1. The appellants, seven in number, were tried by a special Magistrate at Rangpur, appointed by the Local Government, under Section 24 of the Bengal Act 12 of 1932, for commission of offences under the Indian Arms Act, and under S. 120-B, I.P.C, and on conviction, sentenced to various terms of rigorous imprisonment. All the appellants were charged with offences of the following description. That they between June 1933, and December 1934 at Gaibandha agreed with one another and with others, to have in their possession or under their control revolvers, pistols and guns in contravention of S. 14 and Section 15 of the Arms Act, and thereby committed offence punishable under Section 19(f), Section 19-A of the Arms Act, read with S. 120-B, I.P.C The appellants Nagendra Mohan Mustafi and Paresh Chandra Choudhury were charged separately for possession and control of a revolver, Ex. 11 in the case, in a manner indicating an intention that such control and possession might not be known to any public servant, and thereby committed an offence punishable under Section 20 of the Arms Act. Nagendra Mohan Mustafi and Paresh Chandra Choudhury were each of then sentenced to rigorous imprisonment for 7 years under S. 120-B, I.P.C, read with Section 19(f), Section 19-A of the Arms Act, and 5 years' rigorous imprisonment under. Section 20 of the Arms Act, the sentences running concurrently. Jogesh Chandra Das was sentenced to rigorous imprisonment for 7 years under S. 120-B, I.P.C read with S. 19(f). Section 19-A of the Arms Act. Narain Chandra Biswas and Satyendra Nath Chaki were sentenced to 6 years rigorous imprisonment each under S. 120-B Penal Code read with S. 19(f), Section 19-A of the Arms Act. Bejoy Kumar Nandi and Binoy Kumar Tarafdar were each of them sentenced to rigorous imprisonment for 5 years, under S. 120-B I.P.C, read with S. 19(f), Section 19-A of the Arms Act.

2. The case against the accused persons placed on their trial was that they belonged to the Tugantar Party—a revolutionary organisation having for its object the subversion of British rule in India by armed revolt, that they along with others conspired to procure arms like revolvers, pistols and guns, that they used to meet at places to settle their line of action. The case for the prosecution was that in order to purchase arms, money used to be raised by thefts and subscriptions by members of the party; and evidence was led to establish that members were advised to steal ornaments from their own houses; that these ornaments when melted the sale-proceeds of the gold were used for purchase of revolutionary literature and revolvers.

3. Evidence of overt acts was given to establish how Nagendra Mohan Mustafi purchased books in Calcutta and sent them to Gaibandha; it was also sought to be proved by evidence, that Nagen had possession and control of the revolver (Ex. 2); he made it over to Paresh; it was then kept in a vacant house. There was also evidence led by the prosecution to show that Jogesh and Benoy went to Naogaon with a revolver and a pistol (Exs. 3 and 4) and that Durga Burman was sent to Naogaon to bring back the revolver and the pistol (Exs. 3 and 4) from one Probhas Pramanik; the revolver and the pistol were brought to Gaibandha according to arrangement made. The evidence for the prosecution sought to connect all or some or any of the individual accused with the acts of the conspirators mentioned above, the object of the conspiracy feeding, as mentioned already, the overthrow of the British rule in India by armed revolution.

4. The evidence in the case consisted of: (1) the evidence of witnesses mentioned in the judgment of the Magistrate, as accomplice witnesses or witnesses in the position of accomplices. (2) The evidence afforded by what has been described by the Magistrate as confessions of three of the accused persons, Nagen, Jogesh and Paresh, which were retracted and the other two statements of Satyendra and Benoy self-exculpatory in nature. (3) The evidence of independent witnesses. All this evidence related to the association of all or some of the accused persons at four secret meetings, their agreement to collect money by thefts or otherwise, purchase of revolutionary literature, and for acquisition of arms. The confessional statements recorded by a Magistrate under Section 164 of the Cr PC, though retracted, support the conviction of the accused persons who made them. As to their voluntariness there is no manner of doubt; and taken along with the other evidence in the case, they establish the guilt of the accused persons. The self-exculpatory statements made by Satyendra and Benoy lend support to the evidence for the prosecution, so far as they go, against the accused persons other than those two who made those statements to save themselves. The three confessional statements by Nagen, Jogesh and Paresh, contain some discrepancy and divergency; but there is ample evidence to support one or other of the accounts given in detail by the confessing accused. The confessional statements as also the exculpatory statements have to be taken into consideration along with the other evidence in the case; and, in our opinion, they lend support to the other evidence in the case. The case before us is not one in which a confession by an accused person is evidence in the case independent of other evidence; the confessional statements are only pieces of evidence which, taken along with other evidence, support the case for the prosecution; and we have considered the statements under Section 164 of the Cr PC, confessional or exculpatory in nature, from that standpoint. It was contended before us that the confessional statements were not admissible in evidence at all.

5. The grounds taken in the petition of appeal to this Court were that the confessional statements were not admissible in evidence inasmuch as they were not voluntary and not recorded according to law. These grounds are wholly unsustainable, as we have, on the materials before us, no doubt about their voluntariness and as to their having been recorded in the manner prescribed by law. It was urged before us however that the statements as recorded were not such as could be held to be admissible in evidence having been recorded under Section 164 of the Cr PC. Although great stress was laid on this point no materials were brought to our notice on which it could possibly be held that the statements in question were not recorded in the course of an investigation under Ch. 14 of the Code; and we are unable to give effect to the contention sought to be raised before us for the first time, relating to the inadmissibility of the same in evidence for the reason that they were not statements as contemplated by Section 164 of the Cr PC. In our judgment no question could arise as to their admissibility in evidence, and they were rightly taken into consideration by the Court below, along with the other evidence in the case. The confessional statements support the case for the prosecution, as to existence of conspiracy as to overt acts of the members of the conspiracy, of the possession of fire arms for the purpose of attainment of the aims and objects of the conspiracy. The confessional statements made by Nagen, Jogesh and Paresh support the conviction of the persons who made them; they support, in spite of some divergencies as between the different confessions, the other evidence led by the prosecution for establishing the offence charged against all the persons placed on their trial. The statements of Satyendra and Benoy, it may be noticed here, though exculpatory in nature, lend support to the case against the accused.

6. The next class of evidence in the case comes from a large number of witnesses who have been mentioned in the judgment of the Magistrate as accomplices or persons in the position of accomplices. At the outset it may be stated that for establishing a charge of conspiracy of the nature we are concerned with in the case before us, evidence has to be taken into consideration of persons who may have knowledge of secret organizations, but who have not taken part in the perpetration of a crime, persons to whom no overt acts, so far as the main charge was concerned, could be attributed. As it has been said, it would not be right to regard a person who happens to be cognisant of crime, or who has made no attempt to prevent it, or who did not disclose its commission as accomplice, and to apply to his case the same rule as applies to evidence of accomplices. Most of the witnesses who have been classed as accomplices by the Magistrate in this case were connected with the offence charged against the accused in this way only, that some of them read books which the accused were circulating in furtherance of their object; the witnesses were for a time in sympathy with the idea of revolutionary activities; but no overt acts could be attributed to them generally so far as possession of firearms, which was the main charge in the case, excepting this, that some of them contributed to the fund raised for purchase of firearms and I revolutionary literature. In a case of the present description therefore the function of the Court was to ascertain what was the degree of credit to be attached to the evidence coming from witnesses of the above description, regard being had to all the facts and circumstances of the case, and not to class witnesses as accomplices or practically accomplices, as it is sometimes done: see, 38 CWN 7771.

7. It may further be noticed that where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to been accomplice in the crime, as it is well settled that all accessories before the fact, if they participate in the preparation for the crime are accomplices, but if their participation is limited to the knowledge that crime is to be committed, they are not accomplices. Whether therefore a person is or is not an accomplice depends upon the facts in each particular case considered in connexion with the nature of the crime; and persons to be accomplices, must participate in the commission of then same crine as the accused persons in a trial are charged. All persons coming; technically within the category of accomplices cannot also be treated as on precisely the same footing. In the light of the above rules which are well settled, and on careful consideration of the evidence of witnesses described in the case-before us by the trying Magistrate as accomplices, we are not in a position to hold that they were accomplices whose evidence required corroboration on all material particulars from what is called independent evidence. In our judgment the evidence of witnesses who were aware of the conspiracy, and of the objects of the same, and who were merely tools in the hands of the leaders of the conspiracy for a certain time, and had nothing to do with the control and possession of firearms, the main charge against the accused persons, cannot be viewed with such suspicion as has been suggested. The evidence given by these witnesses contain in some instances improbabilities in some matters of detail, and discrepancies also; but all the same, that evidence appears to us, on a close examination, to be reliable on the whole, and cannot be discarded for any valid reason. The evidence coming from at least 15 witnesses, who have been described as accomplices, prove the existence of a conspiracy, prove the holding of meetings by the members of the conspiracy for furtherance of their, aims and objects, and establish the position that there were overt acts done by the individual members of the conspiracy, which included thefts for the purpose of collection of funds for the purchase of revolutionary literature and firearms.

8. In addition to the evidence of witnesses-described as accomplices or more or less accomplices, there is the evidence of witnesses mentioned as independent witnesses—examined on the side of the prosecution to corroborate the evidence of the former. The evidence coming from these witnesses appears to us to be wholly trustworthy and reliable, and that evidence establishes facts and circumstances which support the main body of evidence coming from witnesses who cannot, in our judgment, as indicated already, be placed in the category of accomplices so far as the offences charged against the accused persons were concerned, for the reasons stated. The evidence before the Court, as it stands, coming from the different classes of witnesses—witnesses who were aware of the conspiracy of which the accused were members, and who could only be said to have participated in some of the acts of the conspirators up to a certain point of time only, and who on that account could not be held to be at a disadvantage so far as reliability and competency as witnesses to prove the existence of the conspiracy, the aims and objects of the members of the conspiracy and the overt acts so far as those members were concerned, including the control of possession of firearms which was the subject of the charges against the accused persons—the evidence on the record, which we have examined for ourselves, taken as a whole, establish the existence of a revolutionary organization having its object the subversion of the British Rule by armed revolution.

9. The association of the seven accused persons with others as members of a criminal conspiracy for the purpose of spreading revolutionary ideas, the raising of funds by any means possible—by subscription among members, and by thefts etc., for purchase of revolutionary literature and firearms, the holding of meetings by members of the conspiracy at different times for spreading and advancing the aims and objects of the conspiracy, and for deciding upon overt acts of the conspiracy, the control and possession of the revolver Ex. 2 in the case, by members of the conspiracy generally, and by the accused persons individually, the possession of the revolver and pistol Exs. 3 and 4 and of the sending of these firearms to Naogaon and of the bringing back of those firearms to Gaibanda—the above are the main heads on which evidence was directed in the case before us. That evidence has been carefully examined by the trying Magistrate; and on an examination of the same, we are unable to take any view different from those indicated by the Magistrate in his exhaustive judgment. In points of evidence relating to matters of detail, there are at places some inconsistency or discrepancy. In the case of throwing away of some books connected with the criminal conspiracy of which the accused were members, there is some apparent improbability. We are not however inclined to think that any of these inconsistencies, discrepancies or improbabilities, in minor matters of detail, affect the main case for the prosecution, which has been amply proved by reliable evidence. The cases against the individual accused persons have been dealt with by the Magistrate; and we do not think that anything could be usefully added to what has been stated by the Magistrate in his judgment. Nagen, Jogesh and Paresh were mainly concerned in the control and possession of firearms Exs. 2, 3 and 4 in the case. Benoy Tarafdar's connexion with the possession of the firearms Exs. 2, 3 and 4 has also been proved; he and Jogesh went to Naogaon with the revolver and the pistol Exs. 3 and 4. Narain Biswas's association with the ringleaders was clearly established so far as possession of firearms was concerned.

10. The complicity of the two accused persons, Satyendra Nath Chaki and Bijoy Kumar Nandy, has also been established so far as the offences charged against them were concerned; but it appears that they played minor parts as members of the criminal conspiracy to possess firearms for revolutionary purposes. In the case of Satyendra, the Magistrate has come to the conclusion that he was apparently in the conspiracy, and nothing more. The finding on evidence in the case of the other accused, Bejoy on evidence, is that he agreed with Nagen, Paresh, Jogesh and Satyen and others to possess revolvers, etc., in contravention of Sections 14 and 15 of the Arms Act. On the evidence as it stands it appears to us that nothing more than that could be found against these two persons. In our judgment, the sentences passed on Satyendra. Chaki and Bejoy Kumar Nandy should be reduced to rigorous imprisonment for four years in the case of each of them, their convictions being upheld. With the above modification of the sentences passed on the appellants Satyendra Chaki and Bejoy Kumar Nandy, the appeals are dismissed.

R.M/R.K

11. Order accordingly.