Baghunath Pandey and Others vs Emperor

These appeals which have been heard together and the application of Rambhawan Singh from jail which is not in regular form as an appeal arise out of a case of alleged dacoity and possession and use of explosives and of a conspiracy for these offences at Chapra and other places in the district of Saran between 17th February and 23rd August 1931. The charge of dacoity referred to a specific occasion on the night of 22nd --23rd August 1931 when dacoity is said to have been committed at Phulwaria Math in village Ketuka Phulwaria P.S. Parsa.

The prosecution case in outline is that some young men who had been concerned in the Congress and Civil Disobedience Movements abandoned non-violent principles and conspired for the commission of bomb assassinations and dacoities for the purpose of bringing about Swaraj by way of revolution. Two members of the conspiracy Ramjanam Singh and Budhu Kahar made confessions and have been examined as witnesses under tender of pardon. Their evidence contains partically the whole of the prosecution story regarding the activities of the alleged revolutionary organization and 93 other witnesses are examined, some deposing as to particular incidents referred to in the main story while others are police officers who explain the course of the investigation.

Ram Bhawan Singh accused and Ramjanam Singh, prosecution witness had been convicted in 1930 in connexion with the Civil Disobedience Movement. Ram Bhawan was released from jail in December 1930 and Ramjanam on 17th February 1931. Ram Bhagwan and Ramjanam met and the former asked Ramjanam to become a member of the Saran Branch of the All India Republican Army. A meeting was held about the end of February or first week of March 1931. It was followed by the posting of red leaflets about 14th March 1931 containing threats against police officers, wine dealers, traitors and foreign cloth dealers. Ramjanam speaks of a second meeting at which it was resolved to bomb some police officers and in pursuance of this resolve it is said a bomb was thrown on 2nd April 1931 at the bungalow of the Assistant Manager, Bettiah Raj. The bomb, it is said, was intended for the Assistant Superintendent of Police. The next meeting spoken of is of April 1931 at which it is said new office bearers were elected and proposal was made for raising money by commission of dacoity. In pursuance of this resolve a dacoity was planned to be committed at Phulwaria Math. A party went out there and made an attack but alarm being raised the party retired without securing any property.

The next incident spoken of is a proposal made by Lakshman Khatik by telegram dated 8th May from Ramjanam and Ram Bhawan to come to him in Gaya district for a commission of dacoity there. The telegram was delayed and no action was taken. Thereafter it is said a meeting was held on the evening of the 24th at which a second raid on Phulwaria Math was planned and a party went out but their arrangements for meeting at the rendezvous went wrong and they returned without making an attack. The next incident is a meeting about the middle of June at which another raid on Phulwaria Math was resolved on. A raid was made, one of the people at the Math was wounded, but on alarm being raised the party retired. Next we come to the incidents of the 22nd August; this time there was not a general meeting to plan the raid but Ram Bhawan Singh and Gaya Rai proposed it to others whom they met individually and the raid was thus arranged.

In the dacoity 11 persons are said to have taken part. Three bombs were exploded, one man at the Math was seriously injured and subsequently had to have one leg amputated. Ram Bhawan accused had the misfortune to get his right hand blown off by a bomb which he was about to throw and Raghunath Pande accused also received injury on his leg and arm. This dacoity was reported at Parsa Police Station live miles distant at 6-30 a.m., next morning by Pardeshi Dusadh, chaukidar. On the way back from this dacoity one of the party thought fit to discard two bombs and left them in a bush near Marhoura railway station. One of these bombs was disturbed by a buffalo on the morning of 24th August and it exploded and caused some injury to the buffalo. This was reported to the Government railway police. The investigation of the dacoity and this incident has led to the present prosecution.

Of the persons who are alleged to have been parties to the conspiracy Gaya Rai and Mahant Ramraman Das are absconding and untraced. Of persons who were arrested on suspicion or information, two, that is to say, Ramjanam and Budhu have been tendered pardons and are examined as approvers. Two more, named, Surajmal, motor driver, and Ramchandra Singh, son of Lal Bahadur Singh, were released for want of evidence and are examined as witnesses. They and nine others were released at the time of submission of charge sheet as the police did not send up a case against them. Ten persons were proceeded against and the Committing Magistrate found a prima facie case made out against each of them and framed charges.

All the ten accused were charged u/s 120(B) read with Section 395, Penal Code, with conspiring together and with others for the commission of dacoity in pursuance of which agreement dacoities were committed at Phulwaria. All were charged u/s 4(a), Explosive Substances Act, with conspiring together and with others to cause dangerous explosions in British India by means of explosive substances. Seven, that is to say, Ram Bhawan Singh, Tej Bahadur Singh, Raghunath Pande, Kishundeo Pande, Ramchandra Singh son of Sheodhari, Khedan Ahir and Mahanth Ahir were charged with committing dacoity on the night of 22nd-23rd August at Phulwaria. The persons not accused under this head are Lakshman Khatik, Tribhuban Nath Pathak and Muktanand Kalwar. There is a further charge against Ram Bhawan and Raghunath u/s 4(b), Explosive Substances Act, of unlawfully possessing bombs or 22nd and 23rd August 1931 at Phulwaria. Of the above charges that against seven accused u/s 395 was triable by jury and resulted in a unanimous verdict of guilty against Ram Bhawan Singh, Raghunath Pande, Tej Bahadur Singh and Kishundeo Pande. By a majority of three to two, the jury found Mahanth Ahir, Khedan Ahir and Ramchandra Singh, son of Sheodhari, not guilty. The same gentlemen who had sat as jurors served as assessors in the trial of the other charges. They were unanimously of opinion that Ram Bhawan, Raghunath, Kishundeo Tribhuan and Tej Bahadur were guilty of the charges framed against them. As regards Lakshman, Muktanand, Ramchandra, son of Seodhari, Khedan and Mahanth, three were of opinion that these accused were not guilty and two were of opinion that they were guilty.

The Sessions Judge accepted the unanimous verdict of the jury in respect of Ram Bhawan, Raghunath, Tej Bahadur and Kishundeo and the opinion of the assessors regarding these persons and convicted them of all the charges framed against them. He accepted the majority verdict of the jury regarding Ramchandra Singh, Khedan and Mahanth and the opinion of the majority of the assessors and acquitted them; he accepted the unanimous opinion of the assessors and convicted Tribhuan and he differed from three assessors and agreed with two in respect of Lakshman Khatik and Muktanand Kulwar whom he convicted. From these convictions Raghunath Pande, Kishundeo Pande and Tej Bahadur Singh have each preferred two appeals one against the conviction by jury and one against conviction of the Judge with the aid of assessors. Tribhuban, Mutanand and Lakshman have appealed against their convictions by the Judge with the aid of assessors. Ram Bhawan has submitted a petition from jail which though not in regular form we have thought it best in the interest of justice to entertain and consider.

The accused met the charges by a denial professing ignorance of any revolutionary party or republican army or Saran branch of such army. Some of the accused have not denied their association with Congress movements in 1930 and 1931; but represent that this was a non-violent movement. The explanations offered by the accused as to items of evidence affecting them personally will be dealt with when we come to the cases of individual accused.

It has been suggested that the whole prosecution theory of a political conspiracy is a concoction; that Ramjanam and Budhu, the approvers, are ordinary criminals for gain and have invented a story of political conspiracy to save themselves and gain favour with the police. It will be convenient then first to go through the general story of the conspiracy and examine the question whether the existence of such a conspiracy is established and then to deal with the questions arising regarding the parts attributed to individual appellants. (After discussing some evidence regarding the conspiracy, the judgment proceeded). All the raids we think were the work of a revolutionary gang. The important witnesses as to its operations are Ram Janam and Budhu approvers; Suraj Mall the taxi driver and Ramchandra Singh are relied on by the prosecution as witnesses whose evidence materially corroborates the approvers'' story.

The defence have contended that Suraj Mal and Ramchandra are themselves accomplices and their evidence cannot be treated as material corroboration of the approvers for the purposes of those provisions of the Evidence Act which raise the presumption that an accomplice is unworthy of credit unless corroborated in material particulars.

There are decisions in which it has been held that the testimony of one accomplice cannot safely be relied on as material corroboration of that of another accomplice for the purpose of these provisions; and that the material corroboration required means corroboration as against individual accused.

It has however been pointed out in Rattan Dhanuk v. Emperor AIR 1923 Pat 630 that Section 133, Evidence Act, has made it clear that there is no hard and fast rule that a conviction cannot be supported which proceeds on the uncorroborated testimony of an accomplice, and that a Court has to decide with reference to the facts of each case whether the presumption of unreliability arising from the suspicion which an accomplice''s testimony invites has been rebutted. Indeed, Section 114, Evidence Act, itself indicates that it is for the Court to consider whether the maxims given in the illustration do or do not apply to the particular case before it.

In King-Emperor v. Malhar (1902) 26 Bom 193 after referring to the leading case of Elahee Baksh (1866) 5 WR Cr 80, the Judges observed:

Illustration (b), Section 114, directs attention to the general principle that it is unsafe to convict on the evidence of accomplices unless corroborated in material particulars. But along with this principle must be borne in mind the qualifications, taken apparently from Peacock, C.J.''s judgment, contained in the further illustrations which the Court is directed to consider when determining whether the general maxim does or does not apply to a particular case. They show that all persons coming technically within the category of accomplices cannot be treated as on precisely the same footing. The nature of the offence and the circumstances in which the accomplices make their statements must always be considered. No general rule on the subject can be laid down. The legislature has not done so; and the Courts, whose function it is to interpret the law, cannot do so. The decisions however show the principle on which Judges have acted in particular cases, and it is the duty of their successors to consider those principles and determine to what extent they are applicable to the circumstances of other cases,

This decision was approved in Deo Nandan Pershad v. Emperor (1906) 33 Cal 649 with the remark that in considering whether the rule of practice (that it is generally unsafe to convict an accused on the evidence of an accomplice unless corroborated) applies to any particular case, it must be remembered that all persons coming technically within the category of accomplices cannot be treated as precisely on the same footing and that no general rule on the subject can be laid down.

In Elahee Baksh''s case above referred to an observation was cited of Buller, J., that the testimony of an approver:

must be received and left with the jury under such directions and observations from the Court us the circumstances of the case may require to say whether they think it sufficiently credible to guide their decision on the case.

The Chief Justice went on to point out that it might be a misdirection to advise a jury to convict on the uncorroborated evidence of an accomplice or even to tell them that it was for them alone to form their opinion on it as if such evidence without corroboration might be acted on with as much safety as that of any other witness. That, we think, is still the law and it would amount to misdirection either to omit to give the jury a suitable warning or to tell the jury that an approver''s evidence against a particular accused has received independent corroboration when this is not in fact the case. (After discussing evidence regarding corroboration, the judgment proceeded.) The general evidence above set forth satisfies us that there was a revolutionary conspiracy whose activities included the possession and use of explosives and the commission of dacoities: and that the leaflet-posting, bomb-throwing and dacoities were doings of this society. We turn now to consider the case of individuals. (After discussing some evidence against Lachman Khatik, the judgment proceeded.)

The most weighty objection to the telegram however is that the original has not been proved to be in the handwriting of Lachhman, and Section 88, Evidence Act, is a bar to its being presumed that Lachhman was the sender of the message. But Section 88 is not a bar to the telegram being considered a long with the rest of the evidence in the case and it seems to us to be admissible u/s 9, Evidence Act, for the purpose of explaining the conduct of Lachhman on his return to Chapra when he asked Ram Janam why he had not complied with the telegram that had been sent: see Emperor Vs. Abdul Gani Bahadurbhai, .

On a consideration of the whole evidence therefore we are satisfied that the convictions and sentences passed on Lachhman must be upheld. (After discussing evidence against Tej Bahadur, the judgment proceeded). The next objection to the charge is that the Judge should not have directed the jury that:

it is evident that the room in question (i.e. Tej Bahadur''s lodging at Chapra) was in the occupation of the accused.

and that the articles recovered there-from were in his possession. The articles were found in a tin trunk which contained Tej Bahadur''s own diary. A similar objection was taken to the Judge''s expression of opinion regarding Md. Rashid and Md. Husain. The Judge said:

I do not therefore think that you will have any good reason to disbelieve the evidence of the above two witnesses.

The Judge was entitled to express his opinion of the facts, and as he had warned the jury that they were not bound by his opinion we do not consider that the passages objected to amount to a misdirection. We ourselves see no reason to disbelieve the witnesses Rashid and Husain. On a careful consideration of the whole evidence we are of opinion that it has been satisfactorily proved that Tej Bahadur conspired to commit dacoity and committed dacoity and therefore that the convictions under Sections 395 and 120 B/ 395, I.P.C., must be upheld. In the circumstances of the case however we direct the sentences on these two charges to run concurrently and not consecutively. (After dealing with the evidence against Ram Bhawan, the judgment proceeded.)

In conclusion we would like to endorse the commendation by the Sessions Judge of the work done by the police officers in the investigation. We would like to add that we have ourselves derived great assistance from the careful, clear and orderly charge and judgment of the Sessions Judge in trial; and we would like to thank counsel and advocates appearing on both sides for the manner in which the case has been presented at the hearing of the appeals, the materials for a decision on every disputable point being placed before us fully and fairly and with a conciseness which we know entails a thorough and laborious preparation.