L.H. Jenkins, C.J.

1. Forty-six accused have been committed to this Court fortrial under sec. 6 (b) of Act XIV of 1908, and the charges against them areunder secs. 121-A, 122 and 123 of the Indian Penal Code. Of these the principalcharge is that under sec. 121-A, of conspiracy to wage war against His Majestythe King-Emperor, and deprive the King-Emperor of the sovereignty of BritishIndia, and to overawe by means of criminal force, or show of criminal force,the Government of India, as by law established. The charges under the othersections are subsidiary, and have not been discussed before us. The period ofthe conspiracy, as charged, is "between the Christian years 1905 and 1910both inclusive," and the accused are charged with having conspired atSibpur in the District of Howrah, and at other places in British India.

2. Of the 46 accused so charged, Bhuban Mukherjee is allegedto be of unsound mind, and consequently incapable of making his defence, and anapplication has been made to us, under sec. 465 of the Criminal Procedure Code.As against him we have directed an adjournment of the trial subject to anyobjection that may be taken on his behalf.

3. The accused, Satish Chander Mitter and Haripado Adikary,have been discharged for want of jurisdiction, by reason of the failure of theprosecution to observe the provisions of sec. 196 of the Criminal ProcedureCode. The accused, Bimola Deb, has been acquitted at the instance of theprosecution, on the ground that there was no case against him.

4. The case against Kiran Rai has been dropped, not for lackof evidence, but because his mental condition appeared to be such that theprosecution against him could not properly be continued; and, in adopting thiscourse, Mr. P. L. Roy was influenced, and properly influenced, by the fact thatthis accused had already been sentenced to eight years rigorous imprisonmentfor the Haludbari Dacoity, which is alleged to be a part of this conspiracy.

5. Counsel for the Crown also determined not to proceed withthe prosecution against Jotindra Nath Mukerjee and Nibaran Mazumdar aliasKaruda, as the relevant evidence he was able to adduce against them was notsufficient to support a conviction.

6. The case for the prosecution is that the accused weremembers of a vast conspiracy, organized and working in secrecy, and aiming atthe overthrow of the British Government: that, though the period of theconspiracy mentioned in the charge was between 1905 and 1910 both inclusive,the movement commenced earlier: that the principal centres of the conspiracywere Calcutta, Sibpur, Kidder pore, Nattore, Hughly, Bankura, Midnapur andJessore: that the scheme of the conspiracy required the collection of men, armsand money, and that an actual start in this direction was made: that men wererecruited and arms and ammunition collected, that to obtain funds dacoitieswere committed, and swadeshi shops were started. As a part of the conspiracy,it is said, many crimes were committed, for the prosecution would ascribe tothe conspiracy a number of dacoities attempted or committed, the murder of twopolice-officers, and one informer, the endeavour made to seduce troops fromtheir allegiance, and other minor offences. Many of these offences haveactually been the subject of judicial investigation and adjudication, andseveral of the accused have already been convicted, acquitted or discharged, inrespect of them. Where there has been an acquictal, there has of course been nofurther discussion, for the acquittal is conclusive, and indeed it would be avery dangerous principle to adopt to regard a judgment of not guilty as notfully establishing the innocence of the person to whom it relates, Rex v.Plummer L. R. [1902] 2 K B 339

7. In other cases we have been compelled, by the course theprosecution have seen fit to adopt to hear the evidence again, in proof ofthese same offences against the same accused. In other instances completedoffences, as for instance, the Netra Dacoity, have not been made the subject ofa separate trial, as they could and should have been, but they have been throwninto this case, and we have had to investigate them in this trial. It may bethat this course was inspired by the idea that, though the evidence at thedisposal of the prosecution was insufficient to secure a conviction for thecrimes committed, it might serve to secure a conviction for a conspiracy, theproof of which really rested on the establishment of those crimes; there canhardly have been the hope that the Court would be willing to suppose much hadbeen 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 withevery effort to curtail its length, it has lasted, and necessarily lasted, formonths, so that from the arrest of most of the accused a year and more haspassed. The seriousness of this is the greater when it is borne in mind that,during the whole of the time, almost all the accused have been in custody, andthat until the close of the magisterial enquiry, they were unrepresented by anylegal advisers as a result of the application to this case of the specialprocedure provided by Act XIV of 1908, an Act to provide for the more speedytrial of certain offences." I doubt whether when that Act was passed itcould have been contemplated that a procedure was being sanctioned that wouldrender it possible for accused persons to be incarcerated for months withoutany access to legal advice.

8. To establish their case the prosecution called, in thecourse of the magisterial enquiry, close on 450 witnesses, all of whom and morehave been called or tendered in this Court, while the printed exhibits alonecover upwards of 1,100 foolscap pages. The evidence adduced in support of theprosecutions case is in part oral, in part documentary and in part real. Theprincipal and most important oral evidence is that of the approvers, LolitMohan Chakrabarti and Jotindra Nath Hazra, but admittedly their testimonybefore it can be acted on must be corroborated in material particulars. Thenature and extent of this corroboration is well-settled; there must be corroborationnot only as to the crime, but also as to the identity of each one of theaccused; and ordinarily it must proceed from an untainted source. This is notechnical rule, but one founded on long judicial experience, and this caseaffords a striking illustration of its wisdom, as will be made clear when Icome to a discussion of the approvers evidence.

9. The documentary evidence consists of books, newspapers,accounts, diaries and letters found for the most part at searches made in thecourse of this case, or of cognate or relevant cases. We also have before usarms and ammunition that the prosecution seek to connect with one or other ofthe accused. And finally we have the confessions, of which use is sought to bemade under sec. 30 of the Evidence Act against co accused.

10. First, then, it has to be seen whether the conspiracyalleged by the prosecution has been proved. Was there a conspiracy to wage waragainst His Majesty the King-Emperor and to deprive the King-Emperor of thesovereignty of British India and to overawe by means of criminal force or showof criminal force the Government of India by law established " A chargeso phrased might, and probably would, to the lay mind, imply a politicalsituation of the gravest character, and it is no doubt partly for this reasonthat the Legislature has prescribed that a charge of this description shall notbe entertained except upon complaint made by order of or under authority from,the Governor-General in Council, the local Government, or some officer empoweredby the Governor-General in Council in this behalf.

11. The proceedings in this case have been initiated bycomplaint made by order of the Local Government: with the policy of that orderthis Court has no concern. I have hesitated much as to whether it could withany show of reason be said that the evidence has disclosed a conspiracy for soserious an end as waging war against His Majesty, and I have hesitated the morewhen I have borne in mind the class of men arraigned before us as accused, andthe arms that have been disclosed consisting as they do, for the most part, ofa few revolvers, some muzzle-loading guns, some antiquated and broken pistolsand a handful of arrowheads. Even Lolit when he says that the object was"to make the country independent," adds " there was no immediatehurry." Jotin Hazra seems to have regarded the movement as a means oflivelihood, and in proclaiming his repentance he declared that he recognizedthat all this dacoity business was bad and that he had been worse off since thedacoities than before. Before us he expressed the view that "thesedacoities constituted a secret society." Panna Lal who also professes tohave been a member of the conspiracy declared in his confession to Mr.Patterson, "all who entered the gang perpetrated swindles in the name ofSwadeshi." Here he improved his story. Still the provisions of the law arecomprehensive and it does not require very formidable elements either in men ormeans to satisfy its definition of a conspiracy to wage war. For the conspiracywith which we are concerned no act or illegal omission is necessary; theagreement of two or more will suffice, so that the determination of the Courtthat a conspiracy to wage war has been established does not imply, as its termsmight suggest, the existence of a serious menace to the constitution or thestability of constituted authority in India. And I think it right to say thisin explanation of my conclusion that a conspiracy to wage war has been proved.

12. So much is made of the evidence of the approvers and soclosely and intimately is the success of the prosecution identified with it,that it will be convenient to discuss its value at the outset of the twoprincipal approvers Lolit is the more important and I will deal with him first.His previous record has nothing to commend it: though he is poor and his familypoor, he has frankly admitted that he " has never tried to earn an honestpenny." He was arrested in Darjeeling on the 27th of October 1909, andinstead of being sent at once to Diamond Harbour, he was kept at Darjeeling"for local enquiry," and did not reach Diamond Harbour until the 2ndNovember. Then he had interviews with Inspector Shamsul Alum extending overseveral hours, and though it was understood Lolit was willing to confess evenbefore he left Darjeeling, it was not until the 5th of November that he wastaken to the Magistrate to have his confession recorded. No explanation of thisdelay is forthcoming, and it is a mater both for regret and for comment thatthe statement recorded by Inspector Shamsul Alum is not forthcoming. No suchdocument could be found. This assurance we, of course, had to accept, but Ifeel that it might have materially assisted us, had it been possible for theprosecution to place before us either the original record, or a copy of Lolitsfirst statement to Inspector Shamsul Alum. How such an important document (ifit ever existed and all records of its contents have become lost to the Police,it is difficult to understand. That such a statement was recorded seems clear,and Counsel for the prosecution was asked by the Court to produce for ourinspection some document from which we could learn what Lolit had said to theInspector. Though it seemed to me improbable that the police authorities would nothave somewhere in their possession either the original or a copy of thisstatement, Mr. P. L. Roy, after search had been made, informed the Court thathe was instructed to say, no record of this statement could be found.

13. Lolits confession to the Magistrate, Mr. C. C.Chatterjee, is a very remarkable statement, and it is the foundation on whichpractically the whole of this case is built.

14. For the prosecution it is said that this statement isnot a full disclosure of all Lolit knew, and this has to be said, for it issilent as to the many matters to which Lolit has deposed before us. Lolitssuccessive statements to the recording Magistrate, to the verifying Magistrate,before Mr. Duval who conducted the enquiry, and finally before this Court, affordso much room for comment that it is difficult to decide where to begin. Hisevidence-in-chief before this Court was conspicuous for the assurance withwhich it was given, and the intimate knowledge of the membership and doings ofthe conspiracy it professed. Offences and outrages that had baffled thedetective powers of the police were explained and claimed by him as the work ofthe conspiracy, and he has painted himself before us as having a considerablehand in the commission or abetment of dacoities, murder and theft. Hisknowledge of the personnel of the conspiracy appeared to be extraordinary;before the enquiring Magistrate he gave the names of over 170 persons,indicating in most instances their residences, and yet he has told us he wasnot an important member of the conspiracy, and to the verifying Magistrate hestated in explanation of his inability to give a particular name and address,"the rule of our Sanity is not to ask the name and residence of anymember. On this account I do not know the names and residences of manypersons." Nor can the achievement of recounting this list of names andresidences be explained by a good memory for facts within his experience, forwhen confronted in his cross-examination with one of his many inconsistenciesall he could say was it is impossible for me to narrate these facts correctlyeach time." Under the stress of cross-examination the assurance vanished,though he displayed considerable resource as he was dislodged from one afterthe other of his former statements. It would take too much time to do more thanmention a few of the indications of un-trustworthiness his evidence affords.First, there is his denial of the brick burning letter. This letter, dated the13th February 1910, marked as Ex. H in the case is in Bengalese, and thefollowing translation is ours :-ED.

Father, I am in great anxiety, not having had any news formany days. Do not be anxious about me. I have now been out of home three years;I may be away for say two months more. There is no cause for anxiety concerningthe case. You have got bricks ready, please begin building the house. I shall,be assured, certainly go and help you two or three months hence. Please give myyounger brothers good education-have no anxiety. Send one or two Bengali booksfor me and reply to this letter. If you do not begin building the house, thenprepare bricks again, I shall on my return commence building the house. Do notbe anxious on my account. Pray God, that I may soon be able to return home-haveno fear-no one will kill me. Government has kept me very well guarded and willdo so. Let mother cry no more for me-tell her I shall soon return. Tell thesame to my brothers also-let them attend to their studies. "which it isdifficult to regard as anything but deliberate falsehood. He may have felt hewas safe in this denial, for the falsehood was one that could not have beendiscovered, but for chance that brought this letter into the possession of thedefence, a contingency Lolit could not have foreseen. His ingenious explanationof the letter, when he had to admit its authorship, did not impress me. Thenthere is the change of his story as to the receipt of Rs. 10 by money-orderfrom Jotin Mukherjee, from which it became necessary to resile when it wasdiscovered that Jotin was at that time at Darjeeling. Next we have him deposingbefore the Magistrate that he had passed the Entrance Examination from theDiamond Harbour School in 1905, while here he denied that he had made any suchstatement, and declared that he left when he was promoted to the second class.At one time he says it was his father that paid for his outfit at

15. Darjeeling, at another time that it was Nonie Gopal, andwhen he was confronted with the variation in his story he promptly said bothwere true.

16. Then the story of his connection with Benares isremarkable for its changes. At one time he deposes that he went with Horen andBehari Lal, at another that he preceded them: in his examination-in-chief itseemed as though he went there only once, but in cross-examination, he escapesfrom the difficulty this involves, by saying there was more than one visit. Atone time he says he, Horen and Behari Lal lived in Umbicas house at Benaresfor 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 1 1/2 or 2 months, atanother after working there for 5 months. His story as to his being sent toDacca for the Barrah loot is almost as full of contradictions : at one time it isPabitra and Nonie who sent him on this mission, at another Bimola takes Nonisplace: at one time he declares that it was while he was living in Indra Nandishouse that he was so sent, although it appears that the dacoity had not thenbeen committed, at another that it was when he returned from Benares in theautumn of 1908, though the dacoity had then been committed not less than fourmonths before: at one time he was given cartridges and a revolver on thisoccasion, at another no mention is made of this. Then as to the date of hisfirst coming to Calcutta: before us he declared it was in October 1906, that hefirst stayed at 46, Machua Bazar Street, that he then moved to the premises ofthe Calcutta High School, No. 66, Nebutolla Lane; that in Assin or Kartic hewas initiated; that he then went to the Yugantar and Chatra Bhandar mess No.15-1 or 15-2, Bhowani Churn Dutts Street; that on the very day of hisinitiation he was entrusted with a revolver to make over to Sakharam GaneshDeoskar, that on the following day in accordance with instructions, he watched7, Alipur Lane, and followed a man on a bicycle supposed to be carrying money,and that, after staying two or four days at the Yugantar and Chatra Bhandarmess, he was sent by Indra Nath Nandi to Chedda-pathar. Before the verifyingMagistrate, however, he places his visit to Cheddapathar in 1907. It is truethat the date in the Magistrates record appears to have been altered to 1907,but if this alteration was subsequently made, one thing at any rate is clear,the alteration could not have been made by the defence, for the document was inpossession of the police and it was only after repeated efforts that Counselfor the defence saw it in the course of the trial in this Court. But more thanthis, if the alteration was subsequently made, it was one necessitated byLolits statement, at the time, for immediately afterwards he says, in the samestatement, that, after being two months at Cheddapathar, he returned toCalcutta, and he goes on to describe a long conversation he had as to theChangripota dacoity, and the disposal of the proceeds. And seeing that thisdacoity was not committed until December 1907, it is at once patent that if1907 is a later alteration, it was one necessitated by Lolits own story. Butif October 1907 be taken as the date of his arrival, then all the events priorto that to which he depose,-and they are both many and important,-must havebeen outside his experience. If, on the other hand, he came in 1906, then theconversation as to the Changripota dacoity on his return, must be afabrication, and it is difficult to repel the suggestion, very pertinentlymade, that it was a fabrication in which he was instructed for the purpose ofbringing in this dacoity as the work of the conspiracy.

17. Then there is Lolits story as to the assistance he gavein securing the murder of Nanda Lal. If Lolit was in Benares in August, thenhis version as to how he came to know Nanda Lal by sight is false, and withthat the whole of his story goes by the board. There are other seriousdifficulties in the way of accepting his evidence on this point, with which Iwill deal later, and I will now merely allude to the fact that, though heprofesses to have watched Nanda Lals house under instructions from Noni, thehouse he pointed out to the verifying Magistrate as Nanda Lals was No. 25,whereas in fact Nanda Lal lived in No. 100-2. Then we have Lolit placing theMusapur dacoity in April, and so placing it, not as an isolated event, but forthe purpose of accounting for the abandonment of the second Netra attempt, andyet we know that this dacoity was committed on the 27th February. Then we findthat, while he claims an intimate knowledge of those who took part in the Netradacoity, he points out as parties to it two persons who admittedly had nothingto do with it.

18. I have mentioned here only a few of the many indicationswhich go to show how untrustworthy Lolit is, apart altogether from thediscredit that attaches to him as an accomplice or as the worthless characterhe obviously is. When I come to deal with the details of the case it will benecessary for me to refer to many other such instances, and indeed a closeexamination of his evidence goes to show that almost all his statements, whencapable of being checked, can be shown to be incorrect. There can be noquestion that Lolit has overdone his part, whatever the reason may be: and ifit be said that had he been fabricating a false story he would not have falleninto this error, then I would answer in the words of Lord Brougham :- This is avery tender argument before a Court, and too doubtful to justify the Court inplacing any considerable reliance on it; for we do find, happily for the endsof justice, that men do fall into these inconsistencies, and by means thereof,the fraudulent character of the evidence becomes apparent."

19. Jotin Hazra, the other approver, it is also urged onbehalf of the defence, is, apart from his being an accomplice, an untrustworthywitness. There is certainly little in his general character to commend him, forhe seems to have been a neer-do-weel, and admits to having been a ganjasmoker. He is a man of indifferent education and I was not favourably impressedby him in the witness-box. We first meet with Jotin in connection with theMorehal dacoity; he was arrested on the 5th February, on the 6th February heconfessed, on the 29th of March he retracted; he was tried at the Sessions, andin the end he was acquitted on the 1st April 1909. Proceedings were then takenagainst him under sec. 110 of the Criminal Procedure Code for bad livelihood onthe 29th June 1909, and he was ordered to find sureties on the 17th August. Hewas not finally released till the 11th February 1910 as he could not findsureties before. Prior to the 17th August, however, he had been temporarilyreleased on bail in July, but instead of going to his own house, he went toKali Babu, a Police Inspector at Uluberia, and told him he would like toconfess. But for a reason which has not been explained, the Inspector insteadof taking Jotin Hazra to a Magistrate to have his confession recorded, took himto Inspector Shamsul Alum, and left Jotin with him. Jotin says he told all, andShamsul wrote it down, but we have not been placed in possession of what was sorecorded. On the 15th of February 1910, he was arrested in this case, and he madea statement to Mr. Forrest on the 17th, two days later.

20. The defence have drawn attention to the fact that, inreference to the confession in the Morehal case, which was subsequentlyretracted by him, it was Jotins contention that he had been tutored to makethat confession by Behari Lal, and it is urged that it is significant that heshould have made his statement to Mr. Forrest immediately after this sameBehari Lal became his surety. Jotins movements while in custody certainly aredeserving of attention. I will (sic) his being brought to the presidency jah,where at the time none of the accused were in custody. He was, however, removedfrom here to the Alipur Central Jail, where the accused then were. This was afew days before he was required to identify them in the Magistrates Court, andnot only was he removed to the Jail where the accused were, but he seems tohave eaten and bathed with them. Almost immediately after he had identified theaccused, with whom he was concerned, in the Magistrates Court, he was removedto another Jail. In considering the significance of these moves, it has to beborne in mind that, up to this time, there had been no identification by Jotin.For the defence it is asked, and I think reasonably asked, what is the explanationof all this. None has been vouchsafed, or attempted, and it is difficult totreat the matter as an undesigned coincidence.

21. This will be a convenient place at which to deal withthe confessions.

22. Reliance has been principally placed on those of theaccused Soiled Dash and Susie Bissau, and these the prosecution would use notonly against the persons making them, but also against the rest of the accused.The warrant for this is to be found in sec. 30 of the Evidence Act, whichprovides that, when more persons than one are being tried jointly for the sameoffence, and a confession made by one of such persons affecting himself andsome other of such persons, is proved, the Court may take into considerationsuch confession as against such other person, as well as against the person whomakes such confession. The language of the section is guarded, and the historyof this Act leaves me in no doubt that this section was designedly framed inthese terms. While, admissions word which embraces confessions, are by sec 21relevant and may be proved as against the person making them all that sec. 30provides is, that the Court may take them into consideration, as against otherpersons. This distinction of language is significant, and it appears to me thatits true effect is, that the Court can only treat a confession as lendingassurance to other evidence against a co accused. Thus to illustrate mymeaning, in the view I take, a conviction on the confession of a co-accusedalone would be bad in law. This reading of the section appears to me to gainconfirmation from the language of sec. 5.

23. Further, I think, that only can be taken intoconsideration which is a confession, in the true sense of the term, of theoffence for which the persons are then being jointly tried. But, in addition tothis, the confessions with which I am now dealing, have been retracted, sothat, to place any reliance on them against the co-accused would be mostunsafe, Yasin v. King-Emperor I. L. R. 28 Cal. 687, 690 (1901).. Counsel forthe defence however has gone further, and maintained before us that there arepoints on which the confessions are absolutely false, and that these are pointson which honest mistake was not possible.

24. First, I will examine Susils confession. He wasarrested on the 7th November 1909 at Beilashishi for the Haludbari dacoity, andhe confessed on the following 14th of December. He speaks to the presence ofLolit Mohan at Beliashishi 8 or 9 days before the commission of the Haludbaridacoity, which was on the 28th of October 1909, and to his taking two swordsaway with him. He further speaks to having been initiated by Lolit 4 monthsbefore his confession. But Lolits deposition is that he was not nearBeliashishi at either of those dates, and according to his story he was not inBeliashishi after May. Further than that, Lolit in the witness-box neveralluded to this alleged initiation, though he was questioned in hisexamination-in-chief as to initiations performed by him, and mentioned some,particularly those in which he had taken part. So much for Susils confession.

25. I now come to Soilens confessions. To begin with, it ispointed out, that while Soiled in his first confession made on the 29th ofOctober, the day after his arrest, gave the name of Ganesh Chandra Dash alone,saying that he did not know the names of all the rest, in his second confessionhe names all the Calcutta men and Bidhu. This, it is urged, shows animprovement designed to meet the exigencies of the case. Whether this be so ornot is not directly material for the purposes of this case. But what has beenmost vigorously attacked is the third confession made on the 9th and 10th ofMarch after Soiled had been in custody for over four months. In this hepurports to give a detailed list of conspirators, even naming 80 men who hadnot been mentioned by Lolit; he makes repeated reference to Noni Gopal, hegives an account of the Netra dacoity; he implicates some of the accused in theMorehal dacoity, and he deals with a number of other matters. Not only has thisconfession, as well as the two which preceded it, been retracted by Soiled, buta careful consideration of its contents, and a comparison of them with othermaterials in the case lead me to regard this statement as eminently untrustworthy,and I am unable to place any reliance on it against Soilens co-accused.Without attempting a critical examination of the whole of this confession, itwill suffice to refer to two matters. Towards the end of this confession, hethrows in the remark that, Noni Babu never keeps any incriminating thing in hishouse. Now this he says on the 10th of March 1910, while Nonis house had beensearched on a previous date, the 20th of January, and nothing incriminating hadbeen found. Then again Soiled almost immediately after this tells us, in thesame confession, about the recovery by Noni of cartridges that had been throwninto the tank. It is conceded for the prosecution that this has reference to anincident of which witnesses named Sarna Bewa and Jamini speak. And yet, ifJamini is right in placing the occurrence in Aughran, i.e., November-December,it is difficult to see how Soiled, who was then in custody could have known ofit. This, however, is a matter which I will discuss at greater length when Icome to deal with the case against Nani.

26. For the prosecution it has been suggested that theverification proceedings in this" case add a value to the approversevidence and the confessions, and may be regarded as corroboration. With this Iam unable to agree; on the contrary I feel that these proceedings are open tomuch of the criticism to which they have been subjected. I refrain fromnoticing in detail this criticism, as in the view I take, it is not necessaryfor the decision of the case, nor do I propose to discuss at length thecomments that have been made on the methods of identification, though I regretthat no satisfactory explanation has been given either of Jotins being movedto and from the Alipur Central Jail where the accused were lodged, a matter towhich I have already alluded, or of the under-trial prisoners having beenphotographed in Jail by the Police, a procedure for which no warrant orjustification has been furnished us by Counsel for the prosecution. Action ofthis class, if left unexplained, even after challenge in the clearest termsfrom the defence, is certainlya calculated to occasion some degree of anxietyas to the methods employed in this case.

27. Considerable reliance is placed by Counsel for theprosecution on a series of dacoities committed or attempted, and alleged to bea 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 followed by dacoities at Sibpur on the3rd April 1908, at Barrah on the 2nd of June 1908, and at Bighati on the 16thof September 1908. Then, it is said there was an attempted dacoity atProtap-chuck, on 14th October 1908. On the 29th of November 1908, a dacoity issaid to have taken place at Raita, and on the 2nd of December at Morehal. In1909 dacoities are said to have been committed on the 27th of February atMusapur, on the 23rd of April at Netra, on the 27th of July at Maharajpur, andon the 28th of October at Haludbari.

28. The incident which has been described as theChangripotta dacoity occurred on the 6th of December 1907; whether or not itwas a real dacoity is not clear, but of this I am convinced, that the evidencedoes not establish the guilt of the accused, Narendra Nath Bhuttacharjee andBhusan Chandra Mitter. Shortly after the occurrence, a magisterial enquiry washeld, with the result that the accused then before the Court were thendischarged. This, no doubt, is not binding on this Court, for the discharge wasnot equivalent to an acquittal. Still the discharge meant that the Magistrate,after taking the evidence, found that there were not sufficient grounds forcommitting the accused for trial, and he recorded his reasons for thatconclusion. No steps were taken at the time to have this order of discharge setaside, and now more than three years after the event, we are asked to hold thatthe complicity of the two accused now before the Court has been established. Itis not suggested that further evidence has been adduced; on the contrary someevidence which was adduced before the Magistrate, and which appears to havebeen favourable to the accused, has not been placed before us. The evidenceactually placed before us is open to considerable comment, and this, togetherwith the circumstances to which I have alluded, in my opinion clearly requiresthat we should hold the guilt of Noren Bhuttacharjee and Bhusan Mitter notproved, and the connection of this dacoity with the alleged conspiracy not established.

29. The Sibpur dacoity was on the 3rd of April 1908, andthough Lolit refers to it, his evidence in this connection can command noconfidence, and Mr. P. L. Roy wisely refrained from placing any reliance on it.

30. Norendra Nath Chatterji, it is true, was arrested on the4th or 5th of April 1908, but no charge-sheet was submitted and he wasdischarged. Apart from this, there is no evidence that any of the accused tookpart in the dacoity, or that it was the work of those engaged in the alleged conspiracy.

31. The Barrah dacoity was on the 2nd of June 1908, and ofthe accused before the Court, Kartick Dutt was put on his trial for thisoffence, but was acquitted. There is no credible evidence to connect any otherof the accused or the conspiracy with this dacoity. It is true that Lolit tellsa tale in connection with the loot of this dacoity that implicates PabitraCharan Dutt and Bimola Deb, but Counsel for the Crown informed the Court thathe did not rely on this, and in my opinion, he had very good reason for takingthis course.

32. The Bighati dacoity was on the 16th September 1908, andKartick Dutts participation in it is placed beyond question by his conviction.Apart from this there is no evidence of direct participation in the affair byany other of the accused. Lolits attempt to connect certain of the accusedwith it by means of conversation he overheard, obviously fails. How far thisdacoity can be treated as the work of the conspiracy under investigation willbe considered when I come to deal with the case of Kartick Dutt.

33. The attempted dacoity at Protapchuck is not brought homeby reliable evidence, either to any of the accused or to the conspiracy. Thoughthere is reason to think that the Raita dacoity (November 29th, 1908) was committedby what has been termed respectable men, there is nothing which suggests thatany of the accused took part in it, beyond the retracted confession of SusilBiswas, who names Monmatha, Bamapodo and Bhupen. But this obviously cannot takethe place of legal proof.

34. The Morehal dacoity was on the 2nd December 1908, and,as I have already said, Monmatha Nath Rai Chowdhry has been convicted as one ofthe offenders. It is said by the prosecution that Dasarathi Chatterji, SibuHazra and Atul Pal were also of the party, and the approver Jotin no doubtnames them. Not only, however, is his evidence wholly uncorroborated, but it isat least doubtful whether Jotin was at the occurrence. He tells a story ofbursting open a safe with gun powder which cannot have escaped the notice ofothers, and yet is mentioned by no one; his name does not appear in Monmathasconfession; and though put on his trial he was acquitted at the Sessions. Inthe circumstances it cannot be fairly said that this dacoity is brought home toany one except Monmatha Nath Rai Chowdhry, though it may be that some of thedacoits were bhadralogs.

35. The Musapur dacoity was on the 27th of February 1909.There is, however, nothing to connect any of the accused with the occurrence.Lolit seeks to connect it with the conspiracy, but his evidence is unreliable.As I have already pointed out he places the dacoity in April, though itoccurred in February.

36. The Netra dacoity was on the 23rd of April 1908, and itowes its importance in this case to the fact that it was in connection withthis affair that the approver Lolit Mohun Chakravarty was arrested, and it ison his successive statements that the whole fabric of this case practicallyrests. He ultimately seeks to implicate no fewer than fifteen of the accused inthis dacoity either as actors or instigators. The fact of the dacoity is beyonddispute, and if Lolit is to be believed, it was preceded by two abortiveattempts. These need not be discussed at any length, nor is it necessary to domore than point out that his evidence as to the second of them is open toconsiderable doubt, for, while he would place it within the month of April, hestates that the attempt failed because the Musapur dacoity interfered, but infact it appears that the Musapur dacoity was in February.

37. The first information of the Netra dacoity was lodged byRam Taran Mitra, the owner of the looted house, within a few hours after theoccurrence, and what appears there leaves little doubt that the dacoits cannothave been ordinary criminals, and it is peculiarly significant that the dacoitswere at that early stage reported to have said, "the money and ornamentsthat we are taking are meant solely for driving the English root and branchfrom this country. We are in want of funds, and therefore we are obliged tocollect money in this fashion. When the time comes we will return the moneywith interest." This points very clearly to the purpose and personnel ofthe party, and is in accord with the allegation that the dacoits were Hindusand the sons of bhadralogs. Though Lolit in his evidence deposes that thedacoits were 21 in all, yet, in the first information it is said there wereonly seven or eight youngmen.

38. It will be convenient here to recall Lolits version ofthe whole affair. After detailing the instructions he received from Noni GopalSen-Gupta, he states that he went by train to Dewla, where he alighted at 5-40or 6-40 P.M. with others, whom he conducted to a field. There five men ofJoynagar and Mazilpur met them and about midnight, after the last train fromDiamond Harbour had passed, the party proceeded to the scene of the dacoity,Ram Taran Mitters house, led by Lolit. Arrived at the house of KaliChakravarti and Madaru scaled the wall, Lolit concealed himself in a drain, twomen mounted guard and the house was looted. Then Lolit led them back again pastthe field, and, after they had gone 2 or 3 miles, the party sat under a treeand took count of the spoil of which a list was made. With certain triflingexceptions the arms and loot were made over to the men of Joynagar andMazilpur. The rest went in batches of 3, 4 or 5 up to Sangrampur Mat, the menwith Lolit being, to use his own words, "Soilen Das, Bistupodo Chatterjee,Atul Mukerjee and, I think, Upen De." This batch went to Magrahat Stationand there they got into the third train from Diamond Harbour to Calcutta.

39. Such in broad outline is Lolits story of the dacoity aspresented to us in the course of his examination-in-chief. He then goes on todescribe visits to Sarat Mitter and Noni Gopal, his expedition under Nonisinstruction on the following day, which must have been Sunday, the 25th April,his arrival at Mazilpur, and his return in the early hours of Monday with theplunder, accompanied by Chuni Lal Nandi and Rajoni Bhattacharjee. Though thereis reason to think that this dacoity was connected with some such conspiracy asis charged in this case, I will reserve for consideration when I come to dealwith their individual cases whether the evidence establishes the guilt of ChuniLal and Rajoni, but against the rest of the accused the imputation that theywere in this dacoity fails.

40. The Maharajpur dacoity was on the 27th July 1909. Theevidence discloses nothing that serves to connect the offence either with anyof the accused or with the alleged conspiracy.

41. The Haludbari dacoity was on the 28th of October 1909,and the accused Soilen Das, Susil Biswas, Atul Mukerjee, Kiran Rai, Gonesh Das,Sailendra Chatterjee, and Upendra Kristo Deb have on a previous trial beenfound guilty of this offence. The accused, Bidhu Bhusan Biswas and MonmothoNath Biswas, who were tried with them, were acquitted. One of the principalovert acts alleged in the complaint initiating these proceedings is, "the seductionof and attempting to seduce certain men of the 10th Jats from theirallegiance." This, according to the prosecution, was a distinct andcomplete offence in itself, and it is much to be regretted that it has not beenbrought to trial as such. However this has not been done, and we have thereforebeen compelled to try in this case the charge of attempting to seduce thesepoys of the 10th Jats from their allegiance and duty, and of conspiring insuch attempt, so that, as far as the present accused are concerned, thejudgment of the Court on that charge will be conclusive. The men of the 10thJats involved in this offence are, according to the prosecution, Surjan Singh,Chunai Havildar, and possibly Ram Gopal; but it is Surjan Singh who figuresmost prominently in this connection, and the accused whom the prosecution wouldimplicate in this affair are Noren Chatterji, Sarat Mitter, Bhutan Mukerji andNoni Gopal.

42. The specific acts alleged are (1) that Surjan Singh wasinitiated into the secret society at Bhutans house at Sibpur, where he and RamGopal were taken by Noren Chatterjee, (2) that Surjan Singh was thrice givenmoney, once by Noren Chatterji and twice by Lolit and (3) that these men of the10th Jats visited Sarat, and were in constant touch with Noren Chatterji. I maysay at once that against Noni there is absolutely no evidence; of the paymentsby Lolit there is not a word of corroboration, and in fact these payments areopposed to Surjans testimony; for Norens payment to Surjan we have to dependon the unsupported evidence of Surjan, who was, on his own showing, a party tothis alleged criminal transaction. But there is a more serious difficulty inthe prosecutions way. One of the witnesses on whom the prosecution principallyrely for the story of the initiation, is Ram Gopal, for his evidence at anyrate, it is claimed, cannot be depreciated as that of an accomplice. Ram Gopalwas a soldier in the 10th Jats, and his evidence is that he left the Regimentin November or December 1908. The exact date must be a matter of record, withineasy reach of the prosecution, and no attempt has been made to question thecorrectness of this date, and so presumably the prosecution accept it ascorrect. Now, Ram Gopal speaks to the visit with Surjan to Sibpur, and placesit 5 or 6 months before he left the regiment, and though it would be wrong totie him down strictly to this computation of time, it is reasonable to supposethat, according to him, this visit occurred some considerable time beforeNovember or December 1908. Here again the prosecution could have fixed thedate, as the excursion is said to have been made while Surjan was in hospitalwith a dislocated knee. No steps, however, have been taken to show that RamGopal was in error, so that here too it is fair to assume that the prosecutionaccept as correct the time, approximately fixed by Ram Gopal. For what it maybe worth, I may point out that it was said to be drizzling at the time of thisvisit to Sibpur, and this would agree with Ram Gopals estimate of the time. Atthe same time the evidence of these Jat witnesses is, that before and after theSibpur incident, they used to go to Sarats dispensary at 86-1, Diamond HarbourRoad. This is clear from the evidence itself, and is confirmed by the fact thatit was this house that Surjan Singh pointed out to the verifying Magistrate.The evidence, however, is clear that Sarat was not living in Diamond HarbourRoad at the date of this alleged visit to Sibpur, whether it occurred 5 monthsor even less than 5 months before November-December 1908. This visit toSarats, it has to be borne in mind, is not an irrelevant incident; it is anessential and integral part of the story of the initiation, and thediscrepancy, to which I have drawn attention, throws serious discredit on thewhole story of the journey to Sibpur, which is in itself improbable. Inexpressing these definite and positive conclusions in regard to the Jatsoldiers, it is right to state that, though they are the conclusions of theCourt, they do not in all respects represent our unanimous opinion. But thedivergence of view is not such as to qualify the unanimity of our opinion onthe essential question whether the accused, alleged to be involved in thisincident, are or are not proved to be guilty of the offence of conspiracy withwhich they are charged. On that we are all agreed.

43. Then it is claimed that the Chatra Bhandar affordsstrong evidence of the existence of the conspiracy, and is of value asincriminating several of the accused. It came into existence as far back as1903 as a Students Co-operative Stores Association, and it is conceded that,in its origin, it was a legitimate trading concern. In August 1906, it wasconverted into a limited company, but whether it was before or after this thatit was put to unlawful ends has not been formulated by the prosecution. Thetheory now advanced is, that the conspirators saw in its prosperity a usefulinstrument for forwarding their ends, and they accordingly captured theAssociation. The uses to which, according to this theory, the Association wasput were, first, to earn money for the conspiracy, secondly, to afford a securemeeting place for the conspirators, and, thirdly, to be the bankers of thecause. But ingenious and attractive as this may be as a theory, it has nofoundation in established fact; not one of these three suggestions is proved.But then it is said that a close connection existed between the Chatra Bhandarand the Jugantar, and that, from this the true character of the Chatra Bhandar,is to be learnt. For this reliance is placed on the fact that the proof of theChatra Bhandars blue prospectus was printed at the Sumati Printing Works. Butit would seem that these printing works belonged to Nikhileshwar Roy Moulick,who was a Director of the Chatra Bhandat, so that the fact on which so muchreliance is placed, is capable of an explanation which is not only innocent butprobable. And, in this connection, it has to be borne in mind that Nikhileshwarhas been conclusively acquitted of participation in the conspiracy set up bythe prosecution. It is true that on the Chatra Bhandar prospectus the Jugantarwas advertised, but of this an explanation has been suggested, and, in anycase, it cannot be overlooked that the Chatra Bhandar had 10 Directors, andthat, of these, two have been acquitted of being concerned in the conspiracy,while, of the remainder, it is only against Pabitra that any suggestion ofcomplicity has been made. Moreover, at this time, it has to be remembered, theJugantar had been in existence some considerable time, its popularity wasgreat, and no objection had been taken to its tone and its teaching by theauthorities. Precisely the same considerations apply to the alleged connectionwith the Mukti Kan Pathe. Then, again, so far as the printing of Chatra Bhandardocuments is concerned, it was in no sense limited to the Sadhana Press, butthe accounts show that a large amount of printing work was done at otherpresses, even while the Sadhana Press was in existence.

44. Then it is urged that the Chatra Bhandar is condemned bythe books it sold. True it is that Mukti Kon Pathe, Bartaman Rana Niti, andJatiya Samasya were sold there, but they were not proscribed books; they weresold elsewhere, and it is not suggested that they were only sold atestablishments in league with the conspiracy. Nor were the Chatra Bhandarssales of books restricted to these three publications: on the contrary, it isclearly shown that a large number of different publications was sold to whichno exception could be taken. There has been some discussion before us as towhether the three offending publications, to which I have referred, belonged tothe Chatra Bhandar, or were merely sold by it in the ordinary course ofbusiness, and each side has referred us to the Associations 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 cannot be treatedas responsible for the non-production of the rest, so all that can be said isthat the prosecution have not proved that these publications belonged to theChatraa Bhandar. I do not overlook the expressions and sentiments contained inthe blue prospectus to which our attention has been drawn but giving to themall the force adverse to the Association to which they are fairly entitled, Ifind it impossible to regard them as establishing the Chatra Bhandarsconnection with the conspiracy into which we are enquiring in this case.

45. It is the case for the prosecution that the jugantar wasan integral part of the conspiracy. It was started in March 1906, and itsorigin and its purpose are matters of common knowledge. Its articles and itspopularity have been brought to our notice, and the facts show that those whoguided its policy managed to select writers possessed of a style so levelled tothe popular taste that even street traffic was impeded in the rush of would-bepurchasers. Inspector Purna Chunder Lahiri has told us that people were amazedat the inaction of the Government, and the audacity of the paper, and this Ican well understand, for notwithstanding its pernicious teachings no step wastaken to check it until July 1907. All this may be conceded and regretted, butour concern is to see how far the connection of the Jugantar with theconspiracy we are investigating, and the accused we are trying, has been madegood. Taranaths connection with the Jugantar is established but he holds anisolated position among these accused, as does Kartic, who, alone of the rest,is said to have had relations with that paper. Apart from this the accused arenot shown to have been connected with the Jugantar in any sense that wouldjustify us in holding that it was a limb of the conspiracy under trial. Themere discovery of copies of the paper at searches proves nothing, foradmittedly it had an unusually wide circulation. True it is that the Jugantarwas a limb of the Muraripukur Garden conspiracy, but as I will show, that wasdistinct from the one into which we are enquiring. And this brings me to theprosecutions suggestion that the conspiracy with which we are concerned inthis case is a part or branch of that which had its head-quarters atMuraripukur Garden. This was not the case for the prosecution as formulated inthe complaint of the 4th of March 1910, on which these present proceedings wereinitiated; there is no mention there of that conspiracy, and not even areference; to any of the overt acts which were a part of that conspiracy. Andyet this cart hardly have been due to oversight, for that conspiracy and theoutrages that belonged to it were a matter of public notoriety.

46. It was not until the 25th of May 1910, that a referencewas made to the Muraripukur conspiracy, or to the accused Taranath and Kartic,who are said to have been intimately connected with it. Now it is well knownthat the Muraripukur conspiracy was the subject of long and careful policeinvestigation, and of subsequent judicial enquiry and trial, in the course ofwhich a very large number of witnesses was examined and an immense volume ofdocumentary evidence used. No pains were spared to secure an exhaustiveenquiry, and yet it is not suggested before us that anything came to light thatwould establish the connection now sought and it is remarkable that Counsel forthe prosecution has been unable to suggest that in any of the mass of documentseized at the Muraripukur Garden, there is any trace of the connection nowalleged. The suggestion made in Counsels opening speech that this conspiracywas linked with the Muraripukur Garden conspiracy, through an allegedconnection between Kartic Dutt and Hem Das, has absolutely not a title ofevidence in its support. And the proposal to connect this conspiracy with theMuraripukur, through Srish Sarkar and Satis Sarkar, and the expedition fromPatna to Nepal, are far too fanciful and remote for serious acceptance.

47. Much evidence has been adduced to show association inmusic, gymnastic exercises and lathi play, and it is on this lathi play thatthe prosecution have principally relied. But when Counsel was asked toformulate the part played by these lathi exercises in the scheme of theconspiracy, he was unable to advance any suggestion from which much assistancecould be derived. It may be that these exercises would conduce to theacquisition of strength, agility, hardihood and discipline, all no doubtqualities useful in war, but it was not and could not be reasonably argued thatthe contemplated war was to be waged with lathis, or that these exercisesstanding alone could be treated as evidence of a conspiracy to wage war. Toattach sinister significance to the mere association in play or pastimes ofthose who live in the same village or attend the same school, would, I think,be dangerous, at any rate on the evidence that has been adduced before us.Evidently it did not occur to those who joined in these exercises that theywere doing that which would bring them into their present predicament, forthere was a complete absence of secrecy, and rather a courting of publicity inthe performance of these exercises. The defence are not without a theory as tothe significance of this lathi play, but in the view I take, it is unnecessaryto discuss it.

48. There is but one further point to which I would desireto allude before I proceed to deal with the individual cases. It is the chargeof conspiracy that has been argued before us, and no other, and that charge issingle and complete. At the same time there are many accused before us and theyare drawn from different parts of the country. These accused have beendescribed by the prosecution, and conveniently described as falling intogroups. But it is not open to us to find more conspiracies than one, for thereis the highest authority that it is a legal impossibility when several personsare charged with the same conspiracy that some should be found guilty of oneconspiracy and some of another. This proposition was accepted by Counsel forthe prosecution as one by which the Court must be governed. It is thus onlyopen to us to find one conspiracy, and for the prosecution to succeed againstany one of the accused, they must establish by proper and sufficient proof thathe is a member of that conspiracy.

49. Any accused not shown to be a member of that conspiracyis entitled to demand an acquittal at our hands, however bad his record may beand however much he may be suspected of this or that offence. Any other viewwould be intolerable.

50. The case against NONI GOPAL SEN GUPTA rests principallyon the testimony of the two approvers, Lolit and Jotin, and if they are to becredited, then this accused is one of the leaders of this conspiracy. But theirevidence against him is of the most inconclusive character and relates for themost part to conversations with him, and instructions received from him, andcoming as it does from these sources, it has to be scrutinized with care andaccepted with caution. No witness corroborates either Lolit or Jotin as to asingle detail to which they severally depose, in relation to Noni Gopal, thoughsome have been called and have given evidence as to his taking part ingymnastics, wrestling and lathi play, and as to his association with Bhutan,Bhuban and Madaru a circumstance from which it is obvious that no adverse inferencecan reasonably be drawn seeing that they are near neighbours and known to eachother.

51. The straits to which the prosecution have been reducedin the endeavour to adduce incriminating evidence against Noni, may beillustrated by the testimony as to the finding of cartridges in a tank in theneighbourhood of Nonis house, and in the immediate proximity of a public road.

52. One Sarna Bewa, a woman who describes herself asunemployed and doing no work, tells a story of how she found in the tank wherethe water was about one foot deep things which apparently were cartridges. Sheshowed them, she says, to a goldsmith named Jamini who told her they werenothing, and that she had better throw them away. She spoke about this to noone but Jamini and following his advice she threw them into a big drain. Jaminitoo is called and he says Sarna brought to him these things, but he, as puzzledas she, could not make out what they were, and so he advised her, with someinconsequence, to throw them away. It does not appear how Jaminis knowledge ofthis occurrence came to light, but somehow it did, if we are to believe theevidence and, what is more remarkable, Soilen professes to have known of it allaccording to his third and final confession, of which he delivered himself onthe 10th of March 1910. It is worth quoting what he says about this: Afterrelating that one Kishori had 5 revolvers and 200 cartridges kept with him byNoni and that Kishori in fear of a search had thrown them into the tank, heproceeds, Kishori was sent for and when asked for the revolvers he said he hadthrown them into the tank The revolvers and cartridges were taken out, but 5 or6 cartridges remained in the tank. Some fisher-women while fishing got thosecartridges, and took them to a goldsmiths shop. The goldsmith tested them andsaid they were not gold. He did not know they were revolver cartridges, so hereturned them to the fisherwomen. Noni Babu heard of this and cleverly managedto get the cartridges back from the fisher women." And in this way Soilenturns to use against Noni the story of Sarna and Jamini According to Soilen thediscovery of cartridges must have followed the assault,-ED. See ante, p. 604,col. 1. and this is in harmony with Jaminis version of the affair. Jamini placesthe discovery in Aughran, and further fixes it by saying it was immediatelyafter the Puja before last, that is the Puja of 1909 which ended on the 24th ofOctober in that year. But in Aughran Soilen was in custody for the Haludbaridacoity, and from that day on, he has remained in custody. How then was he ableto introduce into his confession events which happened (if at all) while he wasin custody When this difficulty was brought to the notice of Counsel for theprosecution he offered two explanations, first, that Soilen and Jamini werespeaking to different incidents, and, secondly, that the mention of Aughran wasa mistake. The first of these he felt compelled to abandon, and I need not dealwith it, so that it is only the second that calls for notice. Now, while it wassuggested that the mention of Aughran must be a mistake, it was conceded thatthe reference to the end of the Pujas must be accepted, and this, it wasclaimed, made Soilens story possible. The first day after the Pujas was the 25thof October. On the early morning of the 28th of October Soilen was arrested atMirpur, and must have left Calcutta not later than the 27th. So it is on the25th, 26th or a part of the 27th that Soilen, according to the prosecution, gotthis information which he imparts in his confession. And so, according to theprosecution, within this very limited time, Sarna went to Jamini, and takinghis advice, threw the cartridges into the big drain, and Noni by some means,which have not been explained, learnt of the affair, and "cleverly managedto get the cartridges back from the fisher women," and information of theoccurrence reached Soilen. The imputed cleverness of Noni becomes all the moreremarkable in view of the fact that neither Sarna nor Jamini knew they werecartridges, and that Sarna spoke to no one of what she had done, and that shethrew them into the big drain. The prosecution theory is not without itsdifficulties. Soilen however furnishes a much simpler explanation: it is ineffect that his confession was false.

53. Now it has to be seen how far the case is advanced bydocumentary evidence against Noni Gopal. Much reliance is placed on threeletters, Exhibits 26 (a), 26 (b) and 332. They were all three written by Noniwhile he was in jail, the first two on the 28th of March 1910, and the last onthe 17th July 1910. The significance of the two letters of the 28th of MarchAccording to the evidence of the jailor and two European warders, Noni Gopalhad been discovered writing without authority on two pieces of paper, and wasdepart mentally punished for writing unauthorised letters from jail on privatepaper. They purported to be letters written one to Dr. Sarat Mitter and theother to jogesh Mitter, who were both fellow-prisoners with Noni Gopal. Therewere suggestions in both that the addressees should complain of oppression injail.-ED. according to the prosecution, is that they show intimate acquaintancewith those to whom they were addressed, and that Noni was even in jail regardedby them as their leader. Nonis previous acquaintance with Jogesh Mitter, towhom one of the letters was addressed, has never been disputed; they were nearneighbours. His previous acquaintance with Sarat is denied, and it is urgedthere is nothing in the letter to him that negatives or even raises a doubt asto this.

54. I agree with this. It has to be borne in mind that Noniand Sarat were arrested as far back as the 20th of January 1910, and that theseletters were written on the following 28th of March. During this time these twoaccused were kept in the same jail, and it is established that the accusedwhile in jail met, and in particular they bathed and had their meals together.Indeed the prosecution repudiates the idea that the accused were subjected tosolitary confinement. Then looking at the letters, it is at once obvious thatthey refer to events after and not before the arrest. Whether the ground ofcomplaint they suggest of police oppression in jail is true or not, is notrelevant to this particular issue, and if it were, we have no materials onwhich to pronounce a definite opinion one way or the other. The suggestion thatthey point to the esteem in which Noni was held by his co-accused, possesses noimportance, and the letter obviously cannot be read as proof of Nonis guilt ofthe conspiracy with which he is charged. The third letter This letter was sentout of jail by Noni Gopal through a jail-sweeper, who took it to Nonis fatherwho apprehending it to be a trap to entangle him, handed over the sweeper tothe Police. The sweeper was prosecuted and punished and thus the letter gotinto the hands of the prosecution.-ED The material portion of the letter was asfollows :

Mother, do not think for me. Know it for certain that Ishall not return. Mother, my sorrow is even more terrible than yours. You aregoing to lose one and I am going to lose all. Father is now old and I am goingto bid adieu to the family for good My heart breaks as I ponder day and nightover the terrible state to which the family will be reduced after a few days.You should tell father and have these few things done in a day or two. Askfather to make a Will. Let him not do anything in my name, otherwise that willbe lost. Prepare the Will in such a manner as will save all sides and, at thesame time, not do anything in my name. Do it precisely in a day or two. Do notby any means fail to do it. There is no need of incurring any cost for me,because you will not be able to do anything in the case. An enormous cost isrequired which is beyond your means to meet. A case like this can be managed by50 or 60 thousand rupees. Where can you get so much money P In the meantime askfather to come and see (me) once. Do one thing for me. Perhaps you rememberwhat I wrote once in a letter. There is a sadhu ireligious man) named BamaKshepa (mad Rama) at Tarapur. Go where I went towards the end of Kartik lastand seek his shelter He will at first try to drive you away, but you must on noaccount leave him. If he does mercy, may be I shall get release. Or, there isin Calcutta another sadhu, whose name is Khanki Baba. Kulo (Asu) of theBanarjis;ind Jivan Ghosal brother of Noni Ghosal, know his address

Pay Rs. 3 to this man and then I shall get one and-a halfrupees Burn this letter after reading it." Exhibit 332, is one writtenfrom jail by Noni to his mother on or about the 17th of July, and to appreciatethe significance of this letter, and its true meaning, it is necessary torealise the predicament in which Noni then found himself. He had been arrestedon the 20th January, just six months before, and during the whole of thatperiod he had been in custody. The procedure of the Special Act had been put inforce against him, so that he was unrepresented by Counsel or any legal adviserduring the magisterial enquiry, and it has been asserted before us, and notcontradicted, that, during that period, neither legal advisers nor friends hadany access to him. He must have known that the enquiry was drawing to an end,and that, in its course, an immense number of witnesses had been examined, theynumbered in all considerably over 400, and he probably anticipated, as the factwas, that the Magistrate was about to commit the case for trial. He wasconscious that he had against him all the resources of the prosecution, and theposition was not one calculated to inspire confidence.

55. What is the tone of his letter I am lost unless I canbe defended, and defence is impossible owing to the enormous cost it willinvolve, a cost that is wholly beyond our resources, unless possibly you cansecure divine intervention on my behalf." That I take to be the realmeaning of what he writes to his mother, and I am not prepared to say that hewas very wide of the mark. In a case so complicated it would have been next to impossiblefor any tribunal to have mastered unaided the mass of documents and accountsnecessary for an adequate presentment of the defence, or to have possessed theknowledge requisite for the cross-examination of the witnesses and particularlyof the approvers.

56. I cannot refrain here from digressing for one moment toexpress to Counsel who have undertaken the defence of the accused myappreciation of their assistance. Their mastery of the details of this case andthe aid that they were thus enabled to give the Court call for the highestcommendation, and I willingly give it, and in particular I would wish toacknowledge the admirable defence of Mr. J. N. Roy, who never, in length ofcross-examination, or length of speech, exceeded what was right and useful.

57. But to return to this letter of the 21st of July, itmust lake its place, if anything, as a confession of guilt, but that effectcannot be attributed to its terms. In my opinion it falls absolutely and whollyshort of that, and to treat it as a confession by Noni that he did enter intothe conspiracy to wage war against the King is beyond my ability.

58. The case as to Noni does not rest there. While theprosecution will have it that he was the leader of the conspiracy, yet a searchof his house has disclosed absolutely nothing incriminating. This is acircumstance of no small significance, but the prosecution suggest an escapefrom it is to be found in Soilens confession where he naively remarks,"Noni Babu never keeps any incriminating things in his house", apiece of information that he conveniently supplies after Nonis house had beensearched, with the fruitless result that I have indicated. It is difficult topreserve patience when one realizes all that this statement implies, made as itwas over four months after Soilen had been in custody. It is on a par with hisstatement that he was re-initiated by Noni. Not only was nothing incriminatingfound on the search of Nonis premises, but no other search, not a singledocument, not even the Chatra Bhandar account, has brought to light ordisclosed anything that incriminates Noni. In my opinion the case against NoniGopal has failed.

59. BHUTAN MUKERJI, also known as Kristodhan, lived atSibpur with his brother, the accused Bhuban, whose trial has been adjourned onthe ground of his insanity. Both Lalit and Jotin speak to his membership of theconspiracy imputing to him active participation in its work, and implicatinghim in specific incidents, but their evidence is without any corroboration.Lolits evidence is noteworthy for his substitution before us of Bhutans namein place of that of Bhuban, who is no longer on his trial. But the evidenceaffecting Bhutan, which calls for serious consideration, is that which wouldmake him an active worker in the attempt to seduce soldiers of the 10th Jats.

60. This falls under two heads; first there is the testimonyof those police-officers who watched the lines of the 1oth Jats and profess tohave seen Bengali Babus speaking to the soldiers. They are Head Constables,Benoy Krishna Banerjee and Abbas Sobhan, but they neither of them are ablestate with any degree of certainty that it was actually Bhutan that they saw.And, apart from that, their evidence, so far as it is aimed against Bhutan, isby no means convincing. Thus while Binoy Kristo before the Magistrate declaredthat he tried to get the Bengalis names but could not succeed, he at firstswore to the exact opposite here, and persisted in it until he was confrontedwith his former statement, which he was ulimately constrained to admit wascorrect. And so Abbas Sobhan has asserted before us that he saw two Bengaliyouths come and speak to the Sepoys, and professed to recognize Bhutan as oneof them, but before the Magistrate, while he said he saw Bengalis talking tothe Sepoys, still, when shown Bhutan and Bhuban, he admitted he could notrecollect if he actually saw these men talking to the Sepoys. And then there isthis further fact as to both these witnesses. Each has declared that hereported what he observed to his Superintendent. Not only however has theprosecution failed to produce these reports, but though the Superintendentappeared as a witness before us not a question was put to him by Counsel forthe prosecution on this matter, a failure and a reticence that has justlyattracted comment. I do not suggest that Bengalis may not have been seentalking to the Jat soldiers, but the evidence fails to show that Bhutan was oneof those Bengalis.

61. The other branch of the Jat case is that which would makeBhutan an active participant in the initiation of Surjan Singh at Sibpur. Ihave already shown the falsity of the story of their going to Sibpur and I neednot again travel over the same ground. Some reliance was placed on the fact ofBhubans house having been pointed out in the course of verificationproceedings, and this has been much discussed before us. I have given thematter my most careful consideration, and I am not convinced that the allegedidentification is of the smallest value. Moreover, the rival versions of Surjanand Ram Gopal are divergent on points where they could hardly have failed to bein agreement had these witnesses been narrating their actual experiences.

62. Apart then from the contention that Surjan and Ram Gopalon their own showing would be accomplices, my estimate of their evidence isthat it is not trustworthy, their stories are discrepant and their narrative ison a vital point disproved. The only remaining evidence against Bhutan is thatof association, but it comes to nothing. On the other hand the search of hispremises has revealed nothing incriminating, nor is there any document to whichthe prosecution can point as even suggestive of his membership of theconspiracy with which he is charged. Therefore the case against Bhutan hasfailed.

63. The oral evidence against BISHTUPADA CHATTERJI proceedswholly from tainted sources, for though Sital Chunder Ganguli names him, he wasunable to identify him and imputes nothing incriminating to him. The search ofhis house disclosed nothing that would justify the conclusion that his guiltwas established, and therefore the case against him fails.

64. JOGESH MITTER alias MADARU, according to Lolit was anactive conspirator, and he ascribes to him a number of acts, including in particularparticipation in the Netra dacoity. But in no respect is there anycorroboration of this evidence or of that given by Jotin, who also wouldimplicate him in the conspiracy or of Soilens 3rd confession in which he isnamed. Beyond this the oral evidence is limited to his taking part in wrestlingand lathi play, and to his associating with others of the accused who happenedto be his neighbours. Jogesh resided with his uncle whose house was accordinglysearched, and this search of his residence resulted in the discovery of somerakhi songs and a book called "The mysteries of Nihilism" apparentlybelonging to one S. N. Bose. How any of these documents can be brought home toJogesh it is difficult to see, as they were not found in his room. In my opinion,the case against Jogesh fails.

65. NOREN CHATTERJI, alias BHOLANATH, is the last of theSibpur group. Lolit mentions him in connection with many incidents but withoutcorroboration, and indeed, as to the most important of these incidents, thepayment to Surjan Singh of money obtained by Lolit from Noren, his evidence iscontradicted. Jotin mentions him in connection with the Protapchuck attempt,but his testimony is without any support. It is the evidence against thisaccused from other sources that calls for more serious consideration, and, inparticular, that which relates to the soldiers of the 1oth Jats.

66. Briefly what is charged is that Noren got into touchwith these soldiers, that he arranged for and assisted in the initiation ofSurjan Singh into the conspiracy at Sibpur, and that he paid Surjan Singh moneyin return for his assent to join the conspiracy. I have already dealt with thestory of Surjans initiation and have shewn its falsity, and I need not furtherdiscuss it, as I have already expressed the opinion that, not only is itimpossible for the initiation to have occurred in the manner described in theevidence, but that, in other respects, the testimony in its support is sountrustworthy as to be (in my opinion) incapable of acceptance.

67. The payment of money by Noren to Surjan rests in part onthe evidence of Lolit and in part on that of Surjan. Lolit says he handed toSurjan on two occasions money, received for that purpose, from Noren Chatterji,but his evidence on this point is not merely uncorroborated; it is actuallyopposed to that of Surjan. Surjan makes a statement that he received Rs. 50direct from Noren Chatterji, but not only is this without corroboration, but itrests on, and is indissolubly connected with, the story of the initiation whichin my opinion must be rejected for reasons I have already indicated.

68. Evidence has been adduced to show that Noren Chatterjilived with Dr. Sarat, but this merely shows association between the two, andthat is not disputed; on the contrary the case for the defence is that the twowere connections, for Noren married, according to the Arya Samaj rites, arelative of Sarats and it was this that led to Norens living with Sarat. Thenthe prosecution say that Noren went to the Punjab and lived at Lahore. This isadmitted, but it is denied that Lolit could have had, as he pretends, anypersonal knowledge of this. Lolits evidence is that Noren took this journeywhile he, Lolit, was still at Dr. Sarats, but it is abundantly proved that Norenwent to the Punjab in July 1909. At that time Lolit is proved to have been atNattore. There is no evidence to show that Noren, while at Lahore, did anythingthat could be attributed to his alleged membership of the conspiracy. There isevidence of Norens association with the Sibpur party, but that was at a timewhen he lived there, and there is no independent evidence of his having beenseen in Sibpur after he went to live in Kidderpur, that is to say after 1907.Then it is sought to use against Noren the fact that a proclamation was issuedagainst him, for this, it is urged, shows that he was a fugitive from justice.What endeavours were made to arrest him does not appear beyond the fact thatMonmotho Nath Ghose, a Sub-Inspector of the Criminal Investigation Department,who says he knew Noren by name, and not by sight, searched for him in his housein Sibpur and in Calcutta in different parts of the town. The search in Sibpurin 191o was not likely to be profitable, seeing that there is no evidence thathe was ever there subsequently to 1907. The details of the other searches havenot been placed before us; but this we know that when he was seen by R. M.Ghosal, the officer who arrested him, he made no attempt at concealment orescape, and apparently he had a place of residence in Calcutta, No. 19, AnandaKhans Lane, which is never shewn to have been searched. Have we then before usthe materials that would entitle us to attribute to Noren a flight from justicethat could fairly be regarded as indirect confessional evidence, pointing tohis guilt of the conspiracy charged I think not. To begin with, nocircumstances are proved that would entitle us to hold that he wittinglyendeavoured to evade arrest. And even if this were otherwise, I cannot forgetthe comment of a distinguished Judge on indications of this type, that if theevidence without them is sufficient, this species of evidence is unnecessary,and that if not, then the inferences from them seem not of sufficient weight togive any conclusive effect to the other proofs.

69. The case against Noren Chatterji has failed.

70. I have now dealt with all the members of the Sibpurgroup, and I have come to the conclusion, for the reasons I have stated, thatthe case made against them has not been proved. And this being so it isunnecessary for me to discuss whether on other grounds too the charge ofconspiracy, so far as it relates to them, has not failed.

71. I now pass to the Kurchi group which is said to consistof SHIBU HAZRA, ATUL PAL, DASRATHI CHATTERJI and MONMOTHO RAI CHOWDHURI. Theovert acts particularly attributed to them are the Morehal dacoity and theattempt at Protapchuck.

72. I will first take up the case of ATUL PAL. The evidenceagainst him is of the most meagre description. He is named by Jotin Hazra as amember of the conspiracy, and as having been present at the Morehal dacoity,but of this there is no corroboration. On the contrary there is an indicationthat he was not present, for Monmotho Rai Chowdhuri, who was caught red-handedand confessed at once, never mentioned or referred to him in his confession.The evidence of association shows nothing more than companionship between himand his co-villagers. Therefore the case against Atul Pal fails. MONMOTHO NATHRAI CHOWDHURI-has been tried and convicted of participation in the Morehaldacoity. Of the justice of that conviction there can be no question : he wasmost happily caught on the spot and his confession is a complete admission ofhis guilt. For this he has already been sentenced to the substantial punishmentof six years rigorous imprisonment which he fully merited. But does thisconviction establish his membership of the conspiracy charged in this case This depends on whether the Morehal dacoity can be linked up with the conspiracy.The only direct evidence on this point is that of Jotin Hazra, and apart fromthe general untrust-worthiness of this approver, it is doubtful whether he waspresent at this dacoity. It is true that after his arrest he confessed to thiscrime, but he afterwards withdrew this confession on the ground that it waswrongly extorted and in the end he was acquitted. In addition to this, MonmothoNath Rai Chowdhuri does not mention him in his confession, though the evidenceis that Jotin knew him two months before the dacoity. In the circumstances itis impossible to accept Jotins evidence on this matter with any degree ofconfidence. Monmothos confession certainly does not point to a conspiracy towage war, or to any purpose beyond a desire on the part of the dacoits toenrich themselves. And beyond this we have nothing but remarks attributed toShibu by Fakir Pal, a witness who did not impress me favourably.

73. The connection of the Morehal dacoity with the allegedconspiracy is not established, and therefore Monmotho is not proved to be amember of the present conspiracy. DASARATHI CHATTERJI is stated by the approverJotin Hazra to have been a member of the secret society, and the prosecutionhave adduced evidence of his association with his co-villagers, members of theKurchi group. The overt act in which he is alleged to have taken part is theMorehal dacoity. What precisely happened to Dasarathi in connection with theMorehal dacoity is not clear. Mr. Duval, the Committing Magistrate, says he wasput on his trial and acquitted. If so, then there is an end of the case so faras he is concerned. No order of acquittal however has been placed before us,and if he was not acquitted, then he was either discharged or not put on histrial, for he certainly was not convicted. The position then is that we are nowasked after this long lapse of time, and notwithstanding the discharge (ifthere was a discharge) to hold him guilty of the offence on the strength ofJotin Hazras evidence and retracted confession. In my opinion it must be heldthat Dasarathi Chatterjis guilt of the conspiracy to wage war against the Kingis not proved.

74. SHIBU HAZRA is the last of the Kurchi group with whom Ihave to deal. According to the case for the prosecution he is the local leaderof this group, and as such a prominent member of the conspiracy. His positionand attainments however hardly fit him for this position. Before us Lolitpointed out Shibu as a man he had seen once or twice at Noni Gopals house,though he says he does not know in what connection he went there. Before Mr.Duval, however, when Shibu and another accused were shown him, he said I donot identify these two men shown me." It is true that after his depositionwas completed, Lolit professed that he saw Shibu at Nonis house, but thisaddition to his deposition is most suspicious, and, in the absence of anyexplanation by the prosecution, I am unable to place any reliance on it.

75. The other evidence against Shibu is his allegedparticipation in the Morehal dacoity. I have however pointed out that thisdacoity is not shewn to have been the work of the conspiracy with which we areconcerned. Further than that, Shibu was arrested at the time for complicity inthat dacoity, but was discharged, and the propriety of that discharge was notcalled in question. There undoubtedly stands against Shibu a conviction underthe Arms Act, and though the correctness of that decision was questioned, Ithink it must be accepted as conclusive. The punishment imposed was merely afine of Rs. 25 and in default one months rigorous imprisonment. This might atfirst blush appear an inadequate punishment, but a view of the weapon Vide,description of pistol by Magistrate, p. 598, col. i, ante.-ED. showed it waswell fitted to the requirements of the case. It certainly was not a weapon withwhich one would willingly wage war against any one, much less against theRings forces, and the mere possession of it is very far from furnishing theproof of which we are in quest. It is unnecessary to discuss the evidence ofNitai Chunder Dwari for it merely goes to prove the possession by Shibu ofarms, and that I hold to be otherwise established. The result then is that thecase against Shibu fails.

76. The accused belonging to the Kidderpore group are SARATMITTER and SURESH MITTER-CHARU CHARAN GHOSE was also treated as belonging tothis group throughout the trial.

77. SARAT MITTER or Dr. Sarat, as he has been called, is aman of 46, with a family, who prior to his arrest, had carried on a dispensaryand also a mudis shop. Apart from the general evidence given by Lolit, thecase against Sarat is that he supplied the poisoned pills of which we hear inconnection with the dacoits, and that he was concerned with the attempt on theloyalty of the 10th Jats. The suggestion as to the poisoned pills is withoutanything to support it and must be rejected. His connection with the allegedattempt on the 10th Jats has not been established. That he was in any wayinvolved in Surjans initiation rests on the theory that he then lived at 86-1,Diamond Harbour Road, but this is clearly opposed to the fact, as I havealready explained in some detail when discussing the story as to the 10th Jats.Moreover, apart from this, I think the attempt to prove Sarat guilty ofattempting to seduce the Sepoys of the 10th Jats has failed.

78. What else is there against him after these allegationshave failed It never has been disputed that Lolit lived with him from thebeginning of 1909 till April 1909, and it is said, and I think it is proved,that, while Lolit so lived with Sarat, he was in his employ at a smallremuneration. For the defence, it is pointed out that there is nothing thattells against Sarat in this, for it would be quite natural, and in accordance withordinary custom, that Lolit as a man with Mazilpur associations should go foremployment to Sarat who had intimate connection with that village. NorenChatterjees connection too with Sarat admits of reasonable and innocentexplanation, for he was married to his relative, and was employed in theimmediate neighbourhood. Moreover, Noren was not a guest of Sarats; he paidfor his ordinary expenses. The search of Sarats premises revealed nothingincriminating. The case against Sarat Mitter fails.

79. The case against SURESH MITTER also fails. Lolitsevidence implicating him is unsupported, for I cannot regard Baru Kurmistestimony as showing that Suresh ever went with Lolit to Borya in connectionwith the robbery of an idol. Baru Kurmis story is not convincing, but, even ifit be accepted as true, it would go to show nothing against Suresh seeing thathe lived and carried on business at Rajpore, a village on the way to Netra, andused from time to time to stay with his brother Sarat, and so naturally becameacquainted with Lolit. Nothing incriminating is said to have been found in hishouse. The case against him fails.

80. CHARU CHUNDRA GHOSES physical infirmity was such thatwe were constrained to dispense with his attendance during the trial, and wehave to-day been told that he has succumbed to the serious illness from whichhe was suffering. In the circumstances, it has become unnecessary to discussthe evidence adduced against him, but I would wish to say that a very carefulconsideration of that evidence has led me to the clear conclusion that he wasinnocent of the charge brought against him.

81. The Changripota party consists of BHUSON MITTER aliasGuley and NOREN BHATTACHARJEE.

82. Lolit mentions BHUSON in connection with 4 events, butas to none of them has he been corroborated, in fact while Lolit would placehim among the Netra docoits Soilen Das does not name him. Bhuson seems to havebeen suspected in connection with the Changripota dacoity, but he has neverbeen placed on his trial for this offence, though it was committed more than 3years ago. I have already indicated the difficulty in the way of our retryingthat case after this long lapse of time, and in the absence of evidence whichinfluenced the Court in discharging the accused then before it. The otherevidence against him is that of Haran Chundra Chal who deposes that a party ofyoung men, of whom the accused Bhuson and Noren Bhattacharjee were two, stampedthe bilati cloth in Harans shop. The charge against him is not made out.

83. NOREN BHATTACHARJEE is the other member of theChangripota group. He too was suspected of being concerned in the Changripotadacoity but was discharged. He was party also to the cloth-stamping incident,and, however reprehensible it may have been, it cannot be seriously regarded asproof of the conspiracy charged in this case, and, indeed, it has not been sotreated before us. Lolit, it is true, now speaks of Noren Bhattacharjee as amember of the conspiracy, but he so implicates him in general terms. Before ushe has named him as one of those implicated in the Netra dacoity, and he saysthat it was at the Netra dacoity he first saw Noren Bhattacharjee, and came toknow he was a member of the Society. Lolit, however, made no mention of Noren,in his confession, as a party to the Netra dacoity. He first introduces hisname in this connection before the verifying Magistrate on the 13th ofDecember. He, however, failed to identify him when he was taken to the AlipurCentral Jail for that purpose, by Mr. Sati Prosad Ganguly, and he similarlyfailed before Mr. Duval on the 9th of April 1910. His evidence before theCommitting Magistrate on the nth of April, when Noren was shown to himwas,-" Now too I am uncertain if this man was at the dacoity. A NorendraNath Bhattacharjee of Changripota, was I heard, there." And so we findthat Lolits statement that Noren was at Netra comes to nothing, and as it ison Norens alleged presence there that he professes to base his knowledge ofhis being a member of the conspiracy, this imputation too falls to the ground.I need only add that there is absolutely no corroboration of Lolits evidenceagainst Noren. Noren Bhatta charjees visit to Benares is not treated by theprosecution as evidence against him: apparently it merely had to do with apossible treaty for marriage. On the search of Norens house nothingincriminating was found, but on the occasion of his arrest in connection withthe Changripota dacoity, a copy of the Bartaman Rananiti was found on him, asalso a manuscript headed " The Mothers Call." The Bartaman Rananitiwas a very recent publication at that time, and was, apparently, in greatdemand, so that mere possession of this book would obviously in no wayestablish membership of the conspiracy with which we are concerned. Nor wouldthis membership be established by possession of the unpublished manuscriptwhich is not shown or even suggested to be in Norens handwriting. The resultthen is that in my opinion the case against Noren Bhattacharjee fails.

84. The Mazilpur group comes next, and it comprises fouraccused.

ROJONI BHATTACHARJEE, INDU KIRON BHATTACHARJEE, TINCOWRI DASand CHUNI LAL NANDI.

85. Against INDU KIRON there is no evidence worthy ofconsideration. Lolit declares that he was a conspirator, that he started on oneof the abandoned excursions to Netra, and that he had to do with the Netra lootat Mazilpur. But there is not a syllable to be found in corroboration of any ofthese statements. It is said that he was member of the Mazilpur Young MensAssociation, but it cannot be pretended that this was a limb of the conspiracy,while the fact that he bought such innocent materials as bed-sheeting, a toweland another article of a cognate character from the Chatra Bhandar on the 24thof January 1910, at a total cost of Rs. 2-7, can hardly be treated as evidenceof guilt, though Counsel for the prosecution seriously brought these purchasesto our notice as part of his case against Indu Kiron.

86. The case against TINCOWRI DAS is also weak. Lolit wouldassociate Tincowri with the preparations for the Netra dacoity and with thedacoity itself. He declares that while many of the party started by train fromBaliaghata, the five men from Joynagar and Mazilpur (of whom Tincowri was one)came walking all the way, and that, after the dacoity was over and a list ofthe loot made, the stolen property and arms, except a few revolvers, were madeover to the Joynagar men, and the Joynagar and Mazilpur men walked in thedirection of Joynagar. He then goes on to describe how the rest of them madefor the Railway, and states that they returned by train, some from Mograhatstation and some from Sangrampore. He reached Sarats house, he says, at 11A.M., and this would be on the 24th of April. But Kusum Kumar Roy, prosecutionwitness No. 33, deposes that he went to Sarats house at 10 or 11 A.M., on thatmorning, and then found Tincowri there upstairs, and suffering from high fever.This not only agrees with what Amulya Kumar Rai, prosecution witness No. 34,was told on the 23rd, i.e., that Tincowri had left the refreshment stall at theZoological Gardens, where he was employed by Kusum, with fever, but it alsoshows that Tincowri could not have taken the part in the Netra dacoity ascribedto him by Lolit, or even have been there.

87. Counsel for the prosecution has seriously asked us totreat an act of kindliness performed by Tincowri as tending to prove his guilt,for he has argued that the assistance rendered by Tincowri in connection withthe cremation of a deceased Brahmos body is indicative of his being a memberof this conspiracy. It would have been a misfortune if this argument hadpossessed the force claimed for it, for I can imagine nothing more deplorablethan that young men should be driven into churlishness through the fear thattheir kindly deeds may rise up in judgment against them. The evidence ofassociation led against Tincowri goes for nothing; as long as there is villagelife young men must have their neighbours as their companions in their sportsand games. The documentary evidence connected with Tincowri furnishes no proofof his guilt, and in my opinion the case against him has completely failed.

88. RAJONI BHATTACHARJEE according to Lolit took part in theNetra dacoity and helped to bring back the loot from Mazilpur. It is argued forthe prosecution that there is confirmation of his presence at the dacoity inthe discovery of the pieces of paper These pieces of paper are alleged to havebeen found in a field near the place of occurrence, and being put together,left blanks and only showed, Ex. 15, coupled with the evidence of FaniBhattacharjee and Fani Mukherjee, and of the story of the loot in the testimonyof Jotindra Dutt and of Hem Chandra Mondal. The discovery of Ex. 15 reflectscredit on Mr. Wardens care and resource, and tends to induce a suspicion thatRojoni may have been present at the dacoity. By itself, however, it could notpossibly form the basis of a judicial decision against Rojoni, so we have tosee whether such a substratum of evidence has been laid as creates asubstantial and independent prima facie case that Rojoni was present. We havenothing but Lolits testimony and, apart from his general untrustworthiness, ithas been very strongly contended before us that Lolits version of the dacoityis such that he cannot have been present, or cannot have told the truth. It isdifficult to reconcile some of his statements with his actual presence at thedacoity. Thus he declared in his confession, All of us had had rubber maskson, and they covered our heads, faces, half of our arms and the body down tothe waist. None with such a mask on can be identified. It also changes the toneof the voice. They were taken off in the field where the list was made andBhutan took them away with him. I have heard that they were burnt off."This is a definite and detailed statement of a remarkable fact, and if Lolitreally was at the dacoity, he can hardly have been mistaken as to these masks.And yet there is not a word about them that it was a letter addressed to aperson Raj.........K.....B., and this, it was alleged, showed that it must havebeen addressed to Rojoni, other evidence being adduced to show that theMazilpur Students and Young Mens Association had addressed a letter to Rojoniwho was a member to attend one of their meetings But the list of members of theAssociation showed that there were also other members to whomRaj............K.........B., would apply.-ED. in the first information or inthe evidence of the witnesses called in this case. In point of fact the firstinformation is opposed to this story, for we get a description there of onedacoit as having a pagri of white cloth tied on his head, as being of blackcomplexion, and aged 18 or 19, of another as having his head, beard and moustachesshaved, and being of black complexion, of another having his chin tied round,and of the remaining three or four as having pagris on their heads and theirchins tied round. Moreover Ram Taran in his first information said he would beable to recognize one of the dacoits. The evidence, too, negatives the wearingof these masks. I feel no doubt that the story told in the first informationand the evidence is the true one, and if that be so, how is it possible thatLolit can have been present, or at any rate can have told a true story as tothe dacoity and those present at it Then again he has throughout declaredthere were 21 dacoits, but while in his confession he mentions a man from anAshu Babus akra, in his statement to the verifying Magistrate Norendra NathBhattacharjee takes this mans place. Then again he indentifies two outsiders,Nirad Krishna Chakrabarty and Noni Gopal Bhattacharjee, as having taken part inthe Netra dacoity, but it is admitted they had nothing whatever to do with it.It would be easy to cite other instances which go to show how unreliable Lolitis in his statements as to the Netra dacoity, but it is unnecessary; those Ihave given suffice to show that the doubt cast by the defence on his presenceis not without foundation, and it certainly would be most unsafe to rely on hisevidence as giving to the discovery of Ex. 15 See p. 631, ante.-ED. therequisite support.

89. Then there is the story of the carriage of the loot fromMazilpur. This is not the only occasion on which Lolit professes to have beensent for loot, and notably he claims to have been sent for the Barrah loot, astory to which I have already referred as unworthy of acceptance. And so it isnot unreasonable to look for confirmation of his mission in connection with theNetra loot. The pleader, a member of the family of Mazilpur Dutts, with whom heclaims to have walked from Magrahat Station to Mazilpur, has not been called asa witness, but Jotindra Dutt and Hem Chandra Mondal have been called tocorroborate Lolits story of his journey with the loot from Mazilpur toBaruipore, for this is the route Lolit, says he, Rajoni and Chuni took whencarrying the loot back to Calcutta. Why they should have gone to BaruiporeStation which is 16 miles from Mazilpur, instead of Magrahat Station, which isconsiderably nearer, and the station from which Lolit went to Mazilpur, doesnot appear. But be that as it may, can it be said that Jotin corroborates Lolit I think not. He does not fix with precision the date to which he deposes, andthis I feel is a matter that might have been placed beyond dispute. But morethan this, his evidence throws the gravest doubt on the story that the partyhad the loot with them. He could not have failed to observe the receptacles inwhich according to Lalit the loot was, for he describes them as " a verybig earthen vessel and a very big trunk." Moreover, Jotin never saw Lolit.Jotins failure to see either the " very big earthen vessel and the verybig trunk " or Lolit, cannot be attributed to darkness, for it wasday-light when he says he saw Rajoni and Chuni.

90. Hem Chandra Mondals evidence is not very helpful. He isa ticca ghari driver who professes to remember having driven three men with atin box and a handi to Baruipore from Barasat, and to be able to recogniseLolit as one of the party. But his story is hopelessly at variance with thattold by Lolit and Jotindra; for he declares that it was in the night that hewas roused by his master to drive these three fares to Baruipore, and that hereached the station before sunrise. He was not in the service of the man whoowned the ghari when he gave evidence before us. It does not appear when heleft that service, or how it became known that he could give this evidence. Hewas not a witness whose evidence would command confidence, particularly when heprofessed before us an ability to speak with particularity as to remote dates,which he apparently was not in a position to do before the Magistrate. Why hismaster, who is alive and who is said to have made the arrangement for the hireof the ghari, was not called, does not appear. The result is that the storycannot be taken to be proved. In addition to this there is a difficulty in theway of holding that Rajoni conspired with any of those included in the charge.Some literature was found on the search of the grandfathers house where Rajoniwas living, but there were several other residents of this house, and theprosecution have failed to establish facts that would justify our holding thatthis literature was in Rajonis possession, and so it is unnecessary to dealwith it. This then is the case against Rajoni, and, in my opinion, it fails toestablish his guilt of the charge of conspiracy.

91. The only remaining accused of this group is CHUNI LALNANDI. Apart from minor incidents, which stand uncorroborated, Lolit wouldmerely connect him with the Netra dacoity and residence at Benares. He is saidto have been present at the Netra dacoity, but of this there is nocorroboration. He is also said to have been a party to the carriage of theNetra loot from Mazilpur, and this story I have discussed at length in dealingwith Rajonis case.

92. Chuni Lals alleged residence at Benares has given riseto much discussion. The case made by the prosecution is that Chuni and Pabitrawent from Calcutta to Benares in June 1908, that they started the day beforethe rath-yatra, i.e., on the 30th of June, or the 16th of Assar, and that theybroke their journey at Gaya, and resumed their journey the following day.Though the defence maintain that, even if the journey was taken, there wasnothing incriminating in it, still they deny that either Chuni or Pabitra wentto Benares at that time, and they contend that the story of the prosecution isdemonstrably false. Both Chuni and Pabitra were in the service of the ChatraBhandar, and it is on the entries in the books of that Association that thecase for the defence is founded. The entries on which reliance has been placedhave been very fully discussed before us, and the conclusion to which I come isthat they disprove the story of the prosecution, and they also go to show thatChuni and Pabitra did not stay at Benares as is alleged. Moreover, the storytold by the prosecution is intrinsically improbable. The version of the journeyand its coincidences as told by prosecution witness No. 80 does not commenditself to me, and the reason Lolit gives for their journey, or, as he wouldsuggest, their flight to Benares, is not shown to have any foundation in fact.He has suggested that they left Calcutta because they had been named byGossain, the informer in the Alipur Bomb Case, and he says, he heard this fromPabitra. Not only, however, is it not shown that they were so named, but it sohappens that Pabitra was actually examined as a witness for the Crown in thatcase.

93. Chunis house was searched at Mazilpur, and severaldocuments were found there on which reliance has been placed by theprosecution. The utmost they do is to show connection with the accused Pabitra,with the Chatra Bhandar and with some person whose address was at Dr. SaratMitters at 86-1, Diamond Harbour Road, and that he had in his possession suchbooks as Desher Katha and Sivaji by Sakharam Gonesh Deoskar, and this certainlycannot be taken as conclusive of his guilt. The case against Chuni Lal fails.

94. The Haludbari group, as arranged by Counsel for theprosecution, included nine of the accused, but as two of them, Bidhu BhusanBiswas and Monmatha Biswas, were acquitted of the Haludbari dacoity, they areobviously not properly placed in this group which should be confined to theseven accused convicted of that offence. They are SOILEN DAS, SUSIL BISWAS,ATUL MUKHERJEE, KIRON RAI, GONES DAS, SOILENDRA CHATTERJEE, and UPENDRA KRISTODEB. Of these the two first were sentenced to seven years rigorousimprisonment, and the remaining five to eight years rigorous imprisonment, inthe Haludbari case.

95. The case against KIRON ROY as I have already stated hasbeen dropped, and so it only remains to be considered whether the remaining sixaccused of this group are guilty of the conspiracy into which we are enquiring.Their guilt of the Haludbari dacoity is established and is not questioned, andthat offence is alleged to be an overt act of the conspiracy. In my opinionthis is made out. Having regard to the position of these six accused, thearticles found on them and all the circumstances of the case, I can come to noother conclusion than that this dacoity was the work of a conspiracy, that theconspiracy was of the character charged, and that these accused were parties toit.

96. The only member of the Krishnagar group now before theCourt is SURESH MOZUMDAR alias PORAN, the case against the two other members ofthis group having been dropped in the course of the trial for want of evidence.The case against Suresh is extremely weak. The endeavour to establish hisconnection with the revolver used in the murder of Shamsul Alum has failed, andthis was conceded by Counsel for the Crown. His connection with the ChatraBhandar was merely that of a customer and can prove nothing for the purposes ofthis case. Then Lolit says that Suresh took him to the house of Kishori Babu,but there is no confirmation of this association though it was open to theprosecution to have called Kishori Babu, a well-known Vakil of this Court, andone of the senior members of the Pleaders Bar. Sureshs house was searched, aswell as the premises of the Arya Chemical Works with which he was associated,but nothing incriminating was found. The result then is that the case againstSuresh Mozumdar fails.

97. The Nattore group consists of SIRISH SARKAR and BEJOYCHAKRABUTTY. SIRISH is the son of Doctor Girish Sarkar of Nattore, and theprincipal oral evidence against him is that of Lolit who speaks to associationwith him at Beliashishi, at Nattore and at Darjeeling. Lolit deposes that hemet him at Beliashishi during his flight from justice after the Netra dacoity.Now this must have been (if at all) in May 1909, and if the account Lolit givesof his movements is even approximately true, then it must have been about the13th or 14th of May. But it is impossible to reconcile this with what we knowfrom other sources of Sirishs movements, and this meeting at Beliashishicannot be accepted as true. That they met at Nattore is not questioned: DoctorGirish, it seems, was a hospitable man who kept open house and Lolit camethere. It was while he was there that he was introduced by Sirish toBhubaneswar Singh, who was on the look-out for a tutor, and this enables us toget at a date fixed beyond dispute, for Bhubaneswar Singh is by reference tohis books of account, able to fix the date when Lolit entered his service asthe 17th Joista or the 31st of May 1909, and the date of his leaving as the26th of Assar or the 10th of July following. This brings me to the allegedtheft of a gold ornament at Patna, with which the prosecution would associateSirish. Lolits story is that a few days after he entered Bhubaneswarsservice, Sirish went to Patna, and on his return made over to him a lump ofhalf melted gold, which he said he brought back from Patna. The prosecutiontheory is that this gold represents a gold ornament stolen from Hemangini, thewife of Kedar Nath Banerjee, a Patna pleader. But Lolits story is manifestlyuntrustworthy, for while he would place Sirishs journey a few days after he,Lolit, entered Bhubaneswars service, i.e., in June, the theft of the goldornament was some time before the 18th of May. But, while Lolits story isfalse, there is no doubt, and indeed it is not disputed, that Sirish was atPatna at the time of the alleged theft. It is however denied that Sirish hadanything to do with the theft, and it was admitted on behalf of the Crown that,on the evidence, it would be impossible to convict Sirish of the theft.

98. No doubt gold was sold by Lolit to Jamini, a poddar atDighapatia, on the 18th of June, and in the record of the transaction in thepoddars books, the name of Sirish appears. But it so appears only on the debitside of the account, and the mode in which it is written suggests that Sirishsname was subequently added, and this agrees with the absence of Sirishs namefrom the credit entry of the transaction. Moreover, the amount of gold solddoes not correspond with weight of that stolen. Jamini declares that of thenotes handed over by him on this occasion one for Rs. 100 bore the No. 87042,and this note, which has been produced before us, was endorsed by Jamini on the4th of Assar, the date of the sale of gold, and subsequently endorsed by Dr.Girish. Still, I think it was rightly stated by Counsel for the Crown that theevidence does not prove Sirish to have been the thief, though the matter is notfree from suspicion. That Sirish and Lolit went to Darjeeling is conceded, andfrom Ex. 38 written on the 25th of August by Dr. Girish, his father, it appearsthat Sirish went up to the hills in the hopes of recovery from a somewhatdistressing ailment, and from Ex. 153 that he resided in the Lowis JubileeSanitarium from the 26th of August 1909. Lolit, too, it seems, was ill,suffering from malaria, and Ex. 151 shows that he resided in the Sanitarium fromthe 26th of August 1909. Sirish left on the 1st of October, and Lolit wasarrested on the 27th.

99. The mere fact that Sirish and Lolit went at the sametime to the Darjeeling Sanitarium would not go for much in the circumstances Ihave described, but what is relied on is the fact that Lolit there gave histrue name in place of the assumed name of Lal Mohan Chowdhury, under which hehad passed at Nattore, for this, it is said, shows that Sirish must have knownthroughout that he was passing under an assumed name, and can only havetolerated it because he was in league with him. Indeed an attempt was made toshow that Sirish must otherwise have known that Lolit was passing under anassumed name, by suggesting that Lolit had previously visited Nattore under histrue name. But Lolit himself has exploded that theory, so that I only have todeal with the fact that Lolit gave his true name at the Sanitarium. I fail tosee how that in itself can show Sirish knew, when Lolit was at Nattore. that hewas passing under an assumed name. Even if it be assumed that Sirish knew whatname Lolit gave at the Sanitarium,-a matter not clearly established,-that initself would only show that he gave a different name at the Sanitarium fromthat under which he passed at Nattore; it could not possibly antedate Sirishsknowledge. This then is the case against Sirish : undoubtedly there are in itelements of suspicion, but I am not satisfied that it establishes againstSirish a conspiracy to wage war against the King.

100. BEJOY KUMAR CHAKARVARTY has been convicted under theArms Act and sentenced to three years rigorous imprisonment from the 15th ofMarch 1910. This conviction is conclusive so far as it goes, and it would notbe profitable to discuss its propriety. But the conviction itself would notwarrant the inference that the accused was a member of this conspiracy, soLolit again, as in so many other cases, comes forward with his timely aid. Thearms found in Bejoys possession were four revolvers, and Lolit says that hehanded to Bejoy at Rajshahye five revolvers that came from Calcutta in Assar1909. But this story is belated; it is after the discovery of the revolvers atthe search of the 6th of January 1910; and in his confession of the 5th ofNovember 1909, which preceded the search, he speaks of swords only inconnection with Bejoy, without a word about revolvers. It is true that it wasin consequence of a statement made by Lolit that Mr. Mawson applied forwarrants, but there is no suggestion that Lolit gave any information as topistols, or that Mr. Mawson expected to find any in the office.

101. Then, again, it is doubtful whether Lolit ever went toRajshahye. In his confession he mentions no such visit, and even states that inconsequence of the tutorship he got in the zemindars family, he "desisted from going to Rajshahye. Before Mr. Duval, how ver, he stated thathe went to Rajshahye with the zemindars leave, but he did not repeat thisbefore us, nor was Bhubaneswar asked any question on this subject. Further thanthat, I find that Lolit in the course of the verification proceedings said thatBejoy was at the time Head Master of the National School, and lived at thehouse of Sarat Babu. Before Mr. Duval he shifted his ground, and said Bejoytold him he was living at the house of Sarat Babu, the Head Master of theNational School. Now the documentary evidence shows that Bejoys services, as aschool master at the Bhola Nath Academy, Rajshahye, were dispensed with inNovember 1908, and Gangadhar Bhattacharjee, in whose basha he lived from 1904to November or December 1908, deposes that Bejoy then went to Dighapatia and hedid not see him in Rajshahye after that. Moreover, the prosecution have notadduced evidence to support either of Lolits two rival stories, either thefirst story that Bejoy was the Head Master of the National School or thealtered story.

102. On the whole, therefore, I am unable to accept thisstory that Lolit went to Rajshahye, and handed over the revolvers to Bejoy. Andso the endeavour to connect Bejoy with Calcutta fails, and his membership ofthe conspiracy is not proved.

103. The members of the Jowgacha group are KALIPADACHAKRAVARTY and PULIN SARKAR and they may be dismissed from consideration verybriefly, for there really is no evidence against them on which any reliance canbe placed. Apart from the approvers, the witnesses called against them merelyspeak to an association with their fellow villagers, which had nothingincriminating about it. The case fails against these two accused.

104. Then I come to KARTICK DUTTA and TARA NATH ROYCHOUDHURY whom the prosecution would place side by side, on the ground of theiralleged connection with the Jugantar newspaper.

105. I have already dealt with the suggestion that theJugantar was a limb of this conspiracy and have shown that it has not been madegood. Karticks complicity in the Bighati dacoity cannot be questioned, but isthere anything which shows that dacoity to have been the work of thisconspiracy We start with the fact that the two men convicted with Kartick ofthis dacoity are not alleged to be conspirators, and when this was brought tothe notice of Counsel for the prosecution, it was said, in explanation of thisomission, that mere participation in this dacoity would not prove membership ofthe conspiracy. Then, again, Lolit did not mention Kartick as a conspirator,either in his confession or in the course of the verification, while hisattempt to connect this dacoity with the conspiracy by the story he tells ofthe dispute as to the Bighati loot, is manifestly absurd.

106. Panna Lal Chatterjee, the approver in the Bighati case,and now in the employ of the Criminal Investigation Department, attemptedbefore Mr. Duval to connect the dacoity with the conspiracy by stating that oneKeshab had told him that three of the men in the Bighati case " were ofthe Howrah gang." Before us he has altered his story and has deposed thathe thought the three men went there from Howrah as he " inferred it fromtheir conversation," having overheard one or two things, though he admitsthey did not tell him about the dacoity. But if we go back to Panna Lalsstatements before Mr. Patterson in the Bighati case, there is not a word ofthis or of the conspiracy to overthrow the British Government, though PannaLal, in making his confession, showed every anxiety to bring the wrong-doers tobook, as is apparent from his remark, I shall tell you everything and youwill please see all the members of the gang are punished."

107. Panna Lals story obviously cannot be accepted; itdeveloped to suit the exigencies of the case. Panna Lal gives evidence thatKartick took him to the Jugantar office, and Puma Chandra Lahiri says he sawKartick frequently at the Jugantar office, but he was doing nothing; he used toput up in the building where the offices were. Besides the Jugantar office itappears from Purna Chandra Lahiris evidence that the Sumati Press was alsothere, and it is urged for Kartick that his presence on the premises was inconnection with the press and not with the Jugantar. This is a point that hasnot been cleared up, but whichever be the true version, it matters not for thepurposes of this case, in the view I take of the Jugantars alleged relationswith the conspiracy into which we are enquiring.

108. The documentary evidence used against Kartick consistsof certain letters. Ex. 159, the Thakur letter, is in my opinion innocuous, forreasons which I will set forth, when I come to discuss the case against Annoda.Nor do I think the other documents in any way go to show he was a member ofthis conspiracy. The real case against Kartick is that he has been held guiltyof the Bighati dacoity. I have already given my reason for thinking thatdacoity was not connected with the conspiracy, and it follows that, of whateverKartick may have been guilty, it is not proved that he was a member of thisconspiracy, and so the case against him fails.

109. TARA NATH ROY CHOWDHURY has been convicted under theArms Act and has been sentenced to three years rigorous imprisonment from the19th of May 1910. Lolit speaks of him as a conspirator, and before Mr. Duval hesaid, " I have known Tara Nath since 1906. He lived in Rajahs Lane."As a matter of fact he had no connection with 4, Rajahs Lane, until Septemberor October 1907, and he only remained there six or seven months. More thanthat, I find that in the verification proceedings, Lolit pointed out 3-1,Rajahs Lane, as Tara Naths residence, whereas in fact he lived at 4-1. Then,again, it is significant that, though Lolit mentions Tara Nath in hisconfession, he makes no reference to arms being taken to his house from ColonelNandis garden, which is the story he now tells.

110. That Tara Nath lived in Benares and was arrested thereis established, but it is denied that he associated there with Lolit and thereis no reliable evidence to that effect. So, again, it is clearly proved thatTara Nath was the Manager of the Jugantar, and the period of his management wasfrom November 1907, to April 1908, but whatever may be his criminalresponsibility for what was written during that period, his managership doesnot prove his membership of this conspiracy, for reasons which I have alreadyset forth. We have a confession and a retraction by Tara Nath but, giving them alltheir due effect, they fall short of connecting Tara Nath with this conspiracy.We are only concerned with the question whether it has been proved that TaraNath is guilty of the conspiracy to which this case relates, and not with anyother delinquencies he may have committed, and the evidence fails to prove himto be a conspirator for the purposes of this case.

111. The Chatra Bhandar group consists of PABITRO DUTTA,ANNODA RAI, HORENDRA BANEKJEE and NORENDKA NATH BOSE.

112. For reasons I have already set forth I hold that theChatra Bhandar is not proved to be a limb of the conspiracy, and mereassociation with it will not suffice to establish the guilt of these fouraccused. Nor does it advance the case against Pabitro that he was associatedwith Annoda in the management of the Chatra Bhandar. In this view, the caseagainst Pabitro may be dismissed with a few words. It is not proved that hemanaged, controlled, or worked for the Jugantar and the argument based on hisalleged connection with that paper fails. At the same time the prosecution haswholly failed to prove any criminal association between Pabitro and Tara Nathor anyone else at Benares; indeed as I have already shown, the documentaryevidence casts grave doubt on the truth of Lolits story. Pabitro, therefore,is not proved to be guilty.

113. The case against ANNODA RAI or ANNODA KABIRAJ must alsofail. It is in the May complaint that his name first appears, and he was notmentioned by Lolit until he gave his evidence before Mr. Duval. He was arrestedon the 26th of May 1910, and placed before the Magistrate on the 27th. He wasnot however identified by Lolit till the 15th of June, though on the 6th bothhe and Lolit were in the Magistrates Court. The prosecution would make much ofEx. 159, the Thakur letter, as it has been termed, and it is necessary that Ishould examine this letter and the evidence relating to it with some care. Itis a letter purporting to be written by Kartick to the Kabiraj, and though thehandwriting is not proved, it is not disputed that Kartick was the writer. Theprosecution would have it that the mention of a Thakur was a cryptic referenceto a revolver, that the allusion to a printer was the proffer of Karticksservices to find a substitute in place of the printer of the Jugantar who hadbeen convicted, and that the Baikun the named in the letter was the convictedprinter. The interpretation placed on the word " Thakur " was soughtto be fortified by the evidence of Panna Lal, the approver in the Bighati case,to whom I have already referred. He was asked in the course of hisexamination-in-chief, Had you any secret Code " His answer was,"yes. We used to call revolvers Thakurs, Indur, Pakhi." The recordsin this case furnish us with a suggestion as to how this evidence originated.There was nothing as to this in Panna Lals statements before Mr. Patterson. Wefirst find a reference to the secret code when Panna Lal passed into the handsof Mr. Sati Prosad Ganguly for the purpose of verification, a class of work onwhich this Magistrate seems to be frequently employed, for in this case we findhim conducting verification proceedings in connection with Lolit and Jotin, andhe has told us that he verified the confessions in the Bighati case and theKhulna conspiracy case.

114. Now in his confession which was being verified by Mr.Sati Prosad Ganguly, Panna Lal said nothing about Annoda in connection with202, Cornwallis Street, nor did he say a word about a secret code. And yet,when he was taken by Mr. Ganguly to 202, Cornwallis Street, where Annodas namewas prominently placed on a placard, he volunteers the remark we had codewords." It is asked with considerable pertinence, what was the associationof ideas that prompted this remark True, the Thakur letter had been found atthe search of Annodas premises, but how did Panna Lal know this or that Annodahad anything to do with the secret meaning ascribed to the word Thakur Perhaps a consideration of a few dates may help to the solution of thisquestion. Annodas house was searched on the 20th of September 1908, andInspector Mullick of the Criminal Investigation Department in answer to Counselfor the Crown has given us the history of certain documents including theThakur letter. He has told us that this letter, with other documents, was,after the search, produced before Mr. Denham, the Special Assistant to theDeputy Inspector-General of Police, Special Department, who took a note of theletters he thought important. Inspector Mullick received this letter and otherdocuments back from Mr. Denham, and retained them in his custody until theywere produced before Mr. Duval. There is no reason to doubt the accuracy ofInspector Mullicks evidence, and, in fact, he had a note of the letters towhich he has so deposed. We see, therefore, that the Thakur letter was in thecustody of the Criminal Investigation Department. But so was Panna Lal for ashort time; he was arrested on the 9th November 1908, and he was for some dayskept at Royd Street, the office of the Criminal Investigation Department. Thenhe was taken by Mr. Ganguly for verification proceedings which were completedon the 22nd of January 1909.

115. I have set out the facts without comment, for I thinkthey furnish the best answer to the problem, how the sight of Annodas name at202, Cornwallis Street, prompted Panna Lal to tell the verifying officer thatthere was a secret code. And, in my opinion, the facts furnish an explanationwhich shows the worthlessness of Panna Lals suggestion that Thakur meansrevolver, a suggestion for which there is no warrant in the voluminous recordsof this case. I feel no doubt that the origin of Panna Lals statement was theThakur letter, and at the same time it has been demonstrated to my satisfactionthat the reference in that letter was not to a revolvet but to a Thakur in itsproper sense.

116. It is necessary that I should now examine this Thakurletter, Ex. 159 The following is the Thakur letter.-ED.

Collections in small quantities are being made; besides, thereare many other things to do, which will have to be done in conjunction withJogen, and will take about a month to do them. For this reason I shall be latein going to Calcutta. Ananta Babu will send a money-order of Rs. 45. I havetold you the reason. The price of the Thakur is Rs. 40, the expenses of mycoming are Rs. 5; total Rs. 45 has been spent Out of this amount Rs. 5 is on myown account. I notice that the person to whom the Thakur belongs is a man ofcrooked policy; whatever may be had from him is enough). Pramatha Babu hastaken me to, with some minuteness. A superficial reading of it by itself wouldlend some colour to the prosecution theory, but Mr. Sen-Gupta who has appearedfor Annoda very properly insisted that all the documents found at the search ofAnnodas premises should be produced, and this ultimately resulted in his beingable to place before the Court, Ex. V. The portion of the letter (Ex. V) whichreferred to the Thakur was as follows.-ED.

The generous minded Srijut Sarvananda Baisnab who is a greatfriend of mine and in whose family I officiate as a priest has taken up an ideato instal the images called Krishna and Radhika, and requested me to entrustyou with the duty of making purchase of the said Thakur and Thakurani. I accordinglysend you money and request you either to purchase or order for excellentpatterns of (these) images, according to your (own) taste of selection, Krishnamade of stone, 12 angulis in height, excluding the pad ma-shan (lotus-shapedstand) and the place of the choora (crest), and Radhika, of a composition ofeight metals to match with Him; and what you should see is that there must notbe any fissures or chasms in Them....

These people will instal the Thakurs on the last day of themonth of Pous. It is (therefore) necessary that they should get the Thakurs 15or 16 days earlier....

If ready made Thakurs are purchased, they may in alllikelihood turn out either broken or cleft. You are therefore requested to havethem made by placing an order. If it cost more (the party) is ready to meet it.Please enter into a term with the artist that if the Thakurs made out on orderbe found in the near future either broken or cleft in any way he shall be heldliable for damages. Thakuranis made of eight metals are not available. So thatyou will please place an order for that too; and you will please keep one ofyour men waiting at the time of melting, and he should cause a quantity of theeight metals poured into the mould. Just on receipt of (this) letter please letme know the details of informations relating to this matter, and (also) writeas to whether arrangements to bring the Thakurs should have to be made fromhere or there....

In all fairness this document should from the first havebeen placed by the prosecution on the record, and we owe it simply to thecommendable persistence and industry of Mr. Sen-Gupta that this most importantdocument is before the Court. Now, this letter Ex. V is dated the 18th Aughran1314, that is the 4th of December 1907, while the Thakur letter is written onthe 22nd of January 1908. Both refer to the purchase of a Thakur, and thoughthe prosecution place on the word in the second letter a sinister gloss, it isnot suggested that in the first letter the word is patent of any but itsordinary meaning. The first letter points to Ananta Kumar Chakravarty asnegotiating the purchase of the Thakur, and the second letter points to AnantaBabu as the person who will pay, and the identity of these two cannotreasonably be doubted, and without prolonging a critical examination of the twoletters, it is enough for me to say that I am satisfied both letters refer tothe same Thakur, and that the Thakur in the first letter is clearly a Thakur inits ordinary sense, and that the Thakur in the second letter is not a revolver.

117. Though it was on the meaning wrongly imputed to theword Thakur that the prosecution principally relied, they also read in themention of Baikuntha a reference to Baikuntha Acharya, the convicted printer ofthe Jugantar. This reading, however, is not only fanciful, but there is reasonto think that it is baseless, and that the reference was to Baikuntha NathChakravarti, whose connexion with Annoda is shewn by documentary evidence, andwho is stated before us to have been his relative. And finally it is said bythe prosecution that the offer to find a printer means a printer for theJugantar. This is mere speculation, and the defence have urged on us anexplanation that is at least as plausible, and I am disposed to think moreprobable, which goes to show that the writer of the letter had not the Jugantatin mind.

118. I have thought it necessary to discuss this letter atlength as so much stress was laid on it against both Kartick and Annoda. I haveset forth the grounds on which I hold this letter to be innocent of the meaningattributed to it by the prosecution, and I have drawn attention to the dateswhich appear to me to show how it was sought to bolster up this meaning by theevidence of Panna Lal. There is nothing to show that the Annoda mentioned inEx. 217 is this accused; on the contrary it seems even more probable that theperson referred to is Annoda Charan Roy, said to be an uncle of Tara Nath. ThatAnnodas name should appear in Ex. 115 as a subscriber to the Jugantar provesnothing, for it is shewn that this paper was bought far and wide. Ex. 274 (1) bis explained by Ex. 314, and it is quite clear that these letters contain nosinister significance. Therefore the case against Annoda must fail.

119. HORENDRA BANERJEE has been treated by the prosecutionas a member of the Chatra Bhandar group, though why he should be so ranged isnot obvious, as his only connection with the Chatra Bhandar is that he dealtwith it, while there is nothing to connect him with the other members of thegroup. Counsel for the prosecution has utilized this grouping for the purposeof connecting the Chatra Bhandar and the Haludbari groups, but this contentioncannot succeed. Lolits testimony connecting Horen with the conspiracy is unconfirmed,as is that of Jotin Hazra, and it is only the documentary evidence that callsfor consideration. The document on which reliance is principally placed is Ex.162, but I am unable to treat anything in this letter as a confession of guiltby Horen. The utmost that can be said is that it may attribute guilt to Soilen,but certainly not that Horen was a partner in that guilt. The reference to and1A/251 and 1A /254 in Ex. 161

(1) when read in conjunction with Ex. 87

(2) may give rise to some suspicion, but it is a suspicionthat owes its existence and force to lack of knowledge. This suspicion may havebeen worthy of further investigation, but as things stand, we have no clearindication what these numbers mean. The document in which they have been foundis a note book, and the entries in it point to Horens being concerned in somebusiness, possibly that of a broker. In two instances I find names of personswith their addresses given in conjunction with these supposed symbols. Thus Ifind 1A/258 evidently referring to Radha Benode Bose, 35-1-1, Mondol Street,Pathuriaghata, and 1A/259 to Amrita Lal Banerjee, 4-1, Gomesh Lane, Calcutta.Now neither of these men is named as a conspirator in the charge, nor is thereany evidence led or suggestion made that they are not perfectly respectableindividuals. No endeavour has been made to explain who or what they are, and inthe circumstances, it would be wrong for us to allow the suspicion of theprosecution to take the place of proof. In my opinion the case against Horenfails.

120. The last of this so-called Chatra Bhandar group isNORENDRA NATH BOSE: why he should have been so classed is not clear, unless itwas hoped by this means to establish a connection with the Kidderpore groupthrough Bimola Deb, an idea that has failed in consequence of the prosecutionsdetermination not to proceed with the case against Bimola. Of the overt actsset forth in the complaint, Lolit would only connect him with the murder ofNanda Lal Banerjee and the Netra dacoity, but as to neither is there anycorroboration. That Noren was at Chedda-pathar and at Benares has not beendenied, but it is urged that his presence at those places implies nothing tohis detriment. First, I will take up the prosecution case as to Cheddapathar. Itis said by the prosecution that it was used as a place for the conspirators tomeet, and for arms to be stored, and that the work there was divided, some forinstance recruiting Bengalis, some Santhals. But there is nothing that supportsthis beyond Lolits word, and it is at least problematical whether Lolit everwas there, when regard is had to the variance in his successive stories, andthe difficulty of reconciling his description with the place as it actually is.I do not overlook the fact that evidence is given, and notably by KeshabChandra Banerjee, of Lolits having been there. Now Keshab left Cheddapatharlast Bhadra; of that there seems to be no doubt. But when he goes on to say, ashe does in his examination-in-chief, that Lolit was there in Magh or Falgoon,preceding the Bhadra in which he left, he is obviously wrong, for not only wasLolit then in custody, but the prosecution case is that it was in 1906, not1909 that Lolit was there. But even if Lolit was there,- and I will assume hewas,-the evidence does not disclose anything sinister in the life atCheddapathar. The young men seem to have erected a khamai-bari, and to have cutdown the surrounding jungle with a view to reclaiming land for cultivation. Itcannot be suggested that there is anything that shows that arms were storedthere, and I say this notwithstanding the evidence in all seriousness adducedbefore us that five bamboo bows were bought from one of the neighbouring junglefolk, and even though the story as to one revolver be credited.

121. Then there is the evidence of Norens presence atBenares to be considered. It is not denied, on the contrary it is the case forthe defence, that Noren took his old and ailing mother to Benares, and this, itis said, was a natural thing for him to do, regard being had to his mothersstate. He further says that he started a shop there, and this agrees with theprosecution story. But he denies that this was done, as the prosecution say,with conspiracy funds, nor is there any trustworthy evidence in support of theprosecution theory. The evidence is that Noren started the shop in September1908, and attended to it until September 1909, when it was sold. Reliance is infact placed on this to refute Lolits story that Noren was at the Netra dacoity,for it is urged that it is difficult to believe that Noren should have left hisshop at Benares to attend the dacoity. The refutation is not conclusive, butthe facts cast grave doubt on the truth of Lolits story, more especially whenregard is had to the statement of Kali Krishna Chakravarty, prosecution witnessNo. 79, who declares that Noren was all through at Benares. Nothing obviouslycan be made of the fact that Noren dealt with the Chatra Bhandar.

122. Ex. 103 (5) is sought to be used against him andprincipally because it contains the name " Lolit" and because itindicates that on the 4th and 5th October 1909, he met "Hrishikesh"and "Gonesh." There is nothing to show what Lolit is here intended,or that Gonesh is the accused in this case, but the suggestion that Hrishikeshis Hrishikesh Kanjilal, the accused in the Alipur Bomb Case, is reckless,seeing that Hrishikesh Kanjilal was then, and for months before had been, inprison. The case against Noren fails.

123. The next group consists of MONMATHO NATH BISWAS, BIDHDBHUSAN BISWAS, RAMPADA MUKHERJEE and BHUPENDRA NATH RAI CHOWDHURY, who areshewn to have been associated at Rampore Boalia in the District of Rajshahyewhere they were fellow students.

124. Mr. P. L. Roy included Monmatho Nath Biswas and BidhuBhusan Biswas in the Haludbari group, but for that I have shewn there was nojustification. According to the evidence in this case their activities wereconfined to Rajshahye. Rampada Mukherjee and Bhupendra Nath Rai Chowdhury weretreated by the Counsel for the Crown as constituting the Raita group, but theironly association with Raita is the mention of their names in connection withthe Raita dacoity in Sushils retracted confession. This dacoity was committedas far back as November 1908; no steps have been taken against these accused onthe basis of their being concerned in that offence, and there is no evidenceagainst either of them of being so concerned, and in the circumstances thisretracted confession certainly would not support a conviction against them.Therefore their being grouped as connected with Raita rests on no soundfoundation. It is in these circumstances that I think these four accused oughtto be considered as the Rajshahye group, and in the view I take of the evidenceit is unnecessary to treat their cases at length.

125. MONMATHO is not even named by Lolit in his confessionthough he there names certain persons as conspirators who reside inChitli-Beliashishi. In his deposition before Mr. Duval however he names him asa conspirator, and also here. But beyond so naming him with a very great numberof others he says nothing of him and does not implicate him in anythingspecific. It is to be noticed that between the date of Lolits confession anddeposition, Monmatho had been arrested for the Haludbari dacoity. Then whatother evidence is there against Monmatho Merely that of association withfellow students at Rajshahye and lathi play. The evidence falls far short ofestablishing that these four youths, who stand isolated from the rest of theaccused, were members of the conspiracy charged in this case. I do not overlookBhupens diary, but I have carefully taken it into consideration in arriving atthe conclusion I have expressed. The case against Monmatho fails.

126. The case against BIDHU BHUSHAN BISWAS of association inRajshahye is substantially the same as that against Monmatho. In addition tothat Lolit declares that after the Netra dacoity Bidhu, having met him at 10-1,Mussulmanpara Lane, took him to Beliashishi. But, apart from the absence of anycorroboration, Lolits story is open to grave doubt. No adverse inference canbe drawn from the fact that Sushil and Bidhu, who were cousins, were seentogether at Nattore, even if credence. be given to the somewhat improbablestory of the witness who declares he so saw them. The case against him fails.

127. Against RAMPADA MUKHERJEE the evidence is even weaker,and there is nothing against him on which a conviction could be based. The caseagainst him fails.

128. BHUPENDRA NATH RAI CHOWDHURY is the author of the diaryto which I have already referred. Sushil mentions him in his confession inconnection with Raita, and some reliance has been placed on the school registerfor this purpose, but the confession has been retracted and Sushil afterwardsfailed to identify Bhupen. It is obviously impossible to hold that Bhupen wasat Raita. The Exhibits do not advance the case against Bhupen, nor does thefact of his previous conviction. The result is that in my opinion the prosecutionhave failed to shew his membership of this conspiracy.

129. It cannot. I think, be disputed that these four youngRajshahye men are, or have been troublesome characters, and the description"rowdies" attributed to some of them in Bhupens diary is probablynot far wide of the mark. But that is a different matter from holding themmembers of the particular conspiracy to wage war against the King: theprosecution have failed to link them with any of the other accused, nor havethey shewn them to be parties to the conspiracy charged in this case.

130. This then ends the case against all the accused, andthe result is we all hold the charge under sec. 121Aof the Penal Codeestablished against Soilen Das, Sushil Biswas, Atul Mukherjee, Gonesh Das,Soilendra Nath Chatterjee and Upendra Kristo Deb.

131. The rest of the accused must, in our opinion, beacquitted of the charges against them, and, with the exception of those atpresent serving sentences that have been inflicted on them, they must be set atliberty as the law directs.

132. It only remains to consider what sentences should bepassed on those whom the Court holds guilty of the offence with which theystand charged. The sentence that they have merited is in our opinion eightyears transportation from this date, and that is the sentence we would havepassed, but for the fact that they are already undergoing sentences as theresult of their conviction in the Haludbari case; we must have regard to thesesentences and to the somewhat inconvenient provisions of sees. 397 and 398 ofthe Criminal Procedure Code, and this accounts for the form in which oursentence is framed.

133. The Court sentences Soilen Das and Sushil Biswas to twoyears rigorous imprisonment, and directs that the sentence on each shallcommence at the expiration of the imprisonment to which he has been previouslysentenced in the Haludbari case, and the Court sentences Atul Mukherjee, GoneshDas, Soilendra Nath Chatterjee and Upendra Kristo Deb to one years rigorousimprisonment, and directs that the sentence on each shall commence at theexpiration of the imprisonment to which he has been previously sentenced in theHaludbari case. I would only add my appreciation of the admirable temper withwhich this long and anxious case has been conducted on both sides, and myacknowledgment of the assistance we have received.

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The Emperor vs. Noni Gopal Gupta and Ors. (19.04.1911 -CALHC)