The Alipore Bomb Trial

SEVENTH DAY’S PROCEEDINGS

Mr. Das continuing his speech said that on Saturday he was dealing with the evidence of Narendra Nath Mullick and their Lordships would remember that with reference to the cross-examination of the garden watch witnesses he mentioned three dates, namely, 17^th , 24^th and 25^th . With regard to the first two days he stated that Sarat Chandra Palit was with him in Dooni Lal Seal’s garden, but Sarat Chandra Palit did not support him. On the 25^th , Narendra said, Chandi Charan was with him, but the latter did not mention anything about it. With regard to No. 4, Harrison Road counsel had pointed out to their lordships that Narendra was not supported by anything. Mr. Das then went on to deal with the evidence as regards 23 Scott’s Lane. Narendra said that on the 18^th he followed Abinash from 23, Scott's Lane to the garden, but on the evidence of two witnesses it was clear that on the date Abinash was not in Calcutta, but went to Giridhi. Narendra further stated that on the 18^th he saw Aurobindo Ghose, but as a matter of fact on that day Aurobindo was at Mymensingh.

     The Chief Justice: I understand that your argument is confined to this witness’ statement as to whom he saw Aurobindo or Abinash at 23, Scott’s Lane ?

     Mr. Das : Yes, my lord.

     Counsel then drew the attention of their Lordships to the passage in the judgment where the Sessions Judge said that Mr. Das did not sufficiently cross-examine the witness.

      The Chief Justice: I understand your point is this: The learned Judge has imputed to you that you have not carried out

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your duty as counsel in the case. He has said that it is not sufficient in cross-examination to create a doubt and that you should have removed the doubt. You ask us as to whether that criticism on your conduct is right. That is the whole thing ?

     Mr. Das: Yes. If that is so we ought to know that and we will try to do our duty accordingly.

     The Chief Justice said that those questions ought to have been put by those who called those witnesses. It was not Mr. Das's business.

     Mr. Justice Carnduff thought that that portion of the Sessions Judge's judgment might mean that if Mr. Das had gone on he might have been able to throw out the doubts.

     Mr. Das : I take a different view of that.

     Carnduff, J : It is not for you to remove the doubt. It is obvious. I do not think that the Sessions Judge possibly meant to say that it is your duty to remove the doubt. We cannot imagine that.

     Mr. Das: It is difficult to imagine that. The observation which was made to me was stronger. However, this is rather a personnel matter and I do not wish to take up more of your Lordships’ time.

     Continuing Mr. Das said that the evidence of  Norendra Nath Mullick was open to doubt and Mr. Das took it that in a criminal case their Lordships could not accept that evidence. Counsel made that observation before the Sessions Judge and the latter said " Why should I assume that the man was not telling the truth ?” The learned Judge ought not to have forgotten that he was to assume the innocence of the accused persons till their offence was conclusively established and therefore it was the duty of the Sessions Judge to consider each piece of evidence with great deal of circumspection so that if there was any doubt with regard to that that ought to have been rejected.

     Counsel then read the evidence of two more watch witnesses, namely Balai Ganguli and Sarat Palit. While on this subject Counsel read a portion from the judgment of the Sessions Judge where he says: "In connection with Abinash’s alibi Girija was asked to look into a copy of the Bengalee. He was given it and then Mr. Das asked him to refresh his memory and fix the date. He looked at the paper and fixed the date. He, however, said later that he could fix the date wholly apart from the paper and there was no necessity to look at the pager. I look upon this as an improper attempt on the part of Mr. Das to get on the records the contents of a document which he refused to put in and prejudicing the assessors on the spurious authority of a newspaper article.” Mr. Das then said that the Sessions Judge had imputed

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professional impropriety to Mr. Das for not putting that paper in. Mr. Norton asked Mr. Das to put that in, but he refused as Mr. Norton insisted to have a right of reply on that.

     The Chief Justice: Do you contradict that Mr. Norton ?

     Mr. Norton : I do not remember. Probably is is true.

     Mr. Das: How can I be guilty of any impropriety ?

     The Chief Justice : We do not think that you are guilty of any impropriety.

     Continuing Mr. Das said that at the end of the evidence of Sarat Chandra Palit their Lordships would find that the evidence of this witness before the committing Magistrate was tendered by the prosecution at the Sessions Court. Though the defence raised an objection the evidence was admitted. Counsel submitted the evidence had been improperly admitted because Mr. Birley refused the cross- examination. In support of his contention Counsel cited a case reported in 21 Calcutta 642.

     The Chief Justice : He refused ?

     Mr. Das: Yes.

     Carnduff, J : He relied on a decision of this Court.

     Mr. Das: He relied on an unreported case of the Bombay High Court which was placed before your Lordships in another case and your Lordships accepted it, but this case was dissented from in a later case.

     Mr. Das then referred to a petition which the accused persons submitted before Mr. Birley stating their grievances, and which was rejected by him.

     Continuing Mr. Das said that the whole of the evidence, as regards the watch witnesses. was an attempt afterwards to give in the shape of evidence what they come to know from the confessions and from the informer. About certain things and certain facts there were no doubt. After the Naraingarh train wrecking case apparently the police thought that the clue would be found in Calcutta. They further had it that the police got the information of the location of the secret society in the garden in March. Another thing was clear that the occurrence was by the use of mine and in connection with that they were looking out for Barin and they found him for the first time in Calcutta on the 8^th April. Then on the 20^th March instructions were given to shadow Hem Das. Then on the 20^th April was the Mankundu incident. The police followed the accused to Mankundu knowing one man to be Barin and suspecting they were going for an unlawful purpose. But some how or other they lost sight of Barin. But the police knew at that time that Barin was living in the garden and they strongly suspected that they were going to do something in

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connection with the secret society. On the 13^th April the Police came to hear of the Chandernagore outrage. If the evidence was true would they have any doubt that it was Barin's party who was responsible for all that? It was unusual to suppose that with so much information the Police did not take any step.

     The Chief Justice: Is it your suggestion that they had not got the knowledge ?

     Mr. Das: My suggestion is that on their own evidence it appears that their evidence is not true.

     Continuing Mr. Das said that on the 20^th April they got information that the Society would attempt on the life of Mr. Kingsford but even then they did not take any step. If those were facts applications would have been made before the Presidency Magistrate for a warrant but nothing was done.

     Continuing Mr. Das said on the 4^th of November the defence put in a petition asking for the production of police diaries. Mr. Denham objected to the production of such diaries as containing information prejudicial to public interest. The Sessions Judge held that the accused were not entitled to see the diaries. Counsel asked if the police were privileged to withhold such documents. Counsel read sections 123, 124 and 125 of the Evidence Act which had bearing on such privilege and said there could be privilege as regards matters which had not been disclosed in Court. He asked why the defence was not entitled to inspect the diaries as regards the doings of the search and watch witnesses. Purno Chunder Biswas said that he got the dates by heart because it was an important enquiry.

     Chief Justice ;—It is not clear whether he got them to heart from the diaries.

     Mr. Das :——It is so.

     Counsel then read a passage from the judgment of the Sessions Judge referring to this and said the plea of privilege was a cloak for not producing them in court. There was no question of privilege they could have easily covered the privileged portions and produced the rest of the diaries. It was unfair on the defence to make a reference to the diaries without producing them.

     Counsel submitted that if they had been going from one house to another and to the garden how was it that they could not produce any other witness except the police witnesses ?

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