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THE JUDGEMENT
Attention was drawn to certain entries in Exhibit 311-1, e.g., entries about Vibrona and Sudhir; and Fleriline. These entries naturally would he there if Ahinash was managing Arabinda’s household as he said. Stress is laid on one entry in particular in this book, “ khoka's tram fare He. 1-S." The importance of this is in connection with Exhibit 299-7, which will be dealt with later. Exhibits 311-3 and four receipts for the rent of No. 23 were found at No. 48. There is nothing surprising in this: Abinash was living in the Navasakti office at the time of the arrest. The _ receipts don't prove connection with the Navasakti office though they show connection with Abinash. Exhibit 315-7 is a receipt for the whole of the premises N 0. 48 for ‘Falgun,’ the rent being paid by Satyaranjan, the son of Monaranjan. It is argued that as there was no division of the premises, then there was none when Arabinda went to live there. We don’t know on what terms the house was occupied when Arabinda and Abinash lived there, but from the fact that the previous owner of the Navasakti occupied the inner portion of the premises, we cannot assume that tie person who later occupied that portion was in fact interested in the Navasakti. Exhibit 311-2 suggests that Arabinda was connected with the Navasakti This is a set of rules providing that the Navasakti is to be managed by a committee which Arabinda. is to nominate. It may he that Monoranjan was trying to convert the paper into s. company and was putting this forth as an attraction. But the importance of this Exhibit so far as regards Arabinda lies in the supposition that the Navaakti was a revolutionary paper. No doubt there was a good prospect of it becoming so when it fell into the hands of Abinash, but we do not know when this scheme was drawn up. That half the income was to be used for serving the country is n. provision which gives food for reflection in view of the similar though less liberal provision in the Chattra Bhandar Exhibit 300-27 found in Arahinda is room is a list of articles for physical exercises., The suggestive part in it is that it includes daggers and single sticks. Exhibit 1098 is a book with the suggestive name "Human Bullets" presented to Arabinda by a brother nationalist in appreciation of his work for nationalism in India. It is dated Tokio, 10th April 1908. The book was found at the Bands Mataram office. How far the views of the persons, not shown to be conspirators, as to the nature of Arahinda`s work can be taken against Arabinda is open to question. It is not shown whether there is anything of a violent nature in the book beyond the title and the first picture which shows s. bursting shell. In connection with a conspiracy, of course, anything connected with war is looked on naturally with suspicion, but in Exhibit CXXIII we find s short appreciation of this work: " It is a wonderful Page 166 revelation of the Japanese point of view, in regard to patriotism, obedience, the hereafter, fellowship with those in a. subordinate position and magnanimity towards captured enemies. The horror of butchery is curiously mingled with purpose and dignity of mind.? Such a book in this case is calculated to bear a somewhat sinister aspect in view of the constant reference in papers connected with the conspiracy to Japan and her success against the Russians; the moral being success of the East against the West. Possibly the most dangerous piece of evidence against Arabinda. that comes under this head is to be found in Exhibit 239. In the entries under 11th January and onwards we End three which may refer to Arabinda. They are "J. B. to be informed of A. G.s movement. A. G.’s rules to be got out of him.” “Dr. Dhude to be kept in the garden and Ullas and A. G. and B. G. informed? If A. G. refer to Arabinda, this a most damaging piece of evidence. The defence says it is not proved that A. G. stands for Arabinda. It could not be proved. The only person who could and was willing to speak, is Narendra. Gossain. He is dead. The other persons to be informed are Ullas and B. G. Evidently the prominent persons are to be informed and we have no knowledge of any other prominent person suggested, who bears those initials. In conjunction with B. G. they are significant. It is suggested that if A. G. means Arabinda., Baren may have told him they had religious organization for the purpose of concealing facts from Arabinda. That might explain the second entry, but what of the other two ? It is conceded that Arabinda. finally came to Calcutta. from Baroda about the middle of 1906. His arrival was followed at u short interval by the starting of the scheme for national education, and by the formation of the Chattra Bhandar and Bande Mataram companies. Arabinda admits that he was concerned in starting the latter company: in fact he was fur a. short time managing director, but he does not admit connection with the Chatter Bhandar. In this company Subodh was doubtless largely interested, and a. good deal of the case against Arabinda. rests on his connection with Subodh. Arabinda.'s connection with the Chattra Bhandar did not ostensibly go beyond the signing of his name as witness to the signatures of the promoters on the memorandum of association. Nor: is there any evidence beyond his intimacy with Subodh to suggest connection with the Chattra Bhandar. Pabitra’s account is that the promoters went to Subodh’s house to have their signatures witnessed, as he was a. big man and his name might attract people, and as Arabinda happened to be there he also signed. so far as Arabinda is concerned this explanation may be perfectly true. A good deal of the suspicion which attaches to his signature is due to the fact that Pabitra is so anxious to conceal his knowledge of this institution, and that Page 167 Subodh so shortly after having apparently no interest in it beyond that of a mere witness became so large a shareholder. Arabinda's association with Suhodh is capable of a. perfectly innocent explanation. He was much interested in national education, a scheme in which the prosecution admits there was nothing of itself harmful, and we find that Subodh contributed Rs. 1,00,000 to the establishment of the National College. Arabinda's connection with the garden is sought to be established by the fact that persons from the garden frequently visited No. 23. That Sailendra was more than a mere casual visitor we have evidence of in the post card, Exhibit No. 305-5, which was readdressed to him at No. 23 from No. 49, Grey Street. I have already pointed out that visits to No. 23 of conspirators may be explained by the fact that Arabinda was living there. A good deal is made of the incident of the 18th April, when it is said that shortly after Baron and Arabinash left No. 23, Arabinda was seen to open the window. The incident is of very little importance in itself, but it gave rise to much cross examination intended to show that Arabinda was not in Calcutta on the 18th, having left for Kishoreganj on the previous day. And in due course two of the prosecution witnesses came forward to prove the alibi. I am not disposed to accept the evidence on this point of either of these witnesses. One was at Kishoreganj just long enough to see Arabinda on his arrival. He fixes the date by the fact that he reached the place on Friday. He fixes his recollection of the fact that it was Friday, by the fact that the day before was Thursday, but he can fix nothing more. There is a. small piece of evidence which to some extent supports the theory that Arabinda was absent on the 18th . A postal peon who came to deliver a money-order did not find him at home, and did not find him at home till the third day. This does not prove that he was absent from Calcutta, and it is unnecessary to pursue the subject further. A piece of evidence to the effect that he was directly connected with one of the centres of conspiracy is the statement of a postman, witness N o. 114, that he saw Arabinda at No. 15. He also identified Narendra Bakshi as seen there, though in the Magistrate’s Court he identified Krishna Jiban. These two are somewhat alike. But I do not believe that he saw Arabinda there. It is impossible that a man so closely watched as Arabinda could have visited a place so closely watched as No. 15, without detection. I now come to deal with what are the really important documents as against Arabinda. Most important of all is Exhibit 295, which is known as the "sweets" letter. It purports to have been written on 27th December 1907, the second day of the Congress, and runs as follows :—"Dear brother, now is the time. Please try and make them meet for our conference. We must have sweets Page 168 all over India ready made for imergencies (sic.) I wait here for your answer. Your affectionate Barindra K. Ghose.” This was found in Arabinda's room. An envelope was also found with "A. Ghosh, confidential," written on it, apparently in Barens writing. The defence say. the letter is a forgery: if it is, it is a splendid specimen of the forger’s art. The suggestion of the prosecution is that "sweets" means bombs. The term would be a not unnatural one to use; and in view of Exhibit CL, in which apparently Mr. Kingsford is spoken of as the bridegroom, and the accounts in Exhibit 239, in which under the heading " marriage expenditure " is the item (Riv), Rs. 52, that being abbreviation in the vernacular for " revolver," there is reason in the suggestion. The prosecution argues that the Extremists, having won a victory on the first day of the Congress, were so elated that Baren sent this letter to Arabinda to have immediate action all over the country on the lines followed in the garden and No. 15. The finding of this letter in Arabinda' s house is attacked. In fact the honesty of practically every search conducted in this case has been challenged, though, when it came to arguing the case, very little use was made by the defence counsel of the cross- examinations on the subject of searches. Taken as a whole, the cross-examination in this part of the case seemed to betray an utter want of the sense of proportion. Counsel seemed to forget that the primary object of the police in making a search is to find things : it is not to be constantly considering what to do to meet possible suggestion that will be made later. No doubt it is desirable that, the two should be as far as possible combined, but counsel for the defence would have the second made a fetish. Where the Endings of a search are few in number, it is easy while making a list on the spot to number or mark everything, but when the papers found run into hundreds and where the searching officers have been waiting up practically all night, it is beyond human nature for them to sit down and spend the whole day numbering and initialling every document on the spot. The main thing is for them to take such steps as will enable them to say afterwards that a particular thing was found at a particular place, and if they do that it should be enough for the Court, which will not start with the presumption that every police officer is dishonest and that every document not marked on the spot is a subsequent interpolation. I take one instance: item No. 84 of the garden search list is " some books found on a. shelf and in a tin box, some maps and books in Bengali on modern warfare and pictures and papers." The words after " maps " look as if they have been put in after being some what cramped, though evidently written with the same pen. I will assume that they have an explanation which is simple : a large box with a number of books is found, and in turning it over it is discovered that some of the books are of an important nature. The item is amplified by a description of Page 169 them. There is nothing dishonest in this, yet if the next item is written down before the addition is made we get charges of dishonesty of all kinds. Probably in the stress of cross· examination the police officer may forget the true explanation: and guess. In this instance nothing is gained. The findings at the garden were quite sufficient without the necessity of adding these books on modern warfare. The prosecution could have served their case much better by putting them somewhere else. Similarly, because some of the list is written on blank paper and not on printed forms, we get similar suggestion, ignoring the perfectly reasonable explanation that the supply of printed forms was exhausted. Much stress is laid on the difference in the evidence of Superintendent Creagan and Inspector Radha Gobinda Kundu and Benode Gupta in regard to the examination of documents from 48, Grey Street, as affecting the "sweets" letter. The examination was conducted by Mr. Denham at 25, Royd Street. Creagan says he had the findings of No. 48 in his possession at his house: he took them to 25, Royd Street and some, including the letter in question, were examined and taken hack by him to his house. He says he was present at the examination of the documents that day. Radha Gobinda says that the persons present at the examination were Mr. Denham, Gupta and himself: no one else was ever present. The documents were brought, bundle by bundle, from Park Street and taken back after examination. Gupta's evidence is confusing. He first speaks of Creagan having brought the documents on the 4th or 5th ; then after being questioned about the examination of them, he says: "I kept the documents from 48, Grey Street, after they came to Royd Street, in my custody." Later he speaks of returning documents to Creagan for prosecution in Court. In cross-examination on the first day he said: "It would not be true to my knowledge to say that Creagan kept all the documents found at No. 48 till the 11th May in his house. I don’t think it is correct to say that he brought them to Royd Street on the 11th May, and some were examined and taken back to his house." On the second day of cross—examination he stated that Creagan took back the documents which were examined the first day, and said he never had charge of any of them before that day. Reading his evidence in chief, one would naturally imagine that he had had charge of these documents from the 4th or 5th till they were returned to Creagan finally for production before the Magistrate. It is to be noticed, however, that he does not specifically say where they were between the 4th or 5th and the clay they were first examined, nor was he asked. With regard to the statement in cross-examination the first day, the first impression is that he was giving a different version from Creagan. I think the key to the Page 170 difference lies in the introduction of the date, 11th May. He is first asked whether it is correct that Creagan kept the documents in his house till the 11th May : he says "No." The next question is one of Mr. Dass’ portmanteau questions involving three points of fact: (1) whether Creagan brought documents on 11th May: (2) whether same were examined, (3) whether those examined were taken back. The witness says "No." Now it is quite obvious that to him the gist of the question lay in the date following as it did the previous questions. In fact, it appears that Gupta, speaking from memory, thought the documents were examined before the 10th; and having that impression in his mind, a wrong one as it happens, he naturally answered both the questions put to him in the negative. But the argument that is built on it ignores the fact that he thought the date given was wrong, and is based on that portion of the question which was not prominent in the witness’ mind. And read in this light, his answers on the next day of cross-examination are not inconsistent. Radha Gobincla had evidently not a very clear idea of what he was talking about when he says that no one was present but the three persons named at the examination. He evidently means throughout. The point which the defence wants to make from his answers is that the documents were brought from Park Street to Royd Street for examination. This point is achieved by putting indefinite questions. He is first asked about the general procedure in dealing with the Endings at searches, and says that documents were carried backwards and forward between Park Street and Royd Street. Then he is asked some questions about the "sweets" letter. Then he again to speak generally as is evident from this sentence, ‘after the examination was over the bundle was retied, and "if done with" was sent back to "where it came from," namely, Park Street,’ and again an argument for a special occasion is founded on a statement of a general nature. Mr. Denham`s evidence makes it clear that the papers were brought by Creagan, and that the bundle in which this letter was examined on the 11th May, the first day on which he examined documents from 48, Grey Street. And this, taken with Creagan’s evidence, makes it clear that Creagan all along had the documents examined on the day, including the "sweets" letter in his possession ; and that it was found in No. 48 is clear from the fact that Creagan initialled it at the time. He does not remember the letter on the 2nd May, but it has his initials: he initialled nothing except at the time of the search, and the search witnesses all signed, and one has added the date, and Creagan says that the rule was for them to initial a document before he did. It is suggested that the document is a forgery, and it is argued that Sarat Dass is a forger. In fact Sarat Dass denies that he is a forger ; for the purposes of the argument it is not a matter of much Page 171 moment whether he is or not―from his previous history. Whether a forger himself or not, he doubtless would have no difficulty in getting hold of one. But to my mind the letter could not have been written to Arabinda by Baren. I don’t take account of the argument that if both were at the same place, one would probably not write to the other, or that the other would not have preserved the letter: explanations can easily be found for both these points. But I judge from the internal evidence of the letter. Baron is the youngest of Eve brothers; Arabinda is the third. The Assessors say that in such a case Baren could not have intended Arabinda. by “Dear brother"; that expression could only mean the eldest brother : if meant for Arabinda, it would have been "Dear Sejda." That is a point on which I cannot question their opinions. But, speaking for myself, I cannot understand Baren signing his name in full if writing to Arabinda. In letters between Arabinda and other relations Baren is spoken of as Bari. The brothers were on friendly terms; they must have been if the prosecution theory is to be accepted that the visits to N0. 23 were to Arabinda, and it is highly improbable that Baren would sign in this way writing to Arabinda. He might write to some one else and use the phrase "Dear brother,” corresponding to the use of the word bhai in the vernacular. In such a case, if it was intended to reach Arabinda, the question suggests itself, if both brothers were at Surat, why did not Baron write to Arabinda direct. That the word “emergencies" is spelt "imergencies" is nothing, for in Exhibit 667 Baren spells "phi1osophy as philosophy," Though, then, I End that the document was in fact in Arabinda's house on the 2nd May, it is of so suspicious a character that I hesitate to accept it. Experience tells us that in cases when spies are employed documents do find their way into houses of suspected persons in a manner which cannot be explained by the accused. Another important document found in Arabinda`s house is Exhibit 299-7. This is u page of scribbling in a note-book, mere incoherent rambling. In it there are references to Bhaba Bhusan, Khoka, Baren, Sudhir, Profulla. It speaks of and suggests that there will be success next time if the writer is resent instead of trying to hide himself ; and of a "small charge of, the stuff? The prosecution suggests that these are the ramblings of a visionary communing with himself and letting his hand run idly over the paper, trying to pluck up courage to make some attempt in person, disappointed at the ill-success which had attended attempts by other conspirators. It is pointed out that the names are all names of persons connected with the conspiracy or found in documents relating to it. And it is argued that it could not be a forgery, as Bhaba Bhusan’s name was not known before. In regard to this last point, it must be noticed that Exhibit Page 172 1089, a letter by Bhaba Bbusan, was found so far back as August 1907. The other argument the defence does not answer: in fact it is a very difficult argument to answer, depending as it does on supposition. It is, however, pointed out that the book is a very old one, not one likely to come to Arabinda’s hand if he sat down to scribble in an aimless way. The scribbling bears no resemblance to his writing: it is formless, and such as any one might write. Arabinda says the scribbling was not in the book while in his possession. The suggestion is that it was forged later. There is no reason to suppose that it was. The documents were in the custody of the District Magistrate’s Court office from the date of tiling. This note-book was filed on the 20th May. It could not have been forged before that or the Magistrates attention would have been called to it at an early date ; therefore, if forged, it must have been done while the books were in his Court. There is no reason to suppose that any person likely to forge it had access to the books. ’The scribbling was not discovered till August by Mr. Denham, but that is not a matter of surprise, considering the mass of documents to be examined. This would naturally escape notice, being in an old book and apparently nothing of importance unless closely examined. On the other hand, if Exhibit 295 was inserted among Arabinda’s papers before the 2nd May, this book may in the same way have been abstracted and replaced there. Again, the long delay in discovering it suggests that it was not made for a particular purpose, though the mind that was crafty enough to evolve the plan of manufacturing such a piece of evidence would be equal to the desirability of such an entry in an old and apparently useless book not being brought to light too soon. I look upon this piece of evidence as the most difficult point in this case. Exhibit 300-21 was found in Arabinda's house in an unopened envelope, addressed to Sudhir Kumar Sircar, c/o late Raj Narain Bose, Esq., Baidyanath, Deoghar, and across the envelope is written "Confidential." The envelope bears the Baidyanath post-mark of 24th November. It was opened by Mr. Denham on 11th May. The point of this is to prove that Arabinda knew Sudhir, the accused. Sudhir says that he stayed at Deoghar for two or three weeks after the Pujas, and that in March he put up at Narain Bose's house. We know that Arabinda was at Deoghar in November. It does not follow that the two were there at the same time. On the contrary, the fact that the letter was not delivered to Sudhir at Deogbar suggests that he was not there when the letter arrived. In paragraph 17 of his written statement Arabinda gives an explanation as to how Sudhir stayed for a. short time at Deoghar. He says he does not remember even seeing the letter. There are two possible explanations for this letter being in Arabinda's possession—one that he took it expecting to see Sudhir Page 173 and to give it to him, the other that he look it accidentally among his papers. In the former case one would naturally expect Arabinda to give the letter to Sudhir when he saw him. But his counsel says that Arabinda is absent minded. That might explain why Arahinda. did not give the letter; it might also explain its accidentally coming to be among his papers and: being overlooked. The contents of the letter do not affect Arabinda in any way. There is one more important letter by which it is thought to connect Arabinda with the garden. This is Exhibit 1128, a letter from Birendra Chandra Sen to Arabinda., saying that the writer's father is ill and wants to see Sushil, and mentioning that some money is being sent. 'The letter· states that as Biren does not know Arabinda's Calcutta address, he is addressing the letter to Baidyanath. Arabinda says he never received the letter. He says that he only knew some of the accused, whom he names, before his arrest; Sushil is not one of those. This letter was written from Baniachong on the 26th April 1908. It was found in the garden. Exhibit 905 is a money-order for Its. 8, payable to Arahinda. Ghose. It is addressed to the house of the late Raj Narain Bose, Baidyanath, Deogher. lt was re- addressed to 23, Scott’s Lane, then to 6, College Square. The receipt was signed by Sarojini Ghose on the 8th May. The money-order hears the Harrison Road stamp, dated 5th May, and the Bowbazar stamp, 8th May. This is money-order No. 240, for which the post office receipt, given at the time of sending to the sender, was found in the house of the Sens. The prosecution suggests that the money-order represents the money which the letter says is being sent. The defence suggests that it can’t be because of the difference in date, while the letter says money is being sent. The expression might apply to money which was about to be sent just as well as to money actually despatched. It is not really material whether the letter refers to the money-order or not. The point is that the letter was found in the garden. It is said to be item No. 2 of the search list, "a piece of paper with Bengali writing (in the pan)." This pan was found in the verandah of the house and contained six brown halls, apparently moulds for casting shells. The letter found its way to the Chemical Examiner, in the pan, and was handed over by Major Black to Mr. Denham. It is suggested that this letter is not the document that is mentioned in the search list. It is initialled and dated 2nd May by Satish Roy, who was making the search list, and also by Mr. Corbett, who superintended the search, and Inspector Frizzoni. The names of tile search witnesses on it shows nothing, for they were called to the thana after the search to initial documents, which were pointed out as found at the search. It is open to Page 174 doubt whether Satish Roy can remember, as he says he does, that it had Arabinda's name on it. If he had then noticed, then it is probable that more notice would have been taken of it. I think it very doubtful whether he read the name at the time. Considering the immense quantity of things that had to be dealt with in the garden, it is probable that Frizzoni merely dictated what is written in the search list and Satish wrote it down. That it was then found there there seems no reason to doubt. Mr. Corbett would certainly not have initialled the document unless found then. Much is made of the fact that it was not found when Gupta was taking over charge of the exhibits. According to him there was some discussion between himself and Satish about it. He asked Satish for it. Satish said it was in the pan, and Gupta., not seeing it, said it was not. Apparently neither of them thought of emptying the balls out of the pan, and, when folded, the letter would be easily concealed by these balls. The material objects were kept separate from the documents, and such as were to be sent to the Chemical Examiner were sent before the documents were examined. It was argued that the letter could not have reached Calcutta ·in time to be in the garden. Even supposing the letter went to Baidyanath via Calcutta, and there is nothing to show whether a letter from Sylhet would go through Calcutta to get to Baidyanath, there would be time for the letter to be re-directed and reach Calcutta before the 2nd . To my mind the prosecution attaches unnecessary importance to the finding of this letter in the garden. It is out of the question that Arabinda took it there himself, for if he had gone there, some one is sure to have seen him going. And if he gave it to some one else to show to Sushil, it does not follow that he expected Sushil to be found in the garden. What then are the chief points against Arabinda ? In the letters we have the ambiguous references to the movement requiring unlimited money and Abinash no longer doing Arabinda's work. As regards association with persons, we have the fact that he was a. friend of Subodh, that he was acquainted with Lele and Ram Chandra Prabhu, that he employed for the purpose of looking after his house Abinash, who is a conspirator, the possibility that he knew Upen and Birkumar, a name appearing in the garden, because a letter comes for the first to No. 2 , and a telegram from some one giving the name Birkumar goes from the second from No. 23, the possibility that he knew Hrishikesh by the Ending in the latter’s house of the slip with the address 19-3, Choku Khunsama's Lane and the probability that he knew Biren Sen and Sushil, and knew the where- Page 175 abouts of the latter at the end of April. As regards connection with association, we have the suggestion that he was connected with Midnapur Chattra Bhandar, arising out of the reference to him in the letter of Manik to Nikhil; as regards association with the garden, we have the fact that he was part owner of the garden, but no evidence that he even went there. It was argued that he did not attempt to sell it, as he wanted it to be kept for the purposes of the conspiracy. He says that he asked people to try to sell it, and, so far as one can gather from his letters and writings, personal attention to business is not what one would expect from him. There is the further fact that three entries with the initials A. G. were found in the garden Exhibit 239, and that the draft telegram, which may be his, was found in a book in the garden. As regards No, I5, there is the finding of N0. 385-2, a letter which was not addressed to him: and as regards knowledge of the conspiracy, there is this letter 385-2 and Exhibit 774, and they only connect him with the conspiracy if it be clearly established that he is the Karta referred to. In the case of the first letter, I have pointed out that there is reason to think he is the Karts. because of the mention of Baren and No. 23. But it is not clear who was the writer or who was the addressee, and its connection with the conspiracy can only be assumed from the fact of its being found at No. is and the mention of Baren. The other contains direct reference to a garden and, being addressed to Upen at Sil’s Lodge, doubtless has connection with the conspiracy. And further, as regards knowledge of the conspiracy, there is the piece of scribbling found in the old note-book in his house. I should hesitate before saying that his complicity in the conspiracy can be considered established on these facts. In his favour we have the fact that he has in the columns of the Bande Mataram. deprecated violence ; there is such an article dated 28th May 1907. And so late as 10th April 1908, there is an article saying that the national movement cannot be allowed to be driven inward. and made an affair of a secret society as it would if outward expression were stopped. His connection with the conspiracy can only be considered established if we find that while writing one thing he has been doing another. Of course it is possible that a man might join a conspiracy to deprive the King of the sovereignty of British India, in which his share would be to preach discontent with the existing order of things, and that he might be entirely ignorant of that branch of the conspiracy which concerned the collection of arms and ammunition. It is possible that Arabinda may have been in that position in this case, but in such a case it must be clearly shown that his preachings were part of such a conspiracy, and in the present case it would be difficult to do that without showing some Page 176 connection with the part which the garden plays in the case. Considering the circumstances of India, it may be dangerous for a man to publish doctrines inconsistent with the existing order of things : in certain circumstances it might justify a charge of sedition. Whether such a charge could be laid at Arabinda's door does not now concern me. The point is whether his writings and speeches, which in themselves seem to advocate nothing more than the regeneration of his country, taken with the facts proved against him in this case, are sufficient to show that he was a member of the conspiracy. And taking all the evidence together, I am of opinion that it falls short of such proof as would justify one in finding him guilty of so serious a charge. In dealing with this case generally, I have endeavoured to work on broad lines rather than to elaborate petty details, which would have confused the real issue in a judgment which has already grown to excessive length. I have not, in dealing with Arabinda’s case, referred to the Midnapore incident, nor to his connection with the fund for the support of Basanta’s family, during Basanta’s imprisonment, for these do not affect the main issue. One word with reference to his connection with the meeting to welcome Bepin Chandra Pal on his release from jail. Whether his views agree with Bepin's or not, there is nothing calling for comment in the fact that he joined in welcoming a man imprisoned for refusing to give evidence in a case in which Arabinda was the accused. A few words as to the opinion of the Assessors. One of them speaks of this conspiracy as a "childish conspiracy? He seems to have utterly failed to realise the significance and danger of it or the extent to which it had spread. The Assessors evidently dislike the idea of a conspiracy ; while both find that certain persons collected arms in circumstances which amount to an offence under section 122; one of them thinks that the collections were made by persons independently of each other. In fact, the offence under section 122 is more serious than that under section 121A, involving, as it does, forfeiture of all offender's property as a compulsory sentence. As to the application of section 121. Reading section 121A with the second clause of section 107, I. P. C., it is clear that s. conspiracy to wage war becomes an offence under section 121 if any act is done in pursuance of the conspiracy, and in order to the carrying out of the purposes of the conspiracy. And explanation 5 of section 108 further elucidates the second clause of section 107. The overt acts by which it is sought to convert the offence under section l.2IA to the offence under section 121 are the three attempts on the Lieutenant Governor and the Muzaffarpur outrage, which was an attempt on the life of Mr. Kingsford. Mr. Das contends that as section 124 provides for a criminal attempt made 23 Page 177 on a Lientenant-Governor for the purpose of compelling him to exercise or refrain from exercising any of his powers, it could not be intended that such should also amount to an offence under section 121. He admits that criminal force to a Lieutenant-Governor will amount wan offence under section 121, but only if the act of force is in itself an act of war, and he relies on a passage from Collet’s comments on the Indian Penal Code: "We conceive that the last words (i.e., of section 121A) do not go beyond the scope of section 121." He also contends that English cases do not help the consideration of this case, because while under the English statute of treason, all the offences mentioned in sections 121-123 are included in the term "levying war," the Penal Code has made separate provisions for each branch of the subject, and section 121 is unambiguous in its terms, and waging war means the actual formation of battle array and fighting. This argument involves a petitio principii: we cannot seek the help of English cases to show what levying war means because waging war under section 121 has the meaning which he claims for it. I take section 121A to be an amplification of what is meant by waging war in section 121. But to say that the offence of waging war is only completed with the formation of battle array and the commencement of hostilities is to claim a meaning for those words which, to my mind, is far too narrow. It might have been a correct interpretation in the Middle Ages, but, as was pointed out by the Judges in the case of Rex: v. Gallakar, the resources of modern science are such that that can now be done by a few, which originally could only be done by an army. In that case there was an attempt to blow up the Houses of Parliament. An attempt to blow up a Lieutenant—Governor for following a certain line of policy is just as much an act of war as an attempt to blow up Parliament. The attempts on Sir Andrew Fraser were due not to one single official act of his, but were an attack on a policy, the object of which was to stop revolutionary writing in the Press, and the attempts were made to defend one of the methods by which the conspirators bought to encompass their ends. Any attempt on the King’s Ministers to compel or prevent a certain line policy or form of government is an attempt on the sovereignty of the King and, as such, amounts to a waging of war. The fact that section 124 makes a criminal attempt on a Lieutenant~ Governor a particular offence does not militate against this view. That section would meet the case of an attempt by an individual not a member of, or in pursuance of, a conspiracy, or of an attempt made to compel or restrain the exercise of his powers in some individual case as distinct from a particular policy. And this overawing of certain high officials, which amounts to a State offence, finds its counterpart in section 189 in the case of minor officials. Page 178 The attempt, however, on Mr. Kingsford stands on a different footing. It is true that Mr. Kingsford had earned the hatred of the conspirators for his convicting some of the persons instrumental in spreading revolutionary ideas, and their conviction was a. blow to the methods of the conspirators. But here there is no question of a line of policy pursued by one of the King’s Ministers. His acts convicting the accused were individual acts of a judicial nature. At the time of the attempt he had ceased to be Chief Presidency Magistrate, so was no longer in a position to check the work of the conspiracy by sentencing those who preached revolution. In his case the act looks more like an act of revenge than one in furtherance of the conspiracy. There is another point of view that might be taken. It might be said that as an act of terrorism it was in pursuance of the conspiracy. But to convert a conspiracy into an abetment the overt act must be not only in pursuance of the conspiracy but in order to the doing of the thing, i.e., in their case to the doing of one of the things mentioned in section 121A. Then, if it is to apply to any, it must clearly be to the first act contemplated in section 121A, i.e., to commit one of the offences under section 121. It cannot be said that to kill Mr. Kingsford was in order to the waging of war. I am therefore of opinion that the attempt on Mr. Kingsford was not such as to convert the conspiracy into an abetment of waging war. It follows then that while all of the persons whom I have found to be members of the conspiracy are guilty under sec. 121A, only those will be guilty under section 121 who joined the conspiracy be- fore the 5th December, the last day on which an attempt was made on the Lieutenant—Governor. And those the evidence that I have already set out shows to be Baren, Upen, Ullaskar, Bibhuti, Hrishi Kesh, Biren Sen (the date in the book of the explosive fixes it in his case), Sudhir, Indra Nath, Abinash, Sailendra and Hem Chandra Dass. The absence of the last named from India till the beginning of 1908 seems to suggest that he could not have belonged to the conspiracy before that, but Baren`s confession shows that his object in going to Paris was also to learn explosives as well as mechanics, and the fact that he was in touch with the conspiracy immediately on his return and the mention in his letter of the work that he had to do supports Baren’s statement. Of the above-named Baren, Ullaskar, Bibhuti are guilty of waging war, as they were actually concerned in specific attempts; the others are guilty of abetment of waging war. Section 122 is very wide in its terms. It includes not merely the collection of men, arms and ammunition, but preparation of any sort, with the intention of waging war or of being prepared to wage war, It seems to contemplate a stage intermediate between the stages covered by sections 12lA and 121. The accused whom the evidence establishes to have committed the offence under this section are Baren. Upen, Ullaskar, lndu Bhusan, Bibhuti, Hem Chandra. Dass, Poresh, Sishir, Hrishi Kesh, Page 179 Nirapada, Biren Sen, Indra Nath, Sudhir and Sailendra. The liability of the last two named under the section is established by their presence at Sil’s Lodge. The result is that agreeing with both Assessors, I find the accused Barindra Kumar Ghose, Indu Bhusan Roy, Ullaskar Dutt, Upendra Nath Banerji, Bihhuti Bhusan Sarkar, Hem Chandra Dass, Hrishikesh Kanjilall guilty under section 122, I. P. C.; and agreeing with one and disagreeing with another, I find Poresh Chandra Maulik and Sudhir Kumar Ghose guilty under section I22, I. P. C. Disagreeing with both, I find the following guilty under sections 121 and 121A ;—Barindra Kumar Ghose, Upeudra Nath Banerji, Ullaskar Dutt, Bibhuti Bhusan Sarkar, Hrislnkesh Kanjilall, Hem Chandra Dass, Birendra Chandra Sen, Sudhir Kumar Sarker, Indra Nath Nandi, Abinash Chandra Bhattacharjee, Sailendra Nath Bose; and the following guilty under 121A :—-Indu Bhusan Ray, Poresh Chandra Maulik, Sishir Kumar Ghose, Krishna Jiban Sanyal, Asok Chandra Nandi, Bal Krishna Hari Kane, Sushil Kumar Sen, Nirapada Ray; and the following guilty under section 122 :—Nirapada Itoy, Birendra Chandra Sen, Sudhir Kumar Sarkar, Indra Nath Nandi and Saileudra Nath Bose. Agreeing with both Assessors, I find the following not guilty under section 121 :—Indu Bhusan,Poresh, Sishir, Krishna Jiban, Nirapada, Asok, Kane, Susliil ; and the following not guilty under section 122 :—Krishua Jiban, Asok, Kane, Sushil, Abinash. Agreeing with both, I find Naren Bakshi, Sailendra Kumar Sen, Nalini Kanta Gupta, Purna Chandra Sen, Bijoy Kumar Nag, Kunja Lall Shaha, Hemendra Nath Ghose, Dharini Nath Gupta, Birendra Nath Ghose, Bijoy Bhattacharji, Hem Chandra Sen, Probhash Chandra De. Dindoyal Hose, Nilchileswar Roy Maulik; Deba Brata Bose, Arabinda Ghose not guilty under sections 121, 12lA and 122; and all accused persons not guilty under section 123. I should here deal with some legal objections taken to the jurisdiction of the Court to try the accused. First, Mr. Das argued that the accused had a right to be tried by Jury, and that the Criminal Procedure Code, so far as it provides for trials with with the aid of Assessors, is ultra vires. I declined to hear Mr. Das, as an exactly similar point was raised a short time ago before the Special Bench of the High Court and rejected. The next point was that Mr. Birley had no jurisdiction to commit the case, and that the only Magistrate having jurisdiction was the Chief Presidency Magistrate. A similar point was raised at the beginning of the hearing, hut in the arguments at the cud an additional point was taken, which was not raised at the beginning, as it should have been, for it might have made a very great difference, viz., that objection was taken to Mr. Birley's jurisdiction Page 180 when he first began the inquiry; for if objection was taken, the section 532, C. P. C.. would not cure the defect. But I do not see how the fact that Mr. Thornhill issued search warrants can affect Mr. Birley’s jurisdiction: Hr. Birley could only take cognisance on complaint made under section 196, C P. C., and when the sanction of Government was given the complaint was made to Mr. Birley who had local jurisdiction. Then it was contended that the trial was bad for misjoinder, First it was argued that the accused were being tried for more than three offences of the same kind, the argument being based on the ground that the prosecution sought to convert the conspiracy into an abetment of waging war, or into actual of war, by alleging four overt acts, viz., three attempts on the lieutenant-Governor and one on Mr. Kingsford. It was argued that the allegation of four overt acts amounted to four separate charges, and the well-known case of Subramania Aiyar was referred to. In that case there was a charge of conspiracy to commit fraud, and more than three separate acts of fraud were included in the charge. As conspiracy is not a criminal offence in India, except when the conspiracy is the one contemplated in section 12IA that charge had to go out, and the practical effect was that the accused was tried one trial for more than three separate acts of fraud. Here the case is different. However many overt acts a man may commit, they only amount to one waging of war. Each by itself might be sufficient to bring him within the section, but all combined would amount to only one waging of war. To take an example. Suppose a body of insurgents marched from Patna to Calcutta, and on the way fought four engagements at intervals of several days. Though they might be tried and convicted of waging war on the facts of any one engagement by itself, yet the effect of being concerned in four engagements would still be only one waging of war. The four engagements would severally be different acts in the same offence. And, I take it, the ratio decidendi is that the four engagements would really be part of the same transaction. When we talk of one transaction as applied to the offence of waging war or conspiracy to wage war, it is clear in t e very nature of things that the word must have a wide meaning. In fact, when the conspiracy was once formed, any act done in furtherance of it might, properly speaking, be said to be part of the same transaction. And so far that comes within the the definition which the Bombay High Court has put on the word ‘ transaction ’, “ continuity of purpose and continuity of action." It is continuity of action, for when a conspiracy has once been formed the act of conspiracy goes on till the conspiracy is dissolved, though there may be many intervals during which the conspirators are not actively engaged. And this shows that section 239, C. P. C., is applicable to this case; for it was argued that there was also a misjoinder of persons. Page 181 In connection with this argument a Bombay case was referred to in which certain police officers had committed distinct acts of · extortion while engaged in the same enquiry. It was decided that _ they could not be tried together. Mr. Das argues that this case . is in his favour, because the police officers were actually engaged in the same transaction, viz., the same enquiry. But then the same transaction in the same case was not in itself an offence. When section 239 speaks of a transaction, it obviously means such a transaction as is an offence in itself. In the Bombay case there was no connection between one act of extortion and another. But, says Mr. Das, let us leave out of consideration the charge under section 12lA, and then we shall see that there is misjoinder in respect of persons and charges. But we cannot leave out the charge under section 12lA. The conspiracy is the very foundation of the case, and it is the fact of the conspiracy which brings the various accused persons together. No doubt a person cannot be convicted for both committing an offence and charges under section 121 and section 123 cannot be joined. Section-123 doubtless contemplates the concealment by a person, not a member of the conspiracy, of the design entertained by others to wage war. What the prosecution says is " we can prove certain facts, and on those facts it is for the Court to decide whether the person implicated can be held to be a member of the conspiracy or merely to have had his knowledge of the design and concealed it ". And in this case, which is provided for by section 236, C. P. C., if there were no charge but the charge under section 123, clearly only one person could be tried at ii time ; for the concealment of his knowledge by A is a separate offence from the concealment of his knowledge by ll. But if A and B are being jointly tried for conspiracy, it is clear that an alternative charge of concealing his knowledge under section 123 can be added against either, in case the facts proved are insufficient to establish his complicity in the conspiracy; and as the charge can be added _ against either, it can be added against both. It appears, then, that there is misjoinder neither of persons nor of charges. I omitted to mention one point raised in connection with Mr. Birley's jurisdiction. It was that he had begun the enquiry before the sanction of Government was received. On this it was argued that his whole proceeding was without jurisdiction. Now, as soon as sanction was given, he obviously had jurisdiction, and if his record be looked at, it will be seen that on the second day of the enquiry the evidence given by the first witness, before the sanction was received was repeated. It is a matter of satisfaction that I am able to come to the conclusion Page 182 that the proceedings are not without jurisdiction or the trial bad——not merely because of the immense waste of public time and money which would have taken place, but in the interests of those accused against whom I have found the charges not proved; for if the trial be had for misjoinder of persons or charges we are taken back to the stage at which the persons were committed by Mr. Birley and all would have to be tried again, for there having been no trial, there would have been no acquittal. If Mr. Birley’s commitment was without jurisdiction, we are thrown still further back to the stage when the Government sanction was given to complain. This case has lasted much longer than it ought to have either on account of its importance or the novelty of the charges. For this I think both sides are to blame. The prosecution introduced incidents and numerous documents which really had no bearing on the case. I understand that there had not been time to examine many of the documents, and perhaps it was necessary for purposes of expediency that the trial should begin without delay. On the other side the cross-examination was far more minute than was necessary, and would have been just as effective if reduced by one third. In a case of conspiracy with extensive ramifications one is bound to give counsel considerable latitude in this respect, and when one does it is a matter for regret that the Court’s confidence should be abused. The case has caused me considerable anxiety on account of its importance, its difficulty, and partly also on account of the circumstances in which it was launched. The tragic circumstances immediately preceding the searches and the nature of the materials found at those searches have inevitably created a feeling of prejudice in the minds of the public before whom one at least of the accused had for some time been a conspicuous figure. In the attempt to avoid prejudice I may have been led too far in the other direction and under-estimated the effect and value of certain facts, but if I have made this mistake, I have at any rate the consolation of knowing that the mistake is on the right side. The question of sentence has also caused me much anxiety. Only one of the accused whom I have found guilty is over 30 ; some of them are under 20. For many of them one cannot help being sorry, feeling as one does that they are young and impressionable, and that the persons who ought really to be in the dock are the persons responsible for filling them with the ideas which they entertain-persons who, whether they call themselves Moderates, or whether having the courage of their convictions they call them- selves Extremists. are alike in this that they constantly attribute to Government the worst possible motives and vilify its officers regardless of fair criticism ; such persons who hold public meetings in honour of, and exalt as a national hero, a boy who has been Page 183
whipped for assaulting the
police in the execution of their duty.
Those responsible fur this conspiracy did their work well : they realised that their best. chance was to get hold of the youth of the country and inflame them by appealing to their sense of religion and their sense of chivalry to this and they have prostituted the teaching of their sacred hooks and represented that under English rule the chastity of their mothers and sisters is not safe. No English worthy of the name will grudge the Indian the ideal of independence ; no Indian of decent feeling but will deprecate the methods sought to attain it. The danger of a conspiracy such as this lies not so much in its prospect of success as in its fruition. When once the poison has entered into the system it is impossible to say where it will break out or how far-reaching will be its effects. The offence under section 121 is the most serious in the Penal Code except that of murder by an life-convict; and the Criminal Procedure Code provides that where a. person is convicted of an offence for which the capital sentence is provided as u punishment, reasons must. be given if such a sentence is nut passed. Where a number of persons are associated in an offence for which u. capital sentence is provided, it is the practice of the Courts to differentiate as far as possible between them to avoid the necessity of passing an irrevocable sentence. Of the 11 persons whom I convict under section 121, there stand out conspicuously Baron, the leader, Ullaskar, the manufacturer of explosives, and Hem Chandra Damn, the other chemist, who is perhaps the most sinister figure in this conspiracy. It is in favour of Baren and Ullaskar that they made confessions : they my it was to save the innocent; and if that were really their object, they deserve full credit fur it. On the other hand, the case against them was so strong from their being found in the garden, of which Baren was part owner, that Baren at any rate had little hope of escape, confession or no confession. Certainly in his case the confession was not prom Led by any feeling of remorse: lie gloried in what he had done. And neither of them has disclosed the full extent of the conspiracy or the names of other associates, except those arrested with them. Not that this concealment indicates depravity, rather the contrary. In both cases the confessions were withdrawn, but for this their legal advisers are doubtless responsible, fur neither of them has denied the truth of his confession. At the same time neither has shown any contrition for the part he played, or for the persistent attempts to do away with a Lieutenant-Governor of whom the last thing that could be said was that he was unsympathetic. It may be that the Government which the accused have tried to overthrow will adopt n. merciful attitude Page 184 towards these misguided young men, but the Court has a painful duty to perform, to make it clear that attempts to overthrow the sovereign power cannot be made with impunity. I convict Barindra Kumar Ghose and UIlaskar Dutt under section 121 of waging war on the King and sentence them to be hanged by the neck till they are dead and to forfeit all their property. Hem Chandra Dass deserves little mercy, but in his case there is the fact that he was not in India, when the actual acts of war were committed. I think, therefore, I may stretch a point in his case, as in the case of Upendranath Banerji, Bibhuti Bhusan Roy, Hrishi Kesh Kanjilal, Birendra Chandra Sen, Sudhir Kumar Ghose, Indra Nath Nundi, Abinash Chandra Bhattacharji and Sailendra Nath Bose. I convict all these under section 121, Bibhuti of waging war, the rest of abetting in the waging of war, and sentence them to transportation for life and to forfeit all their property. It is unnecessary to pass any separate sentence under the other sections under which I convict these persons. Indu Bhusan Roy is just as had as any of the above—named persons: he actually took part in an attempt, though not on a British official. I convict him under sections 121A and 122, and sentence him to transportation for life and to forfeit all his property. In the case of the rest a distinction may be made, they not being guilty under section 12]. nor concerned in any actual attempt on life. I convict Paresh Chandra Maulik. Sishir Kumar Ghose, Nirapada Roy under sections 121A and 122, and sentence them to transportation for ten years and to forfeit all their property. But for their ages the sentence would be heavier. The other accused whom I convict are convicted only under section 121A. All are under 20, but the offence is serious. I sentence Asoke Chandra Nandi. Bal Krishna Hari Kane, and Sushil Kumar Sen to transportation for seven years. Krishna Jiban Sanyal, who, as I pointed out before, was trying to escape from the conspiracy, may be dealt with leniently on that account, and because of his age—he is only 16―1 sentence him to rigorous imprisonment for one year. I acquit the remaining accused and order them to be set at liberty. With regard to the boys who have escaped these very serious charges. I would express a hope that their parents or guardians will exercise a more effective control over them than they seem to have done in the past, and not allow them to mix themselves up with matters which they are not fitted to understand. In conclusion, I must thank Mr. Birley for his really excellent commitment order. I believe that practically without assistance Page 185 he disentangled the mass of important facts and documents to which he referred in his order from the chaotic state in which they then were, and produced e really first-class piece of work. The 6th May 1909. C. P. BEACHCROFT. Page 186 |