character is almost absurd.
17. It is clear that the learned Commissioners themselves thought that there was nothing whatever in Sailesh's alleged grievance against Nanda Dulal. As regards Sonatan's allegations the learned Commissioners said:
Sonatan alleged in his written statement that the approver was known to him from boyhood but as the approver took to evil ways Sonatan's guardian stopped him from association with Sonatan and forbade Sailesh to come to Sonatan's house and for that reason Sailesh bore a grudge against Sonatan and falsely implicated him in the conspiracy. There is no evidence in support of this allegation nor did any circumstance transpire in cross-examination to support it. Having regard to the age of the approver it also seems to us that the allegation is improbable.
18. It is quite clear that the defence made no attempt to substantiate the theory that Sailesh was in any way actuated by ill-will towards any of the accused. Certainly no such ill-will was proved. (His Lordship then discussed the evidence in detail in chronological order and then continued.) We now come to the events of 1st September 1933, the day before Mr. Burge was murdered. According to the evidence of the approver on the afternoon of that day, Nirmal Jiban Ghosh, Sonatan Roy and himself went to Abash to see the 'Ind' ceremony. He says: 'I had gone at about 4 p.m. and returned after dusk.' He also said that he read with his private tutor that night. In re-examination he said:
Nirmal, Sonatan and I first went to Abash on cycles to see Ind ceremony sometime after 4 p.m. We left Abash at about 5 p.m. We then went to Amulya Dutt's house about 10 minutes after. From Amulya's house we went to the meeting at Pachatgarh tank.
19. That these three persons did go to Amulya is confirmed by Amulya himself. It is argued on behalf of the defence that there was nothing sinister in this inasmuch as it appears from the evidence of Amulya Krishna Dutt (14) that other boys also used to inquire whether Mr. Burge was playing. We are completely in the dark as to the reason which led them to make such inquiries. Of course if these two appellants thought that Mr. Burge was a good player and would be interested in watching him play there would be nothing at all sinister in such an inquiry. So far from attempting to establish any such explanation both these appellants deny that they made this inquiry at all. It is therefore quite clear that the reason given by the approver for it, is the true one, namely to ascertain whether Mr. Burge would be at the match in order that arrangements might be made for murdering him there. A special argument was put forward by Mr. N.K. Basu on behalf of Sonatan Roy to the effect that he cannot possibly have made this inquiry as it is impossible to make the various times fit in. In the first place Sonatan was attending a practical chemistry class and Mr. Basu has contended that he could not possibly have left that class before about 10 minutes to 5. This argument is based upon the evidence of Durga Prasad Bhakat (53), a demonstrator in the Midnapur College. It is astonishing to find that this witness was called by the Crown at the request of the defence. It is obvious that witnesses to establish anything in the nature of an alibi ought to be called by the accused person who takes that line of defence. Unless evidence of that character is tested by cross-examination on behalf of the Crown, it is very difficult for anyone to say what value should be attached to it.
20. This witness stated that the practical period is divided into two portions of forty-five minutes each. The only importance of this evidence is its bearing on the statement of the approver that Sonatan accompanied him to Abash. It appears from the evidence of Jotish Chandra Roy (54), another demonstrator, that it was only after the murder of Mr. Burge that the Principal issued orders that the students should not be allowed to leave their classes before the period was over. We therefore see no reason why we should reject the approver's story with regard to Sonaton Roy merely because the practical class was going on at the time. It is to be noted that this argument was merely directed to show that the approver's evidence with regard to the doings of Sonaton Roy that afternoon was untrue but the excursion to Abash was on the face of it an innocent one having nothing whatever to do with the conspiracy and there is therefore no reason why the approver should have invented it. To establish the actual alibi reliance is placed on the evidence of Bejoy Krishna Dutt (20) who is also a student of the Midnapur College. In cross-examination he stated that on 1st September he 'took out a procession' in order to collect money for the Flood Belief Fund and that Sonatan Roy was with him from the beginning to the end. Although he is not precise with regard to the actual time, it is unlikely that if Sonatan Boy was accompanying this procession he could have gone with the approver and Nirmal Jiban Gosh to see Amulya Dutt and attended the meeting at Pachetgarh. It is altogether extraordinary that this witness cannot remember what anybody else did in connection with this procession or who else was present in it. But be that as it may, in re-examination this witness could not be certain as to the date on which this procession went out. There is no reason to doubt that if in fact Sonaton was taking part in this procession he could easily have called a large number of persons to prove it. We see no reason to doubt that the approver's evidence with regard to Sonatan's movements on that afternoon is entirely true.
21. We now pass to what is from many points of view the most important event prior to the incidents in connection with the actual murder of Mr. Burge, that is to say the last meeting of the conspirators, namely that which took place at the ghat of the Pachetgarh tank on the evening of 1st September. The approver in his evidence in Court said that in the afternoon of 1st September, he, Nirmal Jiban Ghosh and Sonatan Roy went to the house of Amulya Krishna Dutt to enquire whether Mr. Burge would play for the Town Club on the next day. The approver then went on to say that after ascertaining that Mr. Burge would play for the Town Club the next day (i.e. on 2nd September), they and others met at the ghat of the tank which is close to the house of Anath. The approver stated that at that meeting the respective duties of the members of the party in connection with the murder of Mr. Burge were assigned and he gave a detailed account of the allocation of the duties. Anath and Mrigen were to kill Mr. Burge; Santi Gopal Sen was to stand to the west of the field with a revolver to assist Anath and Mrigen to escape; Brojokishore Chakravarty and Ram Krishna Roy were to give the signal to Anath and Mrigen for committing the murder; Nirmal Jiban Ghosh with a revolver was to be near the Mission School and Kamakhya Charan Ghosh was to remain with a revolver near the Collectorate; Sonatan Roy was to stand with a dagger on the Diamond Ground and the approver himself was to remain with a dagger on the College ground; Sukumar Sen Gupta and Manindranath Nath Choudhury were to destroy the books and correspondence belonging to the party. Evidence to corroborate the approver was given by Gouri Dassi (22) and Bepin Behary Pramanik (29). Gouri Dassi (22) stated that at about 5 or 5-30 in the afternoon of 1st September when she went to the ghat of the Pachetgarh tank to wash her cloths she saw there Anath, Mrigen, Brojokishore Chakravarty and seven or eight others, in all ten or twelve; some seated on the masonary benches on the ghat and some standing. All of them were talking. Bepin Behari Pramanik (29) says that on that afternoon, while he was passing by the side of the Pachetghar tank just before sunset, he heard a voice from the direction of the ghat saying that the Magistrate must be finished on the playground and that the next day would be his last. The voice he did not recognise. But he then heard another voice which he recognised to be that of Anath Panja saying, 'Certainly', and still another voice he recognised to be that of Mrigen Dutt saying 'Take care'. When he rounded the wall and advanced to a point from which the ghat was visible and came quite close he recognised Anath Panja, Mrigen Dutt, Brojokishore Chakravarty and Ram Krishna Roy amongst five or six other boys at the ghat.
22. At the trial the main criticism directed against the evidence of Gouri Dassi (22) was that at the identification parade held in the jail she could not identify Brojo Kishore Chakravarty although she stated that she had known him for about a year previously. The learned Commissioners commenting upon this said:
It appears that at the jail identification parade eight groups of persons were shown to the witnesses and that in each group there were about forty persons. Each of the groups consisted of thirty six outsiders, the same thirty six outsiders together with four or five suspects Gouri Dasi is a woman about fifty years of age. We are inclined not to attach great importance to her failure to identify Brojokishore at the identification parade in view of the large number of persons, really over three hundred in all, who were submitted to her inspection and we are inclined to think that in an environment which was strange to her (the parade was held inside the jail) she may not have examined carefully the persons paraded for her and was probably in a hurry to get out as early as possible from the parade,
23. A similar criticism was directed against Bepin Pramanik, namely that he could not identify Ram Krishna at the identification parade although he says he knew Ram Krishna from before both by sight and name. Similar criticisms have been urged before us and the fact that Gouri Dasi (22) did not pick out Brojokishore Chakravarty and the fact that Bepin Pramanik (29) did not identify Ram Krishna Roy have been made the basis of the suggestion that the evidence of these two witnesses with regard to the Pachetgarh meeting ought to be rejected. The learned Commissioners point out that the Magistrate (Babu Kulada Ranjan Das Sarkar) who held the test identification parade said in his evidence that:
The identification parade started at about 4 p.m. and was conducted hurriedly in order to get it finished before dusk on account of the existence of the Curfew order in Midnapur, and we are inclined to think that a fair opportunity may not have been offered to Gouri Dassi and Bepin Pramanik to pick out the persons whom they claimed to know and we are not inclined to attach too much importance to their failure at the identification parade.
24. We ourselves do not attach any importance to the failure of these two witnesses to pick out Brojokishore Chakravarty and Ram Krishna Roy, having regard to the manner in which the identification parade was conducted. In fact we are really surprised that any witness identified anybody. The procedure adopted by the Magistrate was this. The witnesses informed him that they had come to see if they could identify any of the suspects confined in connection with the Burge murder case. They were then taken to the various groups and if they picked out anyone they were asked in what connection they identified him. We are completely in the dark as to what the witnesses meant or how they were supposed to know who were the suspects confined in connection with the Burge murder case. We do not know whether they thought they were asked to identify persons whom they suspected themselves or whom they thought or had been told by the police were such suspects. It is clear that no useful purpose whatever could be served by a test identification parade conducted in this manner. The Magistrate should have started the proceedings by asking these witnesses whether they would be able to pick out any persons whom they had seen meeting together at the Pachetgarh tank on the afternoon before the murder. If this had been done, there is no reason to suppose that they would not have picked out these appellants. But even had they done so no useful purpose would have been served. Bepin Pramanik (29) served as a clerk of the father of Ram Krishna Roy and he must have been previously well acquainted with Ram Krishna. Gouri Dassi knew Brojo Kishore Chakravarty by name. If these witnesses had picked out these men at the test identification it would in no wise have served to substantiate the truth of their evidence. The fact that they did not do so in the circumstances in no way affects their credibility.
25. No other criticism was made with regard to the evidence of these witnesses. The learned Commissioners said:
So far as the fact is concerned these two persons saw a number of persons sitting at the ghat and so far as their evidence bears on the subject of conversation of those boys we find no reason from their testimony to disbelieve them.
26. We also find no reason whatsoever for not accepting the evidence of these two independent witnesses and this evidence clearly establishes that there was a meeting at Pachetgarh tank on the afternoon of 1st September at which the majority of the conspirators were present. Furthermore it affords ample corroboration of the approver's story of the meeting. The approver stated that he himself, Nirmal Jiban Ghosh, Brojokishore Chakravarty, Sonaton Roy, Kamakhya Charan Ghosh, Ram Krishna Roy, Anath Panja and Mrigendra Dutt were amongst those present. Ram Krishna Roy was asked to inform Santi Gopal Sen of the duty allotted to him and Nirmal Jiban Ghosh was asked to inform Nanda Dulal Singh. In passing, we may mention that Nanda Dulal was the only one of the appellants who at the trial attempted to set up anything like a substantial alibi. In answer to questions put to him under the provisions of Section 342, Criminal P. C, he said that he was not in Midnapur from the month of June to the month of September and in the written statement which he put in he stated that he was prosecuting his studies in Calcutta since July 1933 and residing there and not at Midnapur. He went on to say that as 3rd September was a Sunday and as the other students of the medical school were granted holidays on 4th, 5th, 6th and 7th September, on account of the examination of the irregular medical students, he came home on 2nd September last. He however called no witness in support of that defence and as far as we can see there is nothing whatever to show that he was not present and taking part with the conspirators in Midnapur on all the occasions when the approver and the other witnesses said that they had seen him there.
27. We now come to the events of the day of the actual murder of Mr. Burge. On that day there was a football match on the police ground between the Mohamedan Football Club and the Town Club in connexion with the Corners Shield Competition. Mr. Burge was to play for the Town Club. At about 2 o'clock or shortly after Brojokishore Chakravarty was seen by the witness Gouri Dassi (22) paying money to Anath Panja. That corroborates the approver's statement that Brojo Kishore was not only the leader but also the treasurer of the party and the suggestion of the prosecution is that Brojokishore was providing Anath with means to assist him in making his escape after the projected murder and supporting himself while in hiding. At about 2 or 2-30 p.m., Nirmal and Anath were seen together near the Public Library as appears from the evidence of Dhirendra Nath Nandi (33). The only criticizm that was made on behalf of the appellants as regards this witness was that he was related to persons in public positions and so amenable to police influence. We need hardly say that we do not consider that this was any reason why he should falsely implicate Nirmal Jiban Ghosh, or anybody else. At 4 p.m. Brojokishore Chakravarty, who sometime previously had attempted to bring Jagadish Chandra Chandra into the party, spoke to Jagadish. He said that probably he (Brojokishore) would be arrested that day. At 4-30 p.m. Anath Panja, Mrigendra Dutt, Santi Gopal Sen, and Nirmal Jiban Ghose were seen together at Golkuechak.
28. It was noticed that Nirmal was smoking a cigarette. The evidence of the approver on this point is confirmed by that of Jitendra Mohan Hazra (25). At about the same time Ram Krishna Roy, Kamakhya Charan Ghosh, Sonatan Roy, Brojokishore Chakravarty and Bijoy Krishna Ghosh were seen together near the Collectorate going in the direction of the police lines. The evidence of the approver with regard to this is confirmed by that of Kishori Mohan Mal (21). He says that he saw these persons passing by the road in front of the Subdivisional Officer's Court towards the police lines. They stopped in front of the Subdivisional Officer's Court and talked together for some time. Kamakhya Charan Ghosh turned towards the south and the others proceeded towards the police lines. At 5 p.m. Anath Panja, Mrigendra Dutt, Nirmal Jiban Ghosh, Brojokishore Chakravarty and Ram Krishna Roy were seen in a group near the Mission School, quite close to the Police Ground. Khairul Alam (17) said that he asked Nirmal if he would go to witness the match on the Police Ground. Nirmal said: Go on, I am following.' Khairul Alam then walked to the Police Ground and took his stand on the southern line near the goal. At that time the players of the Mohammedan Football Club were kicking the ball about for practice near the southern goal. The match had not begun. Sometime after, Anath Panja, Mrigendra Dutt, Ram Krishna Roy and Brojo Kishore Chakravarty arrived. Ram Krishna and Brojo Kishore stood on the south-east corner of the ground. Anath and Mrigen went on to the field and began to play. Sometime after came Nanda Dulal. He talked to Ram Krishna and Brojo Kishore and then went away. Then Mr. Burge came in a motor car. He alighted from his car and went on to the ground. At once Khairul heard sounds of 'Khat Khat.' He could not say who was responsible for the sounds. He heard the sounds.
29. The evidence of this witness taken in conjunction with what has gone before proves beyond all shadow of doubt whatever that Nirmal Jiban Ghosh, Brojo Kishore Chakravarty and Ram Krishna Roy along with Anath Panja and Mrigendra Dutt were implicated in the actual murder itself. It shows that Brojo Kishore Chakravarty, Ram Krishna Roy, Anath Panja and Mrigendra Dutt and then Nanda Dulal Singh were all on the Police Ground together immediately before the murder; Nirmal Jiban Ghosh, according to the prosecution case, having stayed behind in order to take up the position assigned to him at the Pachetgarh meeting. At 5-10 p.m. Burge was killed. It appears from the evidence of Captain Linton (3), Mr. Smith (9) and Mr. Jones (10) that a revolver and a pistol were taken from the assassins. Anath was killed on the spot and Mrigen was wounded. He died the following day in the hospital. We have referred to the fact that bullets which had been fired from the revolver used by Anath Panja in killing Mr. Burge were found at places where the revolver practice had been carried out.
30. It will be seen from the foregoing recitation of the events in chronological order that the conspirators made no less than four 'previous attempts,' (to adopt the expression used by Mr. H.D. Bose) to kill Mr. Burge. The Commissioners point out that it was in contemplation to murder Mr. Burge on the day of the charity match between Mohan Bagan and Midnapore Mixed which was played on the 12th August on the College Ground. No opportunity having presented itself on that date it was next arranged, according to the approver, that an attempt should be made on the 16th August when the League Final Match was played between the Institute and the College on the Police Ground. On this occasion also no opportunity having presented itself, the next occasion chosen was the public meeting in connexion with Flood Relief arrangements. That meeting was held in the Central Bank building under the presidency of Mr. Burge, on the 19th of August. On that date also nothing could be done and then an attempt was to be made at the match in connexion with the Bradley Birt Challenge Cup which was played on the Police Ground between the Institute and the Town Club on the 31st August. The learned Commissioners point out that there was evidence that Mr. Burge was present on all these occasions, but there was no opportunity found for the projected murder. The evidence of the approver implicates all the appellants in these designs.
31. The Commissioners have analysed and set out in their judgment in separate sections, under the names of each of the appellants respectively the evidence of the approver as it touches each one of them and the evidence of other witnesses both as it affords corroboration of the approver's story and as constituting distinct and independent testimony in support of the prosecution. We do not think it necessary to attempt to recapitulate the evidence in that form. We have examined and considered the evidence against each of the accused as set forth by the learned Commissioners and we are entirely satisfied that the case for the prosecution as against each of the appellants severally and individually has been proved beyond any doubt whatever. It is to be observed that most of the appellants made no answer to the charges brought against them beyond a bare denial of their guilt and an assertion that all the evidence given against them is false thereby denying the existence of incidents which, in themselves and apart from the other aspects of the case, might have been quite innocent, such as the walk to Gope or their association together. The learned Commissioners, have dealt with the case carefully and conscientiously and with a full sense of the responsibility which lay upon them. They gave every possible latitude to the defence even to permitting the prosecution to call one or two witnesses who according to normal procedure, ought to have been called by the defence and the Commissioners took into account and seriously discussed all the arguments which were put forward on behalf of all the accused persons including arguments of a somewhat fantastic character and those merely based on forensic theories. We in our turn, as already stated, have given this case our most anxious consideration. We have re-examined and sifted all the evidence for ourselves and we have directed our attention and given the utmost consideration to all the arguments advanced by the counsel on behalf of their respective clients. In the result we can come to no other conclusion than that the conviction of all these appellants is wholly right and justifiable both on the, facts and in law. The appeals of all the appellants must therefore be dismissed. As regards the sentences the learned Commissioners said that they had given their very anxious consideration to the matter. They say:
We can conceive of circumstances in which a young man might joint a terrorist organisation which had murder for its object, join in wild talk and even take part in plans for the projected murder without fully facing the fact that action would really be taken to carry out that murder.
32. They then said that in the case before them however
where two previous District Magistrates had already been murdered, no possible ground could exist for any youth who joined the conspiracy to fail to be aware that it was a conspiracy in deadly earnest. The evidence shows that the accused persons Brojo Kishore Chakravarty, Nirmal Jiban Ghose and Ram Krishna Roy had already joined the party before the murder of Mr. Douglas. It shows that after the murder of Mr. Douglas Brojo Kishore became the leader of the party and that he throughout took a directing part in arranging the murder of Mr. Burge. The evidence shows moreover that both Nirmal and Ram Krishna were active in pursuing the object of the conspiracy and that they both took a leading part in all the activities of the conspirators.
33. The Commissioner took notice of the fact that Nirmal's intimacy with the approver seemed to throw the activities of Nirmal Jiban Ghosh into disproportionate prominence. They were however of opinion that even making allowance for that fact it was clear that Nirmal Jiban Ghosh was one of the most enthusiastic and active members of the conspiracy. The Commissioner also took into consideration in favour of the accused what they described as the extreme youth of these three boys as well as the insidious propaganda by which their minds were slowly poisoned. The Commissioner felt however that these circumstances could not weigh against the deadly object of their activities which were carried on and indeed carried on with greater vigour even after at least one District Magistrate had been murdered during their membership of the party. It is for these reasons that they sentenced Nirmal Jiban Ghosh, Brojo Kishore Chakravarty and Ram Krishna Roy to death. As regards Kamakhya Charan Ghosh, Sonatan Roy, Nanda Dulal Singh and Sukumar Sen Gupta the Commissioners found that their activities in pursuance of the conspiracy were a little less pronounced and so in their case they were of opinion that the extreme penalty of the law need not be exacted. They were therefore sentenced to transportation for life. We for our part have also given our very anxious consideration to the question of the sentences passed upon all the convicted persons respectively. We are quite unable to find any reason for saying that those sentences were not entirely just and correct in the circumstances of the case.
34. Mr. S.K. Basu contended that the finding of the Commissioners that the three men sentenced to death took a prominent part in the conspiracy is based upon the uncorroborated testimony of the approver. We may observe that if the criterion to determine whether the extreme penalty is to be imposed is the amount of activity displayed by a particular conspirator, it is in ordinary circumstances only possible to find out what that activity was from the evidence of somebody who was himself within the conspiracy. In the present case we have not only the evidence of the approver but also that of Gouranga Mohan Roy (18), Jagadish Chandra Chandra (3l) and Parimal De (39) on this point. In view of what they have said there can be little doubt that they were members of the party using that term in a wide sense. But it has not been proved that they were actually members of this particular conspiracy to murder Mr. Burge. None of the witnesses who gave evidence with regard to the meeting stated that any of these men were present. It is abundantly clear from the evidence of these men, whom we have no reason to disbelieve, that Nirmal Jiban Ghosh, Brojo Kishore Chakravarty and Ram Krishna Roy made a determined attempt to enlist them into the inner circle of the party. It is also to be noted that these three appellants are the oldest in age of all the appellants before us and have been actively engaged in revolutionary activities for a longer period than the others, Brojokishore actually, recruited Nirmal Jiban Ghosh, Kamakhya Charan Ghose, Anath Panja, Mrigendra Dutt and Santi Gopal Sen and he was the leader of the party and its treasurer. Mr. Basu's real difficulty lies in the fact that he was quite unable to show any extenuating circumstances which would justify us in interfering with the decision of the Commissioners. No doubt if it could have been shown that these appellants were impressionable youths who were under the domination of some more powerful character so that they were deprived of their independent judgment and that they had expressed regret for what they had done, extenuating circumstances might have been pleaded. But so far from doing that the appellants have peristed up to the very end that they were not members of the conspiracy at all and that a false case has been manufactured against them, and so far as there is any question of domination the evidence shows that the dominating members of the party were, in fact, Nirmal Jiban Ghosh, Brojokishore Chakravarti and Ram Krishna Roy.
35. We would point out that there is nothing in the argument which was directed to differentiate the position of these three appellants from that of the others as regards the sentences. It is a two-edged argument because it might equally lead to the conclusion not that they ought not to have been sentenced to death but that the rest of the appellants should have shared the same fate because the normal penalty for the offence of which all the appellants have been found guilty is death and a less grave sentence should only be passed where manifestly there are extenuating circumstances. However unpleasant the duty may be, we feel we have no other course open to us in the present instance than to confirm the sentences which the Commissioners have thought fit to pass. We accordingly confirm the sentences of death passed on Nirmal Jiban Ghosh, Brojokishore Chakravarty and Ram Krishna Roy.