The Alipore Bomb Trial

THE JUDGMENT

On the 6^th May 1909 the following order was passed :

Judgment delivered. Accused Birendra Kumar Ghose and Ullaskar Dutt are sentenced to death under sec. 121, 122 A, and 122 I. P. C. and they are informed that if they wish to appeal

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they must do so within one week. Accused Hem Chandra Das, Upendra Nath Banerjea, Bibhuti Bhusan Sarkar, Hrishikesh Kanjilal, Birendra Chandra Sen, Sudhir Kumar Ghose, Indranath Nandy, Abinash Ch. Bhattacharya, Sailendra Nath Bose are sentenced to transportation for life under Sec 121, 121 A, and 122 I P C. Accused Indra Bhusan Roy is sentenced to transportation for life under sections 121A and 122 I. P. C. Accused Paresh Ch. Moulik, Sishir Kumar Ghose, Nirapado Roy are sentenced to transportation for 10 years under sec. 121A and 122. The properties of all the accused will be forfeited to Government. Asoke Chandra Nandy, Balkrishna Hari Kane, Sushil Kumar Sen are sentenced to transportation for 7 years. Krishna Jibon Sanyal is sentenced to one year's rigorous imprisonment under sec. 121A. The rest of the accused are acquitted and to be set at liberty. Send the record to the High Court for confirmation of the sentence of death.

The following are portions of the text of the Judgment delivered :―

JUDGMENT

May 6th, 1909.

The accused are charged under sections 121, 121A, 122 and 123, 1. P. C. The facts of the case are as follows :―In October 1907 information came to the police of the existence of a secret society. This was reported to the Director of Criminal Intelligence, India. It does not appear that anything further was ascertained till early in December an attempt was made to wreck the Lieutenant­Governor's train at Naraingarh on the Bengal-Nagpur Railway. Special officers were deputed to investigate and some information was obtained at the end of January or beginning of February 1908, in connection with the secret society. As a result certain places in Calcutta were watched and a look-out was kept for the first accused, Barendra Kumar Ghose. One of the places watched was No. 32 Muraripukur Road in the suburbs of Calcutta. This place, which is spoken of as the garden throughout the evidence in this case, consists of a rather large piece of ground with a small building in the centre.

In the middle of March a number of men were seen in this garden and shortly after more police officers were placed on special duty to watch suspected persons. Early in April the accused Barendra was followed from a house, No. 38-4 Raja Nabs. Krishna's Street, in which the accused Hem Chandra Das was living, to the garden, and two days later, viz., on 10^th April Barendra and two other men were followed from the garden to No. 38-4, and thence to Howrah and to Mankundu by train. Mankundu is the next station to Chandernagar. The three men

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followed by the police, who eventually lost sight of all of them, one who is said to have been Barendra, being followed to the house of one Hari Neogi there, from which he was not again seen to come out. On the night of the 11^th an attempt, with a bomb, was made on the life of the Mayor of Chandernagar, the reason suggested being that shortly before he had prohibited the holding of a political meeting in Chandernagar, a meeting which attempted to assemble but was dispersed.

On the morning of the 11^th two of the three men were followed to a house in Serampore, one of the two being Narendra Nath Gossain, who was later arrested in connection with this case, offered a pardon, made King's evidence and finally murdered in Alipur Jail. '"

On the 20^th April two men who were followed from the garden to Circular Road were seen to meet two men there, who were taken to be Madrasis. 'T'he two latter were subsequently followed to a house, No.15 Gopi Mohan Dutt's Lane, which, the evidence shows, had been hired on the previous day by one of the accused Nirapada.

On the 21^st April two men were seen to take a cart to No, 38-4 Raja Naba Krishna's Street. It was there loaded with various things, among other things some tin boxes, and then driven to No. 15 Gopi Mohon Dutt's Lane, where it was unloaded.

A watch was then set on No. 15, and to facilitate the watch the police hired a room in a house almost exactly opposite to No. 15.

On the 26^th April a hackney carriage was brought to No. 15, loaded there with two tin boxes, and driven to No. 134 Harrison Road where it was unloaded. One of the accused, Ullaskar, is said to have been in the hackney carriage with a canvas bag, similar to one brought from No. 38-4, while another of the ac­cused was on the dickey-box.

Besides these main incidents, there is a considerable amount of evidence as to the movements of various persons, some identified, some not, between the places already mentioned and 23 Scott's Lane, 4 Harrison Road, 30.2 Harrison Road, and 48 Grey Street. This evidence will be more fully referred to later. .

On the evening of the 30^th April 1908, a bomb, supposed to have been intended for Mr. Kingsford, the District Judge of Muzafferpur, was thrown at a carriage just outside Mr. Kings. Ford's gate, and the explosion killed Mrs. and Miss Kennedy who were in the carriage.

On the night of the 1^st May arrangements were made to search various places in Calcutta and the searches were carried out about dawn on the 2^nd May. The places searched were the garden, 15

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Gopi Mohan Dutt's Lane, 38-4 Raja Naha Krishna's Street, Nos. 4, 30-2 and 134 Harrison Road, and 48 Grey Street.

At the garden the first 14 accused were found and arrested, 13 being caught in the verandah and one, Upendra Nath Banerji, as he emerged from the small room in the building. The building consists of a. large room or hall, a small room at one end of this large room, a verandah in front shown in exhibit 51, where the 13 accused were arrested, and a verandah at the back running along one side of the building. The photograph of the building, put in evidence, gives rather a false impression, making the build­ing seem larger than it actually is.

[After describing the various searches and the things found the Judge continued ]-The Magistrate took up the enquiry on the 19^th May. The enquiry continued till the 19^th August when 30 out of the 34 accused were committed to this Court. The Magistrate did not at first commit the accused Barendra Kumar Ghose for trial with the other accused, but committed him on a separate charge for abetment of murder. Subsequently, in consequence of an order passed by the High Court, he committed him on the same charges as the rest. During the enquiry ten other persons were from time to time arrested. The formed what is spoken of as the second batch. Of these ten, seven were com­mitted. for trial. The enquiry against one of the ten, Satyendra Nath Bose was not proceeded with, as during the course of the enquiry he was tried and sentenced along with Kanai Lall Dutt, ,who had been committed for trial in the first batch of accused, for the murder of the approver, Narendra Nath Gossain, in jail These two men were subsequently executed. Of the seven men committed for trial in the second hatch, one, Charu Chandra Ray, claimed to be a French subject. The charge against him was withdrawn under orders of Government and he was acquitted under section 494, Criminal Procedure Code. There are thus 36 accused before me. The hearing of the case began on the 19^th October and the evidence was not concluded till the 4^th March. At. the opening of the case a number of technical objections were taken by the various defence counsel. These were all dealt with in orders that appear either in the order sheet or on the petitions themselves.

The prosecution seeks to establish association of the accused for the purposes of a conspiracy to wage war against the King at the various places which I have already mentioned, as well as at other places; to prove the connection of the accused with one another and with the conspiracy by letters and documents found at searches of these places or the houses of the accused; and it seeks to show that for the purpose of disseminating revolu­tionary ideas among the people of India, missionaries were sent out to preach and newspapers started. The particular newspapers referred to are the Yugantar, the Sandhya, the Navasakti and the

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Bande Mataram. It is further sought to establish the fact that a company was started, called the Chattra Bhandar Limited, which under the guise of a general trading company devoted itself chiefly to the circulation of seditious literature in which it was assisted by various agencies in different parts of the country.

For the purpose of showing the association of places, it will be as well to set out here certain specific instances of cases where the accused and others were followed by the police officers who were shadowing them.

[The learned Judge then dealt at great length-with the evidence of the shadowing witnesses. He continued]―The connection between the garden, No. 15 and No. 134, being thus established, the question arises with what object were these arms and ammunitions collected and the explosives manufactured. We find the answer to this in Baren's confession.

Mr. Bonnerji argues that as the confession has been retracted it is no evidence against Baren and Mr. Dass argues that it cannot in any case be evidence against the other accused. He also contends that it is inadmissible in evidence. On the latter point his argument is that as the confession was made on the 4^th May and Mr. Birley had written to the Commissioner of Police on the previous day to the effect that he would take up the case himself, therefore it was taken in the course of the enquiry and section 164, Criminal Procedure Code is not applicable, and that section 364 read with section 342 is not applicable because at that time no evidence had been taken which the accused could be called upon to explain. Assuming for the sake of argument that the enquiry was commenced on the 3^rd May the argument if correct leads us to this position, that a confession cannot be recorded at any time between the time when the Magistrate says he will try the case till he actually begins recording evidence. There are many circumstances in which an accused might desire to make a confession between those dates, and I cannot conceive that the law ever intended to lay down that in such cases an accused shall be debarred from making a confession. It is true there is no section In the Criminal Procedure Code which provides specifically for the taking of a confession at that stage. But supposing there was no such section as section 342, which is merely an enabling section enacted for the benefit of the accused, the result would be that a confession would be absolutely barred after a Magistrate had passed an order in a case, whatever the nature of the order, until the accused was called on to plead and then he would merely say whether he was 'guilty' or 'not guilty.' This could never have been intended by the legislature, and it is to my mind clear that such statements could be received in evidence as statements made by an accused, in the same way in which they would be receivable if made to a person other than a Magistrate.

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Mr. Dass contends that they cannot be admitted as such and relies on the case reported in 2 C. W. N., P 702. But there is a radical difference between that case and this. In that case the­ confession could have been, taken under section 164, but the provisions of that section were totally disregarded and the decision really amounted to this, that when the provisions of section 164 are disregarded so as to make a confession, which could be taken under that section, inadmissible, the statement cannot. be brought in merely as a statement under section 21 of the Evidence Act. Here the case is entirely different. On Mr. Dass's own argument section 164 is not applicable, consequently the case referred to has no bearing whatever on the facts of this case.

I am not prepared to assent to the contention that any order, as for instance an order remanding an accused to hajat on arrest, is to be taken as the commencement of the enquiry, but taking the point of view most favourable to the accused, I have pointed out that the statement―and the same argument applies to the confessions of other accused besides Baren's―is admissible in evidence. Other considerations apply to the confessions of Birendra Nath Ghose and Krishna Jihan Sanyal, which will be dealt with at the proper time.

It is also argued that the confession of Baren is not admissible in evidence as not being voluntarily made. Mr. Birley, who is an experienced and careful Magistrate, has stated with regard to this confession, as well as the others, that he was satisfied that they were voluntary. He took every means possible to ascertain that they were. He warned the accused persons in every case that the statement might be used as evidence against him, he put questions to ascertain whether the accused were speaking voluntarily. No doubt it may be said that if an accused has been induced to make a confession he will be instructed as to what answers to give to such questions. But the accused are not of the ordinary illiterate type of accused from whom confessions are often easily obtained. It is possible that some of the younger among the accused might be deceived, but the natural effect of such questions by the Magistrate would be to put the older accused on their guard.

It is pointed out that when Baren wrote out a statement for the police he had been in custody from the Saturday morning till the Sunday night, when the statement was written. On the other hand we have the fact that immediately after his arrest he had pointed out to the police at the garden, spots in the garden where the incriminating articles were found buried, and when he had himself pointed out these things, there is nothing extraordinary in his afterwards making a statement explaining' the circumstances how they came to be there. And at the end of his statement he expressly asked the Magistrate to take down the reason for his disclosures. He says that his party was divided as to the propriety

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of making the disclosures, but he persuaded them to give statements to Inspector Ram Sadai Mukerji, the reason being that, because the band was discovered it was best not to do more work in the country and to save the innocent, and this very statement shows. that at any rate the ordinary motive for a confession, to save one's skin at the expense of others, was entirely absent.

Mr. Bonnerji's case is that it was prompted by his desire to save the innocent on the inducement of Ram Sadai that that would be best for them. Now strictly speaking, such an inducement would not make a confession inadmissible by reason of the terms of section 24 of the Evidence Act. That section applies to the case of a confession "caused by inducement having reference to the charge against the 'accused' person, sufficient to give him grounds for supposing that he would gain any advantage or avoid any evil of a 'temporal' nature in reference to the proceedings against him." In other words, it applies to the case of an accused who expects that he will himself gain something by confessing, but it does not apply to the case where he expects that he will get an advantage for some one else by confessing. A confession made simply from the desire to save the innocent, is not inadmissible within the terms of section 24. If made on an inducement, such a confession might be open to the criticism that it was not true, but it cannot be said to be inadmissible.

I do not, however, desire. to base my decision on this technical ground, for I have no doubt whatever that the confession was quite voluntary. Made on the 4^th May it was not retracted till the trial began in this Court on the 19^th October, in spite of the fact that in the Magistrate's Court he had legal advice and that on the 13^th August the Magistrate expressly invited him to affirm or deny the confession.

As I have been discussing section 24 I may hero dispose of another argument of Mr. Bonnerji's, which was that other confes­sions were inadmissible because they had been made under Baren's inducement, Such an inducement does not, of course, come within the meaning of section 24.

[The learned Judge then discussed at length the confession of Barindra and the evidence in corroboration of it ]―Can it be supposed that the collection of arms and ammunition and the manufacturing of explosives was merely for the purpose of a few isolated assassinations Mr. Bonnerji argues that it was considered that there was a grievance against the Lieutenant­Governor on account of the Partition and against Mr. Kingsford for ordering Sushil to be whipped, that the action taken against these officials was purely personal and that these acts cannot be taken as overt acts betokening an intention to wage war, and he refers to Baren's statement that they never thought that political murder would bring independence. But what is the basis of

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Baren's action? We have it from himself that it is the idea of independence. He found that a purely political propaganda would not stir up the country, so he appealed to religion, the most dangerous factor of all, especially in the case of an oriental people, when used to obtain political ends. And to further his views he starts the Yugantar paper. And a reference to some of the articles in that paper will at once dispel any idea that the object was anything but revolution. I shall, however, first refer to some of the things found in the garden as disclosing the aims of the society. First and foremost is the work on explosives to which I have already referred, the object of which was to place in the hands of a revolutionary people a knowledge of explosives." Two complete copies of this and four incomplete copies were found in the garden, suggesting that this knowledge was not to be limited to a few people.

[The learned Judge then dealt with the findings at various places by the searches and referred to the writings of the various vernacular newspapers.]

The passages which I have quoted from the Yugantar exhibit a burning hatred of the British race, they breathe revolution in every line, they point out how revolution is to be effected; no calumny and no artifice is left out, which is likely to instil the people of the country with the same idea or to catch the impression­able minds of youth and, wherever we can reasonably expect to do so, we :find indications of the methods advocated by the paper, in the garden. In the face of the evidence, I do not see how any, reasonable man can doubt the connection between the two.

We have then the connection of 15, Gopi Mohan Dutta's Lane, 134, Harrison Road, and the garden established. We have further Baren's explanation of the collection of arms and ammunition, that it was in the anticipation of a far off revolution. We have his description of his attempts to rouse the people of India, and his starting the Yugantar for the purpose. We have corroboration of his connection with the Yugantar, and indication in the garden of attempts to carry out the teachings of that paper. What was advocated in the Yugantar can be gathered from the passages quoted, there can be only one opinion as to what it was, viz., to forcibly expel the British from India, in other words to wage war on the King and deprive him of the Sovereignty of British India. The persons then who were members of that conspiracy are guilty under section 121A. Before considering whether the accused persons were or were not members of that conspiracy, it

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will be best to deal with some general considerations and aspects of the case, and incidentally to deal with some of the objections as to admissibility of evidence that have been raised.

To put it shortly, practically every document has been objected to, which is not shown to be in the writing of some one or other of the accused. Some of the documents put in were found in possession of the accused, some were found in possession of persons alleged to be members of the conspiracy, some were found at places alleged to be places where the members of the conspiracy used to meet or to which letters addressed to them used to be sent in connection with the conspiracy, some were found at the offices of newspapers and at the Chattra Bhandar Office, which it is alleged were organisations for the purpose of carrying out the conspiracy. As to the admissibility of documents found in the possession of all accused, there can be no question. The fact of any particular document being in his possession is a relevant fact, the value of it is another question. The objection appears to me to confound the question of admissibility and value.

Documents found in the possession of persons, not undergoing trial, but who are members of the conspiracy, mayor may not be admissible according to circumstances. If they are written by any person as to whom there is reasonable ground-for believing that he was a member of the conspiracy, they are admissible against accused under section 10 of the Evidence Act, if in reference to the common intention of the conspirators. A document found in the possession of a person believed to be a conspirator might be admissible in the first instance for showing that that person was a conspirator, though the statements contained in it might not be admissible to prove the accused were conspirators, if not written by a believed conspirator.

Documents found at a place used as a receiving place by the conspirators might or might not be admissible according to circumstances. For instance, the owner of the house might be a perfectly innocent agent. In such a case, all documents found in his possession would not be admissible. But if they had reference to the conspiracy, they would be admissible, the possession of the agent being the possession of the principal. If they had no reference to the conspiracy, they would be useless as evidence.

The same principle applies to documents found at the offices of newspapers. If it is shown that the newspaper was an organisation for the purpose of carrying on the conspiracy, documents having reference to the conspiracy would be evidence to show that the accused were parties to the conspiracy. Some documents might be evidence only to show the connection of the paper with the conspiracy, some might be altogether useless.

From the very nature of the provision of section 10 of the

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Evidence Act it is impossible to say at the time of filing a document whether it can eventually be used as evidence or not. For instance, a witness may speak of various facts and searches, and owing to the obvious disadvantage of recalling a witness again and again, documents have to be made exhibits, subject to their admissibility being established in the course of the case. Consequently it may be that documents put in anticipation that it will be proved that a particular person is a conspirator cannot be acted upon, because the prosecution has not shown that such a person is a conspirator. It may, however, be taken that the principles, which I have set out above, govern my consideration of the documentary evidence in this case.

It is argued. that under section 10 a person has to be proved to be a conspirator before an act, saying or writing of his can be taken as evidence against the accused. That is not correct. All that is required is that there should be reasonable grounds for believing him to be a conspirator; if the contrary view were correct, the concluding words of the section would be useless. But, no doubt, to use the acts, sayings or writings of one person against another, there must be some evidence that he is a conspirator. What is required is (1) some reasonable ground for believing there was a conspiracy; (2) some reasonable ground for believing a. person was a party to it; and then the acts, writings and sayings of any such person may be used against any other such person.

A point of danger in connection with section 10 is that of arguing in a circle. Thus five persons are charged with being members of a conspiracy, each one is suspected, therefore, because of his connection with the others, each is guilty. The wording of the section rather lends itself to the danger of one's falling into this trap, and I am not sure that learned Counsel for the Crown has altogether successfully evaded it. It does not follow that, because two persons are proved to be conspirators, a third, who is shown to be connected with both, is also a conspirator. It must be clearly shown that his connection was that of a conspirator. Now while I have shown that the formation of bands in the various districts was one of the methods advocated in the Yugantar, and that the connection of the Yugantar with the conspiracy is established, it does not follow that every club or Samiti in Bengal was in co-operation with the conspiracy. Nor, assuming it to be proved that any particular band was in co-operation with the conspiracy, does it follow that every member of the band was a conspirator. A conspiracy, from its very nature, requires caution and doubtless there would be a period of probation, at any rate, in most cases, before a person joining such a band was admitted to its secrets. Similarly, because a man is a National Volunteer, or an ardent or even violent supporter of swadeshi principles, it does not follow that he is a conspirator. Again, if any particular paper is proved

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to be a limb of the conspiracy, it does not follow that every one connected with the paper is a conspirator; the Proprietor or the Editor would stand on a very different footing from a proof-reader. Nor because the Yugantar was a limb of the conspiracy does it follow that every paper that preached sedition was also a limb of it. "Ill weeds grow apace," and it may well be that the immunity of the Yugantar for a considerable period attracted competitors in a probably lucrative field, not only in the matter of newspapers, but of other seditious writing also. Similarly inflammatory speeches are not enough to prove a man a conspirator. Finally, because certain persons were caught in the garden, it does not follow that they were conspirators, provided they can give a reasonable explanation of their presence there. As I have mentioned, in the case of district bands, it is only reasonable to suppose there was a period of probation for recruits, and though one might expect that they would be put to some test before being admitted to the very head-quarters of the conspiracy, it must be remembered that Upen, who was apparently the chief missionary, was generally to be found there, and that Calcutta, with its college hostels and young boys frequently coming from outside, would be the most fertile recruiting ground. I have gone into these points at this stage to avoid repetition later.

[The learned Judge then dealt with the cases of individual accused at very great length] :―

In dealing with the case of Arabinda Ghose he said :―

I now come to the case of Arabinda Ghose, the most important accused in the case. He is the accused, whom more than any other the prosecution are anxious to have convicted and but for his presence in the dock there is no doubt that the case would have been finished long ago. It is partly for that reason that I have left his case till last of all and partly because the case against him depends to a very great extent, in fact almost entirely, upon association with other accused persons .

. Before dealing with the evidence against him, I shall put as shortly as possible the ideal which his counsel claims that he has always set before himself. It is the case for the prosecution as well as for the defence that he is of a very religious nature, in fact counsel for the Crown takes the line that his religious ideas com­bined with a desire for independence for India have turned him into a fanatic.

His counsel argues that he is a Vedantist and that he has applied the doctrines of Vedantism to mould his political views; that as the doctrine of Vedantism applied to the individual is to look for the godhead within oneself and so to realize what is best within oneself, so in the case of a nation, it can only grow by realizing what is best within itself, that no foreigner Can give it

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that salvation, which it can only attain by methods indigenous to the country. His doctrines are not those of passive resistance, but of the realization of salvation by suffering. If the law is unjust don't obey it, and take the consequences. Do not be violent, but if the law is unjust, you are not bound morally to obey it; refuse to obey it and suffer. He has been saying to the people, you are not cowards, believe in yourselves, and attain salvation, not by assistance from outside, but through yourselves. And this Mr. Das says is the key of his case.

A written statement was put in by the accused to which it is unnecessary here to refer at length, but I shall refer to two points because Counsel for the Crown took up a great deal of time in arguing his case as if the accused had made two statements which in fact he nowhere did make. The first assumption which he made was that Arabinda says that he had. nothing to do with politics, the second is that he says that he did not know Abinash before he engaged his services in setting up a house. With regard to the first assumption I need only point out that Arabinda says while in Baroda he took no part in the politics of Bengal; with regard to the second I need only refer to the paragraph 9 of the written statement, which gives no justification at all for the assumption.

In dealing with the case of this accused I propose to take the evidence in seven groups: (1) letters that passed between Arabinda and his wife; (2) letters between Arabinda and other persons; (3) Arabinda's speeches; (4) his writings; (5) Letters between other persons: (6) Entries in documents; (7) Facts, whether depending on oral evidence or deducible from documents. Finally I shall deal with certain important documents which require consideration by themselves.

In the first group there are three letters of 1902, none of which is important. There are no more letters till 1905, then we have three. The earliest in date is exhibit 286-1 and 2, a long letter from Arabinda to his wife, relied on by the prosecution on account of a few phrases in it and by the defence as a whole, as setting out the principles which govern his life.

He points out that his views and mental attitude are different from those of the people of this country and goes on to say that an extraordinary man is generally looked upon as either great or mad, and then says that he had. got three ideas, which he characterises as mad, in what is doubtless a play on the word used in the earlier part of the letter. The first idea is that gift given by God should be used in the service of God and he refers more particularly to their use in works of charity. The second idea is that he is realizing the teachings of Hindu religion and feeling God within himself. The third idea is the one In which occur the passages on which the prosecution lays stress. "I know I have the strength to deliver this fallen nation. I may not have bodily strength but

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I am not going to fight with sword or gun but with the power of knowledge." In the last paragraph but one of the letter he speaks of deliverence of the country. And in the last paragraph he speaks of all this as a secret.

Mr. Das argues that the 3rd idea is drawn from Vedantism. The idea is that the whole world is divinity; if you can't see that, it is maya, or illusion. The country should not be regarded as so many rivers, fields, etc., but as a manifestation of the divinity. And if that be the true view of the passage, it is only natural that he should speak of removing anything which stands in the way of that ideal.

Taking the latter as a whole, it is a discussion with his wife, asking her whether she is going to follow the Hindu religion, which is his religion, or some other. He points out that she has been brought up in Brahmo schools, but is a Hindu none the less. Will she be a help to him in his religion, or will she follow foreign ideas ? And as regards keeping the matter a secret, we find a reference to the same idea in the moral precepts in Baren Sen's book― Do not disclose the principles of your religious faith."

If we start with the knowledge that the writer of this letter is a conspirator, we can find passages in it that are suspicious. Viewing it in an unprejudiced way, there is nothing in it that really calls for explanation.

The next letter in date is exhibit 286-3. In this occurs the passage, "I have to keep some money to send to Madhav Rao, who has been sent to England for some special work. I have had to spend a lot of money on account of the swadeshi movement; and I wish to carry on another movement which, requires unlimited money." The prosecution suggests that this refers to revolution; the explanation offered is that Madhav Rao was a pupil of his and he used to help his pupils when they went to England; and that the movement which he contemplated was the one specified in paragraph 2 of his written statement, a large religious movement based on the Vedanta

The next letter is dated 22^nd October 1905 and is exhibit 236-4. He refers to Baren's ill-health and his energy in going out in the service of his country. He says, "Don't tell Sarojini (his sister) ; she will be mad with anxiety." We know in fact what was the nature of the work which Baren was engaged on at this time, from his own confession. The question is how far Arabinda was aware of his aims. The reference to Sarojini being anxious may merely mean on account of Baren's health. There is again in this letter an indication of Arabinda's religious tendencies, "the time for evening prayers is coming."

In 1906 there is no letter of much importance. Exhibit 286-6 contains a reference to Me religious devotions morning and evening,

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and to 12, Wellington Square, where he was evidently always welcome. Another indication of his religious ideas is shown in his having given up meat and fish.

In 1907 there is Exhibit 1121-1 from his wife to Arabinda on 1^st December. The prosecution looks on it as important, from the reference to "your paper." In view of what I have already said about his connection with the Bande Mataram, nothing more need he said. There is also a reference to setting up the rents of the house, which apparently refers to 19-3, Choku Khansama's Lane.

Exhibit 394 is a letter of 6th December from Arabindo explaining why he was not able to send some brandy. He says, "Abinash is not here, nor is Sudhir, Baren was not here." He also refers to the time as being one of anxiety.

This letter is relied on as showing connection with Sudhir and knowledge of Baren's trip to Naraingarh. But there is nothing to show which Sudhir this was,―there was more than one,―and because he saw Baren on the 6th it does not follow that he knew what he had being doing.

The anxiety is explained as a worry in connection with the Congress. We know that much correspondence was going on on the subject. And again there is a reference that he cannot, like ordinary Bengalis, consider the happiness of his family the principal aim of his life.

Exhibit 288, dated 20^th December 1907, is a letter from his wife, in which she shows resentment because he will not provide her with a house to live in, and there is a reference to the house, appparently 19-3, Choku Khansama's Lane.

Exhibit 1123-1, dated 3rd December, is a letter from his wife, saying that if Abinash is married He won't do "your work." If Arabinda is a conspirator, this may have a sinister meaning if his wife knew that he was engaged in a conspiracy; it may bear the innocent meaning that he would have to look out for some one else to look after his house.

Exhibit 292-4, dated 17^th February 1907―obviously a mistake for 1908―is relied on as showing that he felt that a crisis was on him. If that be a correct view, it suggests that he was not at any rate previously a party to the conspiracy ; and if that be the case, 8011 the previous letters must bear an innocent meaning. The last words, "I have not written or said anything about this to anybody except you: mention is forbidden," may refer to the secrecy enjoined as to his religious principles. The letter reads like that of a man filled with religious zeal, and, unless he is deliberately trying to deceive his wife, shows the connection in his mind between religion and the doctrine of self-education that he was preaching in Bombay.

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The result of the letters taken together is to show that he was a man of strong religious convictions and that he wanted his wife to share those convictions. There are some passages which may be suspicious, but which are also capable of an innocent explanation.

With regard to letters passing between Arabinda and others, a large number refer to arrangements for, and questions to be discussed at, the Congress. I do not propose to refer to these in detail, as they do not seem to me to carry the case much further. There is evidence of much jealousy between various prominent persons, but the main question appears to have been whether the Congress programme for the year was to be on lines advocated by the moderates or not, the so-called extremists contending that to do so would be to go back on previous Congress resolutions.

In Exhibit 293-13, dated 5^th September 1906, Deshpande writes that he will be able to push on the movement in Baroda: "I have found two good workers at Godhra." This is capable of an innocent construction.

Exhibit 293-9 refers to the effect of Arabinda's writings in the Bande Mataram. The letter is quite, capable of an innocent explanation. As I have pointed out, nothing that can be called revolutionary, in the bad sense, has been shown to me from the columns of that paper.

Exhibit 302-1 is a letter from V. B. Lele to Arabinda, dated 10^th February 1908. It contains a reference to Sukumar, and the prosecution suggests that this is Baren. There is nothing to show that Baren is meant. We have evidence that letters came to the garden to Baren under the name Sukumar, but it is impossible to say that he is referred to in this letter. We do not know that he ever was at Nagpur. On the other hand, the witness Sukumar Sen was in Nagpur about that time.

The importance of this letter is that V. B. Lele was apparently one of the occupants of Sil's Lodge. A registered parcel came to him there from Baroda and was forwarded to 12, Wellington Square. It is suggested that he was perhaps on a pilgrimage to Baidyanath, but the evidence of the postmaster and the entry in the postal peon's register, "parcel rejes Prokash Babu si”, shows that a parcel came to him c/o Prokash Babu, and this is clearly traced to be a parcel delivered at 12, Wellington Square. "Si" stands for Sil's Lodge. And we have the name V. B. Lele, with an address, appearing in both exhibits 382 and 667, apparently in Baren's writing.

Arabinda in his statement says he only knew Lele as a member of the Theosophical Society and a deep religious thinker. He does not know anything of his political views. The expression in the letter "with love and peace" rather bears out this suggestion.

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The defence does not offer any suggestion for the presence of his name in these two books. The only one that I can think of in favour of the accused is that Baren may have looked on him as a man through whom religious ideas might be spread so as to pave the way for conversion to his propaganda of violence, but it is his presence at Sil's Lodge which is the damaging point, both in itself and especially when taken in connection with the entries in the two books. Of course, it does not necessarily follow that if Lele was a conspirator and a friend of Subodh's and if Subodh was a conspirator, Arabinda also was because of his acquaintance or friendship with both; but each time contact is proved with a fresh conspirator an additional link is added in the chain of evidence.

Exhibit 300-2 is relied on as showing connection between Sudhir and .Arabinda and also with reference to the rent for 19-3, Choku Khansama's Lane. There is again nothing to show which Sudhir is meant.

Exhibit 300-29 is a letter to Arabindo from one Abinash, who it is suggested by the prosecution is not Abinash the accused, but one Abinash Chakrabarti. It is suggested that Abinash mentioned in the body of the letter is the accused. The letter is not dated and there is nothing to fix who are the persons referred to in it. It may, however, have some reference, as I suggested before, to Exhibit 992-the letter from Manik. With regard to Exhibit 992, it is suggested that, reference to Arabinda and Barenmayhave been proposed as being relations of Satyendra. It is also argued that Manik's denial of the letter is probably true in view of Exhibit 1030 as it would have been useless to write . to Nikhil after the deed was executed. But from Yanik's evidence it appears that the trouble was by no means over with the execution of the deed. It is possible, though Yanik denies it, that he gave Arabinda's name in the letter as one interested in national education, the ostensible purpose for which Exhibit 1030 was executed.

Exhibit 292-6 is evidently the letter referred to in paragraph 6 of the written statement. Arabinda speaks of Baren as "wilful and erratic, the family failing."

In Arabinda's speeches there is not much of importance. Evidence was given of his itinerary during January and February 1908 in the Bombay Presidency and reports of speeches made there. The whole of this evidence might very well have been omitted, as it proved nothing beyond the fact that he was received with acclamation wherever he went-a fact which the defence have never attempted to deny. So far as these speeches went, they help the defence more than the prosecution. From them we get an· idea of the stress that he laid on national education, on lines other than those laid down in Government schools, and this is in accordance

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with what is claimed as the ruling thought in his policy, that India is to find her salvation from within and not from with out. The only passage that can he construed as at all inflammatory is the concluding sentence of one of his speeches, “ live for your swadeshi or die for your swadeshi.," which may well be excused as a mere piece of hyperbole.
More violent remarks are those which he is said to have used at a meeting on the 3^rd April 1908, when he proposed a resolution of sympathy for the Tinnevelly rioters. The meeting was as usual attended by volunteers carrying Lathis. From the short note made by the police officer who reported the proceedings, he appears to have spoken in support of swadeshi and used the expression, “ new is the time when the brain is to be prepared for devising plans, the body for working hard, and the hand for lighting the country’s cause." The explanation given for this is that what he meant was it was too late merely to write and speak, the people must now be ready to put their whole heart into the cause. It is pointed out, with truth, that Arabinda constantly uses metaphors and figures of speech.

The speech as reported is compressed into very small compass ; in fact, except for this phrase, the gist of his speech is given in four short sentences. lit would not be right to lay too much stress on an isolated phrase in a speech very scantily reported, and while it must not be forgotten that the effect on his bearers might not be that which he himself intended, we must also not lose sight of the fact that the words do not accord with the usual tone of the Bande Mataram.

His writings are more important. I do not propose to refer to his writings in the Bande Mataram: I have already referred to the character of those, but to two documents that were found in his house. They are Exhibits 283 and 299-9. They appear to be articles written for some paper or review; in fact, in the latter he speaks of “A former article in this review," but whether they were ever published in this or not we don't know. In the absence of evidence of publication or the intention for which they were written, they can only be treated as showing the trend of his ideas. The first, Exhibit 283, is headed, “The Morality of Boycott." There are passages in it which taken by themselves certainly indicate support of the use of violent methods and suggest that his line was that revealed by this conspiracy—first inspire your followers with religious enthusiasm and then get them to take up arms. He writes; "The Gita is the best answer to those who shrink from battle as a sin and aggression as a lowering of morality." Another question is the use of violence in the furtherance of boycott. "This is in our view purely a matter of policy and expediency. An act of violence brings us into conflict with the law, and such conflict may be inexpedient for a

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race circumstanced like ours. But the moral question does not arise." Then he points out that the law is an interference with personal liberty. “The right to prevent such use of personal liberty as will injure the interest of the race, is the fundamental law of society. From this point of view the nation is only using; its: primary rights when it restrains the individual from buying or selling foreign goods? "

The morality of the Kshatriya. justifies violence in times of war, and boycott is a war. Nobody blames the Americans for throwing British tea into Boston Harbour, nor can anybody blame similar action in India on moral grounds. It is reprehensible from the point of view of law, of social peace and order, not of political morality." But then he says: "It (i. e., violence) has been eschewed by us because it is unwise and carried the battle on to a ground where we are comparatively weak, from a ground where we are strong." Again he says: "Aggression is unjust only when unprovoked ; violence unrighteous when used want only or for unrighteous ends."

The argument of the whale article shortly is this: "to drive out that which is evil, violence is justifiable. We don’t; hate the English, but we object, to their exploiting the country, for the interests of the two nations must be different; and we can stop that exploitation by boycott. Boycott is not morally wrong, for the ends at which it aims are the interests of the people- Amid that being so, we should be morally justified in using force, if we were strong enough to do so"

As a mere piece of philosophic writing there is no special harm in this. The danger is the state of feeling in the country at the time, and the suggestion that violence is justifiable if the nation wishes for a. particular thing: the fact that in the circumstances the nation should not use violence is relegated to the background ; equally so the question who is to decide what are the best interests of the nation. It is left for the reader to come to the conclusion that those who can make their voices heard most are to decide what are the interests of the nation and impose on the inarticulate masses a. tyranny far worse than that which they themselves condemn.

Exhibit 299—9 is a. still more extraordinary article. I shall not quote from it, as the omission of any sentences would affect the whole. The gist of it is that the object of the nationalist is to build up the nation. The nationalist has a. deep respect for the law, because without it the nation cannot attain proper development. But the law must: be in accordance with the wish of the nation. If it is not, it is utilitarian and not moral, and if immoral it should be broken. The nationalist is not afraid of anarchy and suffering. He welcomes them if the result is the building up of the nation.

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Mr. Das argues that the real point of the passage dealing with anarchy and suffering lies in the three questions which the nationalist puts to himself with regard to a method: (I) whether it is effective, (2) whether it is consistent with the traditions of the people, (3) whether it is educative of national strength, and he admits that Arabinda's views are that if violence answers those tests, it is a method to he adopted : that when strong enough to light, the nationalist will light, hut at present he must merely disobey the law, if he thinks it wrong, and suffer. He puts this supposition : suppose the people refused to pay taxes, their lands would he seized and put up to sale, no one would buy, then shooting by the English would begin to compel them to pay taxes, and that would he the suffering contemplated. One cannot but regret that Mr. Das should attribute such a character to the British race. He forgets the intermediate stage, and that shooting would not begin till rioting had begun and that rioting would be the inevitable result of fields lying fallow and the means of sustenance gone; and who would he responsible for the inter- mediate stage ?

Mr. Das also argues that the idea is the same that has been elaborated by European philosophers, that Government cannot exist against the will of the people, and that fact has been the explanation of all revolutions in Europe. The difference is that in Europe rulers and ruled have been of the same race, here they are not.

As an essay this article is a splendid piece of writing. The danger lies in the effect that it might have on ill-balanced and impressionable minds. And that, it is argued, is perhaps the reason why it was not published. The fact that neither of the articles was published is again a point in Arabinda's favour. For though philosophic reflections may show the trend of a man's mind, it very much affects the question whether he is a conspirator or not, if he does not publish writings which, doing no harm to a careful reader, might be misinterpreted by those of less mature understanding.

Mr. Norton lays great stress on the passage where he refers to the other papers, including the Yugantar and Sandhya, wrongly, I think, as the next sentence shows. The writer says the methods advocated are different, though all have the same ideal, and it is conceded that there is no harm in independence as an ideal: the offence lies in the methods by which it is sought to be attained.

Exhibit 292-8 is a. violent piece of writing, written apparently on partition day. It is, however, not Arahinda’s, but is in a woman’s hand, by the same hand apparently as that which wrote the two accounts, Exhibits 287-1 and 292-9- Arabinda's

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name is on both these accounts ; they appear to be for the supply of bazar articles to his mother and Rohini Would be rather far fetched to say that the contents of every piece of paper kept by Arabinda reflected his own ideas. If this paper was written by his sister, it must be remembered that she was living with him

The next class of evidence is letters passing between other persons. Exhibit 182 is a letter from Ram Chander Probhu to Upen. The point about this is that it is addressed to 23, Scott's Lane. In fact there is nothing to show that Upen ever lived at No. 23. and the question is why Ram Chander should address a letter to him there. The letter is in answer to one from Upern and had reference to the visits of Sishir and Hemendra to Bombay. From the letter one can gather that Upen had written about them to Ram Chander, and presumably, as the answer is addressed to No. 23, Upen must have written his addressed to No.23, we must remember that Abinash also lived there, so the visits of persons there as well as the addressing of letters there, are always open to the explanation that Abinash was the attraction or the intermediary. It is quite possible that at the time of writing some time in April, Upen had given this address, not wishing that letters; should be brought to the garden. At any rate, in Exhibit CVI from Ram Chander to Hrishi Kesh we have indications that Ram Chander did not know where Upen was. In their letter there is a reference to Arabinda. Ram Chander speaks of him as a simple, child-like, saintly soul, yet; withal burning with a true patriot's passionate enthusiasm, such as I have rarely seen- Then he speaks of Baren and says, "He asked me to go over to Bengal an join them in their work." The sentence is open to two constructions Them he speaks of Baren and says , He asked me to go over to Bengal and join them in their work.: The sentence is open to constructions. “Them might refer to Baren and Arabinda as having a work in which both were interested; it might refer merely to Baren and his party, without having any reference to Arabinda. I have already referred to Ram Chander and the fact that his name and address is also found in the garden in Exhibit CXVII-a.

Exhibit 385-2 is a letter on which the prosecution lays much stress. It is the letter from Gobin to brother doctor found at No. 15. It is written on 24^th April 1908. The writer says “I went to the house No. 23 at 3 Pm., on Wednesday and I came to understand from Karta that you had left the place that very day at that very time after taking your meals there; when I asked Karta about Baren he said to me that he is in Calcutta, but the address of both him and you were unknown to him. Thank you that you have set up such a Karta (sarcastic).” The prosecution suggests that the house in No.23. Scott's Lane, and that Karta means Arabinda; as I pointed out before, that “brother doctor” means Upen.

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For the defence it is suggested that there was s. doctor living at No. 15 just before it was taken by the conspirators (see witness No. 118), and the letter may be one written to the former tenant. It is also suggested that No. 23 may refer to 23, Sib Narain Dass’ Lane.

There can he no certainty as to what were the references in this letter. We don't know who Gobin is, but the fact of the being found at No. 15, that Baron is mentioned in it and No. 23—23, Scott’s Lane, being s. place frequently visited by the conspirators—suggest that 23, Scotts Lane, is meant, and the enquiry for Baren from Kara at 23 suggests Arabinda.. It could not be Abinash, for in the scheme of the conspiracy it is hardly likely that Ahinash should be at the head. Exhibit 1380 is the telegram asking for the key, signed "Birkumar, 23, Scott’s Lane." The only point against Arabinda is the address given.

Exhibit 1381 is s. telegram from one Sudhir, 19, Choke Khansama's Lane. The object is to connect Arabinda with accused Sudhir through the house. Sudhir’s brother says the name is not written by Sudhir : there is no reason to think that he is not correct. No. 19 is not the same us No. 19-3, though premises No. 19-3 is probably a portion of what was at some time or other No. 19. There is nothing in the telegram itself.

These two documents do not properly come under this subdivision of the evidence ; they do not mention Arabinda. either by name or by implication.

Exhibit 992 I have already referred to. At the worst it suggests some connection between Arabinda. and the Midnupur “Chattra. Bhandar."

Exhibit 774. is the letter by accused Sudhir to Upen at Seal's Lodge, of 11^th March. It is short: "‘Arrived safe; Sukumar Babu is expected on the 5^th or 6^th Chaitra.; explained to ‘Bara. Karta.; according to his order I asked: you to come.” In the postscript there is the reference to monkeys. It is suggested that Sukumar Babu is Baren and ‘Bara. Karta' Arainda. I have already pointed out in connection with Exhibit GL and with letters being received in the garden, the there is reason to think that Baren was called Sukumer. If by Sukumar in this letter Baren is meant, we have the fact that in two letters, this and Exhibit 385-2, " Karta, " is mentioned in conjunction with Baren.

It is argued that "Bara Karta. " cannot refer to Arabinda., because if Sudhir had seen him the unopened letter Exhibit 300-21 would have been handed over by Arabinda to Sudhir, instead of being carried about from November to May. But Mr. Das’ own argument in connection with this letter was that Arahinda was absent-minded.

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I now come to documents of other classes said to affect Arabinda. Exhibit 1099 is a document found at the search of the Bande Mataram in July 1907. It is Counsel's; opinion on the question as to what would be the position of the shareholders in case a prosecution were instituted against the paper for sedition. It is argued that this shows that the publication of seditious matter was contemplated. New no seditious matter published subsequent to their opinion has been shown to me in the Bande Mataram and that is curious if the document indicates an intention to publish such, for Counsel's opinion favoured the view that fine was the only penalty that could be imposed on the corporation apart, of course, from any individual liability of the persons directly responsible.

Exhibit 990 is a Yugantar peon-book: in which apparently Arabinda signed for the receipt of two letters. This is worth nothing as evidence. Taken with this is the letter Exhibit 999 from one Abinash asking for help to print the paper. I have referred to this before. It does not support the view that Arabinda was connected with the Yugantar, now taking the view that the letter was written by the accused Abinash and that Arabinda was the addressee.

Exhibit CLXXXIV is the railway guide found in the garden with what purports to he a draft telegram from Ghose at No. 23 : "Wire Charu’s address" The prosecution suggests that this is in Baren's writing, but that Baren intended that the recipient of the telegram should understand that it was Arabinda who wanted the information. There was no certainty who Charu was. It is suggested that it was Charu Chander Dutta, the Sessions Judge of Ahmedabad, and that the telegram was to be sent in connection with the visit of Sishir and Hemendra. It is possible that the prosecution suggestion may be right: it may be that Baron sent or intended to send the telegram on his own account and gave the address at 23 to avoid interception in the garden.

Exhibit 792-lb is a slip of paper found in a book at the search of Hrishi Kesh`s house. It bears the words : " l.9-3, Choke Khansama`s Lane, Mirzapore, 4-10-07." We know Arahinda had this house about this time. With reference to this slip of paper. Kedareswar Chakranvarty, who held the search, says he remembers there were two slips of paper in the hook. He did not note them particularly, not thinking them to be of importance, but he remembers each had a name on it, and he pinned them in this book. This slip was not shown to him when examined before the Magistrate, but considering the mass of documents dealt with, this is not surprising. There seems no reason to suppose that the paper has been introduced subsequently. Arabinda denies knowing Hrishi Kesh before the case began. .

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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

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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

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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 18^th 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 18^th, 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 18^th . 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 27^th 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

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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

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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 11^th May in his house. I don’t think it is correct to say that he brought them to Royd Street on the 11^th 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 4^th or 5^th 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

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difference lies in the introduction of the date, 11^th May. He is first asked whether it is correct that Creagan kept the documents in his house till the 11^th 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 11^th 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 11^th 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 2^nd 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

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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 2^nd 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

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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 20^th 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 2^nd 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 24^th November. It was opened by Mr. Denham on 11^th 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

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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 26^th 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 8^th May. The money-order hears the Harrison Road stamp, dated 5^th May, and the Bowbazar stamp, 8^th 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 2^nd 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

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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 2^nd . 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-

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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 28^th May 1907. And so late as 10^th 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

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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

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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.

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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 5^th 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,

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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

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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.

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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

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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

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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

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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

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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 6^th May 1909.

C. P. BEACHCROFT.

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