JUDGMENT
Lawrence Jenkins, C.J.
1. On the evening of November 25th last, at or about 7-30, two bombs were exploded in a lane off Harrison Road known as Mussalmanpara Lane. It resulted in the death of a Police officer, Ram Bhujan Singh, and in severe injuries to two other Police officers, Monoranjan Chuekerbutty and Someswar Dutt Panday, and also to a man named Harabilas Ghosal.
2. Of the two bombs one was thrown through the open street door into a room of the house No. 10-4-1, Mussalmanpara Lane, the other struck the front wall of the house to the west of that door. It is the prosecution’s case that both bombs were thrown by a party of three or more Bengali youths in furtherance of the common intention of all and that the accused Nogendra Nath Sen Gupta not only was of the party, but actually threw one of the bombs, might charges have accordingly been framed against the accused Nogendra Four impute to him that he himself threw’ a bomb, the other four impute to him’ that it he did not throw the bomb, still he was a member of the party that did and that this establishes his guilt. Objection was taken on behalf of the accused that even on the case made by the prosecution the charge in reliance on Section 34 of the Indian Penal Code could not be sustained. We, however, overruled the objection and have heard the case on the merits. The charges as drawn would seem to impute to the accused that he was the thrower of both bombs, for they charged him with having directly caused the injury both to Harabilas Ghosal and to the other three men, though it is fairly obvious that the injury to Harabilas was occasioned by the bomb that fell within the room and that to the other three by that which struck the wall. In the argument before us, the case made was that the accused threw the bomb that struck the wall or the second bomb as it has been termed. This view rests on the evidence of Someswar. He describes the man who threw the bomb as wearing an alwan and this is probable; but according to evidence on which reliance can safely be placed, the accused had no alwan that evening. Apart from this, we regard Someswar as a patently unreliable witness, as will later appear, and it would be absolutely wrong to base any conclusion on an identification purporting to be made by him. Beyond this, there is no evidence that could justify the conviction of the accused on the first, third, fifth or seventh charges.
3. It has then to be seen whether the bomb was thrown by a party of men and whether the accused was of that party. It is beyond question that two bombs were thrown and that there were two or more men of the party by whom they were thrown. The object of the attack was undoubtedly Basanta Kumar Chatterji, a Deputy Superintendent in the C.I.D, and the occupier of No. 10/4/1, Mussalmanpara Lane. Those by whom this dastardly attack has been made have been assumed to be members of a society described us anarchist. With the commendable fairness that has marked his conduct of this case, Sir Satyendra Sinba has stated that, apart from what is disclosed in these proceedings, the prosecution know nothing of the accused that would associate him with any anarchical movement. At the same time, we know that he is a student of the Presidency College residing in the Oxford Mission Hostel, and it is apparent that he is as far removed from the class of degenerates as a lad well can be.
4. Undoubtedly, the accused was in the immediate neighbourhood of the explosions; he admits as much, and the injuries he received point to the same conclusion. Could be, then, have been there consistently with his innocence? To ascertain this, it wan thought that the accused should be asked to give his explanation, and, notwithstanding an objection taken by Mr. James, we thought and still think that was the right course to follow. An innocent man cannot well injure himself by a truthful explanation, and it would be deplorable were we to hold that it was beyond the competence of the Court, when dealing with a case under Act XIV of 1908, to give an accused an opportunity of explaining the circumstances appearing against him. And there is high authority in favour of a similar view, for Sir Alfred Wills has recently cited with approval the opinion of the Court of Criminal Appeal that in the case of an innocent man the failure even to offer evidence is an unwise course (Wills on Circumstantial Evidence, page 102). The explanation in this case has certainly been of service to the accused, for, taken with the persecution’s admission as to the place at which the accused’s brother resided last November, it demonstrates that there was nothing impossible or even unreasonable in the accused’s presence in the lane. The fact, therefore, that the accused was injured in the lane, though calculated to arouse suspicion if unexplained, cannot be regarded in itself as incompatible with his innocence. This was recognised in the argument before us, and so the prosecution rely on other facts as inculpatory of the accused, and with these we will now deal.
5. The first suggestion was that the accused was at the Alipore Magistrate’s Court on the 24th of November in circumstances which were suggestive of a design against Deputy Superintendent Basanta Kumar Chatterji, either immediate or prospective. Norendro Nath Mukerji, differing in this from Basanta, purports to identify the accused. We were far from being satisfied with this evidence, and the testimony of Mr. Holmes of the Oxford Mission amply justified our doubt. Mr. Holmes spoke with caution, but his testimony is, in that account, entitled to the greater weight. And we would here remark that it was certainly right of the prosecution to call Mr. Holmes, for the duty of Counsel for the ‘Crown is not to secure a conviction but to assist the Court in arriving at the truth. We are satisfied that this attempt to create a prejudice against the accused has no foundation in fact.
6. Next, there is the evidence of Monoraujan and Someswar. That they were present is beyond doubt, but an essential part of the story each has told is manifestly untrue. Monoranjan’s testimony would place him in a part of the lane not far from the dustbin, and it is in reference to that position that lie describes the incidents and individuals’ he professes to have observed, lie would place, the party of bomb-throwers nearer the actual explosions than he himself stood. And yet we find that while lie is most seriously injured, they–if the accused he excluded–apparently escaped untouched. Nor is this all, for the evidence, furnished by the scene itself after the explosions, affords cogent proof that Monoranjan was, at the time of the explosions, not near the dust-bin, but close to the lamp-post, standing’ at the corner to the east of the street door. It is our belief that this misdescription was deliberate and was an endeavour to improve the case by supporting the story that Someswar has since placed before the Court. If regard be had to probabilities, then we agree with the argument that to secure escape from injury and capture, the most favourable position for throwing the bombs would be slightly to the north of the dustbin, and this would be naturally followed by flight towards the east. The prosecution evidence shows that two youths did actually take that course. The traces of preparations for the attack also support this view. Someswar swears that he pursued three men, the number that Monoranjan had described as passing to his right. He has detailed his pursuit of these men along Mussalmanpara Lane to Harrison Road, and from that point the pursuit of one of them along the pathway towards Akhil Mistry’s Lane, till his chase was cut short by his stumbling over a stone and falling on his hands, thereby, as he says, causing a state of unconsciousness from which he recovered after a short but appreciable measure of time. Then he returned to 10/4/1, Mussalmanpara Lane. This story is palpably untrue. Sheik Hingoo, who appeared to us to be a truthful witness, gives a narrative of events which absolutely negatives Someswar’s version and shows that” Somes war cannot have been in pursuit and that three men cannot have been in flight; in fact, the only man seen was walking, not running. Nor is this all, for the evidence of Satish Uhander Sanerji, another witness who impressed us favourably, is inconsistent with the idea that Someswar ever left 10/4/1, Slussalmanpara Lane. Someswar was un-doubtedly so affected by the shock of the explosion as to be in a state of great and unbalanced excitement, and his story may represent what he would have wished to have done, but certainly not what he did. We are convinced that there is no foundation in fact for the pursuit or any of its incidents.
7. Then we come to the story of Sarafat, If true, it would be a most important link in the evidence against the accused and almost conclusive of his guilt. Hut we do not hesitate to pronounce this story false, and, indeed, Sir Satyendra Sinha on behalf of the Crown did not even refer to it in his reply. Our view rests not merely on an appreciation of the evidence as given before us, which left no room for doubt as to its worth lessness, but’ also on our personal observations on the spot, which convinced us that the story told by this witness was in its most important details an absolute impossibility. We would here desire to explain that we visited the locality, at the urgent request of both parties who felt, and we now think rightly, that this was almost necessary to a correct understanding of the case.
8. The next step in the case is that the accused was found in the narrow part of Akhil Mistry’s Lane which runs east and west. This undoubtedly is true; but so far as it goes, it bears out his story that he was on his way to his brother’s mess, for it is not disputed, and is, indeed, apparent, that this was on the road there from Mussalmanpara Lane. Nor is it without its relevance that while lying there, heat once gave his brother’s name and address and begged that information might be given to him. This fact is an answer to the suggestion that the accussed endeavoured to conceal his identity by withholding his name. It is at least as reasonable to refer his silence to the state of collapse in which he obviously was. Sudhir’s suggestion that the accused wore his dhoti in malkocha fashion may he dismissed, as he himself conceded in cross-examination that he was unable to support it on oath, and it is a circumstance to which no other witness speaks. The next move was to the hospital, and it is here that Suhodh, a C.I.L. officer, attributes to the accused two remarkable and unintelligible replies. He says that the accused, when asked his name, replied My name is name and when asked by a European, whether he was a Policeman answered, J. am not a Police but a man.” Not only is the medical evidence of the accused’s condition strongly opposed to the probability of tin’s being true, but there is no confirmation, by any European or by any Bengali doctor, of those answers. On the contrary, the evidence of those called negatives it. Mention may here be made of an incident on which Mr. James has laid much stress, the discovery of the exploded. Mauser cartridge, lie evidently regarded it as a fabricated discovery designed to prejudice his client. We do not share this view; we see no reason to distrust Mr. Low-man’s evidence on the point; and in fact no use of the discovery has been made to the accused’s prejudice.
9. This brings us to the endeavour to show that the accused, when found in Akhil Mistry’s Lane, was in possession of a revolver. Sir Satyendra did not exaggerate the importance of this alleged incident when he declared that if it was not established, then he could not ask for a conviction. From what has already been said, it is apparent that there has been an endeavour to import into the case several matters that may well occasion anxious doubt as to the preparation of the evidence by which it was sought to fasten guilt on the accused.
10. But, in dealing with this revolver incident, we have endeavoured to estimate its worth on its own independent merits. Does, then, the evidence establish, with the degree of assurance that any prudent man would require, the accused’s possession of the revolver produced before us in Court? For, if it does, than it goes far to show that the accused is guilty and has merited the law’s extreme penality. We have the lad’s positive statement that he had not the revolver, and this the law ordains we may take into consideration. On the suggestion of its later importation, he does not throw any light, nor could he in the collapsed condition in which he was, for he was practically dead to all around him.
11. The witnesses who speak to the “shining thing,” or the revolver which we are invited to regard as its equivalent, are many. There it, however, displayed throughout this evidence an anxiety to make it appear that the shining thing” was observed before the Police came on the scene. This anxiety appears to us to cast a needless slur, for if a discovery by the Police squared with the facts we certainly should not on that account regard it as unworthy of acceptance. But the difficulty we feel in connection with this part of the case is that we final ourselves confronted with stories so difficult to reconcile with each other or to fit in with ordinary probabilities that after serious consideration, we unhesitatingly come to the conclusion that we must regard this part of the case with great distrust. In dealing with it, we have been materially assisted by Mr. James, who, with his junior, Mr. Palit, has obviously made a most searching inquiry into all that relates to this alleged discovery of the pistol, and has spared no effort to master ail understand all the details of the problem with which he had to deal. Unless something has been kept back, the constables Nawrang and Paltoo, two most important witnesses, should, according to their evidence, have been at’ the spot where the accused was lying in Akhil Mistry’s Lane not later than 7-45; and yet the case presented for our acceptance by the prosecution, and apparently as an essential feature of the case, is that their arrival at the west end of the lane was absolutely synchronous with the arrival of Sub-Inspector Belcher and Head Constable Mohangoo Misser at its. eastern end. But Sub-Inspector Belcher cannot have reached the lane before 8-20, that is 35 minutes later than the time at which the two constables, on their own evidence, ought to have arrived. We should have attributed little importance to this, if it could fairly have been ascribed to a mistaken estimate of time. But it is nothing of the kind; and having followed the case day by day as it was unfolded before us, we feel that this is not the true explanation of the remarkable discrepancy which resulted in the equally remarkable coincidence of simultaneous arrival. We cannot resist the conclusion that there has not been a complete disclosure of all that occurred, and that something has been withheld from our knowledge.
12. Then, again, the evidence of Sarat and Sudhir, two other witnesses of importance, so far from clearing up matters, rather tends to increase the perplexities of the case. Both of them agree in this that they will not pledge themselves to more than a shining thing,” and curiously enough they were neither of them shown the revolver with a view to identifying it in appearance with what they profess to have serin, Sarat before us has deposed to the presence of a constable before the arrival of Belcher, and describes him as handling the pistol. At the same time, he does not identify him as either Nawrang or Paltoo, and in this he probably is right, as the man of whom he speaks did not wear a pugri: This man, obviously a most important witness if Sarat spoke the truth, has not been called, and it seems to be the prosecution’s case that they do not know of any such constable as Sarat describes. Mr, Belcher declared that when he arrived, he saw the pistol and took possession of it. We do not say that it may not have been so, but when we bear in mind Belcher’s evidence of its spotless condition and its freedom from all trace of blood or mud or water, we find it difficult to reconcile this with what must have been the condition of the lane and of the accused. It would seem to be the prosecution theory that the revolver was carried in the accused’s hand; but if in his right hand, one would have expected traces of blood, having regard to the injuries and the profusion of blood on that side; if on the left hand, equally would one expect traces of blood, from the wound in the palm of that hand, for it was sufficiently severe to be dressed and sutured at the hospital. It is difficult to speculate as to whether it may not have been in the accused’s coat pocket, for, so far is this from being the case for the prosecution, that the coat has not even been put in evidence before us, and we do not know what pockets (if any) there were in it. The reason for this doubtless was that the prosecution felt that it was impossible to square the prosecution evidence as to the position of the revolver with any other theory than that it was in the accused’s hands.
13. We have dealt with some of the difficulties in the way of the difficulties in the way of accepting that view. But there is yet author circumstance to be noticed, and that is that Sheik Hingu, who certainly might have been expected to see a revovler in the accused’s hand, did not observe one, nor was it observed by Monoranjan or Someswar or, as far as we know, by any one else. Then, again, if the pistol was really in the accused’s hand, we and it difficult to account for the several positions from time to time attributed it, or how it was not visible from the first.
14. The whole story of the revolver is surrounded by difficulties and is enveloped in mystery, and observing that standard of care which the positive enactment of the law imposes on us, we hold it not to be established that the accused was in possession of the revolver. But if possession of the revolver is not brought home to the accused, there clearly is not evidence on which we can hold his guilt proved, and this Sir Satyendra himself declared.
15. We desire to make it clear that in our judgment we do not merely give the accused the benefit of the doubt, but after considering the matters before us, we decline to hold that he is shown to be guilty, or that his guilt is so probable that a prudent man ought under the circumstances of this case to act upon the supposition that he is guilty. That is the test prescribed by law, and it is amply satisfied in the accused’s favour in the circumstances of this case.
16. The Court accordingly acquits the accused of the several charges brought against him and directs that he be set at liberty.
Mookerjee, J.
17. I am in full agreement with the views set out in the judgment of the Court, which has just been read out by the Chief Justice and to which I am a party. I desire only to emphasise that, after anxious consideration of every element in the case as it was developed before us from day to day, I am strongly convinced of the absolute innocence of the accused. My deliberate conclusion is that the endeavour made to establish a connection between this innocent lad and a dastardly crime, by means of evidence tainted in a large measure by manifest untruths and manufactured incidents, hag been completely unsuccessful.
Holmwood, J.
18. I am in entire agreement with the judgment of the Court to which I am a party, and I only wish to add that I am convinced of the absolute innocence of the accused. He was the victim of an unfortunate train of circumstances which made the case at first appear very black against him; but the assiduity of those whose duty it was to investigate the facts, in endeavouring to clabbered and clench those circumstances, has served the purpose of clearly demonstrating to my mind that he can have had no hand in the diabolical crime with which he was charged.
