L.H. Jenkins, C.J.

1. On the evening of November 25th last, at or about 7-30,two bombs were exploded in a lane off Harrison Road known as MussalmanparaLane. It resulted in the death of a Police officer, Ram Bhujan Singh, and insevere injuries to two other Police officers, Monoranjan Chuekerbutty andSomeswar Dutt Panday, and also to a man named Harabilas Ghosal.

2. Of the two bombs one was thrown through the open streetdoor into a room of the house No. 10-4-1, Mussalmanpara Lane, the other struckthe front wall of the house to the west of that door. It is the prosecutionscase that both bombs were thrown by a party of three or more Bengali youths infurtherance of the common intention of all and that the accused Nogendra NathSen Gupta not only was of the party, but actually threw one of the bombs, mightcharges have accordingly been framed against the accused Nogendra Four imputeto him that he himself threw a bomb, the other four impute to him that it hedid not throw the bomb, still he was a member of the party that did and thatthis establishes his guilt. Objection was taken on behalf of the accused thateven on the case made by the prosecution the charge in reliance on Section 34of the Indian Penal Code could not be sustained. We, however, overruled theobjection and have heard the case on the merits. The charges as drawn wouldseem to impute to the accused that he was the thrower of both bombs, for theycharged him with having directly caused the injury both to Harabilas Ghosal andto the other three men, though it is fairly obvious that the injury to Harabilaswas occasioned by the bomb that fell within the room and that to the otherthree by that which struck the wall. In the argument before us, the case madewas that the accused threw the bomb that struck the wall or the second bomb asit has been termed. This view rests on the evidence of Someswar. He describesthe man who threw the bomb as wearing an alwan and this is probable; butaccording to evidence on which reliance can safely be placed, the accused hadno alwan that evening. Apart from this, we regard Someswar as a patentlyunreliable witness, as will later appear, and it would be absolutely wrong tobase any conclusion on an identification purporting to be made by him. Beyondthis, there is no evidence that could justify the conviction of the accused onthe first, third, fifth or seventh charges.

3. It has then to be seen whether the bomb was thrown by aparty of men and whether the accused was of that party. It is beyond questionthat two bombs were thrown and that there were two or more men of the party bywhom they were thrown. The object of the attack was undoubtedly Basanta KumarChatterji, a Deputy Superintendent in the C.I.D, and the occupier of No.10/4/1, Mussalmanpara Lane. Those by whom this dastardly attack has been madehave been assumed to be members of a society described us anarchist. With thecommendable fairness that has marked his conduct of this case, Sir SatyendraSinba has stated that, apart from what is disclosed in these proceedings, theprosecution know nothing of the accused that would associate him with anyanarchical movement. At the same time, we know that he is a student of thePresidency College residing in the Oxford Mission Hostel, and it is apparentthat he is as far removed from the class of degenerates as a lad well can be.

4. Undoubtedly, the accused was in the immediateneighbourhood of the explosions; he admits as much, and the injuries hereceived point to the same conclusion. Could be, then, have been thereconsistently with his innocence To ascertain this, it wan thought that theaccused should be asked to give his explanation, and, notwithstanding anobjection taken by Mr. James, we thought and still think that was the rightcourse to follow. An innocent man cannot well injure himself by a truthfulexplanation, and it would be deplorable were we to hold that it was beyond thecompetence of the Court, when dealing with a case under Act XIV of 1908, togive an accused an opportunity of explaining the circumstances appearingagainst him. And there is high authority in favour of a similar view, for SirAlfred Wills has recently cited with approval the opinion of the Court ofCriminal Appeal that in the case of an innocent man the failure even to offerevidence is an unwise course (Wills on Circumstantial Evidence, page 102). Theexplanation in this case has certainly been of service to the accused, for,taken with the persecutions admission as to the place at which the accusedsbrother resided last November, it demonstrates that there was nothingimpossible or even unreasonable in the accuseds presence in the lane. Thefact, therefore, that the accused was injured in the lane, though calculated toarouse suspicion if unexplained, cannot be regarded in itself as incompatiblewith his innocence. This was recognised in the argument before us, and so theprosecution rely on other facts as inculpatory of the accused, and with thesewe will now deal.

5. The first suggestion was that the accused was at theAlipore Magistrates Court on the 24th of November in circumstances which weresuggestive of a design against Deputy Superintendent Basanta Kumar Chatterji,either immediate or prospective. Norendro Nath Mukerji, differing in this fromBasanta, purports to identify the accused. We were far from being satisfiedwith this evidence, and the testimony of Mr. Holmes of the Oxford Mission amplyjustified our doubt. Mr. Holmes spoke with caution, but his testimony is, inthat account, entitled to the greater weight. And we would here remark that itwas certainly right of the prosecution to call Mr. Holmes, for the duty ofCounsel for the Crown is not to secure a conviction but to assist the Court inarriving at the truth. We are satisfied that this attempt to create a prejudiceagainst the accused has no foundation in fact.

6. Next, there is the evidence of Monoraujan and Someswar.That they were present is beyond doubt, but an essential part of the story eachhas told is manifestly untrue. Monoranjans testimony would place him in a partof the lane not far from the dustbin, and it is in reference to that positionthat lie describes the incidents and individuals he professes to haveobserved, lie would place, the party of bomb-throwers nearer the actualexplosions than he himself stood. And yet we find that while lie is most seriouslyinjured, they--if the accused he excluded--apparently escaped untouched. Nor isthis all, for the evidence, furnished by the scene itself after the explosions,affords cogent proof that Monoranjan was, at the time of the explosions, notnear the dust-bin, but close to the lamp-post, standing at the corner to theeast of the street door. It is our belief that this misdescription wasdeliberate and was an endeavour to improve the case by supporting the storythat Someswar has since placed before the Court. If regard be had toprobabilities, then we agree with the argument that to secure escape frominjury and capture, the most favourable position for throwing the bombs wouldbe slightly to the north of the dustbin, and this would be naturally followed byflight towards the east. The prosecution evidence shows that two youths didactually take that course. The traces of preparations for the attack alsosupport this view. Someswar swears that he pursued three men, the number thatMonoranjan had described as passing to his right. He has detailed his pursuitof these men along Mussalmanpara Lane to Harrison Road, and from that point thepursuit of one of them along the pathway towards Akhil Mistrys Lane, till hischase was cut short by his stumbling over a stone and falling on his hands,thereby, as he says, causing a state of unconsciousness from which he recoveredafter a short but appreciable measure of time. Then he returned to 10/4/1,Mussalmanpara Lane. This story is palpably untrue. Sheik Hingoo, who appearedto us to be a truthful witness, gives a narrative of events which absolutelynegatives Someswars version and shows that" Somes war cannot have been inpursuit and that three men cannot have been in flight; in fact, the only manseen was walking, not running. Nor is this all, for the evidence of SatishUhander Sanerji, another witness who impressed us favourably, is inconsistentwith the idea that Someswar ever left 10/4/1, Slussalmanpara Lane. Someswar wasun-doubtedly so affected by the shock of the explosion as to be in a state ofgreat and unbalanced excitement, and his story may represent what he would havewished to have done, but certainly not what he did. We are convinced that thereis no foundation in fact for the pursuit or any of its incidents.

7. Then we come to the story of Sarafat, If true, it wouldbe a most important link in the evidence against the accused and almostconclusive of his guilt. Hut we do not hesitate to pronounce this story false,and, indeed, Sir Satyendra Sinha on behalf of the Crown did not even refer toit in his reply. Our view rests not merely on an appreciation of the evidenceas given before us, which left no room for doubt as to its worth lessness, butalso on our personal observations on the spot, which convinced us that thestory told by this witness was in its most important details an absoluteimpossibility. We would here desire to explain that we visited the locality, atthe urgent request of both parties who felt, and we now think rightly, thatthis was almost necessary to a correct understanding of the case.

8. The next step in the case is that the accused was foundin the narrow part of Akhil Mistrys Lane which runs east and west. Thisundoubtedly is true; but so far as it goes, it bears out his story that he wason his way to his brothers mess, for it is not disputed, and is, indeed,apparent, that this was on the road there from Mussalmanpara Lane. Nor is itwithout its relevance that while lying there, heat once gave his brothers nameand address and begged that information might be given to him. This fact is ananswer to the suggestion that the accused endeavoured to conceal his identityby withholding his name. It is at least as reasonable to refer his silence tothe state of collapse in which he obviously was. Sudhirs suggestion that theaccused wore his dhoti in malkocha fashion may he dismissed, as he himselfconceded in cross-examination that he was unable to support it on oath, and itis a circumstance to which no other witness speaks. The next move was to thehospital, and it is here that Suhodh, a C.I.L. officer, attributes to theaccused two remarkable and unintelligible replies. He says that the accused,when asked his name, replied My name is name and when asked by a European,whether he was a Policeman answered, J. am not a Police but a man." Notonly is the medical evidence of the accuseds condition strongly opposed to theprobability of tins being true, but there is no confirmation, by any Europeanor by any Bengali doctor, of those answers. On the contrary, the evidence ofthose called negatives it. Mention may here be made of an incident on which Mr.James has laid much stress, the discovery of the exploded. Mauser cartridge,lie evidently regarded it as a fabricated discovery designed to prejudice hisclient. We do not share this view; we see no reason to distrust Mr. Low-mansevidence on the point; and in fact no use of the discovery has been made to theaccuseds prejudice.

9. This brings us to the endeavour to show that the accused,when found in Akhil Mistrys Lane, was in possession of a revolver. SirSatyendra did not exaggerate the importance of this alleged incident when hedeclared that if it was not established, then he could not ask for aconviction. From what has already been said, it is apparent that there has beenan endeavour to import into the case several matters that may well occasionanxious doubt as to the preparation of the evidence by which it was sought tofasten guilt on the accused.

10. But, in dealing with this revolver incident, we haveendeavoured to estimate its worth on its own independent merits. Does, then,the evidence establish, with the degree of assurance that any prudent man wouldrequire, the accuseds possession of the revolver produced before us in CourtFor, if it does, than it goes far to show that the accused is guilty and hasmerited the laws extreme penalty . We have the lads positive statement thathe had not the revolver, and this the law ordains we may take intoconsideration. On the suggestion of its later importation, he does not throwany light, nor could he in the collapsed condition in which he was, for he waspractically dead to all around him.

11. The witnesses who speak to the "shiningthing," or the revolver which we are invited to regard as its equivalent,are many. There it, however, displayed throughout this evidence an anxiety tomake it appear that the shining thing" was observed before the Police cameon the scene. This anxiety appears to us to cast a needless slur, for if adiscovery by the Police squared with the facts we certainly should not on thataccount regard it as unworthy of acceptance. But the difficulty we feel inconnection with this part of the case is that we final ourselves confrontedwith stories so difficult to reconcile with each other or to fit in withordinary probabilities that after serious consideration, we unhesitatingly cometo the conclusion that we must regard this part of the case with greatdistrust. In dealing with it, we have been materially assisted by Mr. James,who, with his junior, Mr. Palit, has obviously made a most searching inquiryinto all that relates to this alleged discovery of the pistol, and has sparedno effort to master all understand all the details of the problem with which hehad to deal. Unless something has been kept back, the constables Nawrang andPaltoo, two most important witnesses, should, according to their evidence, havebeen at the spot where the accused was lying in Akhil Mistrys Lane not laterthan 7-45; and yet the case presented for our acceptance by the prosecution,and apparently as an essential feature of the case, is that their arrival atthe west end of the lane was absolutely synchronous with the arrival ofSub-Inspector Belcher and Head Constable Mohangoo Misser at its. eastern end.But Sub-Inspector Belcher cannot have reached the lane before 8-20, that is 35minutes later than the time at which the two constables, on their own evidence,ought to have arrived. We should have attributed little importance to this, ifit could fairly have been ascribed to a mistaken estimate of time. But it isnothing of the kind; and having followed the case day by day as it was unfoldedbefore us, we feel that this is not the true explanation of the remarkablediscrepancy which resulted in the equally remarkable coincidence ofsimultaneous arrival. We cannot resist the conclusion that there has not been acomplete disclosure of all that occurred, and that something has been withheldfrom our knowledge.

12. Then, again, the evidence of Sarat and Sudhir, two otherwitnesses of importance, so far from clearing up matters, rather tends toincrease the perplexities of the case. Both of them agree in this that theywill not pledge themselves to more than a shining thing," and curiouslyenough they were neither of them shown the revolver with a view to identifyingit in appearance with what they profess to have serin, Sarat before us hasdeposed to the presence of a constable before the arrival of Belcher, anddescribes him as handling the pistol. At the same time, he does not identifyhim as either Nawrang or Paltoo, and in this he probably is right, as the manof whom he speaks did not wear a pugri: This man, obviously a most importantwitness if Sarat spoke the truth, has not been called, and it seems to be theprosecutions case that they do not know of any such constable as Saratdescribes. Mr. Belcher declared that when he arrived, he saw the pistol andtook possession of it. We do not say that it may not have been so, but when webear in mind Belchers evidence of its spotless condition and its freedom fromall trace of blood or mud or water, we find it difficult to reconcile this withwhat must have been the condition of the lane and of the accused. It would seemto be the prosecution theory that the revolver was carried in the accusedshand; but if in his right hand, one would have expected traces of blood, havingregard to the injuries and the profusion of blood on that side; if on the lefthand, equally would one expect traces of blood, from the wound in the palm ofthat hand, for it was sufficiently severe to be dressed and sutured at thehospital. It is difficult to speculate as to whether it may not have been inthe accuseds coat pocket, for, so far is this from being the case for theprosecution, that the coat has not even been put in evidence before us, and wedo not know what pockets (if any) there were in it. The reason for thisdoubtless was that the prosecution felt that it was impossible to square theprosecution evidence as to the position of the revolver with any other theorythan that it was in the accuseds hands.

13. We have dealt with some of the difficulties in the wayof the difficulties in the way of accepting that view. But there is yet authorcircumstance to be noticed, and that is that Sheik Hingu, who certainly mighthave been expected to see a revolver in the accuseds hand, did not observeone, nor was it observed by Monoranjan or Someswar or, as far as we know, byany one else. Then, again, if the pistol was really in the accuseds hand, weand it difficult to account for the several positions from time to timeattributed it, or how it was not visible from the first.

14. The whole story of the revolver is surrounded bydifficulties and is enveloped in mystery, and observing that standard of carewhich the positive enactment of the law imposes on us, we hold it not to beestablished that the accused was in possession of the revolver. But ifpossession of the revolver is not brought home to the accused, there clearly isnot evidence on which we can hold his guilt proved, and this Sir Satyendrahimself declared.

15. We desire to make it clear that in our judgment we donot merely give the accused the benefit of the doubt, but after considering thematters before us, we decline to hold that he is shown to be guilty, or thathis guilt is so probable that a prudent man ought under the circumstances ofthis case to act upon the supposition that he is guilty. That is the testprescribed by law, and it is amply satisfied in the accuseds favour in thecircumstances of this case.

16. The Court accordingly acquits the accused of the severalcharges brought against him and directs that he be set at liberty.

Asutosh Mookerjee, J.

17. I am in full agreement with the views set out in thejudgment of the Court, which has just been read out by the Chief Justice and towhich I am a party. I desire only to emphasise that, after anxiousconsideration of every element in the case as it was developed before us fromday to day, I am strongly convinced of the absolute innocence of the accused.My deliberate conclusion is that the endeavour made to establish a connectionbetween this innocent lad and a dastardly crime, by means of evidence taintedin a large measure by manifest untruths and manufactured incidents, has beencompletely unsuccessful.

Herbert Holmwood, J.

18. I am in entire agreement with the judgment of the Courtto which I am a party, and I only wish to add that I am convinced of theabsolute innocence of the accused. He was the victim of an unfortunate train ofcircumstances which made the case at first appear very black against him; butthe assiduity of those whose duty it was to investigate the facts, inendeavouring to clabbered and clench those circumstances, has served thepurpose of clearly demonstrating to my mind that he can have had no hand in thediabolical crime with which he was charged.

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Emperor vs. NogendraNath Sen Gupta (22.03.1915 - CALHC)