1. There are before us four criminal appeals and a reference under Section 3(2), Bengal Criminal Law Amendment (Supplementary) Act, 1925 read with Section 374, Criminal P.C., which have arisen out of a trial held by a Tribunal consisting of three Commissioners with Mr. E.S. Simpson, I.C.S., as President. The Tribunal was constituted for the trial of thirteen persons who were accused of offences falling within the First Schedule to the Bengal Criminal Law Amendment Act, 1925. Of these accused persons we are concerned with only ten, and their numbers and names as also their convictions and sentences will appear from the following list: [on the next page.]
2. It will be noticed that in the numbering of the accused persons given above, Nos. 5, 8 and 10 have been omitted. These three numbers were those of Asoke Ranjan Ghose, Sasadhar Sarkar and Lalu Panda respectively, who after the charges were framed, pleaded guilty to the two charges, one under Sections 395/396, I.P. C, and the other under Sections 395/120-B, I.P.C., that were framed against each of them and were convicted on their own pleas and were sentenced to undergo rigorous imprisonment for 5 years on each of the said charges, the sentences to run concurrently.
3. At the very outset and before dealing with the case itself we desire to acknowledge the immense assistance we have derived from the judgment which the Commissioners have recorded in this case. The case involved consideration of a multitude of events and incidents, which on account of their diversity, complexity and ramifications are not quite easy to arrange or remember in their order, and spreading as they do over a wide area with simultaneous happenings at different places and as concerning different individuals or groups of individuals, present no inconsiderable difficulties as regards their proper arid correct appreciation. But the learned Commissioners have been able, in their judgment, to present the case in all its details with perfect accuracy and perspicuity and to note every point in it, which may conceivably be worth considering, in its true perspective and with an amount of fairness and reasonableness which deserves to be highly commended. For the purposes of the case,
No. 1.-Pran Krishna Chakravarti ... Death under Sections 395/396, I.P.O. Also convicted under.
Sections 395/120-B, I.P. 0.
No. 2.-Satyabrata Chakravarti ... do.
No. 3.-Hrishikeah Bhattacharjya ... do.
No. 4.-Saroj Kumar Basu ... ... do.
No. 6.-Hari Pada Basu ... ... 10 years' rigorous imprisonment, under Sections 395/396,
I.P.C. Also convicted under Sections 395/120-B, I.P.C.
No. 7.-Prafulla Narain Sanyal ... Transportation for life under Sections 395/396, I.P.C.
Also convicted under Sections 395/120-B, I.P.C.
No. 9.-Kali Pada Sarkar ... ... 10 years' rigorous imprisonment, under Sections 395/396,
I.P.C. Also convicted under Sections 395/120-B, I.P.C.
No. 11.-Abdul Kader Choudhury ... Transportation for life, under Sections 395/120-B, I.P.C.
No. 12.-Kiron Chandra De ... ... Transportation for life, under Sections 395/120-B, I.P.C.
Also convicted under Sections 201 and 216-A, I.P.C.
No. 13.-Ram Krishna Sarkar 10 years' rigorous imprisonment, under Sections 395/396,
I.P.C. Also convicted under Sections 395/120-B, I.P.C.
in the form in which it has come up for consideration and in view of the limited nature of the controversy that exists at the present stage, only a bare outline of the prosecution case and not too many of the details need be set out.
4. For our present purposes it would be sufficient to give the following account of the locality with which this case is concerned. Hili is an important station on the Eastern Bengal Railway, Northern Section, crossing the Padma in the course of its upward journey-the Up Darjeeling Mail passes through stations, some of which in their order are Paksey, Santahar, Akkelpur, Jamalganj, Joypurhat, Panchbibi, Hili, Charkai, Phulbari and Parbatipur. Charkai is the Railway Station for Birampur which plays a considerable part in this case. Between Hili and Charkai the railway line is crossed E to W by a road called Ghoraghat Road which then proceeds for a certain distance in a north-westernly direction, then northwards and finally north-westwards again to the river Jumna which is crossed by a ferry. Before reaching the ferry-ghat the Ghoraghat Road meets another road which runs northwards and eastwards from the junction point, crosses the railway line and leads to the village of Palasbari. After crossing the ferry the Ghoraghat Road runs in a north-westernly direction and passing through several villages, of which one is Chintamon, leads to a village called Samjia and reaches a ghat in that village where there is a ferry for crossing the river Atrai.
5. In the charge of conspiracy on which all the accused persons were tried, the venue of the conspiracy was stated as Birampur, Palasbari, Panchbibi and other places, and the object of the conspiracy was set out as being to commit dacoity at Hili Railway Station, and the period was stated as between 24th October and 28th October 1933. The charge of dacoity with murder was against eight out of the ten accused persons, viz. with the exception of Kiran Chandra De and Abdul Kader Choudhury, related to an incident of 28th October 1933, viz. a, dacoity at the Hili Railway Station in the course of which one Kali Charan Mahali, mail peon of the said station, was alleged to have been killed with a shot gun. The other two charges framed at the trial were against the accused Kiran Chandra De alone and were under Section 216-A, I.P. C, and Section 201,1. P.C., the former charge relating to the harbouring of some of the offenders both before and after the dacoity, and the latter charge alleging that the said accused had caused the disappearance of a bundle containing daggers, shirts and other articles, with the intention of screening one of the offenders, namely Sasadhar Sarkar, from legal punishment.
6. So far as the charge of conspiracy is concerned, put quite briefly, the prosecution case is the following: The object of the conspiracy was to commit for certain revolutionary purposes a dacoity at the Hili Railway Station with a view to secure the contents of the postal mail chest in which the mail bags which arrive by the Down and the 'Up Darjeeling Mails are deposited and remain until day-break when they are despatched or distributed; the scheduled time for such arrivals being 00.25 hours and 02.15 hours respectively. (His Lordship then dealt with the prosecution story leading to the occurrence and the judgment proceeded.) We shall now, in a few words, give an idea as to the nature of the occurrence which forms the subject matter of the charge of dacoity with murder. The topographical details of the Hili Railway Station and of its immediate surroundings, together with the distances between some of the main spots of the occurrence are to be found in the map Ex. 69. The platform runs north and south and lies by the east of the station building and a passenger shed, the latter being adjacent to the south of the former. On the north and east of the station building and covering a part of the width of the platform is a verandah. There is an entrance to the passenger shed on the sid.e of the platform and an exit on the side opposite leading to a road called the Station Road which lies on the west of the station and runs north and south and leads up to the quarters of the Station Master and of the Assistant Station Master on the north, the quarters of the former standing on the east of those of the latter. By the west of this road there is a slope, and on the land on the lower level on the west of the slope there are some huts.
7. The story is that the raiders advanced towards the station at a double march, the gunners opening fire, and entered the platform at its northern end. The mail bags had been put into the mail chest-a large box secured by two locks-placed just outside the station rooms and underneath the verandah. The mail peon Kali Charan was lying on a cot to the immediate east of the mail chest, and his assistant Jitendra Kumar De was lying on the mail chest itself. Kali Charan was seized, and the keys were demanded of him and a struggle ensued and somehow or other Kali Charan freed himself and shouted in the name of the Government that the mail chest should not be opened and began to run towards the south. At this time one of the gunners who had taken up a position on the platform to the south of the station building aided by the flash of a torchlight cast by his lightman shot at him with a shot gun. Kali Charan ran out of the platform by the entrance gate of the passenger shed and went out to the road and continued running northwards. He staggered down the slope and fell in front of the hut of one Algu Bunia, but got up again and ran forward a further distance of 40 feet and then dropped unconscious. The assistant Jitendra Kumar De was attacked and Pran Krishna presenting a pistol at him demanded of him the keys and on his refusal to part with them was beaten and kicked into the Station Master's room where he fell down, the keys being snatched away from him. A cooly Satis Sheik who was asleep in the booking office was seized and pushed out into the verandah and struck with an iron rod, and when he was inside the passenger shed in his attempt to run out was shot on the left leg.
8. Another cooly Panchu Biswas who was also sleeping in the booking office was roused from his sleep, beaten and pushed out into the platform and then out of the passenger shed, and while there, was shot at with the aid of the light of a torch. A third cooly Harijuddin Mondal, who was sleeping on the verandah and close to the mail chest-was awakened, threatened with a dagger and told to go away, and while he was yet on the platform, the beam of a torchlight was flashed on him and he was shot at, at close quarters. Ismail Sheikh, another cooly, was sleeping on the north of the mail chest. He was awakened before Kali Charan was shot and so was able to see the struggle between Kali Charan and his assailants. He cried out, and on that he was fired at by somebody from the north of where he was, torchlight being similarly cast upon him as in the case of the others. Another Railway employee, one Jadubangshi Singh, was sleeping in his quarters on the west of the Station Road. He was awakened by the reports of guns and thinking that an accident had occurred was about to proceed to the station when at a point on the Station Road close to his house a torch was flashed on his face and he was fired at from the direction of the platform a pellet striking him on his left eye. The signal cabin is situated immediately to the north of the station building, and in it were the cabinman Ram Lakshan Tewari, a pointsman and a porter. Ram Lakshan suggested that he and his companions should go out, but two of the raiders, one with a gun and the other with a torchlight threatened to kill them if they failed to remain quiet. The Station Master who was asleep in his quarters was awakened by a watchman and on going outside saw the beams of torches and heard the reports of guns. He brought out his gun and fired three cartridges whereupon 4 or 5 shots were fired towards him from the direction of the platform and some of the pellets fell upon the walls of the Assistant Station Master's house. The mail chest was rifled, the mail bags and other articles in it were taken out, and the forms-almirah and the ticket chest were broken open, and the cash which was in the iron safe was removed. Some of the instruments of communication were damaged and put out of action. With the booty, which in cash and property is said to have been valued at Rs. 4,621, the raiders then left, marching towards Charkai.
9. The party after proceeding along the railway track up to a certain point halted and threw away superfluous articles of no value, and then proceeded by the Ghoraghat Road for a certain distance and thereafter again halted and changed themselves into ordinary clothing and packed up their things in bundles. One of the 14 men who had formed the party had in the meantime dropped out and the party consisting of the remaining 13 then split itself into three groups, viz. (1) Pran Krishna, Satyabrata, Hrishikesh, Saroj, Hari Pada, Prafulla and Asoke; (2) Lalu, Bejoy, Ram Krishna and Sajadhar; and (3) Kali Pada and Anil. Group (1) was to proceed towards Samjia with a view to go to Dinajpur. Group (2) was to be led by Sasadhar who was to send Lalu, Bejoy and Ram Krishna to Patiram by carl;, and a small amount of money was paid to Bijoy for his labours. And as regards group (3), Kali Pada was to send Anil, who was too much fatigued, to Gour Pal's house at Birampur.
10. The entire party then proceeded along the Ghoraghat Road, short distance, when Pran Krishna having remembered that he had left his shoes at the place where he had changed his clothing Kali Pada was sent back to fetch the shoes. At some point where the Ghoraghat Road meets the Palasbari Road, the three groups separated. Group (1) proceeded towards Samjia; Group (2) proceeded towards Palasbari where Sasadhar had a residence; and of group (3) Anil was left sitting and to await the return of Kali Pada with the shoes. It would be a long history to pursue the thread of the narrative in order to set out the details of the events that happened in the journeys of these three groups of accused persons. Besides, for the purposes of the questions that we have to consider such details, though interesting in the extreme, would hardly have any relevancy. It would be quite sufficient for our purposes to state only a few of the events that ultimately transpired. Information of the occurrence having in the meantime been communicated to the proper authorities, a trap was laid and very cleverly managed, with the result that the seven persons who formed group (I) together with the articles they were carrying including the bundle containing the Hili Railway Station cash, were captured on the evening of 28th October 1933 at the Samjia ferry-ghat when the said persons were about to cross the river. Amongst the articles found with them and seized were the two shotguns, the revolver, the pistol, cartridges, daggers and some postal and' other articles. Group (2) arrived at Sasadhar's residence at Palasbari and there the idea of sanding the other three to Patiram was abandoned. Ram Krishna left in the afternoon for Chak Basanta where he had a relation named Debendra Nath Choudhuri. Lalu and Sasadhar met Kiran in the afternoon. Satyabrata had made over to Sasadhar a bundle containing some Khaki shirts, daggers, torches, etc., and this bundle was now made over to Kiran by Sasadhar who also made over Lalu to the charge of Kiran. Later on the same day Anil having arrived, Kiran put Lalu and Anil at the Charkai Railway Station into a train which took them towards Santahar. Bijoy also took a down train from Charkai. Lalu was arrested at Naogong on the morning of the 29th.
11. He led the Police to Sasadhar's house at Palasbari where Sasadhar was arrested on the 30th. Anil and Bijoy, as already stated, are absconding. As regards group (3) it is only necessary to state that Kali Pada and Anil had been to Birampuri early in the morning of the 23th and that Kali Pada was arrested at Phulbari on the morning of 1st November. To complete the chain of narrative, a few more facts require to be stated. Lalu's confession was recorded by the Magistrate on 1st November and Sasadhar's on 2nd November. Lalu and Sasadhar were taken by the police to Panchbibi and there Sasadhar led the police to the house of Abdul Kader which was searched. Abdul Kader was not present there at the time and was eventually arrested on 14th November in the town of Bogra. Asoke's confession was recorded on 5th November. The bundle which Sasadhar had made over to Kiran was found on a search, and Kiran was arrested on 30th October at Birampur and his confession was recorded on 17th November. Ram Krishna is said to have made an extra-judicial confession to his relation Devendra Nath Choudhuri and later on again to one Sashi Bhusan Sarkar; and the latter thereupon turned him out of his house. Information received from these two persons led the police to go to Ram Krishna's house at Noapara on 24th November and on the same day he was arrested. On 26th November Ram Krishna made a confession. Asoke, Sasadhar and Lalu stuck to their confessions at the trial and were, as already stated, convicted and sentenced; and thereafter they were examined as witnesses on behalf of the prosecution. At the trial Kiran and Ram Krishna retracted the confessions they had made. It is necessary to state now what happened to Kali Charan and the other five injured men. On the morning of 28th October they were all taken on train to the Railway Hospital at Parbatipur and there they arrived, Kali Charan in an unconscious condition.
12. The Medical Officer in charge of that hospital examined and gave the first treatment to the injured persons. Jadubansi was found to have two lacerated punctured wounds just below the lower lid of the left eye and an ecchymosis near about the spot. On the next day he was sent to the Railway Hospital at Saidpur where he remained until 26th November. Thereafter he was sent to the Medical College Hospital in Calcutta, and there, after receiving treatment as an outdoor patient for three days, was admitted into the eye ward on 1st December and was discharged on 29th December. He has completely lost the sight of his left eye. At the Parbatipur Railway Hospital, Panchu and Satis were each found to have got a punctured wound on the left leg and from it an S.S.G pellet was extracted in the case of each. They were sent to the Civil Hospital at Dinajpur on the next day and after being treated there were discharged on 17th and 3rd December, respectively. The injuries on Kali Charan, Harijuddin and Ismail were found to be more serious than those of the others. The Parbatipur Hospital Medical Officer found Kali Charan suffering from multiple punctured wounds and extracted 2 S.S.G. pellets from his person. Harijuddin was found to have 53 punctured wounds and from his person 4 B.B. pellets were extracted. Ismail had two punctured wounds on the right thigh and from him was extracted 1 S.S.G. pellet. At 11 a.m., that is to say after being in hospital for about three hours, Kali Charan regained consciousness and then his dying declaration (Ex. 80) was recorded by the Sub-Registrar of Parbatipur. At 8 p.m. the same evening these three injured persons were sent to Calcutta by the down North Bengal Express in a third class compartment emptied of passengers, and on arrival in Calcutta the next morning were taken to the Campbell Medical Hospital. At 10-40 a.m. on the 29th an operation was performed on Kali Charan, but he succumbed at 7 p.m. the same evening. Harijuddin and Ismail were X-rayed and though in the body of the former a large number of pellets were detected it was considered risky to try to extract them. They remained in the Campbell Medical Hospital as indoor patients till their discharge on 25th November.
13. The above in a skeleton form is the case for the prosecution, and this case with the exception of a few matters,, which are of very minor importance and do not really affect the question of the guilt or innocence of the accused persons has been considered by the Commissioners as proved. Before us it has not been disputed on behalf of any of the accused persons that there was a dacoity of the nature alleged, or that the mail chest was rifled and railway cash, etc., were taken away by the culprits. Furthermore, most of the findings of the learned Commissioners on which they have based their order as regards the convictions of the accused persons have been expressly admitted on behalf of the accused persons as unassailable, and this Court as a Court of appeal, has not been asked to go behind those findings This position, which the advocates for the accused have thus adopted, has relieved us of the necessity of dealing with the case in all its details and has immensely reduced its compass. We propose therefore to deal only with such points in controversy as are relevant at the present stage.
14. An argument which was put forward by Mr. Girija Prasanna Sanyal for the first time in the course of his reply has got to be noticed at the outset, because it purports to suggest that the procedure adopted was vitiated by a fundamental irregularity. The argument is that the Commissioners were not justified in convicting and sentencing the three confessing accused, Asoke, Rasadhar and Lalu, on their own pleas and then allowing them to be examined as witnesses for the prosecution. It was said that when the charges were framed and the accused persons were called upon to plead, there was really no evidence on which a charge under Sections 395 and S98, Penal Code, could rest, and that the pleas of the said three persons should not have been accepted and on such pleas their conviction should not have followed. It was also said that by accepting the pleas the Commissioners held that the offence of dacoity with murder was established and so the present accused persons were prejudiced. We find that the charges were framed after the first 63 witnesses for the prosecution had been examined. It appears however that at that stage sufficient evidence had already been recorded to make out a prima facie case that there was a dacoity and that Kali Charan had received in the course of the dacoity injuries which resulted in his death. In our opinion therefore it cannot be said that the charge under Sections 395 and 396, Penal Code, was framed on no evidence. So long as that is so, the accused persons whose cases are before us can have no grievance, for it is no concern of theirs whether the other three accused persons should or should not have been convicted on their own pleas.
15. Amongst the general arguments addressed on behalf of the accused persons we shall now notice two: First, about the necessity of independent corroboration in material particulars in respect of the evidence of the three persons, Asoke, Sasadhar and Lalu, and also of the evidence of such persons, who although they may net have participated in the actual offences with which the accused parsons have been charged, are persons who in the eye of the law are regarded as accomplices or are no better than accomplices; and second, about the caution to be used in basing a conclusion as to conspiracy upon the evidence of witnesses who speak to the association of different accused persons, because it is manifest that mere evidence of association is not sufficient for an inference of conspiracy. The view which the Commissioners have taken as regards these matters is absolutely sound, and nothing in their judgment has been shown to which any the slightest exception may be taken. The law has been correctly stated and also rightly applied.
16. Indeed, the elaborate arguments that have been addressed on these matters have ultimately resolved themselves into a question of sufficiency of evidence to sustain some particular charge against some particular accused and nothing else. The association at the bases at Bairampur and at Panchbibi, the journey of Asoke and Saroj on bicycle to Birampur on 24th October, the association of Satyabrata and Ram Krishna at Jamalganj and their departure from Jamalganj on that night for Hili, the boarding of the train to Hili at Panchbibi by Abdul Kader Choudhury and several others, the assembly on the bank of the tank at Sukra, the journey back to Panchbibi after the idea of raid was abandoned, and the events of 25th, 26th and 27th October up to the point when the dacoity was actually committed have all been discussed by the learned Commissioners in great detail, pointing out what corroboration there is and what corroboration is wanting and the effect of such corroboration or its absence. The conclusions arrived at by them are clear and convincing to a degree. The significance and importance of each single fact or circumstance have been noted with meticulous care and appreciated at its real worth. The finding of the Commissioners that the conspiracy alleged on behalf of the prosecution has been satisfactorily established and that the overt acts alleged to have been committed in pursuance of the conspiracy have also been proved beyond doubt is a finding which cannot and indeed has not been challenged.
17. By far the most important argument that has been addressed to us on behalf of the accused persons was that Kalicharan and the other five persons were not shot at by any of the persons who committed the dacoity or on the platform itself, but that the gunshot injuries inflicted upon them were caused by shots fired from the gun which was fired by the Station Master. This argument was at times elaborated a little further by suggesting that several other persons also residing in the locality had guns in their possession and they must have fired them in order to scare away the dacoits who were on the platform and who, if they fired at all, did in fact fire only blank cartridges. In putting forward this argument the parties have really asked us to ignore the positive evidence on the record, which is neither unreliable nor in fact improbable but is on the other hand highly probable, and to proceed upon certain suppositions in support of which there is not an iota of proof but which are said to be items of probabilities which should not be overlooked. The argument, put in a nutshell is as follows: Kalicharan had two wounds on the upper part of the right forearm, which might have been caused by one shot, one being the wound of entry and the other of exit. He had 15 other wounds, 8 on the right side in the lower part of the chest and abdomen distributed in a circular group over an area of 4i' x 3' and 7 on the back of the right side similarly distributed over an area of 5' x 4,' the group of 8 being wounds of entry and the group of 7 being wounds of exit. And the doctor who performed the autopsy extracted an S.S.G. shot which had been lodged in the large intestine. There are 17 such shots in a cartridge. The Arms Expert, when the spread of the 8 shots was put to him in his examination-in-chief, said that he would opine that Kali Charan had been fired at a range of 30 yds.; certain other answers were given by him later on, some to the Court and others to the cross-examining advocate, which have been recorded in the following words:
To Court.-A group of 8 shots on the right side of the lower part of the chest and abdomen and a group of 7 shots on the back of the right side of the loin could not be caused by the firing of the same cartridge unless the latter were wounds of exit.
Cross-examined.-They could have been caused by the firing of the same cartridge if the firing took place from the side.
(The witness is here asked to open a 12 bore S.S.G. cartridge and count the number of shots. He does so and it is found that there are 17 shots in the cartridge).
To Court.-If it be taken that the two groups mentioned above plus a further group of 2 shots were all caused by the firing of the same cartridge, the range, in my opinion, must have been less than 15 yds., whether the barrel through which the shots were fired was within cylinder or choke. It is possible at that range to find shots in two groups. One being 8 and the other 7 shots, with 2 shots in between, not forming a part of either group.
Cross-examined.-If the two groups, one of 8 and one of 7 were caused by different cartridges then the group of 7 would have been caused from a range of 30 yds. I would not say that they could have been caused from a range of more than 40 yds. I cannot give even an approximate range. They could have been caused from any range. Unless I know where the remaining shots went I can't give a definite answer.
To Court.-The effective range of a shot gun is about 100 yds. Had the victim been more than a 100 yds. from the fire, the grouping described to me would not be found.
18. Relying on the statement made by the witness in his examination-in-chief, to which reference has already been made, it has been argued that having regard to the disposition of the raiders on the platform, the position of the mail chest, and the place at which the entrance gate to the passenger shed stood near which the gunner who shot at Kalicharan was stationed, there was not enough space nor any situation from which Kali Charan could be shot from a range of 30 yds. It has also been argued that it was apparent that Kali Charan must have, if the prosecution story is true, been shot when he was very near the said entrance gate, for it is next to impossible that he would run after being shot in the very direction from which the shot had proceeded. It has been argued further that with the injuries such as were caused to him, it was impossible for Kali Charan to have continued to run, and to have run such a long distance till he fell in front of Algu Nunia's house and that such running can hardly be accounted for on the theory of reflex movement. Absence of blood-marks and of bullets on the platform was also strongly relied upon in support of this argument. The witnesses who have spoken to the occurrence have been characterized as false, and their evidence has been subjected to a series of scathing criticisms in order to destroy its effect. And on the constructive side it has been shown that the Station Master's gun was not taken charge of by the police nor any of the other guns that were in the village near about and it was argued that the account which the Station Master has given of the ammunition he had at the time or used on the occasion should be rejected as untrustworthy. We have considered these arguments with all the care they deserve, and are firmly of opinion that they must be discarded.
19. The evidence of the Arms Expert is extremely unsatisfactory. It is not at all clear to us that in making the statement that he did in his examination-in-chief, to which reference has been made above and in which he said that the firing must have been at a range of 30 yds., he was taking into account the 17 shots that went out of the cartridge, only 8 of which had struck the area, description of which was put to him. The discovery that the cartridge consisted of 17 shots appear to have been made by him at a subsequent stage in his deposition. Again, in the answers that he subsequently gave and which have been quoted above we find it difficult to understand how he could say that the range must have been less than 15 yards.
20. These statements appear to us to be in conflict with what is stated in Tayloron Medical Jurisprudence, Edn. 8, Vol. 1, p. 516, from which it would seem that the range in the present case, having regard to the pattern, must have been very much less. We do not wish however to lay too much stress on this matter as obviously we shall not be justified in posing our opinion as against what has been given by an expert examined in the case. But we think we are entitled to say that we do not regard the points arising in his evidence as having been sufficiently cleared up and that his evidence is not such as can be legitimately or reasonably taken as outweighing the positive testimony of witnesses and the overwhelming force of circumstances which point to the contrary. That there was firing on the platform cannot be disputed and the story that only blank cartridges were fired there cannot be accepted, unless the whole story of the find of used ammunition in the station and its precints immediately after the dacoity as also afterwards is discarded as a huge concoction.
21. The evidence as regards the find has remained unchallenged and the correspondence between the said ammunition and those found with some of the accused persons afterwards is too singular and striking to be accounted for on any other supposition than that shots, and not merely blank cartridges were fired by the raiders. To accept the defence theory one will have to assume that the gunners stood at one and the same place all along and never moved at all, and that Kali Charan could not have been shot at a short range from the south while he was running away from the platform after shouting out protest in the name of the Government. The whole of the medical evidence in the case is to the effect that notwithstanding the injuries received by him he could have power of locomotion; and the defence assertion to the contrary is based on no evidence and we have been asked to accept such assertion as well founded merely on the ground that it is more in accord with common sense. Absence of pellets is a matter on which we are not prepared to attach any importance because unless a search for the specific purpose of finding them was made they would hardly catch the eye; and in this case there is no suggestion that such a search was ever made. Nor is the absence of blood marks, so important, because it is not unlikely that Kali Charan received the shot when he was running. It is true that some of the other injured persons remained on the platform after they were shot; but here again no attempt has been made to establish that blood in sufficiently large quantities must have oozed or spurted out to create stains which must necessarily be detected, even though no search for them was made. The constructive portion of the defence argument, so far as this matter is concerned is built upon very slender foundation, and the materials upon which that foundation rests bear no scrutiny. The whole of the positive evidence in the case is clearly in support of the case which the prosecution has put forward as regards the firing of Kali Charan and the other injured men on the station itself.
22. In this connexion, Kali Charan's dying declaration must be regarded as evidence of the greatest importance. It is true that in this declaration Kali Charan spoke an untruth in saying that the keys were with him and were snatched away from him by the use of force; but that is explained by the fact that he expected, when he made the declaration that he would live and would therefore guard against saying something which would go to establish that he was negligent and so would make him lose his job. That, however, is no reason for disbelieving his statement in the declaration as regards the way in which the raiders dealt with him. He spoke of a dao and of weapons resembling a trisul or trident. At that hour of the night, and rudely roused from sleep, a man of his stamp was not unlikely to make a mistake of this description: what is most important is that ho definitely said that the raiders after threatening him 'at once' began to fire on him. His statement that the shots having hit him he fell down unconscious was meant only to narrate the sequence of the two events, namely of the shot having hit him and of his falling down unconscious, and was not meant to indicate that no time elapsed between the two. Indeed, it would have been strikingly singular if he could, having regard to the injuries that he had received, realise and remember that he had run out of the station and upto a certain distance, and then gone down the slope and thereafter had fallen down and again risen and run a further distance of 40 feet and finally dropped down unconscious. Jitendra Kumar De has of course concealed the fact that, overpowered and cowed down at the point of a revolver, he had to open the keys of the mail chest, but this fact is hardly enough to condemn him as untruthful so far as the rest of his evidence is concerned.
23. The evidence of the five other injured men, namely Ismail, Harijuddin, Satis, Panohu and Jadubansi all establish that shots were fired on the platform, and the evidence of Pashupati who appears to be unconnected with the railway staff is to the same effect. The evidence of this last-mentioned witness has been criticised on the ground of improbability, having regard to the hour at which he said he had taken the train at Ranaghat, and also because the story which he gave as regards the treatment accorded to him was somewhat strange. On a close examination of the matters involved we have come to the conclusion that there no such improbability is made out. He gave the time of his departure only by guess and the error that he made was at the outside one of about 50 minutes or so; and the special treatment that was meted out to him was not altogether unlikely because he was a passenger not connected with the Railway Staff and from whom no interference was expected. The evidence of Algu Nunia is also of importance inasmuch as he has deposed that when Kali Charan fell down he asked him whether he was a thief and on that Kali Charan replied that he was not a thief but the mail peon Kali Charan and that he had been shot by the dacoits at the station. There is also other evidence consisting of the testimony of a very large number of witnesses too numerous to mention, corroborating the version of the occurrence as given by the witnesses named above. We can see no reason whatever to regard as untrustworthy the prosecution version of the occurrence in so far as it is to the effect that Kali Charan and the other injured men received their injuries from the gunshots fired by the raiders from the platform. We think Kali Charan was running towards the Station Master's quarters under an impulse which prompted him to go in that direction and that while nearing Algu Nunia's quarters he got down the slope and fell down the slope and then getting up made another and after proceeding a little further finally dropped down unconscious.
24. As against the entire body of evidence supporting the prosecution case as to the occurrence, the defence has set up their theory upon the dubious statement of the Arms Expert and upon what they regard as following from the evidence of the Station Master. But the Station Master has only said that he possesses a gun, that he fired three shots, that the police had not taken his gun or empty cartridge cases into custody, that in January 1932 he had purchased 50 rounds of No. 4 shot of which he spent 40 in the interval and that he does not know if he had in stock cartridges with shot of a size other than No. 4. No conclusion such as the defence has asked us to deduce from these statements would, in our judgment, be justified. Another argument addressed to us is that it should be held that Kali Charan did not die as the result of the gunshot wounds inflicted on him, but that his death was due to the effects of a surgical operation performed unnecessarily, wrongly, slovenly and in an incompetent manner, and upon a wrong diagnosis made of his condition. As a part of this argument it has also been urged that he would not have died if he had been allowed to remain at Hili or at Parbatipur even without treatment and that the fatigue of a long railway journey such as he was unnecessarily made to undergo was responsible for his death. The argument we may be permitted to say, is preposterous, and its hollowness has been most effectively demonstrated by the learned Commissioners. Even a cursory reading of the evidence of doctors examined in the case who had dealt with Kali Charan at the different stages would satisfy anybody that the argument in both its branches should be rejected in its entirety.
25. It would be mere repetition of what the learned Commissioners have so elaborately observed in their judgment were we to give our reasons for the view that we take in agreement with them, namely that as Kali Charan's condition was bad he was removed to Parbatipur so that he might get hospital aid and hospital treatment, that at Parbatipur two pellets were extracted from his body and he was then sent to Calcutta because a qualified doctor in charge of the hospital was of opinion that he might die within 48 hours and that it was necessary to extract other pellets which were inside and which if not soon extracted would cause risk of life, that he was sent to Calcutta in order that he might get the best possible treatment within the shortest time, and that a fully qualified doctor holding a responsible appointment and in charge of a ward in the Campbell Hospital diagnosed his ailment as acute peritonitis and considered an operation essential as the only course open if any attempt at all was to be made to save his life. The charges of incompetency and wrong diagnosis and error in operation that have been levelled against the doctor last mentioned are entirely unfounded and unjustified. Equally unfounded is the suggestion that Kali Charan would have lived if he was not removed from Hili or from Parbatipur. Such removal, we are satisfied was imperatively necessary. The journey was made as comfortable as under the circumstances it was possible to make it, and we do not at all appreciate what was meant by arguing that it was only a third class compartment that was used and only a compounder who was sent with Kali Charan.
26. Whatever fatigue had to be encountered was a necessary consequence of the injuries because of the journey had to be undertaken as the only course left to be adopted to save his life, as it most certainly was in this case, the fact that the fatigue contributed to the death is inconsequential. The evidence such as it is leads to one inference only namely that Kali Charan died from acute, peritonites caused by the perforation of the gut by a shot which entered into his body when he was fired at in the course of the dacoity; or in other words, that he died as the result of bodily injuries inflicted on him in the course of the dacoity. The next question to be considered is whether the act of firing at Kali Charan, the result of which was his death, amounted to murder' within the meaning of the Penal Code, No account of the firing is to be found in any of the confessions or in the evidence of any of the three confessing accused who have been examined as witnesses in the case. In the evidence of Sasadhar the following statement appears:
While deputing the gunners, Koka (meaning Pran Krishna) instructed us to shoot down mercilessly any person who might come forward to interfere with the work.
27. Such a statement is not to be found in Sasadhar's confession, nor indeed in the evidence or confession of Lalu or Asoke or anywhere else. We do not therefore think we shall be right in relying upon the said statement, which if accepted would go a long way to indicate an intention to kill Kali Charan in the act of firing of the gun at him. As regards the shooting on Kali Charan, the direct evidence that we have of the act is that of Esmail Sheikh who has said that there were two men further south of Kali Charan, and one of them focussed the rays of the electric torch upon him and the other fired at him with a gun. That the torchlight was flashed upon a victim before he was shot with a gun or threatened at the point of the gun or the pistol or revolver is the evidence of the whole body of witnesses which can hardly be discarded. And the evidence also is that each of the gunners had a lightman attached to him to aid him in his operations. It is contended on behalf of the Crown that this arrangement was made in order that the shooting might be deliberately made at a vital part of the victim. We are unable to accept this suggestion because none was shot on the upper part of his body, and on the other hand such shots as were inflicted were directed towards a comparatively lower part. The flash of the torchlight was intended to spot out the victim and for no other purpose.
28. Asoke in his confession stated that the gunners began to fire in all directions so that people might not approach. Moreover the fact that the revolver or the pistol were not made over to those who were charged with the duty of firing and were not used for shooting at any body also affords an indication that killing was not the intention of the party. It is equally difficult, in the circumstances referred to above, to hold that the intention of the person who fired at Kali Charan was to cause such bodily injury as ha knew would be likely to cause Kali Charan's death. The intention clearly was to cause some injury as would disable Kali Charan from going out of the platform or from offering resistance either by his acts or by his shouts. The first two clauses of Section 300, I.P. C, must therefore be excluded. The firing was done with the intention of causing bodily injury to Kali Charan, but it is not possible to hold that such bodily injury was sufficient in the ordinary course of nature to causa death. On opening the abdominal cavity the Surgeon who performed the operation found a rent in the large gut where a shot had penetrated and through this rent there leaked out gas and faeces into the abdominal cavity and this according to the Surgeon caused acute peritonitis. In answer to a question put by the commissioners the said Surgeon said 'Peritonitis is not invariably caused by perforation of the gut.' The injury, therefore cannot be said to be such as would in the ordinary course of nature be sufficient to cause death. Clause 3 of Section 300, I.P.C., therefore does not apply. A gun was fired with an S.S.G. cartridge and it was certainly a dangerous act. But the Surgeon who performed the autopsy said that Kali Charan's death was due to exhaustion as the result of the injuries. He explained this opinion by saying that
By death due to exhaustion he meant continued external irritation, peripherical stimuli affecting the nervous system in such a way as to depress the normal function of respiration and circulation.
29. If exhaustion is to be taken into account it is difficult to see how the exhaustion which superimposed as the result of the journey can be excluded. Moreover the said Surgeon has also said:
A shot of the kind found by me might remain in the abdominal cavity capsuled without causing harm.
30. In the circumstances to which we have referred we are unable to hold that the man who fired the gun knew that the act was so imminently dangerous that it must in all probability have caused death or that the act would cause such bodily injury as was likely to cause death, elements which are contemplated by Clause 4 of Section 300, I.P.C. In our opinion, therefore the act did not amount to murder' within the meaning of the Indian Penal Code. The result is that the conviction which the learned commissioners have recorded under Sections 395 and 396, I.P. C, cannot be sustained and such of the persons who may be found guilty of the offence of dacoity will have to be convicted under Section 395, I.P.C. instead. (His Lordship then considered the case of each of the accused and the judgment proceeded). As regards sentences we cannot overlook the fact that the dacoity planned and committed was of the worst possible description. The gravity of the crime cannot be over-stated and deterrent punishments are therefore called for.
31. No. 1, Pran Krishna Chakravarty (29 years) and No. 3, Hrishikesh Bhattacherjya (19 years) were the two leaders in every sense of the term. They must have the maximum sentence of transportation for life under Section 395, I.P.C.; No. 2, Satyabrata Chakravarty (18 years), No. 4, Saroj Kumar Bose (17 years) and No. 7, Prafulla Narain Sanyal (20 years)-inspite of all that has been said on behalf of accused 7 to show that he took a minor part in the dacoity itself, we are of opinion that there is enough to indicate that though he was not a leader such as accused 1 and 3 he was certainly an active member of the party and that he and Nos. 2 and 4 should go in the same category as regards sentence. We sentence each of these accused to rigorous imprisonment for 10 years under Section 395, I.P.C.; No. 6, Haripada Basu (20 years) and No. 10, Ram Krishna Sarkar (19 years)-these two accused took a comparatively subordinate part in the conspiracy and in the dacoity and we sentence each of them to undergo rigorous imprisonment for seven years; No. 11, Abdul Kader Chowdhury (28 years)-he was not present at the dacoity but was one of the more important members of the conspiracy. He should undergo rigorous imprisonment for seven years under Section 395/120-B, I.P. 0.; No. 12, Kiran Chandra De (20 years)-he was not present at the dacoity. We think in his case a sentence of five years' rigorous imprisonment under Sections 395/120-B, I.P.C. will meet the requirements of the case; No. 9, Kalipada Sarkar is acquitted and discharged. No separate sentences are passed upon the other charges on which the accused persons have also been convicted.
32. I agree.
33. In this reference under Section 3(2), Bengal Criminal Law Amendment (Supplementary) Act, 1925, read with Section 374, Criminal P.C, and in the four appeals by ten accused persons, who have been convicted and sentenced by the commissioners of a Special Tribunal at Dinajpur, I agree with the decision of my brother Mukerji, J., and in the orders passed by him in regard to the accused Satyabrata Chakravarty (alias Moni) Hrishikesh Bhattacherjee (alias Anukul), Pran Krishna Chakravarty (alias (a) Pran, (b) Kaka, (c) Kalada and (d) Mohendra); Haripada Basu (alias Earn Babu); Profulla Narayan Sanyal (alias (a) Kamal, (b) Amal); Abdul Kader Chowdhury (alias Doctor Da); Kiron Chandra De; Ram Krishna Sarkar (alias Mondal): Saroj Kumar Basu (alias Ketu) and Kalipada Sarker.