Woodroffe, J.:— In this case, the hearing of which on appeal has lasted over three weeks, there are twelve accused who have been represented by various learned Counsel and by Babu Monmatha Nath Mukherji.

The charge in the Magistrate's Court was of two separate offences laid in an alternative form. The first charge was that the accused on or about the 1st November, 1912 at Comilla made preparation for committing dacoity in a particular manner, which was assigned to be as follows; namely, by assembling together with arms, masks and implements which might be used for the commission of dacoity. The offence there charged was one under sec. 399, Penal Code, all else in the charge than the allegation of preparation being merely particulars as to the preparation alleged. It then proceeded in the alternative to charge an offence under sec. 402 of the Indian Penal Code, in that on the said date and at the same place the accused assembled together for the purpose of committing dacoity; judging from the record before us it would seem that before the Sessions Judge the charges were treated not alternatively but as additional. This appears both from the order-sheet, the judgment, the written statement of the accused and from what learned Counsel has told us. Under the circumstances, however, the matter is of no practical importance.

The learned Judge and the Assessors found that the accused were not guilty under sec. 399. The learned Judge's view, as appears in the judgment, was that though the facts alleged by the prosecution had been proved they did not constitute an offence under sec. 399, because he was of opinion that mere assembling would not constitute an offence under sec. 399 and because he thought it necessary that it should be proved what part each particular member of the gang took in the preparation and bringing together arms and the like. As he was of opinion that this had not been shown he held that the accused had not been guilty of an offence under sec. 399. There may be a question whether he was right in this, for it may be argued that if the facts put in evidence by the prosecution are true, they evidence preparation and that it was not necessary that the prosecution should point out with their finger the exact part taken by each member of the gang as regards such preparation provided that it were shown that the accused were members of a gang which had made in fact preparation for dacoity. Doubtless the word “whoever makes” in sec. 399, may have been the cause of the contrary view. But sec. 399, it is argued, assumed a previous agreement to commit dacoity and to refer not to individual but concerted action (see Punjab Report, p. 43). It is, however, unnecessary in this case to discuss or decide the question having regard to my findings on the other points raised. The question before us is not whether the accused might not also have been convicted of the major offence but whether their conviction on the minor offence should stand. The Assessors were of opinion that the accused were not guilty under sec. 402. Here I may observe that objection has been and I think rightly taken to the form of the Assessor's verdict which was due to questions put by the learned Judge. The latter put a large number of questions to the Assessors and then recorded their opinion on those questions. He should however have allowed the Assessors in the first instance to have given their opinion in their own language and way and then when they had completed what they had to say, to would have been open to him to put to them such questions as were necessary to elucidate or supplement their opinion. To the method followed there is amongst others their objection that the questions which a Judge may call on an Assessor to answer may not be exhaustive in extent nor crucial in character. Speaking generally, the opinion of the Assessors was that the accused Nos. 1, 5, 6 and 10 (I take the numbers of the accused here and later from the heading of the printed judgment) had offered a satisfactory explanation of their conduct, but that as regards the other eight they were assembled for a purpose which one Assessor describes as “immoral or illegal” and the other as “evil”. It is not easy to reconcile such a finding with the facts of the case whatever view be taken of them. The Assessor could only be justified in assuming the existence of some evil and illegal purpose on the evidence. If that evidence is not accepted, there is no legal ground for such an imputation. If it is accepted, then the evidence itself discloses specifically what the purpose was, namely, preparation or assembly for the committing of dacoity. The learned Judge accepted the truth of that evidence and consistently with such acceptance found that all the accused were guilty of an offence under sec. 402.

Now, the first objection to this finding is one of law. It is said that the acquittal by the learned Judge of the accused under sec. 399 involved an acquittal under sec. 402, and therefore the conviction under the latter section cannot stand. There is of course no merit in this objection, for when we look at the judgment itself apart from the order or acquittal following on it, we know why it was that the Judge acquitted the accused under sec. 399. It was not because he found that there had been no assembly where arms had been found and so forth but because though there had been such an assembly as would justify a conviction under sec. 402, there was in the Judge's opinion no sufficient evidence of preparation under sec. 399, Penal Code. The objection is a technical one and put forward as such. The accused are, however, entitled to put forward any defence open to them, technical otherwise, and to have the Court's judgment on it. The objection however is ill-founded. I assume for the purpose of argument and without further discussion that we should in determining this matter not consider what the learned Judge had said in his judgment, but that we should determine the objection on a reading of his order of acquittal with reference to the terms of the charge which are incorporated in it. The objection then is this. It is argued that there may be preparation both before and after assembly, and that assembly itself is a form of preparation: that here the preparation alleged is the assembling with arms, etc., and that as the assembling in terms of the first charge was negatived as preparation, assembling under the second charge, was also negatived. It is argued that as the accused were acquitted under sec. 309, they should (having regard to the terms of the charge under that section) have been acquitted under sec. 402, as the charges under the two sections contained, having regard to their form, the same esential elements. There is, therefore, it is said, a repugnancy in the judgment. If this were the case, I am not prepared to accede to the argument that we could not ourselves alter the finding of acquittal under sec. 399 into one of conviction maintaining the sentence. Mr. Nisith Sen has argued that the decision in Queen-Empress v. Jabanulla(1), which admittedly entitles us to do so, was wrongly decided. It is, however, now too late to question it even if it was open to us and we wished to do so. That decision was given some seventeen years ago and must have been followed in numbers of unreported cases. It has also been adopted in reported decisions. I think it may be said, as Mr. Sen has done, that the decision in Satish Chandra v. Queen-Empress(2), in which no question of acquittal was involved in Kunja Bhuiya v. Emperor(3) in which the Court did not convict on a charge on which the accused had been acquitted and in 8 Bombay Law Reports, p. 376(?) in which the Court set aside the order except so far as it involved an acquittal, are not authorities on the particular point before us. But the decision in Nazimuddin v. Emperor*(4) clearly, is such an authority. It is true that the Judges in that case say that the trial was vitiated because the Assessors opinion was not properly taken, but by this word “vitiated,” they did not mean that the trial was void, otherwise they could not have proceeded to have expressed the opinion which they did, namely, that it was open to them to convict the accused of an offence of which he had been acquitted. That they did not do that which they considered they had ordinarily jurisdiction to do was due to the fact that they could not enhance the sentence and therefore a retrial was ordered. The Madras High Court have followed the decision in Empress v. Jabanulla, see Appanna v. Pithani(5), Hammappa v. Emperor(6), and the Ahahabad High Court proceeds on the same principle, see Emperor v. Sardar(7), for though that appears to have been a case where a Judge declined to convict, the effect of such an order is tantamount to an acquittal. It is however not necessary to invoke such powers as these cases speak of, as there is in my opinion no such repugnancy in the Judge's order as would require us to have recourse to them. Dealing only with the principal aspects of the offence of dacoity there may be, as is apparent from the Code itself, the actual commission of dacoity, a preparation for it, and an assemblage for the same purpose. As appears from the punishments awarded, the first two are treated as the more grievous offences, preparation is the next grievous, and assembly is the least grievous. All the offences have this in common that they presume an intention or agreement to commit dacoity by five to more persons. In a popular sense an assembly to commit dacoity may be a preparation for it. But a mere assembly without further preparation is not a preparation within the meaning of sec. 399. For it if were, sec. 402 would be redundant. This section applies to the case of mere assembling without proof of other preparation, for which there is a maximum punishment of seven years, whilst the preparation which is the subject of sec. 399 is punishable with ten, years imprisonment. A person can thus be not guilty of dacoity and not guilty of preparation yet guilty of an assembly. This appears also to be admitted by the argument for the defence that a band of dacoits might be convicted under both sections. However this be, and such admission does not affect my conclusion in this case, the argument substantially is that the form of the charges is such that the preparation alleged under sec. 399 is such that if negatived it follows that an offence under sec. 402 is negatived. On the other hand, it is said that the gist of the offence of preparation is the assembly which is also the offence under sec. 402. The argument, though not without an air of speciousness, appears to me to be fallacious what the first charge says when paraphrased is this: It says that the Defendants assembled or came together with or bringing arms, masks and other implements. This is specifically alleged as the preparation. It is obvious that it is not merely the mere assembly as such which is charged as a preparation under sec. 399, for in law it would not amount to such, and the use of the words, with arms, masks and implements would be unnecessary. It is true that in order to make out that the assembly under sec. 402 was for the purpose of committing dacoity, it may be necessary to show that there were arms, masks, and other implements found at the place of assembly indicating such purpose, but in that case such evidence is not relied upon as indicating preparation, but to show the purpose of the assembly. No question of bringing arms, masks and other implements necessarily arises under the second charge though the fact in this particular case that arms and so forth were found on the premises has been taken as evidence indicative of the purpose of the meeting. What therefore the Judge has done is to hold that the accused did not commit the offence of preparation under sec. 399 by assembling together and doing something more, viz., bringing with them arms, masks and implements; but that they did assemble together within the meaning of sec. 402 and that the presence of such arms, masks and implements (by whomsoever brought and whether by the accused or by others) together with other circumstances of the case showed that such assembly was for the purpose of dacoity. There appears to me to be nothing repugnant in such a finding, though, as I have already said, it might perhaps have been open to the learned Judge on the evidence to hold that there was not merely an assembly but that the circumstances of the case, if accepted, indicated that the presence of arias, masks and emplements at the place of assembly was due to the action of those who took part in it. The learned Judge, however, took a course which I am not prepared without further discussion to say was wrong and which was more favourable to the accused in that he convicted them only of the minor offence. Having now disposed of this argument on the order and charge only I may refer to the judgment which clearly expresses the ground of the learned Judge's decision on this point. He says “with the possible exception of Kumud in whose pocket a mask was found, I do not think that there is sufficient evidence of preparation by bringing together arms and weapons. I do not think it can be assumed that any individual actually made preparation for dacoity by bringing together arms. Nor do I think it can be said that under the circumstances of the case constructive preparation has been proved by the application of sec. 149 of the Penal Code.”

I hold then that there in no such repugnancy as is alleged, that if there were, it would be open to us to correct it and I now proceed to deal with the facts of the case.

It is said that, on the 27th October, 1912, a letter, which is in peculiar terms, was sent to one Sukhendra Bhattacharjee, the thirteen years old son of Sub-Inspector Sashi Kumar Bhattacharjee, here referred to as the witness Sashi. This was received by the witness Sashti Charan De, a servant of the Sub-Inspector, on the 28th October and shown by the witness Sashi to Inspector Hari Kumar and mentioned to the Superintendent of Police. The letter warned the recipient who was directed to tell his father that a dacoity would be committed on the 1st November. In consequence of this on the 1st November Sub-Inspector Sashi sent a requisition to the Superintendent of Police for extra constables and two head constables and 10 men were deputed for round duty. About 10-30 P.M on a rainy evening of the 1st November two constables, the witnesses Majub Ali and Fazar Ali who were on the Kandipar Chomuni Road, saw two persons whom they regarded with suspicion and whom, on refusing his challenge, Majub Ali chased. He caught one of them but being struck on the arm with something hard either by the man he was holding or by his companion the man who was caught was let go and he and his companion ran eastward along the road, in the direction of the hut, where the accused were found. These two men were followed by 7 or 8 others, who ran past Majub Ali in the same direction, that is, towards the hut of one Probhat Karmakar. This man is said to be a goldsmith and has hired two huts which are in the compound of the witness, and Mukhtear Durga Charan Pal from the latter. The hut in which the latter lives is only 23 cubits from the Karmakar's hut. He gave important evidence when he said that he heard a noise on the road about o'clock, on which he came out of his hut and enquired of Probhat Karmakar what it was about. He then says that Probhat (who would ask us to believe that he was then asleep) told him that there was shouts of “thief, thief” on the road and that people were running, on which the Mukhtear returned to bed until, as hereinafter stated, he was called by the Police to be a witness to the search of the Karmakar's hut. Majub Ali says he then stayed on the spot and sent Fazar Ali for relief, the latter armed with 8 or 10 Police, one of whom was Yakub Ali Havildar. He on being told what: had happened went to the Police where Majub had attempted to effect an arrest and there found a blacksmith's cold chisel and iron holder, the fourth Sub-Inspector of the Katowali Thana who lived near by and whose name is Jatindra Mohan Ray, was sent for through the Jamadars Jaffar Ali and Yusuf Ali. The latter seems to have arrived about 11-30 P.M He was told what had happened and made an examination of the locality. He then went to the Inspector Who having heard what he had to say told him to return and enquire and promised to follow later on. The Inspector's house is close, by, 40 or 30 cubits south-west of the Kandipar Chomuni. On Sub-Inspector Jatin's return he asked Majub Ali to point out the way along which the suspicious characters had run and according to Jatm's evidence Majub Ali pointed out a route across the drain along a drain and 2 or 3 cubits east of the Karmakar's hut. He then crossed the drain and went and stood at the north-east corner of the Karmakar's north hut,—a light was burning within. The Sub-Inspector asked who was inside to which some one replied “we Karmakars are here”. The Sub-Inspector then said “some men have rim past this house a little time ago, do you know where they have gone or anything about it”. He also asked if any one had” come into the house from outside, to which some one replied “we heard the footsteps of some people going away but we do not know where they have gone. There is no one else in the hut”. On, however, the Sub-Inspector going to the south-east corner of the hut he saw with the light of his lantern a man spring from the south to the north hut of the Karmakar. The whole of this hut measures only 21 × 13 feet. It is divided into two rooms by a fencing, which are called the western and eastern rooms. The eastern or larger room is said to be 13×13 and the western 8×13 only. Further, in the room there is a machan which takes up a good deal of the space. On this machan was a mosquito curtain which was down. Outside this machan were found according to the Sub-Inspector three or four persons whose upper bodies were bare and their dbuties were wet. On lifting up the curtain 6 or 7 more persons were discovered lying down on the machan with something like a quilt over them. This was removed and the clothes of some of those who were beneath it were found to be wet. Two men were in the east room where there was a light. These were the accused Thakur and Prasanna. The Sub-Inspector Jatin says that he then asked what they were all doing there on a wet and cloudy night with wet clothes on to which he said none of them answered. There is some conflict of evidence here, for the Constable Yakub Ali before the Committing Magistrate says that the Daroga felt the clothes of a man who appears to be the accused Romesh Banerjee who was standing between the machan and the doorway and who explained that his clothes were wet as he had come from the station which is possibly the case. This from his deposition would appear to refer to a time before the arrival of the Sub-Inspector Sashi. In, however, his deposition before the Judge he made the incident take place after the arrival of the witness Sashi. So far as the Police witnesses are concerned, this and other discrepancies to which we have here referred, must be considered in dealing with the weight to be attached to their evidence, but so far as the defence of the accused is concerned it does not appear to be of much importance, for it is admitted that a little later on they all did give accounts (whether true or not is another matter) of themselves on that night to the Additional Superintendent of Police Rai Sahib Nanda Kumar Bose who has given evidence before us. This man Romesh Banerjee was known to Sub-Inspector Jitan and made an observation which has been held to be not admissible. Thereupon the Sub-Inspector looked under the machan and found a basket which, when removed, disclosed a double barrelled gun in two pieces. A man was then sent to fetch the Sub-Inspector Sashi and the Mukhtear in whose basha, the hut was —Durga Charan Pal. The latter came about midnight. On his arrival he was shown the gun and told what had happened and it is noteworthy that none of the persons in the room made any disclaimer as to knowledge of the gun which was found in their presence, and which according to the evidence-was stolen from the district of Mymensingh some 4 or 5 years ago. Five or six minutes after the arrival of the Mukhtear Sub-Inspector Sashi came. He was informed of what had occurred and three or four minutes later Hari Kumar Gupta, the Sadar Inspector, arrived and with, or shortly after, him another Mukhtear named Lalit Chandra Chakrabutty. Sashi Inspector on arrival told the men that he put them under arrest and four or five minutes later the accused were taken out of the rooms and kept out of it and tied up—a circumstance on which the defence naturally rely. It is said however that, though taken outside, they were kept near the south door facing the machan. In the presence then of the two Mukhtears, the Sadar Inspector and the two Sub-Inspectors a search was commenced of the hut. On the mosquito not being undone a lot of clothes were found heaped upon the machan. On examination of the ceiling a cloth bundle was found which on being opened was seen to contain a number of bags of similar pattern and design which it is suggested were to be used for the purpose of carrying loot and so forth, as also two revolvers, one of which was an old fashioned pinfire. There were also found some cloth bundles containing cartridges. Two hammers, one of which is described a sledge hammer, a bag of seeds and some lathis were found in various places. After this search was over the Superintendent of Police and subsequently the Additional Superintendent Rai Sahib Ananda Kumar Bose arrived. This was about 1-30. They were informed of what had happened and shown the articles which had been found. Still later and some time after 1-30 the Additional Magistrate Mr. Chatterjee came. A search list was-then prepared. The clothes which had been found on the machan were then examined. These or some of them were wet. Some things were found in the pockets of the clothes. It is not necessary to deal with this detail. It is sufficient to say that some of the clothes contained cloth marks. If these were truly discovered, they could under the circumstances only have been there for the purpose of dacoity, and in a shirt was found a piece of paper marked XVC which is in the following terms: (1) Nishi and Paritosh, (2) note, (3) packing, (4) money takadi, (5) Cheni (Chisel) las etc., (6) automatic, rumal (handkerchief), (7) Carry, (8) Nayan. In a piece of wet rag was found a paper marked XXa which runs as follows:—

1. Kumud … Hammer. 2. Jogess … Cheni (in Bengali character.) 3. Madan … R. 380. 4. Bepad … S.B.L 1. Nishi … Hammer. 2. Bira … Cheni (in Bengali character). 3. Rebati … S.B.L 4. Arun … R. 450. 1. Nayan … D.L 2. Kalachand … R. Pur. 3. Dhiren … D. 1. Debendra … G. 2. Romesh … R. 450. 3. Doctor … L.D 1. Jiten … R. 450. 2. Kali Prasanna … R. 380. 3. Baiju … D. 1. Paritosh … Automatic.

There are 18 names in this list which, it is suggested, are those of the members of a gang of dacoits. If the names on the list are found to correspond with the flames of the persons under trial then under the circumstances the inference is that the names on the list are those of the persons on trial. And the more of such names there are on the list corresponding with the names of the persons on trial the stronger is the evidence of identity. In the present case if the document is a genuine one, it is in the highest degree improbable that the 8 names on the list which correspond with the names of 8 persons in the hut should yet refer to some other people. Of these 18 names 8 are said to be those of the accused found in the hut by the Police, viz., accused 1, 2, 4, 5, 6, 8, 9, 11. Arun is one of the names of Ramesh Chandra Gupta, accused No. 4, and accused No. 8, Hara Chand Sil, was known by the name of “Doctor”. Baju is the nickname of Brojendra, the fifth Defendant. The names of accused Nos. 3, 7, 10, 12 are not included. The remaining ten names refer to others who are, it is suggested, members of the same gang. Of these names Nishi was a servant of the accused Sarbari or Baju. In a letter which purports to be written by the latter and which was found at the hut on the 7th November six days after the present search, the addressee is Nishi and reference is made to one Revati. It is also remarkable that a man of this name was actually arrested in the early hours of the morning of the 2nd and according to Mr. Watling between 4 and 5 A.M after the discovery of Ex. XXA and the completion of the search list. This man Revati was wearing a damp dhuti, had shoes and said nothing when the constable made his statement to Mr. Watling. It is suggested as regards the names other than those of the accused that they were those of members of the same gang who were coming to Comilla to join forces with those members who were already there, but which they were unable to do as the steamer missed connection. The words opposite the names of the list are said to indicate the weapons which were to be assigned to each member of the gang. The words “hammer” and “chisel” speak, for themselves. R. refers, it is said, to revolvers and a revolver of 380 bore was found which is said to be one of the R. 380 appearing in the list. R. Pin refers, it is said, to the Pinfire revolver found. Other entries, it is suggested, refer to the guns and lathis, “automatic” referring to “automatic pistol”. One mask was found outside by Jamadar Yusuf Ali near the kitchen.

When the list was completed the Rai Sahib questioned the accused and he has deposed to their answers. They gave various accounts of themselves to which I refer later when dealing with their individual cases. It is only necessary to note here that the accused Kumud does not admit having been found in the hut as the others were. He alleges that he was going from his mama's basha to the railway station with a view to returning home when he was arrested on the road by the Police and by them mixed up with the other accused.

All these matters took up to about 6 A.M when formal first information was laid at the Thana. The party then left and the accused were, taken to hajat. It will be convenient to notice here an argument of Mr. Caspersz who appeared on behalf of the first accused Romesh Banerjee. He contends that when Mr. Ganga Charan Chatterjee arrived he should at once himself have taken cognizance of the case and as he did not, learned Counsel at first contended that all subsequent proceedings were bad, and secondly, the accused were in any event prejudiced. I will assume for the sake of the argument that in law it would have been open to Mr. Chatterjee to have taken cognizance of the case then and there as also for the same purpose that it was his duty to do so. It would of course be impossible to hold that such a neglect of duty and refusal of jurisdiction by one Magistrate could possibly, have the effect of preventing any other Magistrate doing his with the result that subsequent trial and commitment before and by Mr. Rankin, the Magistrate, was bad. Ultimately learned Counsel conceded that this must be so and that even on the assumption which he asks us to make the commitment and trial were not bad. I may here observe that nothing appears to have been heard of this objection before this appeal. The matter then ultimately resolved itself into a question of alleged prejudice. According to learned Counsel the Magistrate Mr. Chatterjee should have taken cognizance on his own suspicion from what he saw that an offence had been committed and should then and there and in this hut and in the hours between 2 and 6 at night commenced proceedings, calling upon the prosecution to proceed with their case, asking the accused what they had to say and if necessary postponing further hearing. I have myself no doubt that if the Magistrate had in this case done anything of the kind his conduct would have been severely assailed by the accused. His cognizance on his own suspicion would have been censured as precipitate and his conduct in hastening on the proceedings and questioning the accused would have been challenged as oppressive. I think myself that under the circumstances of the present case had the Magistrate taken the course which Mr. Caspersz suggests it would have been open to objection. It appears to me that what actually followed was right, namely, further investigation by the Police to see whether further light or evidence could be had on the affair and then the charge before Mr. Rankin. If Mr. Chatterjee should not have taken the course suggested, then it cannot be argued that the accused were prejudiced by his not doing that which he ought not to have done, but I may add that this objection of prejudice appears to be a shadowy one. It was suggested that the accused had no opportunity of making a statement then and there before the Magistrate. As a matter of fact they did make a statement on that same night to the Rai Sahib which has been recorded and of which they have had the benefit and though a further statement might have been made before the Committing Magistrate the opportunity was not availed of. It is also made a grievance that instead of sending up the accused at once for trial the Police took time for further investigation with a view, it is suggested, of discovering whether there was evidence of a wider conspiracy of which the dacoity in question was an incident. I can myself see nothing improper in this. In fact it was their duty to investigate the matter in this maimer and for the purpose of collecting all available facts before sending up the accused for trial on the 2nd November the accused were remanded to hajat until the 10th. On the 8th one Nagarbashi Rudra Pal was produced before the Magistrate but discharged at the request of the Police for want of evidence. This has been relied on as a circumstance of suspicion and one tending to support the Police plot suggested in the case. There appears to have been no suggestion or cross-examination as to this before and, had there been, it might have been shown that the reason of his arrest was due to the appearance of his name in the Karmakar's books. On the 11th the Police asked for adjournment to complete enquiry. This was granted until the 16th when a further remand was given till the 27th November, on which day and following days evidence was taken, and accused committed to the Court of Sessions on the 14th December last. During the investigation on the 9th November some chisels and, crowbar were found at the point marked S. on the map while the basha of the witness Debendra Nath Ghose was being cleaned. This place is at a short distance to the south of the Karmakar's hut, on the other side of the drain running from north to south. This finding is corroborated by the evidence of Babu Satish Chandra Rai, Honorary Magistrate, who having received immediate information from the sweeper Basanta Mali, who found them, went to the place pointed out by the latter and there saw the crowbar and five or six chisels. With that conflict of argument which has marked the defence in this case it has been suggested on the one hand that these chisels were really dropped there by some dacoits and that therefore these had gone past and never entered into Karmakar's house and on the other hand that the story of suspicions men having been found on the road and of their running away is an invention of the Police who for their own purpose put the chisels at the points where they were subsequently found. On the third of November the house of the accused Kumud was searched and some papers found. In one of these letters the latter “is asked to secure a self-sacrificing member, “a young man,” for it is said “things are achieved by the energy and perseverance of young men”. The writer in the post script gives the name of a young student. “You should” it says “watch him strictly and if found fit you should write to me, you should procure all informations regarding him and write to me and if you think it all right you yourself may proceed slowly”. Another letter presses upon the adressee the propriety of the time and opportunity of work and in another letter the writer says that by the will of the mother (that is the Devi) he hoped to meet Kumud shortly, adding. “It seems to me that mother would get some works done by you. The mother has an eye upon you”. Mr. Rasul has suggested to us that these references may apply to assurance business or religious proselytising. It is however obvious to me that the letters are of a political character and refer to secret nationalist propaganda most probably of a revolutionary kind. They were however written some time before the occurrence, the subject of the charge, but have this bearing that if Kumud Nag was a member of this gang, this evidence serves to explain its motives and how it is that persons who did not appear to belong to the ordinary criminal classes engaged in the work of dacoity. On the early morning of the 2nd November the house of the accused Romesh Chandra Banerjee was examined. The importance of this evidence is with respect to the postcard, Ex. A, said to have been addressed by one Surendra to Romesh Banerjee and which is relied on by the latter in support of the account which he gave of himself to the Police. For though in examination of the search witness No. 36 the question of the prosecution as to whether that postcard was found at such search was on the objection of the defence disallowed, it is yet obvious that the postcard was not then found as it was produced by the prisoner's Counsel much later and for the first time in the Sessions Court. The fact is of importance when we consider the question of the genuineness, of the document. On the 7th November the Karmakar's hut was again-searched and possession taken of some kata books and papers. An entry in the khata exhibit is relied upon in support of the defence of the accused Sarbari or Baju. It has been a matter of dispute whether there were two entires as the defence contends or one as Mr. Sinha for the Crown has submitted. It shows under the name of this accused an entry of golds weighing twelve annas and the receipt of 3 annas for repairing work. Of the other papers there found two have some importance, viz., Exs. XXVIII and XXIX, one of which is addressed to one Nishi who was a servant of this accused Sarbari and contains a statement of the sending of one Rebati. These names occur on Exs. XVC and XXA and have importance on the question of the genuineness of the latter documents.

Before leaving the question of Police investigation before trial it is to be noted that the Police charge-sheet of the 15th November in giving the names of the witnesses and the points upon which they are to be called to give evidence mentions two persons names, Nagarbashi Rudra Pal and Ram Chandra De, who are expected to prove association of the accused and their conduct. The former is the man who had been put up and discharged on the 8th November. These persons are not called and the circumstance is pointed out as one of suspicion; in what way is not clear. All that is before us is that the Police expected two witnesses to depose for the prosecution and for some reason or other they did not. We cannot assume that this indicates something wrong on the part of the Police when it is quite possible that these two witnesses may have been willing to give evidence and for fear or other motive refused at the last moment to do so. Moreover, if any charge of crime in this matter was going to be made against the Police it should, as I have already pointed out, have been cross-examined on when, as Mr. Sinha has argued, an explanation might have been forthcoming. The charge-sheet was signed by Sub-Inspector Sashi, who was not questioned as to this. Upon this point I may make an observation which has application to other points in the case. It is of course no affair of the defence to supplement or explain deficiencies or suspicious circumstances appearing on the face of the prosecution evidence. It is open to it to say that the prosecution has not proved its case and to refer to such deficiencies in proof of the submission or to other circumstances appearing on the face of the prosecution evidence which show that it is so open to suspicion that it would be unsafe to accept it. If however not content with relying on such deficiencies and suspicious matter the defence put forward a case of fraud or if the evidence for the prosecution is not ambigous the defence should give notice of the point they intend to take so that the prosecution may have an opportunity of explanation. The present is a case in point. If any charge of fraudulent practice was going to be based on a circumstance which standing by itself is not necessarily suspicious the defence should have cross-examined witnesses. I may here add in connection with the witness Sashi that I think that there is ground in the defence objection that he should have been called at an early stage of the case and not at the very end as was the fact.

He and the other Sub-Inspector are two of the more important, if not most important, witnesses in the case and such should always be examined as early as possible. To some extent the matter has been remedied in the present case by the fact that the other Inspector of Police was called at an early stage being in fact the fourth witness.

It must be plain that if the facts are truly stated, the case against the accused is fully established in the absence of any credible explanation forthcoming from them.

[His Lordship dealt with the facts and ???.]

I turn now to that which is undoubtedly the most substantial point in favour of the defence, namely, the question of the manner in which the search was conducted. It is argued that there were grave irregularities in the conduct of the search and that although the existence of such irregularities does not render evidence of what was discovered on such search inadmissible, it does affect the credit which we should give to such evidenec.

In the first place, reference is made to the provisions of the Police rules that the party making the search should himself be searched. Sub-Inspector Jatin says that he told the search witnesses to examine his person, but they said it was unnecessary. The Mukhtear Durga Charan Pal however says that no one searched him and that he did not search any nor did any one offer to be searched by him. Whether the evidence of the one witness or the other is correct, it seems plain that the searching party were not for one reason or another themselves searched. I need not delay to consider the argument that the entry into the house was illegal and which was sought to be justified on the ground that the Sub-Inspector Jatin may have had reasonable suspicion of an offence. The question is of no importance here whatever might be its value in an action for trespass on which I express no opinion. The Sub-Inspector however admits that after entry no notes were made of the places at which things were found at the same moment that they were found. It is said that people were allowed to come in and go out during search. This, if it took place, would be an irregularity but is certainly no indication of the suggested dishonesty of the Police which might be exposed by allowing any stranger to pass in and out of the room. Dealing however with the case of alleged irregularity, Lalit, the Mukhtear, says that between the time of his arrival and the preparation of the search list Police officers and others were coming and going through the door. This refers to a period extending from midnight till four in the morning. The point is who were these others. But this he was not asked. These, may have included such persons as the Additional Magistrate, the Deputy Magistrate or Mr. Watling. And this may explain the apparent contradiction between the evidence and that of Sub-Inspector Jatin who says that people did not come and go in and out of the room before the Additional Magistrate came. He may be speaking of persons other than those concerned in the search. The Mukhtear Lalit may by the word “people” refer to persons who, though not Police officers, may have had a right to be there. The others search witness Durga Charan Pal similarly says that from the time that Sashi Babu arrived till the search list was Completed people including officers and constables were coming in and going out of the room. When Durga Charan speaks of the children of his house coming, he appears to be speaking of the time of his arrival and on cross-examination, he says the children were outside or rather in the door way. Lalit's statement as to the presence of a post office employee living with Inspector Har Kumar Gupta refers to a period before the accused were removed. It cannot be said that the evidence is very clear or satisfactory on this point but if it be possible that others than those properly concerned did have access to the room, then, as I have said, though an irregularity, it would go against the theory that the Police, amongst other things, fabricated documents there or introduced those documents and other things from outside, for it is not likely that under such circumstances anybody and everybody would have been admitted access to the room. The Police rules further provide that what is found should be sent up as soon as possible to the Magistrate. The reason given for the non-observance of the rule in this case is that the Magistrate had (as is the fact) already signed the search list. As, however, the object of this rule is to satisfy the Court of the identity of the objects found it cannot be said that in this case the matter was one of any importance seeing that Mr. Ganga Charan Chatterjee, the Additional Magistrate, was himself in the hut and saw the articles which were entered in the search list.

It is not clear that the alterations on the search list were made whilst the document was in Police custody but in any case they are not of importance. The alteration of the numbering was due to the fact that the number 23 was written twice and though the word Nogen has been changed into Nayan—Nayan appears on the original document entered in the search list. This document was in a had light read as Nagen and so entered at first in the search list, though in fact it is plainly Nayan. The most important matter in this connection is the fact that the accused were after the discovery of the gun (which was in their presence) after search of their persons sent out of the room. The Code permits the occupants of the room to be present at the search and there was therefore a violation of this rule which is one not merely of technicality but of substance in that it is enacted to guarantee the reality of the Search and the discoveries made thereat. It is unnecessary to determine whether all the accused found in the hut can be said to be occupants within the meaning of the section because the person or persons who were admittedly occupants were not present at the search. The reason for disregard of this rule is that the hut was, as is undoubtedly the case, a very small one. It is said also that the accused, though taken out of the room, were kept near the south door facing the machan. This, if a fact, would have been of little service to them. Moreover, it is contradicted by the search witness Durga Gharan Pal who says they were taken to the west of the wall which appears to be away from the door. Whilst I am not satisfied that, as has been argued, notwithstanding the alleged want of space people of all sorts were allowed to come and go out of the room, I am unable to say on the other hand that it would not have been possible to continue the search in the presence of the accused as by placing them in the eastern room and removing the that screen between it and the western room, or otherwise. However this be, the fact remains that the accused were not present at the search and this is an irregularity which they are entitled to ask us to consider. The evidence must undoubtedly be carefully scrutinised on that account. It is to be noted, however, that there were two search witnesses present. But after all if upon a careful scrutiny of the evidence we come to a conclusion that notwithstanding the absence of the accused advantage was not and could not have been taken of it, the irregularity whilst serving to exact from the Court a careful scrutiny of the evidence relating to the search has no further effect. It is not sufficient to suggest that articles might have been fraudulently introduced, we must see whether there are any reasons to suppose that this was done. The chief question therefore is was it possible or probable that the arms, implements, masks and documents found on that night were either there or previously introduced or fabricated by the Police as alleged. It will be here convenient to deal with the legal presumptions arising from possession if proved. If we take the single circumstance that arms were found under the machan and in the ceiling of the hut, knowledge of that existence would not (without other evidence) be imputable to any other than the lessee of the hut Probodh Karmakar—nor would the presumption-operate even against him if it were shown that the circumstances were such, that arms might be in his place without his knowing it:—for instance, if, as alleged to be the case here, they could have been introduced from outside. The evidence on this point is in some respects not as clear as it might be but appears to me to establish that the arms could not have been introduced from outside.

[His Lordship after dealing with the other facts and circumstances considered the case of each individual accused and concluded as follows.]

I have now dealt with the defence of all twelve accused. In my opinion for the reasons given I think that notwithstanding the suspicion which attaches to them we should acquit the accused Thakur Das Pal and Aditya Charan Dutta, the other circumstances of the case being insufficient to overcome the inferences which may be drawn from their position as subordinates of the Karmakar and the absence of their names from Exhibit XXA. As regards the rest of the accused they have, in my opinion, failed to meet the strong case which the prosecution makes against them and have not by their defenee shown that their presence in the hut was, as they allege, of an accidental and innocent character. The two Defendants I have above-named, Thakur and Aditya, are accordingly acquitted and I direct that they be set at liberty. The appeal of the other accused fails and is dismissed and their convictions and sentences are confirmed.

Beachcroft, J.:— In this case I had written a separate judgment, but my learned brother has dealt so exhaustively with the facts and arguments advanced and my own views coincide so closely with his on almost every point, that a lengthy separate judgment would be a mere repetition of a great deal of his. I therefore propose to confine my remarks to a few only of the principal matters that have been argued before us.

I agree with my learned brother's views as to the scope of secs. 399 and 402. The contention that the conviction cannot stand by reason of repugnancy in the record must fail, in my opinion, for two reasons: (1) that there is in fact no repugnancy, (2) that if the suggested repugnancy existed, it would provide no good ground for setting aside the conviction. With the first reason, my learned brother has dealt. I shall therefore confine myself to the second. The argument as to the repugnancy is based on the case of Rex v. Plammar(8), a case in which a person was acquitted though he had pleaded guilty to a charge of conspiracy, because the jury acquitted the other two persons with whom he was alleged to have conspired. It seems to me that the principle which underlies that case is really this, that you cannot have contradictory results or decisions from one set of facts, as only one decision can be the right one. The verdict of the jury was “no conspiracy,” that was conclusive and therefore the prisoner who pleaded guilty could not be convicted because his plea was inconsistent with established facts. It is true the learned Judges speak of the record being inconsistent and contradictory. But the record is merely the outward and visible sign of the facts found and I take it that the underlying principle is that which I have stated.

In that case Bruce, J., says “the record of conviction can only be made up in the terms of the indictment,” and in that expression it is argued that in considering this matter we must look only to the indictment and ignore the facts actually proved. The reason for the rule in the case of a jury verdict is obvious, for the verdict is simply one of guilty or not guilty on the specific indictment and the facts found by the jury are unknown except to this extent that the allegations in the indictment are proved or not proved. But I emphatically dissent from learned Counsel's contention that such a rule can be applied to the case of a decision by a Judge. In such a case we cannot ignore the facts found. The argument amounts to this: The Judge has found certain facts, he has made a mistake in law in saying that those facts do not amount to an offence under sec. 399, the facts do also amount to an offence under sec. 402, yet because he has, though mistakenly, acquitted the accused of the charge under sec. 399 and though he has rightly held the facts to be an offence under sec. 402, the accused must be acquitted of the offence under sec. 402. It seems to me that the argument has only to be stated in this form to insure its instant rejection. The position is this. The Judge finds certain facts, we agree with him in his findings as to those facts, yet if he makes an error in law in the application of the facts as to sec. 309, we are not only to accept his error in regard to that section, but to add to it one of our own in regard to sec. 402.

The accused are entitled to the benefit of any technicality that they can invoke in their favour, but a technicality which leads to such a farcical result as the above, must be clearly established, and it must be one which is to be found within the four corners of the Code of Criminal Procedure and not one borrowed from English law and founded be ideas as to the sacred character of a verdict by a jury, whose findings of fact are unknown, a character which by the express provisions of law does not attach to jury verdicts in this country.

Now, the tendency of modern legislation in general and of the Criminal Procedure Code in particular is to avoid technicalities, and I am aware of no provisions in that Code which would justify interference with a conviction on the ground of repugnancy in the record. An instance will make it clear that repugnancy in the verdict of a jury in India is not by itself sufficient to justify the quashing of a conviction and to anyone with much experience of mofussil juries, it will be evident that such repugnancies do occur. Suppose six persons are charged under sec. 147 with rioting and under sec. 304 read with sec. 149 in respect of culpable homicide committed in the course of the riot. The jury convicts all six under sec. 147 but convicts only three of the charge under secs. 304 and 149 acquitting the others of this charge. They do this arbitrarily to distinguish the case of ringleaders from those who take a less prominent part. The Judge considers that he can give a sufficient sentence in regard to the latter three, though he does not agree with the verdict. He cannot, therefore, refer the case under sec. 307, for it is not necessary for the ends of justice to do so. Nor on appeal could this Court interfere on the ground of repugnancy, for under sec. 423(2) it could interfere only on the ground of misdirection by the Judge or misunderstanding by the jury of the law and, both of these elements are absent in the case supposed. It is no answer to say that such verdicts ought not to be given, for the fact remains that they are.

If mere repugnancy in the verdict of a jury is not by itself sufficient to ensure quashing of a conviction, much less can that result be insured by a repugnancy, which exists only in the formal decision of a Judge, whose actual findings of fact are known, in other words, a repugnancy in form only and not in substance.

[His Lordship then considered the facts of the case and continued.]

The finding of the gun and revolvers is not disputed, but it is urged that the manner of their finding shows that the Police knew that these articles were there to be found and one of the facts on which this theory had been based is that Jatin found the gun almost immediately after he entered the hut, am entry which it is urged was in itself unjustifiable. It is argued that under sec. 47 of the Code of Criminal Procedure Jatin had no authority to enter the hut until he had asked permission from the occupant of it. This argument, in my opinion, is based on a misconception of the scope of sec. 47. It is not intended to restrict the powers of the Police: on the contrary, it is a provision compelling householders to afford the Police facilities in carrying out their duties, and sec. 48 provides that if difficulties are placed in the way of a Police officer, he may use force to obtain ingress. Now, no suggestion was made in the course of cross-examination to Jatin that he had done anything improper in entering the hut. What were the facts. He had been told about the occurrence on the road and led to the spot where the men had disappeared. He had been told that there was no one in the hut but the Karmakars, yet he sees a man, as he says, “spring” from the south hut to the north hut. He followed the man through the open door and found a number of men in a room without any light. He was about to look under the machan to see if anyone was hiding there, when one of the men there made a statement to him. He then removed the basket which was under the machan and found the gun. I do not see anything suspicious in this conduct of Jatin's: on the contrary, it seems to me extremely natural. If his suspicions were not aroused before he entered the hut, it is a reasonable supposition to make that he entered to ask the inmates if they could throw any light on the point as to where the fugitives had gone, and it would be absurd to call such an entry illegal. If his suspicions were aroused before he entered, it is impossible to say that in the circumstances his suspicions were not reasonable, and if he had reasonable suspicion of the commission of a cognisable offence, sec. 54 would have been a sufficient authority for him to effect an arrest. In either case the contention that his entry was illegal is, in my opinion, an idle one.

There is, however, more substance in the contention that at the time of the search the provisions of sec. 103, Criminal Procedure Code were ???. The learned Judge states, no doubt correctly, that the accused were not “prevented from seeing what was going on after expressing a wish to do so”. The language of the Code no doubt is, “shall be permitted to attend during the search,” and of that language it might be argued that there is no breach of the Code in excluding the occupant of the place, if he does not demand to be present. But the occupant of a place searched is hardly likely to be aware of his rights and in practice the search is ordinarily made in his presence. In my opinion the spirit of the section is that he shall be present and I take it to mean that he is to be given the option of being present, and not that he is to be allowed to be present only if he demands it.

It is to be noticed, however, that the right of presence given by sec. 103 applies only to the “occupant of the place searched or some person in his behalf”. I take it that the words “occupant of the place” are not intended to cover every person who may happen to be in the place at the time, but that they refer back to the person mentioned in sec. 102, “a person residing in, or being in charge of the place”. Strictly speaking, then, the only persons entitled as of right to be present at a search are persons residing in or in charge of the place, and when that view is applied to the facts of the present case, it is evident that the majority of the accused were not entitled as of right to be present at the search. As a matter of practice it is doubtless desirable that any person against whom an inference may be drawn from the fact of certain articles being found in a particular place should have an opportunity of being present at the search, but if it is proposed to draw an inference against the banâ fide of the police in respect of a search on the ground that the provisions of the law have not been complied with, it must be shown that those provisions have been ignored, and such an inference will not be justified from a mere failure to exercise a wise discretion. In the present case, however, it is quite clear that some one or more of the accused were in fact occupants of the hut, so that if they were improperly excluded there has been an ignoring of the provisions of the law.

Jatin says that the accused were taken out of the room and kept near the south door, that is, the door facing the machan. He evidently intends to suggest that they were in such a position as to be able to see what was happening. In cross-examination he gives the reason for the removal to be that the presence of respectable witnesses made it unnecessary to keep them in the room. Sashi, being the person who had then removed, is the proper person to give the explanation. The reason he gives is that there was not sufficient room in the hut and says they were standing in the passage between the hut, in front of the door. Durga says they were taken to the west of the west wall. Lalit says they were taken out but he did not see where they were taken to.

Taking these statements together it may, I think, be fairly inferred that they were taken to a place from which they were not in a position to see what occurred. It is possible that it was not Sashi, but the constables who were in charge of the accused, who removed them from the doorway to the west of the hut, but I think Sashi ought to have taken steps to see that they were not reproved.

It is suggested that they might have been taken into the east room and so enabled to watch the proceedings from the opening between the two rooms. Neither of the police-officers was asked why they were not taken and if they had been taken there the suggestion would doubtless have been made that considering the position of that opening they were not able to see anything.

If the dimensions of the hut are considered it will be seen that Sashi's estimate that there was not sufficient space in the west room for them is reasonable. The west room measured 13′ × 8′, the machan took up 8′ × 6′ leaving an empty space of only 8′ × 7′. In this space were three search witnesses and three police-officers, for the Inspector was also there and it does not need much imagination to realize that there was very little space left.

Another consideration must also not be lost sight of, two of the search witnesses were Mukhtears, the third, Jadu Babu, is described as a Civil Court Commissioner. These witnesses doubtless knew their businesses and were not likely to be imposed upon.

To my mind the removal of the accused ought to be attributed to an error of judgment, and it must be remembered that it was an error of judgment shared in also by the Inspector as being the senior officer present, against whom not only has no suggestion been made, but it has been made a grievance that he was not examined as a witness, for it is suggested that he having formerly been a pleader and above Suspicion, would have materially assisted the defence if called. However, the fact remains that the accused were not present at the search, and for that reason the evidence of finding of articles requires careful scrutiny. My learned brother has given reasons, in which. I concur, for holding that the masks were not introduced by outside agency and that the two important documents, Exs. XVC and XXA, were genuine documents.

The grievance of exclusion of the accused from the hut at the search is one which in regard to the earlier stages of the proceedings may fairly be termed unsubstantial, for it is not disputed that the bundle containing two revolvers, and a shirt, in the pocket of which a mask was subsequently found and a hammer was found above the ceiling, or that a gun was found under the machan. As regards these things the contention is that, whether put in the places where they were found by the Police or by some body else, the accused knew nothing about them.

When an article is found in a man's house the ordinary presumption is that he, as owner of the house, is a ware of its existence. This is subject to the qualification that no other person has access to that particular place. It follows that if the house is in the occupation of more persons than one having access to the particular place, there is no presumption against them individually that they have put the article where it is found; though if it be proved that an article has been for a considerable period of time in a place to which all have frequent access, it might reasonably be presumed that all were aware of its existence. These propositions depend on ordinary common sense and do not require any: authority to support them. Applying them to the present case the position is this. If it is shown that these articles could not have been introduced above the ceiling or beneath the machan from outside, there will be a presumption that some one or other of the persons using the hut put them where they were found, but there will not be a presumption as against any particular individual if the hut is used by more than one person. It therefore becomes necessary to examine the possibility of the introduction of these things by outside agency.

[His Lordship considered the evidence on the record and agreed with Woodroffe, J., and thus concluded.]

The next stage in the proceedings after the finding of the bundle and hammers and the clothes on the machan, was the examination of the contents of the pockets of the clothes after the arrival of the Additional Magistrate, who had been preceded by Mr. Watling:—in fact it was Mr. Watling who sent for the Additional Magistrate and the Additional District Superintendent of Police,—and much argument has been devoted by all the learned Counsel appearing for the Appellants as to the interval of time that elapsed between the arrival of Sashi and the arrival of Mr. Watling. The arguments are based on the estimate of the times given by the different witnesses when the various steps were taken. It is urged that no explanation is given of what was done during 1½ hours. The estimates of time given by the different witnesses naturally vary somewhat, and it in impossible to suppose that men who have been suddenly called from bed will have any very dear idea of what the time was. Mr. Sinha, for the Crown, has argued that the interval was not more than about 1/2 hour to 3/4 hour, i.e, from the time when the Inspector left to call Mr. Watling till the trrival of the latter. Considering the time that has been taken I do not think it makes very much difference whether it was 3/4 hour, an hour, or 1½ hours.

The argument is this. Sashi having found the revolvers, etc., and the clothes must have done something in the interval before Mr. Watling came; as it has not been stated what was done an inference must be drawn against the prosecution that the Police were up to no good, or at any rate that the absence of an explanation as to what was done rouses such an amount of suspicion that no reliance can be placed on the subsequent finding of the papers, Exhibits XVC and XXa, and of the masks.

Mr. Sinha's suggestion is that what was uppermost in the minds of Sashi and Jatin was the nature and condition on the clothes, for the circumstances showed that the accused found on the machan with wet clothes were out for no good purpose, and that they had no idea of the possible contents of pockets at that time, but thought only of showing the clothes as they found them to the superior authorities.

It seems to me to be futile to speculate as to what were the motives of the two police-officers when not a single question has been put to them, the only persons who could state them, touching the point; It is suggested that was a point which it was the duty of the prosecution to clear up. Now, not only is the argument based on a false premise that the police-officers must have been doing something, but it is obvious that if the argument is to have any force it must be clear that the circumstances were such as to throw on the prosecution the duty of giving an explanation.

In cross-examination no stress was laid, on the lapse of time and it was not suggested by a single question that there was a period for which some account should be given. And if the cross-examination does-not even lay the foundation of a suggestion that there is a period for which an account ought to have been but has not been given, an Appellate Court ought not, in my opinion, to pay any attention to suggestions made for the first time in appeal. If there is anything in the evidence which on the face of it requires explanation, the absence of an explanation may reasonably give rise to adverse comment, and an accused is entitled to the full benefit of the want of explanation of a circumstance which primâ facie requires explanation. But the very argument that there has been no explanation implies the suggestion that something ought to have been done other than what was done or what appears on the evidence to have been done. That, it is suggested, was according to the evidence nothing. Of the various counsel to whom I put the question what did they suggest ought to have been done, one alone had a suggestion to make; it was that the clothes ought to have been examined. Now, I have not the slightest doubt that if the two police-officers had examined the clothes and found the masks and papers, the comment would have been that their haste was evidence of dishonesty, and that in view of the fact that the Inspector had gone to call the District Superintendent of Police, they ought to have waited. In a case like this it is impossible for the Police to do anything which will not he attacked and it is impossible to say, in view of the fact that their actions are so frequently subjected to hypercritical comment, that it would have been wiser to pursue one course rather than the other.

I agree that accused Aditya Charan Dutta and Thakur Das Pal should be acquitted and the convictions and sentences of the rest of the accused affirmed.