TMI Blog1911 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ing his defence, and an application has been made to us, under Section 465 of the Criminal Procedure Code. As against him we have directed an adjournment of the trial subject to any objection that may be taken on his behalf. 4. The accused Satish Chandra Mitter and Haripado Adhikari have been discharged for want of jurisdiction, by reason of the failure of the prosecution to observe the provisions of Section 196 of the Criminal Procedure Code. The accused Bimola Deb has been acquitted at the instance of the prosecution, on the ground that there was no case against him. 5. The case against Kiran Rai has been dropped, not for lack of evidence, but because his mental condition appeared to be such that the prosecution against him could not properly be continued; and, in adopting this course, Mr. P.L. Roy was influenced, and properly influenced, by the fact that this accused had already been sentenced to eight years' rigorous imprisonment for the Haludbari Dacoity, which is alleged to be a part of this conspiracy. 6. Counsel for the Crown also determined not to proceed with the prosecution against Jotindra Nath Mukherjee and Nibaran Mozunadar alias Karuda, as the relevant e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the hope that the Court would be willing to suppose much had been proved, merely because much had been said. Of this, however, I am clear that the course adopted is not to be commended, and though it may be lawful, it unquestionably is not expedient. The result has been this trial, and with every effort to curtail its length, it has lasted, and necessarily lasted, for months, so that from the arrest of most of the accused a year and more has passed. The seriousness of this is the greater when it is borne in mind that, during the whole of that time, almost all the accused have been in custody, and that until the close of the magisterial inquiry, they were unrepresented by any legal advisers as a result of the application to this case of the special procedure provided by Act XIV of 1908, an Act co provide for the more speedy trial of certain offences. I doubt whether, when that Act was passed, it could have been contemplated that a procedure was being sanctioned that would render it possible for accused persons to be incarcerated for months without any access to legal advice. 9. To establish their case the prosecution called, in the course of the magisterial inquiry, close o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with any show of reason be said that the evidence has disclosed a conspiracy for so serious an end as waging war against His Majesty, and I have hesitated the more when I have borne in mind the class of men arraigned before us as accused, and the arms that have been disclosed consisting as they do, for the most part of a few revolvers, some muzzle-loading guns, some antiquated and broken pistols and a handful of arrowheads. Even Lalit, when he says that the object was to make the country independent, adds there was no immediate hurry. Jotin Hazra seems to have regarded the movement as a means of livelihood, and in proclaiming his repentance he declared that he recognized that all this dacoity business was bad and that he had been worse off since the dacoities than before. Before us he expressed the view that these dacoities constituted a secret society. Panna Lal, who also professes to have been a member of the conspiracy, declared in his confession to Mr. Patterson, all who entered the gang perpetrated swindles in the name of swadeshi. Here he improved his story. Still the provisions of the law are comprehensive and it does not require very for midable elements either in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave somewhere in their possession either the original or a copy of this statement, Mr. P.L. Roy, after search had been made, informed the Court that he was instructed to say, no record of this statement could be found. 15. Lalit's confession to the Magistrate, Mr. C.C. Chatterjee, is a very remarkable statement, and it is the foundation on which practically the whole of this case is built. For the prosecution it is said that this statement is. not a full disclosure of all Lalit knew, and this has to be said, for it is silent as to the many matters to which Lalit has deposed before us. 16. Lalit's successive statements to the recording Magistrate, to the verifying Magistrate, before Mr. Duval who conducted the inquiry, and finally before this Court, afford so much room for comment that it is difficult to decide where to begin. His evidence-in-chief before this Court was conspicuous for the assurance with which it was given, and the intimate knowledge of the membership and doings of the conspiracy it professed. Offences and outrages that had baffled the detective powers of the police were explained and claimed by him as the work of the conspiracy, and he has painted him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory of his connection with Benares is remarkable for its changes. At one time he deposes that he went with Haren and Behari Lal, at another that he preceded them: in his examination-in-chief, it seemed as though he went there only once, but in cross-examination, he escapes from the difficulty this involves, by saying there was more than one visit. At one time he says he, Haren and Behari Lal lived in Ambica's house at Benares for a fortnight, at another he says he thinks he never made any such statement: at one time he declares that he returned from Benares in 11/2 or 2 months, at another after working there for 5 months. His story as to his being sent to Dacca for the Barah loot is almost as full of contradictions: at one time it is Pabitro and Noni who sent him on this mission, at another Bimola takes Noni's place: at one time he declares that it was while he was living in Indra Nandi's house that he was so sent, although it appears that the dacoity had not then been committed, at another that it was when he returned from Benares in the Autumn of 1908, though the dacoity had then been committed not less than four months before : at one time he was given cartridges an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. Then there is Lalit's story as to the assistance he gave in securing the murder of Nando Lal. If Lalit was in Benares in August, then his version as to how he came to know Nando Lal by sight is false and with that the whole of his story goes by the board. There are other serious difficulties in the way of accepting his evidence on this point, with which I will deal later, and I will now merely allude to the fact that, though he professes to have watched Nando Lal's house under instructions from Noni, the house he pointed out to the verifying Magistrate as Nando Lal's was No. 25, whereas in fact Nando Lal lived in No. 100-2. Then we have Lalit placing the Musapur dacoity in April, and so placing it, not as an isolated event, but for the purpose of accounting for the abandonment of the second Netra attempt, and yet we know that this dacoity was committed on the 27th February. Then we find that, while he claims an intimate knowledge of those who took part in the Netra dacoity, he points out as parties to it two persons who admittedly had nothing to do with it. 19. I have mentioned here only a few of the many indications which go to show how untrustworthy Lalit is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of what was so recorded. On the 15th of February, 1910, he was arrested in this case, and he made a statement to Mr. Forrest on the 17th, two days later. 21. The defence have drawn attention to the fact that, in reference to the confession in the Morehal case, which was subsequently retracted by him, it was Jotin's contention that he had been tutored to make that confession by Behari Lal, and it is urged that it is significant that he should have made his statement to Mr. Forrest immediately after this same Behari Lal became his surety. Jotin's movements while in custody certainly are deserving of attention.' I will start with his being brought to the Presidency Jail, where at the time none of the accused were in custody. He was, however, removed from here to the Alipur Central Jail, where the accused then were. This was a few days before he was required to identify them in the Magistrate's Court, and not only was he removed to the Jail where the accused were, but he seems to have eaten and bathed with them. Almost immediately after he had identified the accused, with whom he was concerned in the Magistrate's Court, he was removed to another Jail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solutely false, and that these are points on which honest mistake was not possible. 25. First I will examine Susil's confession. He was arrested on the 7th November, 1909, at Beliasishi for the Haludbari dacoity, and he confessed on the following 14th of December. He speaks to the presence of Lalit Mohan at Beliasishi 8 or 9 days before the commission of the Haludbari dacoity, which was on the 28th of October, 1909, and to his I taking two swords away with him. He further speaks to having been initiated by Lalit 4 months before his confession. But Lalit's deposition is that he was not near Beliasishi at either of those dates, and according to his story he was not in Beliasishi after May. Further than that, Lalit in the witness , box never alluded to this alleged initiation, though he was questioned in his examination-in-chief as to initiations performed by him, and mentioned some, particularly, those in which he had taken part. So much for Susil's confession. 26. I now come to Soilen's confession. To begin, with, it is pointed out, that while Soilen in his first confession made on the 29th of October, 1909, the day after his arrest, gave the name of Ganesh Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riticism to which they have been subjected. I refrain from noticing in detail this criticism, as in the view I take, it is not necessary for the decision of the case, nor do I propose to discuss at length the comments that have been made on the methods of identification, though I regret that no satisfactory explanation has been given either of Jotin's being moved to and from the Alipur Central Jail where the accused were lodged, a matter to which I have already alluded, or of the under-trial prisoners having been photographed in Jail by the Police, a procedure for which no warrant or justification has been furnished us by counsel for the prosecution. Action of this class, if left unexplained, even after challenge in the clearest terms from the defence., is certainly calculated to occasion some degree of anxiety as to the methods employed is this case. 28. Considerable reliance is placed by counsel for the prosecution on a series of dacoities committed or attempted, and alleged to be a part of the scheme on which the conspirators embarked. The earliest, according to the prosecution was a dacoity at the Changripota Railway Station, committed on the 6th December, 1907, and foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and he was discharged. Apart from this, there is no evidence that any of the accused took part in the dacoity, or that it was the work of those engaged in the alleged conspiracy. 32. The Barah dacoity was on the 2nd of June, 1908, and of the accused before the Court, Kartick Dutt was put on his trial for this offence, but was acquitted. There is no credible evidence to connect any other of the accused or the conspiracy with this dacoity. It is true that Lalit tells a tale in connection with the loot of this dacoity that implicate Pabitra Charan Dutt and Bimola Deb, but counsel for the Crown informed the Court that he did not rely on this, and, in my opinion, he had very good reasons for taking this course. 33. The Bighati dacoity was on the 16th September, 1908, and Kartick Dutt's participation in it is placed beyond question by his conviction. Apart from this there is no evidence of direct participation in the affair by any other of the accused. Lalit's attempt to connect certain of the accused with it by means of conversation he overheard, obviously fails. Mow far this dacoity can be treated as the work of the conspiracy under investigation will be considered whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to considerable doubt, for, while he would place it within the month of April, he states that the attempt failed because the Musapur dacoity interfered, but in fact it appears that the Musapur dacoity was in February. 38. The first information of the Netra dacoity was lodged by Ham Taran Mitra, the owner of the looted house, within a few hours after the occurrence, and what appears there leaves little doubt that the dacoits cannot have been ordinary criminals, and it is peculiarly significant that the dacoits were at that early stage reported to have said, the money and ornaments that we are taking are meant solely for driving the English root and branch from this country. We are in want of funds, and therefore we are obliged to collect money in this fashion. When the time comes we will return the money with interest. This points very clearly to the purpose and personnel of the party, and is in accord with the allegation that the dacoits were Hindus and the sons of bliadralogs. Though Lalit in his evidence deposes that the dacoits were 21 in all, yet, in the first information it is said there were only seven or eight young men. 39. It will be convenient here to recall Lali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. The accused Bidhu Bhusan Biswas and Manmatha Nath Biswas, who were tried with them were acquitted. 43. One of the principal overt acts alleged in the complaint initiating these proceedings is, the seduction of and attempting to seduce certain men of the 10th Jats from their allegiance. This, according to the prosecution, was a distinct and complete offence in itself, and it is much to be regretted that it has not been brought to trial as such. However, this has not been done, and we have therefore been compelled to try in this case the charge of attempting to seduce the sepoys of the 10th Jats from their allegiance and duty, and of conspiring in such attempt, so that, as far as the present accused are concerned, the judgment of the Court on that charge will be conclusive. The men of the 10th Jats involved in this offence are, according to the prosecution, Surjan Singh, Chunai Havildar, and possibly Ram Gopal; but it is Surjan Singh who figures most prominently in this connection, and the accused whom the prosecution would implicate in this affair are Noren Chatterji, Sarat Mitter, Bhutan Mukerji and Noni Gopal. 44. The specific acts alleged are (1) that Surjan Singh was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Singh pointed out to the verifying Magistrate. The evidence, however, is clear that Sarat was not living in Diamond Harbour Road at the date of this alleged visit to Sibpur, whether it occurred 5 months or even less than 5 months before November-December, 1908. This visit to Sarat's, it has to be borne in mind, is not an irrelevant incident; it is an essential and integral part of the story of the initiation, and the discrepancy, to which I have drawn attention, throws serious discredit on the whole story of the journey to Sibpur, which is in itself improbable. In expressing these definite and positive conclusions in regard to the Jat soldiers, it is right to state that, though they are the conclusions of the Court, they do not in all respects represent our unanimous opinion. But the divergence of view is not such as to qualify the unanimity of our opinion on the essential question whether the accused, alleged to be involved in this incident, are or are not proved to be guilty of the offence of conspiracy with which they are charged. On that we are all agreed. 45. Then it is claimed that the Chatra Bhandar affords strong evidence of the existence of the conspiracy, and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chatra Bhandar documents is concerned, it was in no sense limited to the Sadhana Press, but the accounts show that a large amount of printing work was done at other presses, even while the Sadhana Press was in existence. 46. Then it is urged that the Chatra Bhandar is condemned by the books it sold. True, it is, that Mukti Kon Pathe, Bartaman Rana, Niti, and Jaatiya Samasya were sold there, but they were not proscribed books; they were sold elsewhere, and it is not suggested that they were only sold at establishments in league with the conspiracy. Nor were the Chatra Bhandar's sales of books restricted to these three publications : on the contrary, it is clearly shown that a large number of different publications was sold to which no exception could be taken. There has been some discussion before us as to whether the three offending publications, to which I have referred, belonged to the Chatra Bhandar, or were merely sold by it in the ordinary course of business, and each side has referred us to the Association's books of account. But such of them as have been produced throw no conclusive light on the point, and as possession of all was taken by the police, the defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint of the 4th of March, 1910, on which these present proceedings were initiated: there is no mention there of that conspiracy, and not even a reference to any of the overt acts which were a part of that conspiracy. And yet this can hardly have been due to oversight, for that conspiracy and the outrages that belonged to it were a matter of public notoriety. 48. It was not until the 25th of May, 1910, that a reference was made to the Muraripuluir conspiracy, or to the accused Taranath and Kartic, who are said to have been intimately connected with it. Now it is well known that the Muraripukur conspiracy was the subject of long and careful police investigation, and of subsequent judicial inquiry and trial, in the course of which a very large number of witnesses and an immense volume of documentary evidence was used. No pains were spared to secure an exhaustive inquiry, and yet it is not suggested before us that anything came to light that would establish the connection now sought; and it is remarkable that counsel for the prosecution has been unable to suggest that, in any of the mass of documents seized at the Muraripukur Garden, there is any trace of the connection now alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al persons are charged with the same conspiracy that some should be found guilty of one conspiracy and some of another. This proposition was accepted by counsel for the prosecution as one by which the Court must be governed. It is this only open to us to find one conspiracy, and for the prosecution to succeed against any one of the accused, they must establish by proper and sufficient proof that he is a member of that conspiracy. 51. Any accused not shown to be a member of that conspiracy is entitled to demand an acquittal at our hands, however bad his record may be and however much he may be suspected of this or that offence. Any other view would be intolerable. ... 52. His Lordship then dealt with the individual case of each of the accused, and proceeded as follows: 53. This then ends the case against all the accused, and the result is we all hold the charge under Section 121A, of the Penal Code, established against Soilen Das, Sushil Biswas, Atul Mukherjee, Gonesh Das, Soilendra Nath Chatterjee and Upendra Kristo Deb. 54. The rest of the accused must, in our opinion, be acquitted of the charges against them, and, with the exception of those at present serving sent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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