Mylapore Krishnaswami, In Re

The Judgment of the Court was delivered by

Sir Ralph Benson, J.:— The appellant A. Krishnasawmi Sarma who describes himself as “a failed Matriculate” and “Swadeshi preacher” has been convicted of an offence punishable under sections 124 A, 153-A and 505 of the Indian Penal Code, in that on the 17th March last, he made a seditious speech in Tamil at a public meeting at Karur in the coarse of which he, atmongother matters, uttered words to the following effect:—

“We don't want titles given by the Government. They thus dupe us. The excessive joy of the Government is only for the time being. They supply us half belly, while they themselves fill in theirs one and a half times. There is no spirit here at all. See, in such a worthless place as Tuticorin, Swadeshi effort is so great that they have demolished and destroyed the Paradeshi Courts, viz, Collector, Munsif, Police, & c. Why should we not do like that. Oar people are paid low and a regiment is formed of them. Why should they not exert on behalf of the Swadeshi cause, and, to help our Mother, use their guns to shoot the white faces? If we do that, could we not get self-Government (Swaraj)? They eat our money, and they are ungrateful. Do we not see the injustice they do. We have to put up with whatever the white people do. We must work hard for our Mother. We pay our money in the shape of pension, to the Feringhees, and we are left without anything. In England, a policeman is paid £25, while we here are paid only Rs. 7. Is this not deception? Does this show good intention? If we all unite together, could we not blow away the white people like cotton?”

2. The chief offence alleged against the appellant is that punishable under section 124 \, Indian Penal Code. It was suggested, rather than argued, for the appellant that the conviction was unsustainable in law, and should be set aside, because the charge did not set out, nor did the prosecution prove, the exact words used by the appellant. It was suggested that the defnition of the offence punishable under section 124-A, shows that seditious words spoken or written are the gist of the offence, and that unless the exact words are proved the offence cannot be established.

3. I do not think that this contention is valid. 1 am of opinion that the contention is not supported by the language of the Code, and that it is opposed to the reported decisions of this Court in similar cases. Sestion 124-A reads as follows:—

“Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Her Majesty or the Government established by law in British India shall be punished with transportation for life or any shorter terms to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

4. In this section, as I read it, the gist of the offence is the bringing or attempting to bring into hatred or contempt or the exciting or attempting to excite disaffection towards Her Majesty or Government established by law in British India. The opening words of the section, “whoever, by words either spoken or written” or by signs, or by visible representation, “or otherwise” merely indicate the various means by which the offence may be committed. The concluding words “or otherwise” indicate the universality of the means by which the offence may be committed. The whole sesntence might have been shortly expressed by saying “whoever by any means” brings, Ac. The offence may be committed by means of words spoken or written, or by visible representations such as pictures, or by dramatic performances, even in dumb show, where no words are spoken, but where the feelings of the audience are excited, by the gestures and motions and dramatic actions of the performers. Thus words of any kind are by no means a necessary element of the offence. It may be committed without any words being spoken or uttered. Let us suppose that the offence has been committed by means of a series of pictures (which have subsequently been destroyed), or by means of a dramatic performance, in dumb show, representing (let us say) His Majesty as engaged in cruelly killing innocent persons or as indulging in some revolting vice. In such a case it would be impossible to reproduce the pictures or the dramatic representation and embody them in the charge. It would only be possible to indicate in the charge the means by which the offence was committed by giving a description (as accurate as circumstances would permit) of the pictures or representation. No words could give a completely accurate description of the pictures or representation but there would usually be no great difficulty in giving such a description of them as would enable the accused to know the matter he was charged with, and this is, in fact, all that the law requires. The Code of Criminal Procedure lays. down simply and clearly what the charge against an accused person must contain. “If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.” (Section 221). “The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.” (Section 222), and “when the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.” (Section 223).

5. If an offence under ssction 124-A. is committed by means of a series of pictures the requirements of the Code are satisfied if the charge gives such a disoription of the pictures as is reasonably sufficient to enable the accused to know the matter with which he is charged and so, I take it, if an offence under the sesction is committed by words spoken, the requirements of the law are satisfied if the charge gives such a description of the words used as is reasonably sufficient to enable the accused to know the matter with which he is charged, that is, if the charge states the words used with substantial, though not absolute accuracy. Even if the words, or the substance of the word used, are not entered at all in the charge, this will amount only to an irregularity and will not afford ground for reversing a convietioauuless the accused has, in fact, been misled by the omission, and it has occasioned a failure of justice. (Section 225, Criminal Procedure Code, illustration (b).

6. The above statement of the law is in accordance with the recent decision of this Court in Chidambaram Pillai v. Emperor (1). There the accused was charged with an offence under section 124A, Indian Penal Code, in that he “on or about the 23rd day of February, 1908, at Tuticorin, in a public speech, did bring or attempt to bring into hatred and contempt & c.” The charge did not contain the words, or the substance of the words uttered, but in the preliminary enquiry before the Magistrate, the notes of the accused's speech taken by the police officers had been filed and evidence had been given that the notes though not a verbatim report yet fairly represented the substance of the words spoken. The Court (Arnold White, C.J and Miller, J.) held that the charge “was defective in that it did not set out the speeches, or the passages in the speeches, which the prosecution alleged to be seditious,” but added, “It is not necessary for us to consider whether, under the law of England, this charge as an indictment would be good. The Indian Legislature in addition to the general provision contained in section 537, Criminal Procedure Code, has expressly provided that formal defects shall not in themselves vitiate a charge. Section 225, Criminal Procedure Code, ‘enacts’ no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material unless the accused was, in fact, misled by such error or omission, and it has occasioned a failure of justice. The principle of illustration (6) to this section seems to us to be applicable to the present case.” The learned Judge then pointed out that the accused was fully aware, from the proceedings before the Magistrate, of the passages in the speeches upon which the prosecution relied as being of a seditious character, and had full opportunity of meeting the case put forward by the prosecution and did, in fact, call a number of witnesses for that purpose, without taking objection to the omission in the charge. In these circumstances the learned Judges held that, “notwithstanding the omission of the particulars which, in our opinion, the charge ought to have contained, we are certainly not prepared to say that the accused was, in fact, misled by the omission and that the omission has occasioned a failure of justice.” They, therefore held that the trial was not invalid by reason of any defect in the charge, and proceeded to deal with the question whether the prosecution had proved that the accused had uttered the words alleged to be seditious. After referring to the fact that the police officers who were called as witnesses made use of their notes in order to refresh their memories and gave evidence in accordance with their notes the learned Judges observed: “the police officers do not profess to have taken a verbatim note of the words used by the accused. The record which they made of the speeches was of the same character as the record made by the witnesses in the trial of Edmonds and others 1821, Reports of State Trials, New Series, Vol. J, pp. 818 and 819 where the witnesses were allowed to read their notes as evidence of the speeches made. The second witness for the prosecution stated in evidence that his notes represented to the best of his ability the substance of what the speakers said. The third witness stated that he took down to the best of his ability the words actually uttered. The fifth witness stated that his notes represented what the first accused said and that everything found written there was in substance said by the first accused. The sixth witness for the prosecution speaking of his notes said: ‘All these words were uttered by the speaker and it is a substantially correct record of the speech.’ He also said: ‘My notes are not a verbatim report. I noted as far as I could the important utterances. I omitted things I considered unimportant.’ He also said;—‘In my notes I used, as far as possible, the exact words of the speakers… The notes contain the very words uttered by Chidambaram Pillai as far as I was able to take them.’ The seventh witness said “the notes accurately set forth what the speaker said.” Finally after pointing out that the evidence of the police witnesses was to some extent corroborated by other witnesses the learned Judges stated: “The conclusion at which we have arrived is that the notes taken by the police officers are substantially accurate and that the evidence given by the police witnesses may safely be acted upon.”

7. The circumstances of the present case and the character of the evidence for the prosecution are very similar to those in Chidambaram Pillai v. Emperor (). with this difference that in the present case the charge sets out in substance, the passages in the speech of the accused by means of which he excited, or attempted to excite disaffection & c. The speech was delivered in Tamil and the notes of the speech made by the police officers were taken in Tamil. The charge does not, indeed, set out the whole of the speech as recorded in the notes of the police witnesses, but it sets out an English translation of those passages which are relied on by the prosecution as being the means whereby the offence was committed and alleges that the accused, among other matters, uttered words to the effect stated, and thereby did bring or attempt to bring into hatred and contempt & c. There is no suggestion that the translation is not a correct translation. The defence is that the appellant did not use the words alleged or any words substantially to the same effect, and that so far as the language imputed to him is seditious, the ease is a concoction by the police.

8. The only question, in fact, is whether the appellant made an innocent speech advocating the development of native industries and the like, or whether he made a seditious speech including the words charged or words substantially to the same effect.

9. The Sessions Judge and the Assessors were unanimous in finding the appellant guilty, and I have no doubt that their finding is correct.

10. The appellant delivered a series of lectures at Karur in support of the Swadeshi agitation from the 14th to the 21st March last. The 2ad and the 4th witnesses for the prosecution are the Inspector's writer and the Station House Officer of Karur. They have sworn that they attended the lecture of the 17th March and made notes of the lecture in accordance with instructions from their superior officers. Exhibits E and M are the notes taken by them respectively. The witnesses do not profess to have taken down the words of the speaker verbatim. The 2nd prosecution witness referring to the accused's lecture on the 17th says: “I attended that lecture and took notes of what he said. * * * Exhibit E represents correctly what the prisoner then said.” In cross-examination he says: “I was taking notes while the accused was speaking. I was writing as if to dictation. 1 had my note book in my left hand and as the accused spoke I, wrote. I went on writing hearing what he said. * * * * I took down as much as I heard. Every now and then I could not hear what he said. While writing one sentence, I may have omitted to hear Another. * * * * Sometimes, after the lecturer had uttered a sentence, he would put it in other words and amplify and explain it. I did not record what the accused said by way of explanation, I did not omit any main point in the lecture. Anything recorded by me represents fairly what the accused spoke.”

11. The 4th prosecution witness says; “I also attended the lecture of the 17th * * * I took down notes of the prisoner's lecture of that day. Exhibit M is the notes and Exhibit M (1), the carbon copy which I made the next morning.” Later on the witness states: “I do not profess to have reported his speech terbatim, but I say that my notes fairly represent what the accused said. I do not think that I omitted any distinct subject on which he spoke.” Unfortunately the examination 8, nd cross-examination of the 4th prosecution witness have been so imperfectly conducted that there is some doubt as to whether these words were intended to refer to the speech of the 17th, or to Another speech delivered on the 15th March. In these circumstances, the notes and the evidence of this witness are of far less value to the prosecution than the notes and the evidence of the 2nd prosecution witness.

12. It is, however, not disputed that both these witnesses did attend the lecture, and there is no doubt they did so under the orders of their superior officers and for the purpose of reporting the lecture to them.

13. It is contended by the defence that there was not sufficient light to enable a person to write. I do not, however,.think that this is shown. The lecture lasted from about 6-30 p.m 7-15 to p.m The sun did not set on that day until 6-18 P. if and the twilight would last until nearly 7 o'clock. It was the day before the moon was full. The moon rose before 5 p.m and the shadow of the tower would not fall where the 2nd prosecution witness was standing. He says he wrote his notes partly by sunlight and partly by moonlight. I have no doubt that in the clear air of March in the Coimbatore District, this could be done. The Sessions Judge also points out that the defence witnesses could always see clearly that there was no pencil in the hands of the 4th prosecution witness.

14. Exhibits E (1) and M (1) are copies of the notes and were in the hands of the Inspector next day. He has initialled and dated them in token of receipt on that day. If these notes fairly represent what the lecturer said, there is no doubt of his guilt.

15. It has, been strongly pressed on us by the defence that Exhibits E and M bear internal evidence that they were the result of concoction between the two police officers. It is pointed out that in each report exactly the same eleven persons are named as the chief persons present in the audience and they are enumerated in exactly the same order. It is also pointed out that though the lecture lasted half-an-hour or three-quarters of an hour, the abstract reports, Exhibits E and M take only ten minutes each to read and must, therefore, omit a good deal of what was said, yet in each report the matters selected for mention are the same, though the language in which each subject is dealt with varies slightly. It is argued that these facts indicate consultation between the two police officers, and that concoction may, therefore, be inferred.

16. The first matter, viz. the recital of the same names in the audience is satisfactorily explained. The 2nd prosecution witness admitted that on the 17th March he arrived a little late and after the lecture had begun, and that, therefore, contrary to his usual practice, he on that day left a blank space for the names of the persons present and filled them in afterwards. He was nowhere asked whether he took these names from the notes of the 4th prosecution witness, or got them from him, or how he came to write them in the same order, nor was the 4th prosecution witness questioned on the matter. It is natural to suppose that he got them from the 4th prosecution witness, and, if so, they would naturally be the same names and in the same order. The Public Prosecutor argues that it is not improbable that each of the police officers would select the same matters for notice in his abstract, but the correspondence in the two reports is so great that I am in-, clined to the conclusion that there was some consultation between the officers when one or both were written. The 2nd prosecution witness was the more facile writer. It seems to me probable that the notes of the 4th prosecution witness were written immediately after the lecture, and in consultation with the 2nd prosecution witness. It is remark able that the 2nd prosecution witness nowhere says that 4th prosecution witness made his notes at the lecture, nor does he say that 4th pro secution witness did not write his notes in consultation with him. The 4th prosecution witness does, indeed, say that he and 2nd prosecution witness did not sit together and compare the notes they had taken, but it is doubtful whether this does not refer only to the notes of the lecture of the 15th. The 4th prosecution witness nowhere says that he wrote his notes while the lecture of the 17th was proceeding, Whether from accident or design the defence did not directly question him on this point, and it is remarkable that though a number of defence wit nesses say that the 4th prosecution witness was not taking notes, there is a significant dearth of such evidence with reference to the 2nd pro secution witness whose evidence is clear that he wrote his notes at the lecture. The conclusion I have coma to is, that the 2nd prosecution witness wrote his notes at the lecture and that they are entirely trustworthy, but that the 4th prosecution witness wrote up his notes after the lecture with the assistance of the notes of the 2nd prosecution witness. I do not find any ground whatever for doubting the truthfulness of the 2nd prosecution witness either in connection with the notes or otherwise. If the 4th prosecution witness intended it to be understood that he wrote his notes at the lecture I find it difficult to believe him, but, as already stated, it is doubtful if he said this with regard to the notes of the 17th March. I may add that if the 4th prosecntion witness notes were noli written at the lees are, but were written after it and while the facts were still fresh in his memory, they would be just as admissible under section 159 of the Indian Evidence Act, for the pur pose of refreshing his memory as if they were mile while the lecture was being spoken, though it is probable that a Court would attach less weight to the evidence of a witness whose memory was refreshed by notes subsequently made than to one whose memory was refresued by notes made at the very time. In each case the question is whether the wit ness is correctly statingwhat occurred, or whether he is giving a false account either deliberately owing to some motive or interest, or uninten tionally owing to defective powers of observation or memory.

17. I do not find any ground for supposing that these police officers had any motive for falsely conncocting a case against the appellant. He was on good terms withne police who accompanied him for Salem where he had previously been lecturing, they had travelled together, and messed together, played cards together and attended the theatre together. The local police appear to have taken very little interest in the matter. The Inspector did not attend a single lecture. He thought his other work more important. He did not even depute three of his subordinates to take notice as required by his departmental orders. He thought two enough. He did not expect any prosecution to take place. The attitude of Government up to that time had been one of nonintervention in such matters. In these circumstances it is improbable that the police would have concocted a false case. But the truth of the prosecution case does not depend on police evidence alone. There is a Strong body of corroborative evidence. The two police officers in their evidence and in their notes refer to the fact when the lecturer, after praising the efforts of the Swadeshists in Tuticorin which resulted in the destruction of the Paradeshi Courts and offices there, and inciting his audience to do likewise, went on to suggest that the native troops should use their guns to shoot the white faces, a Brahmin contractor, named Krishnaswami Iyer, who was present, objected to such language and tried to stop the lecture and had an altercation with the lecturer, but was eventually induced by some of the bystanders to withdraw to the outskirts of the audience and allow the lecturer to proceed. This Krishnaswami Iyer (5th prosecution witness) is a respectable man of large property and he entirely corroborates the evidence of the police. He says that the lecturer after referring to the riots in Tinnevelly asked the audience, “Why should we not similarly demolish public offices in Karur?” and went on to say, “The natives who love their country are taken as Sepoys, are paid a small amount, and are trained to use guns. Why should not these, who have been so trained, turn their guns upon the white men and obtain Swaraj?” and that he (the witness) then interrupted him and told him to stop the lecture. The 6th and 7th prosecution witnesses are also respectable Brahmins. One is the Assistant Station Master of the Karur Railway Station; the other is the Chief Booking Clerk. Their account of the incident and of the expressions used by the lecturer before the interruption is to much the same effect. No doubt they say that they did not hear the lecturer refer to guns, or to shooting the white faces. But the Assistant Station Master says; “I heard him say the natives in Tuticorin have demolished the Collecer's Office and the Municipal Office. In the same way why should not all of us work in tie cause of Swadeshi?” I understood him to mean that we should similarly be in harmony and cause rioting. He also said the natives were enlisted on a email pay in the Army. Why should not these natives, on behalf of the Mother oppose the Europeans and conquer them?” The Booking Clerk's recollection 19 almost identical and they add that at this point the 5th prosecution witness interrupted and told the lecturer to stop. These witnesses though employed for the time at Karur belong to the Tanjore and Tinnevelly Districts respectively and are not likely to be at the back and call of the local police officers of Karur, and they have no motive for giving false evidence against the accused.

18. The Monigar of Karur (8th prosecution witness) states that the lecturer referred to Taticarin and said: “There they demolished the Munsif's Court, Collector's Office and other building; why should not we do the same thing in Karur?” He adds “he spoke about some other matters which I did not hear wall,” and that it was then the altercation between the lecturer and the contractor occurred. Though the evidence of these witnesses softens to some extent to the violence of the language used by the lecturer it lends no support to the defence plea that the language used was not seditious and that the attributing of such language to the accused was a concoction by the polios. On the other hand the 9th prosecution witness win is Another village Magistrate and a Brahmin, and the 10th prosecition witness who is a Brahmin petition-writer, support the police version in its entirety. The former quotes the lecturer as saying, “the people of Tuticorin damelished the Munsif's Court, Collector's Office and other buildings. Why should not we also do like that?” He also said “our people are taken as Sepoys and paid low. Why should not the Sepoys, with the same weapons, attack the white faces?” The latter says that the lecturer said: “In a useless place like Tuticorin our people combined and demolished the Collector's Office, the Munsif's Court and other buildings. Why should we not combine and do similarly here? The white men enlist our people in the army paying them low. Why cannot the Sepoys with their guns shoot the white faces on behalf of the Mother? If we did so, could we not obtain Swaraj” at this stage 5th prosecution witness got up and said, “This is thoroughly political. Stop the lecture.”

19. To rebut this evidence for the prosecution, the defence has called a large number of respectable men who say that they attended the lecture of the 17th and who either deny that the accused used any of the seditious exressions attributed to him or say that they do not remember his having done so. I am not, however, able to accept this evidence, as giving a correct account of what the lecturer said on the 17th March. None of the witnesses made any notes or record of what was said. They depend entirely on unaided memory. The accused delivered lectures everyday from 14th to the 21st March and it is not likely that the defence witnesses would have any clear recollection of the what was said at each leoture. They ware giving their evidenc some five months after the lecture and had not previously been examined with regard to it, whereas the witnesses examined for the prosecution were either police officers who made notes at the time, or persons who were examined for the purpose of the prosecution some two months after the lecture. A very notable incident of the lecture was the interruption by the contractor (5th prosecution witness). The defence witnesses with extraordinry unanimity say that this interruption occurred when the lecturer was stating that Government spent too much money on military affairs and might with advantage spend more on Education. It is difficult to suppose that such a sentiment would have provoked interruption by this Brahmin contractor and a demand that the lecture should be stopped. He is not shown to have any interests whatever in military affairs; while it is probable that, as a Civilian and a Brahmin, he will be interested in Education and approve of large expenditure on it. Everyone is agreed that the interruption did take place and that it was in connection with something said by the lecturer in relation to the army. It is far more natural to suppose that it was provoked by some violent and unjustifiable language such as the prosecution alleges, rather than by the harmless, and as many would think, proper contention which is the only reason that the defence witnesses put forward as the cause of the interruption.

20. I think that the general accuracy and truthfulness of the defence evidence as compared with that for the prosecution may be guaged by the finding on this outstanding incident, and so guaged I have no hesitation in preferring the evidence of the prosecution. On the whole I find that the police witnesses had no motive for concocting a false case. They made notes of the lecture in the execution of their duty, and under the orders of their superior officers, and these notes were in the hands of their superior officer on the day after the lecture. The language attributed to the accused in those notes is of such a character that it is impossible to suppose that the language used was really innocent language, but misunderstood by the police in the sense recorded in their notes. I find that the 2nd prosecution witness made his notes at the lecture, and the 4th prosecution witness immediately after the lecture and while the facts were still fresh in his memory, and that the notes of both contain a susbtantialiy accurate record of the language used by the accused. The police version is corroborated by several independ ent witnesses, who give a more natural and probable account, than the defence witnesses, especially in connection with the interruption of the lecture.

21. The Sessions Judge and the Assessors, who had the witnesses on both sides before them, were unanimous in believing the prosecution ??? rather than those called for the defence and I agree with their conclusion. I find that the accused uttered the words, attributed to him in the charge, or words substantially to the same effect, and that his conviction is right. There is no plea that the sentenoe is too severe for the offence if proved. I do not think that it is too severe. It is less than that imposed by this Court in Chidambaram Pilla's case, Chidambaram Pillai v. Emperor ().

22. I would, therefore, confirm the conviction and dismiss the appeal, but as my learned brother takes a different view, the case must be laid before Another Judge for decision.

Sankaran Nair, J.:— The appellant Mylapore Krishnasami Sarma is convicted and sentenced to five years transportation for having uttered seditious words in the course of a speech he delivered at a temple at Karur, in the Coimbatore District, on the 17th March 1908.

23. The appellant, whose age is given as 18, appears to be a native of Madras. He went to Karur on the 13th March from Salem accompanied by three police officers, met the Head Mister, Municipal High School, D.W 2, to whom he had a note of introduction fram some person in the Salem District, at the house of one of his Assistant Masters, D.W 20. The appellant asked the Head Master to be of use to him for the delivery of Swadeshi lectures. The Head Master referred him to the Secretary of the Reading Room. Finding, however, that the Reading Room of Karur was not available, the appellant proceeded to a temple at that place and continued to deliver lectures daily from the 14th to the 21st March. He is prosecuted on account of cert ain words spoken on the 16th and the 17th, and convicted for the words alleged to be spoken on the 17th.

24. The object of his going to Karur is not proved. We see, howevar, according to the police notes of his lectures that he was advising the people of Karur to purchase shares in “Indian Weaving Company, Ltd.,” Madras, and was distributing leaflets published in its interest.

25. On the 17th he is charged with having spoken words to the following effect:—

“We don't want title given by the Government. They thus dupe us. The excessive joy of the Government is only for the time being. They supply us half belly, while they themselves fill in theirs one and a-half times. There is no spirit here at all. See, in such a worthless place as Tuticorin, Swadeshi effort is so great, that they have demolished, and destroyed the Paradeshi Courts, viz., Collector, Munsif, Police, Ac. Why should we not do like that? Our people are paid low and a regiment is formed of them. Why should they* not exert on behalfr of the Swadeshi cause, and, to help our Mother, use their guns to shoot the white faces? If we do that, could we not get self-Government (Swaraj)? They eat our money, and they are ungrateful. Do we not see the injustice they do. We have to put up with whatever the white people do. We must work hard for our Mother. We pay our money in the shape of pension to the Feringhees, and we are left without anything. In England, a policernan is paid £25, while we here are paid only Rs. 7. Is this not deception? Doss this show good intention? If we all unite together, could we not blow away the white people like cotton?”

26. There can be no possible doubt that if the appellant is proved to have spoken these words or words with this meaning, he is gnilty of the offences charged. The question we have, therefore, to decide is one of fact. Did the appellant utter the words imputed to him? The Judge has decided the question in the affirmative and convicted the appellant for the following amongst other reasons;—

(1) There were two police constables, who took notes of the speech delivered and though they do not purport to be verbatim reports, they may be relied upon to show that the appellant used these words which appear in the notes of both the constables. The constables speak to the accuracy of the notes.

(2) The prosecntion witnesses are able to remember, though not all the passages set out in the charge, certain words alleged to be similar to those contained therein which are seditious and by the no selves prove the offence.

(3) Notes of other speeches filed prove the criminal intention of the appellant.

(4) The bulk of the defence evidence is not reliable.

27. Though the question to be decided is one of fact, there are several considerations which, there is reason to believe, are not kept in view by the trial Courts in similar cases. I proceed accordingly to refer to a few of them

28. Section 124-A is in these terms:—

“Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Her Majesty or the Government established by law in British India shall be punished * * *”

29. Under this section an aconsed person may be charged with exciting disaffection or bringing Her Majesty into hatred or contempt by words or other means. In this case, it may be said that exciting disaffection is the gist of the offence, not the uttering of seditious words. For instance, if the prosecution proves that the appellant addressed a crowd, who immediately after assaulted the Europeans in the locality or destroyed the public buildings to show their hatred of Government, it may not be necessary to prove the words used by the appellant, not even the substance, though any Court of Justice will be slow to convict in the absence of any such proof which alone ordinarily will show that the one was the result of the other. The culpability consists in the disastrous consequences brought about by his words. Even though the words themselves may be innocent or uttered in a sense different from that in which they were understood by the crowd, the speaker may be guilty. The charge, therefore, need not set out the words nor need the words themselves be proved. Bat though the appellant was charged with exciting disaffection, he has not been convicted for it, nor is there any evidence in support of it: the evidence of the witnesses who do not speak to the words being usedare only intended to show that appellant entertained hostile feelings. In paragraph 2 of the judgment, the Judge sets out the prosecution case tried by him. He says; “analysing the charge, we find that it consists of (a) words calculated to causa disaffection towards the Government; (6) an incitement to commit rioting and destroy Government Courts, and (c) an incitement to the Sepoys to mutiny and shoot the Europeans, whereby the goal of Swaraj might be [reached.” He has thus been tried and convicted for attempting to excite disaffection, not for having excited it. Bat whatever may be the case when a person is charged with exciting disaffection, when he is charged with attempting to create disaffection thefacts to be proved by the prosecution are entirely different. The section shows that a person must (a) speak or write, certain words and (6) by such words attempt Attempt implies intention. It is not enough, therefore, that a person writes certain words. He may write a seditious pamphlet and keep it locked up in his drawer. He has not thereby committed any offence. Similarly it is not enough that he entertains an intention to excite disaffection, to bring him within the scope of the section. Thus Mr. Mayne states in his Commentary upon section 124(A): “The offence constituted by it requires an act coupled with a distinct intention.” (Mayne's Criminal Law of India, III Edition, p. 525.) This is also settled by decisions in India. Petheram, C.J, points out that the acsused should apeak or write words calealated to create a disaffectiont etc, and he muat do so with the intention of creating it. See Queen-Empress v. Jogendra Chunder Bose (2). See also Queen-Empress v. Bal Gangadhar Tilak (3). A man's intention must be gathered from the words used by him, not by what others rightly or wrongly understood him to mean.

30. Whenever a person uses words of which the inevitable or natural consequence is hatred or ???, he must be taken to have foreseen that consequence and deliberately intended that it should be the result of his use of the words that produced such result. The intention must be judged, ??? by the ??? itself or, in other words, the question is what is the ??? of the language used? Foster v. Clement (4). Again whether the wards are seditious or not is a matter of law to be determined by the Judge and should not be left to the judgment of the witnesses. For the Court to judge whether the words are seditious, it is essential that the words themselves used by the appellant, for which he is tried, must be Droved. Otherwise it is not possible for a man to know what he is to defend. It is not possible for him to show that he has not sooken those words, or to show that the words taken with the rest of his speech bear a very different meaning from what is stated by the witnesses. Because, where the whole speech or document is available, it has been, repeatedly pointed out that the meaning has to be collected from the whole document and not from isolated passages. Farther, when only certain words are taken down which appeared to be inflammatory and there was a good deal more said than has been taken down the question, as pointed out by Aldrrson, J., in his charge to the jury in R. v. Rankin (5) is, “Whether you can suggest yourselves, if these parts be true, anything which might have been said, which fairly and reasonably could have explained those things.” This, of course, is more favourable to the accused than if the whole speech had been reported verbatim. For this purpose also it is necessary that the words themselves mast be proved, External evidence may be offered to prove the intention or the meaning of the language. This also would be a useless provision otherwise. In this case other speeches have been proved. As pointed out by Mr. Mayne, section 295, they can be used only for throwing light on the meaning of the words on which the charge is based and of showing the effect they were intended to produce. As justly pointed out by him the fact that the accused entertained disloyal sentiments cannot make language which, in itself, does not fall within the scope of sections 124-A and 153-A criminal, and he cannot be con-victed for those sentiments if they do not find expression in the language on which he is charged. This also leads to the same conclusion. As the wards written or spoken are the gist of the offence they ought to set out in the charge and those words themselves, whether set out or not, must be proved. If the word be not in the English language it must be set out in that spoken language verbatim with the English translation. The Chief Justice and Mr. Justice Miller apparently took the same view in In re Subramania Siva (); at page 12, in speaking of the charge in that case they say, “we think it was defective in that it did not set out the speeches or the passages in the speeches which the prosecution alleged to be seditions.” And they found in that case “that the speeches containing the passages, which, the prosecution alleges, are of a seditious character, were, in fact, made by the 1st accused”, at page 27. The words are set out in the charge to be proved. It may not be necessary to prove all the words or passages set out to obtain a conviction. It will be sufficient if the words proved amount to the offence. But those words must be there in the charge. If the words themselves are not actually in the charge, but they are indicated therein with sufficient certainty and the accused knows the words for which he is tried, then the case will be only one of defective charge to which section 537, Criminal Procedure Code, will apply. Bat where the charge does not refer to the words at all, or where the accused, before the trial begins, is not informed of the words used by him for which be is tried, the case is not one to which that section would apply. The Eaglish Common Law seems to be clear. See Archbold (XXIII Edition) inthe Chapter on Indictment, page 75, “Where words, written or spoken, are the gist of the offence, they must be set forth verbatim or with particularity in the indictment; as, for instance, in an indictment for blasphemous or seditious words: R. v. Popplewell (6), R. v. Sporting (7). And in the Chapter on Evidence at page 302,” where words are the gist of the offence and consequently set out in the indictment (see ante page 75) they must be proved as laid…. But, if some of the words be proved as laid and the words so proved be sufficient to constitute the offence for which the defendants is indicted, failing to prove the remainder of the wards will not be material. See also, R. v. Russell (8). For forms of indictments for Seditious Libel and Seditious words at Common Law, see Archbold, pages 988, 997. The cases of Zenobiov. Axtell (9); R. v. Peltier (10), show that according to English Law if the words be in a foreign language they must be set out in that language verbatim together with a correct translation, See Braudlaugh's case (11), where the law is fully discussed. Where the offence charged is treason or conspiracy in England, or under sections 121 and 121-A of the Indian Penal Code, and not Seditious Libel or words, then words are only laid as an, overt act, they are not the gist of the offence, but merely evidencs of it and therefore it is sufficient to set forth their substance. I am, therefore, of opinion that in a charge for uttering seditious words, such words must be indicated at least with, reasonable certainty in the charge; the accused must be informed of such words; and such words or some of them that would show the guilt, must be proved. This question has nothing to do with the charge itself. What are the facts to be proved to secure a conviction is a very different question from whether the accused has sufficient notice of those facts necasssry to be proved against him. In the latter case, an omission to state the particulars which ought to be stated in the charge will not be treated as material, unless it has occasioned a failure of justice. The Eaglish rule as to what ought to be set forth in the indictment is modified in India by Sections 225 and 537, Criminal Procedure Code. Bat the provisions as to what ought to be contained in a charge have nothing to do with the question, what are the facts to be proved to constitute the offence, and, in my opinion, to convict a person for attempting to excite disaffection, the words themselves must be proved.

31. With these observations I now proceed to consider the evidence. The words are set out in the English language in the charge. The speech was in Tamil. The Tamil words with the English translation ought to have been given. This was necessary to enable the defence to show, if possible, that such words have not been uttered. In this case, however, before the charge was framed by the Sessions Judge, the Tamil note books, which contained the Tamil passages of which the charge contains the translation, have been filed. The appellant, therefore, had clear notice of the words alleged to have been used by him. In the circumstances, therefore, as in Sabramania Siva's case (), it is only an irregularity which is not shown to have prejudiced the appellant. No witnesses speak to all the words set out in the charge. They are, however, in the notes, Exhibits E and M, alleged to be taken by two policemen, prosecution witnesses Nos. 2 and 4. It is the case of the Crown that these two policemen took their notes at some distance from each other, that the notes of the one were not seen by he others. If this evidence is reliable, as both of them contain the words in the charge, the notes of one police constable would corroborate those of the other, and the Grown is entitled to ask us to believe that these words were uttered by the appellant. The following are the notes, as translated by the Court translator in parallel columns for comparison containing the alleged seditious words—

Exhibit E. Exhibit M. Confidential report of Inspector's writer Kuppusamy Aiyar, No. 885, H. Division, Karur, dated 17-3-08. Confidential report of Sub-In-spector K.V Ramasamiah, No. 22, Karur Station, for 17-3-08. Swadeshi lecturer A, Krishna-sawmy Aiyar commenced hie lecture this evening (—illegible) 6-30 and closed it by after 7. The lecture was in Pasupatheswaram temple. A. Krishnaswamy Aiyar of Mylapore delivered a lecture to-day from 6:30 to 7:15 p.m in the Pasupatheswaram temple. 200 to 250 people attended. Amongst the crowd there were present chiefly (1) the Municipal Manager, Venkataramana Aiyar, (2) Copyist Srinivasa Rao, (3), Pancha-nada Aiyar, (4) Gopalasami Rao, (5) Vakil's Gumastab, Venkatasub-bier alias Samannier, (6) Assistant Station Master, Panchapakesa Aiyar (7) Booking Clerk; Subba Rao, (8) V.M Armuga Mudaliar, (9) School-master, Venkatarama-nier, (10) Contractor, Krishia swamier, (11) Petition-writer, Ranga Rao, and others. Some 200 to 250 people attended the lecture, prominent among them being (I) Venkataramana Aiyar, Muoieipal Manager, (2) Copyist Srinivasa Iyer, (3) Panchanada Aiyer, (4) Gopalsami Rao, (5) Vakil'Garaastah Samana Aiyer alias Veakata Sabbaiyer, (6) As-sistant Station Master, Panchapa-keaa Aiyer, (7) Do. Booking Clerk, (8) Armuga Madaliar, Village Magistrate, (9) Schoolmaster Venkataramanier, (10) Contractor, Krishnasamier, (11) Petition-writer, Ranga Row, and others. Lecture. Oh! Swedeshis! Amongst us, the Vakils and Teachers can be said to hold somewhat independent po-sition. You Patriots! It must be considered that it is only our Vakils and Schoolmasters who are not yielding. Vakils can be chiefly counted amongst us. On the whole Vakils may be included. In this town these people have littla or no love for the country. Hence the crowd present is very small. The Vakils in this town are not patriotic and so there is no crowd here. What if the police are present or any one else? What can they do to us? What does it matter if the police are present here, or if anybody is present tore, What can they do?

What can even the white faces do? We should not act against our mother country. What could the white faces do? We should not (wrong) be un-grateful to our Mother. One of the teachers of the town is said to be a Kumbakonian. He is said to have passed his B.A What is the good of all his educa-tion? He is no patriot. He seems to have forbidden his pupils from attending here. Is he not one of the children of our mother? Can be behave so meanly? He has dis played the true character of a Kumbakonian. What if he is alive or dead? A teacher of this town,* he is said to belong to Kumbakonam and to be a B.A—What is the use of that? He has no patriotism in him. It is said that he dis-suades the boys from going. Is he not a son of our Mother? Can he be so unworthy? He has shown the business (trickery) of Kum-bakonam? What if he lives or dies? One Mr. Boycott was the first to prohibit theimportationof foreign goods Hence the act is called boy-cotting. Colonel Boycott was the first to prohibit people from buying foreign goods. Hence the name. These white faces, with a view to find sale for their own goods, made rales prescribing punishment for purchasers of foreign goods. Why not we do the same? At first the white people passed a law about the sale of their goods and said that the purchasers of for-eign goods shall be punished. Why can we not do the same? We will have to suffer only if our countrymen do things which should not be done. We suffer because our country-men do unworthy acts which ought not to be done. People by becoming Municipal Councillors do harm. They ruin (us) by appointing (us) Municipal Councillor?, etc. See, how much hardship does Mr. Surendranath Bannerji undergo in the country's cause, that gem amongst the patriots. That flower of our country—Mr. Surendranath Bannerji—how hard he works for our country. The boycotting of foreign goods must be rigorously enforced. Boycotting should be increased. We do not want all the honouri fic titles bestowed upon us by Government. They deceire us by bestowing all such titles. We do not want titles, such as “Honourable,” etc., conferred by Government. They deceive us by conferring them.

The present is the time for the Government enjoying at our ex-pense, * * * * * * * * * * * * The joy of Government is but transitory. ***** * * * * I have yesterday, spoken to you about the matter of their expending our money. They give us half bellyful and they fill their belly more than enough. I spoke yesterday about expen-diture of money. They supply us half belly, while they themselves fill in theirs If times. Nothing like patriotism is to be found here. There is also no spirit (or zeal) here. See, in such a worthless place as Tuticorin, Swadeshi effort is so great that they have demolished and destroyed Paradeshi Courts — Why did we not do like that? See in such a useless place as Tuticorin, the natives exerted and demolished and destroyed the Para-deshi Courts, of the Collector, Police, Munsif and others. Why could we not do? They have maintained native for-ces at small cost. Why not these people exert themselves in the ciuse of our mother country and use their guns to shoot white faces? They pay our people low and form a regiment. Why should they not exert on behalf of the country and use their guns to shoot the white faces to help our Mother? If we do that, should we not get self-Government (Swaraj)? If that is done, could we not get Swaraj? At this stage the contractor, Krishnasami Aiyer, objected to the Use of political expressions and asked to put a stop to the lecture. At this stage Krishnasami Aiyar, contractor living in Karur, said in English, “political wordings. It must be stopped. That won't do.” To this, in reply, the lecturer said, “I will do so. I will not stop. Do what you like. I am prepared to go to jail.” To which the lecturer replied: “I will speak that way. Do what you like. I will go to jail.” Whereupon Venkatasubbaiyer alias Samanier, gumastah of the Vakil Padmanabha Iyer, told the contractor Krishnasami Iyer not to speak anything against the lecturer and asked the lecturer to go on—and thereupon the lecturer resumed his speech. At this Vakil gumastah Ven-katasubbaiyer alias Sam anna Iyer, said to contractor Krishnaswamy Aiyer “you had better not speak anything. Let the lecturer go on.” The lecturer than resumed his speech.

These people eat our money and yet they are ungrateful to us. Do we not see the injustice the Government do? They eat our own money and do us several wrongs. Do we not see this? We are to fear these white men even if they do any amount of in-justice. Suffer for the sake of our Mother, Let any white man do what he likes. Lat us not be afraid. Strive for our Mother. All our money is being wasted in payment of pension, etc., to these Feringhees and nothing remains for us. We in vain pay our money to the Feringhees for pension, etc., and nothing is left for us. In England a policeman is paid 25, while we here are paid only Rs. 7. Is this not deception? Does this show good intention? In England a policeman is paid Rs. 25, while we here are paid only Rs. 7. Is this not wrong? Is this good intention? Much of the money of the natives lodged in the Arbuthnot Company has been swallowed up by the white faces, and the natives are cheated. Does this show good intention? Large sums of money were in-vested in Messrs. Arbuthnot and Company and they cheated the natives and misappropriated their amounts. Can this be called good intention? In Tuticorin Swadeshi efforts were made boldly and without any fear and to suppress this effort, it is said that a force is marching from Trichinopoly. What can these do with these Swadesists? Can they pluck their hair? It is said that in Tuticorin efforts were made in the Swadeshi causa without the slightest fear and that a regiment is sent from Trichinopoly to put it down. Can these men pluck even the hair of those who have exerted them-selves in that cause? Owing to the riots of Tutiecrin, the native Swadesists have struck work at the pearl factories and this has resulted in considerable Ioss of crores of rupees to these white faces. If all can act like this, will not the Feringhees run away unnoticed? In consequence of the disturb-ances in Tuticorin the natives struck work in the Pearl Fishery and the white faces have sustained a loss of several crores of rupees. If all of us do like this, will not the Feringhees run away? We spend our money and yet enjoy grief and no more. We pay our money and (yet) we mourn,

Mr. A.O Hume, one of the Congress Presidents, has expressed as his opinion—if self-Government is bestowed upon the natives—it will only result in harm. Does this show-good intention of the white faces? Mr. A.O Hume, a Congress President, has said that if the Hindus were given authority in the country (the power) will be abused or the result will be bad. Is this the good intention of the white faces? At Tuticorin, a barber, it seems, after sharing a non-patriot a bit, finding him to be a non-patriot, re-fused to shave him farther. Then finally he became a patriot and afterwards he was fully shared. It is said that a barber in Tuticorin, while shaving the head of a native gave a single sweep with his razor and stopped saying, “I will not shave any more,” and that thereupon the other man promised that he would interest himself in the country. Just so in this town, a barber seems to have exclaimed in a similar strain. Should we not possess even that degree of patriotism felt by an ordinary cooly? It is said that a barber of this place who heard my lecture yesterday spoke similarly. Should we not at least possess that love which even the coolies evince for the country? If we all unite together, could we not blow away the white people like cotton? If all are united could we not blow away the white people like cotton? There will be lecture to-morrow here in this very place. Please come “Vanthai Matharam.” The crowd dispersed with a loud shout of ‘Vanthai Matharam.’ I will speak here again to-morrow. The meeting broke up with shouts of “Fanthai Matha-ram.” (Sd.) Kuppusamy, Inspector's writer No. 885, H. Division, Karur. 18-3-08. (Sd.) K. Ramasamiah, Sub-Inspector. 18-3-08.

32. It is the prosecution case that Kuppusamj, prosecution 2nd witness, was in the Mantapam a few yards behind the accused when he wrote Exhibit E, and Ramaswamy, prosecution 4th witness, was a few yards in front of the accused when he wrote Exhibit M, that Exhibits E and M were written independently without consultation. If this be so, and the incriminating words or words which convey the same meaning appear in both of them, then each would corroborate the other and both might be accepted as a truthful record so far as those, words are concerned. But I have no doubt the police evidence in this respect is false. To begin with, the same twelve names, and only those twelve and in the same order, appear at the heading as the names of the persons present to hear the lecture, There is no explanation of this remarkable coincidence. The statement of the constable, prosecution 2nd witness, that the first two pages were left blank is, of course, immaterial in the face of the admission that prosecution 2nd witness did not consult prosecution 4th witness or Exhibit M and if, as I shall show presently, the Sub-Inspector, prosecution 4th witness, did not take any notes at all, a fact about which there is no reasonable doubt whatever, from whom did the prosecution 2nd witness, the constable, get the names? He must have written them from memory and this strongly supports the defence theory that the whole was so written afterwards. Exhibits S and M do not support to be verbatim reports. They are only notes taken of a speech that lasted more than an hour, according to prosecution 2nd witness, an hour and a half. We have only to compare the two to be struck at once with the fact that both the writers have pitched upon the sane alleged sentences of the accused for report. Some of them no doubt would attract general attention. Others are comparatively unimportant. It is also to be remarked that everything in favour of the accused is omitted.

33. It may be, as the Public Prosecutor put it, that the policemen were there only to report the “pungent” sentences not to give an idea of the entire speech; but this detracts considerably from their value as the Courts have to form their opinion from the entire speech. The extraordinary coincidence in the passages selected and in their omissions, shows, that the evidence of the police witnesses oh this point is false. It is quite clear, either that both of them wrote their notes after consultation, or that one copied from the other making a few verbal alterations to disguise that fact.

34. So far as the prosecution 4th witness, the Sub-Inspector, is concerned, there is overwhelming reliable oral evidence which places beyond all doubt that his evidence that he took his notes, Exhibit M. that evening at the meeting is false. The evidence of defence 1st witness, the Municipal Manager, defence 2nd witness, the Head-Master of the Municipal High School, defence 18th witness, a clerk in the Sub Registrar's office, defence 5th witness a clerk in the Sub-Magistrate's Office, defence 10th and 19th witnesses, Assistant Masters in the same High School, defence 16th witness, a village Munsif, and other independent witnesses of position and property, on this point cannot be discarded. Some of them are removeable by Government from the offices they hold. The evidence of the prosecution 6th and 7th witnesses, whose evidence against the accused the Judge has believed, is also to the same effect. They were all with the prosecution 4th witness that evening at or neat the Dwajasthambam, when they must have observed him taking notes if his evidence is true. None of them saw him doing it and many of them swear he never did take any notes. As to the other policeman, prosecution 2nd witness, the oral evidence is not so strong. It consists of the evidence of some witnesses, among whom no doubt there is one respectable witness, defence 15th witness, that they did not observe him taking notes. But it does not show that they were in his company and must have noticed him taking notes if he did so. But apart from the oral evidence adduced on behalf of the defence, the fact that he has given false evidence about Exhibits E and M, as already noticed, and the circumstance that he is alleged to have taken notes standing, inside the Mantapam, which was not then lighted, when natural light would be insufficient for such purpose, make me hesitate to accept his evidence that he wrote Exhibit E at the Mantapam.

35. But there is the evidence of the Inspector, examined as a defence witness, that these reports were received by him the next day. It is no doubt to be regretted that the Grown has not produced the copy forwarded to the Superintendent, but the Public Prosecutor has explained that this is due to the fact that he has failed to note therein the date of its receipt.

36. My conclusion, therefore, is that even if the prosecution 2nd witness did not write his notes at the time, yet after the speech was delivered, either the same night or the next morning, the two policeman in consultation wrote Exhibits E and M. at that time the impression left by the speech must have been fresh in their memory.

37. Under section 159, Indian Evidence Act, the police constable may refresh his memory by referring to his notes, or in other words, if he actually recollects what the appellant said at that meeting on reading his notes however brief, he may swear to them. The notes themselves do not become admissible on that account alone. According to this section it is not necessary that the witness must be sure that what was reduced to writing by him is a correct record. It is enough, if on reading it, the true fasts are recalled to his memory. But if he does not actually recollect himself what the appellant said, if the words are not recalled to his memory, then the notes may be admitted under section 160, Indian Evidence Act, if he is sure that the facts were correctly recorded in the notes. Hare the facts about which he had to give evidence are the words used by the appellant. If, therefore,- the constable has not recorded correctlty the words used by the speaker, but only his impression then the notes would be inadmissible under section 160 of the Indian Evidence Act to prove the words used. They may be admissible to prove the impression created in the mind of the constable, which is very different. In O'Connel's case, parts of the speech were taken verbatim, They may be used both under sections 159 and 160. The substance of the rest of the speech was given from memory which the witness would be entitled to do under section 159, if the substance of the speech is relevant and admissible. But all the English cases cited by the Public Prosecutor are distinguishable on the ground that they relate to Treason or Seditious Conspiracy where the words have not to be proved.

38. This is the constable's (prosecution 2nd witness) evidence as to the way he took the notes. He says: “on the 17th he lectured again at the same temple. I attended that lecture and took notes of what he said. He then spoke in Tamil. 200 or 250 people attended, composed of various classes. The lecture began about 6 p.m and closed about—7-30. Exhibit E represents correctly what the prisoner then said.” The witness could not have meant what the words mean prima facie. Exhibit E takes only five minutes to read, while the lecture lasted an hour and a half. He must have meant, therefore, that he has given what he considers to be the substance of the speech. And then he states: “I was taking notes while the accused was speaking. I was writing as if to dictation. I had my note-book in my left hand and, as the accused spoke, I wrote, I went on writing hearing what he said. I went on writing without stopping, Having been a writer, I obtained some practice as a reporter. I am not a reporter. Till the present occasion I never attempted to rep rot a speech. Somotimes, after the lecturer had uttered a sentence, I would pat in other words and amplify and explain it. I did not record what the accused said by way of explanation. I did not omit any main point in the lecture. Anything recorded by me represents fairly what the accused spoke.” Nowhere does the witness say that he took verbatim anything spoken by the accused. The evidence of the other prosecution witness shows he has omitted important points. It is not, therefore, a true record of the speech or any portion of the speech admissible under section 160 of the Indian Evidence Act. It can be used only under section 159 to refresh the memory of the witnesses; and it was relied upon before us only as a document to refresh memory. I think the Public Prosecutor was right in stating that the result of the prosecution evidence is that the wit-ness would naturally listen to the speech on a particular point and write down the purport of it; and it is possible that in the interval the appellant may have made ether statements or referred to other questions which escaped him. The 2nd witness only states generally that Exhibit E is right. Whether he intended thereby that he now remembers all the statements in Exhibit E and swears to them or whether he only means that, though he may not have any present recollection of these facts, heknows he has actually recorded them, is not clear as the distinction between sections 159 and 160 does not appear to have been kept in view in the Court below. The question then remains whether the police constables after refreshing their memory, and the other prosecution witnesses have proved the case.

39. The material passages on which the prosecution relies are these. See also paragraph No. 1 of the judgment:—

“There is no spirit here at all. See, in such a worthless place as Tuticorin, Swadeshi effort is so great that they have demolished and destroyed the Paradeshi Courts, viz., Collector, Munsif, Police, & c. Why should we not do like that? Oar people are paid low, and a regiment is formed of them. Why should they not exert on behalf of the Swadeshi cause and to help our Mother use their guns to shoot the white faces? If we do that could we not gat self-Gtavernment?” As set out in the charge, and as they appear in the note-books, Exhibits IS and M, the connection between the Tuticorin incidents and the shooting by the Sepoys is not clear. There must have been some reference to other matters by the lecturer according to this. Similarly, after inciting the Sepoys the statement, “If we do that” requires explanation. Prosecution 5th witness is clear that it was not the Sepoys who were asked to rebel, but the people of the country. According to him the lecture, said “why should not we” & c thus supporting the last sentence in the above extract. According to this witness the appellant did not attempt to excite the Sepoys. It is not suggested that there were any Sapoys at Karur. The constables in their present evidence give a version which is very different, but which shows the connection if true, between the reference to the occurrence at Tuticorin and to the Sepoys. It is the case for the Grown that after the reference to the demolition of buildings came the word inciting the Sepoys to murder the Europeans to obtain Swaraj, and on that there was an interruption of the lecture by prosecution 5th witness. The defence witnesses admit the interruption, but they say it followed a reference to the military expenditure by the appellant. Prosecution 4th witness now says that the appellant said, after referring to the Swadeshi efforts in Tuticorin, a regiment was being sent to put down the Tuticorin rioters and he wanted them to shoot the Europeans. This shows the connection between the alleged Tuticorin riots and the call upon the Sepoys to shoot, but is against the prosecution cose. In both the note-books there is a reference to sending the troops to ??? from Triohinopoly; but this was according to Exhibits E and M sometime after the interruption by Krishnaswamy Aiyar; while according to the witness himself and the other prosecution witnesses it took place before. According to him the exhortation was addressed to the Sepoys marching to Tuticorn, while according to the others and the charge, it was an attempt to incite Sepoys generally. This appears to be ??? with Exhibits E and M and the rest of the prosecution evidence. The evidence of the other constable on this point is not inconsistent with that of prosecution 4th witness. The prosecution 5th witness fully supports the charge with reference to these two statements. So also prosecution 9th witness, a village Munsif. We come next to prosecution 6th and 7th witnesses, Railway officials. Prosecution 6th witness states that the appellant after referring to the demolition of buildings at Taticorin, said: “ln the same way why should not all of us work in the cause of Swadeshi.” The 7th witness says that he said—“Why should not we in Karur similarly be in harmony.” This is very different from the positive statement in the charge, “why should we not do like that?” that is, demolish the buildings. In fact the 7th witness states distinctly that the accused did not say that the people of Karur should destory buildings, though, according to the evidence, both of them inferred it. This evidence is quite consistent with it, being an appeal for harmonious co-operation in the cause of Swadeshi.

40. As to shooting Europeans with guns for the purpose of obtaining Swaraj, these witnesses while giving a version of their own say clearly that though they understood him to say we might obtain Swaraj, they did not hear him use the word itself, they did not hear him use the word ‘gun’ nor did they hear him say that with the guns, the white faces should be shot and killed, nor did they hear him say that our men are being trained in the use of guns. It would thus appear when closely examined that in almost every important detail there is a conflict between these two witnesses and the other prosecution witnesses who support the charge. These witnesses profess to speak about the same words which are referred to by the prosecution and must have heard such words as Swaraj, shoot the Europeans, and demolition of buildings. I am inclined to think, therefore, that those words were not used, at any rate their evidence is strong enough to make me hesitate to accept the other evidence of village Munsifs and a police contracter with a reputation of rowdyism. Their own version is, that he said if the Sepoys or themselves oppose the Europeans these could be conquered. This is very different from the charge and if accepted proves a case for which he is not tried. The statements of these witnesses show that they might have probably mistaken an appeal for united action to succeed in commercial rivalry, for an incitement to rebellion. I think it entirely unsafe to accept and act upon any oral testimony as to the words used unsupported by any record made at the time, unless the words were so striking as to impress themselves upon their memory. The memory of the witnesses was stimulated only two months after and that was done by police officials.

41. I am, therefore, of opinion that the prosecution evidence has failed to prove that the appellant uttered the important incriminating words referred to in the charge. The charge itself does not state that these words were used. It is quite clear that no part of the speech was taken down verbatim. The evidence of the constables as to the words uttered so far as they are able to speak from their recollection do not support the prosecution case. The 5th, 6th and 7th witnesses profess to give the exact words used. But in the case of the 6th and 7th witnesses, it is clear they are only speaking to the inferences drawn by them; and the actual words themselves so far as they remember them, even if their memory is to be trusted, need not convey the guilty intention required by the section. The 5th witness, if believed, undoubtedly shows the appellant is guilty. He gives the words. But it is in substance not the prosecution case and though the 6th and 7th witnesses refer to the same sentences, they say they did not hear the important words which show the guilt. The cross-examination shows that his memory is blank on many important points, and that on the whole his memory is unreliable. The prosecution evidence as a whole if believed shows that the speech made by the appellant left in the minds of these witnesses the impression that the people of Karur should demolish the public buildings, they must fight the Europeans and conquer them.

42. For the witnesses receiving this impression the appellant cannot be convicted; as I have already stated the words are the ground of complaint and the words for the uttering of which he is tried must be proved. As the Grown has clearly failed to prove the words and in fact did not even undertake to prove them, the appellant is in my opinion entitled to an acquittal. On this view it becomes unnecessary to consider the defence evidence. I shall, however, shortly state my opinion. There is undoubtedly great force in the contention of the Public Prosecutor that the memory of witnesses about the words used by a speaker months before cannot be trusted. If, therefore, the police constables had taken down, the words used by the appellant, however respectable the witnesses, I should not place much reliance upon any negative testimony to the effect that they did not hear such words. But here we have not got the words uttered by the appellant in the police notes, nor is there much force in the argument, that the memory of the prosecution witnesses ought to be trusted in preference to that of the defence witnesses as they were examined by the police Inspector soon after the occurrence. The Madras Inspector went to Karur for enquiry only on the 17th May, when the memory of the prosecution witnesses must have already become unreliable so far as the words are concerned, and it is clear from the Indian Patriot, dated the 20th May, that the defence witnesses also must have then heard of the enquiry. Both, therefore, stand on the same footing. The defence 2nd witness is the Head-Master, 10th and 20th witnesses are the Assistant-Masters in the Municipal High School. They all say that when the interruption by the Government contractor, prosecution 5th witness, was made the appellant was discussing about the exorbitant military expenditure and contrasting it with the vary little amount spent on Education and that he was not than speaking about the Sepoys shooting the white faces. This is of course very different from negative testimony. The school is under the supervision of Government officials, The witnesses are much more competent to speak about the effect of a lecture on economic or political subjects than police constables or other prosecution witnesses. The defence 5th witness is a copyist in the Sub-Magistrate's office. He gives the same evidence. He is liable to be summarily dismissed by Govarnment. It does not appear why he should give false evidence in favour of a stranger. The same observations apply to the 18th witness for the defence, a dark in the office of the Sub-Registrar. Defence witnesses Nos. 11, 15 and 7, Miraridars paying Mats of Rs. 460, Rs. 500 and Rs. 150, give the same evidence. Defence witness No. 3, and defence witness No. 6, merchants, defence witness No. 14, a money-lender, give similar evidence. The evidence of the 3rd witness is important as he was admittedly the person who on the contractor's interruption took him aside. 1st witness for defence, the Municipal Manager, also gives similar evidence.

43. These are the important witnesses who give evidence in favour of the defence. Contrast this with the prosecution evidence. The Sub-Inspector 4th witness for prosecution, has deliberately perjured himself in stating that he took notes, Exhibit M, at the meeting. The police constable's evidence in so far as he suggests that he sent his notes to his superiors without giving it to the 4th witness for prosecution cannot be accepted. It is of course probable that the accused, a boy of 18 years, made many mistakes. But the absurd statement about “one Mr. Boycott” and the possible statement attributed to Mr. Hume are more likely to be invented by an ignorant constable than by the appellant. His statement that he did not omit any main point in the lecture is evidently false. His forgetfulness about many important statements alleged to have been made at the time is suspicious. The evidence of a police constable has to be received with caution when his superior has given false evidence. In a case of this nature the fact that the principal polios officer gives false evidence throws suspicion on the whole case. The 5th witness said at first that the prisoner said, “Why should not we, who have bean trained in the use of guns turn the guns upon the white faces and so obtain Swaraj?” Later he said the words were, “Why can our Sepoys not shoot the white people and obtain Swaraj?” Ha denies many statements found in the police notes. He was, moreover, according to the 2nd witness, doing some contract work at the police station at that time. The 6th witness is the Assistant Station Master. Tamil is not apparently the vernacular of the 7th witness. Andthese witnesses only stated their impression. The 8th witness is a Munsif Monigar. The 9th witness also is a village Munsif. The 10th witness is what is called a “petition writer” whose evidence is not entitled to weight when opposed to the evidence of any respectable witness. The 11th, 12th and 13th witnesses do not give any evidence about the speech of the 17th. Except the police contractor and the petition-writer, the rest are all petty officials and I have no doubt all spoke under police influence. Their memory was refreshed, nearly two months after the incident, when they had no recollection themselves, by policemen and at that time they probably made statements from which they could not withdraw afterwards. They are witnesses who cannot refuse to give evidence in favour of a police prosecution except at some possible risk to themselves. On the other hand, some of the defence witnesses, the School Masters and the clerks in particular, are witnesses who give evidence, against the prosecution at some possible risk to themselves. In education and respectability the defence witnesses generally are far superior to the prosecution witnesses. And the appellant is a stranger. In the circumstances, it is impossible for me to reject their testimony and accept that of the prosecution witnesses. The only reason given by the Judge is that sympathy with sedition has permeated the classes round Karur. There is no evidence to support this. Farther, it is ??? to find the appellant guilty of attempting to excite the Sepoys to shoot Europeans, when there were no Sepoys at Karur. I am, therefore, clearly of opinion that the conviction should be set aside and the accused acquitted.

44. This appeal coming on for hearing under the provisions of section 429, Criminal Procedure Code, before the Honorable Mr. Justice Wallis, his Lordship delivered the following.

Judgment

45. In this case the accsused was charged with committing offences under sections 124-A and 153-A of the Indian Penal Code, on the 16th Match 1908, and with committing similar offences and also offences under section 505, clauses (a) and (c), of the Indian Penal Code, on the 17th March 1908. The charges in respect of the 16th March were not proceeded with at the trial and the accused was tried and convicted of having committed offences under sections 124-A and 153 A, Indian Penal Code, on the 17th March 1908, and also of an offence under section 505, Indian Penal Code. Id the argument before me no objection was raised to the form of the charge, but as the questions as to the proper form of charge are discussed by the learned Judges who heard the appeal and as these questions are of general importance I think it necessary to deal with them. With regard to setting out the words in charges of this kind it was held in England by all the Judges advising the House of Lords. In Saoheverells case, (12) that in all prosecutions by indictment or information for crimes and misdemeanours by writing or speaking, the particular wards which are supposed to be criminal ought to be expressly mentioned in the indictment of information This, Itake it, was only an application of the general rule which required the offence to be stated with certainty. The question whether it was necessary to prove that the precise words charged in the indictment were actually used was raised by Mr, (afterwards Sir Samuel) Romillyon the trial of John Binns in 1797 and after Mr. Spencer Perceval had argued for the Grown, that the mode of proof for which Mr. Romilly was contending would make it absolutely impossible ever to ??? conviction, it was ruled by Mr. Justice Ashhurst that it was ??? if the words proved were the same in meaning though not the precise words charged. R. v. Binns (13). A rather stricter rule appears to have been applied by Wilde, C.J, Parke, B, and Maule, J., in R. v. Russell (), at page 746, who whilst ruling that all the words set out in the indictment need not be proved, but only so many of them as are in themselves ??? to constitute the crime, were of opinion that the words proved must be proved as laid in the indictment, as otherwise there would be a variance between the indictment, and the evidence Under the rigid rules of the Common Law variances between the indictment and the evidence as to material averments were fatal whether they affected the merits or not, and Lord Cardigan was acquitted on an indictment for shooting at his opponent in a duel because the prosecution failed to prove the opponent's full name as set out in the indictment. As pointed out by Mr. Justice Stephen in the History of the Criminal Law, the Legislature has never attempted a thorough reformof the English rules of criminal pleading and has been content in 14 and 15 Victoria 100, to guard against some of the more obvious miscarriages resulting from their strict enforcement.

46. I have stated what I understand to be the state of the English authorities as to indictmants for seditious words, but I agree with Mr. Justice Benson that we have no concern with them, becanse as respects charges we are governed in this country by the provisions of the Code of Criminal Procedure which are not, and do not purport to be, an exact reproduction of the English, rules as to indictments, and indeed were expressly framed in such a manner as to give no room for merely tech nical objections not going to the merits of the case.

47. Under section 221(3) of the Code of Criminal Procedure, as the law does not give offences under sections 124-A and 153-A any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. Then under section 222 the charge must contain particulars as to the time and place of the alleged offence, and under section 223 when the offence is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged the charge shall contain such particulars of the manner in which the offence was committed as will be sufficient for that purpose. Illustration (c) which is nearest to the present case is as follower—“A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.” Similarly a charge under section 124-A or 153 A which did not contain particulars of the words alleged to have been used would in my opinion, offend against the section as has been held by this Court recently In re Chidambaram Pillai' case (). It would, I think, be best to set out the words which it is intended to prove as nearly as possible, but, so long as the substance of the words is set out, I find nothing in our law that requires that the words set out should be proved verbatim et literatim; and if the charge is in English and the words uttered were in Tamil, I find nothing in our law requiring that the actual words should be set out in Tamil.

48. Then too section 225 appears to me to be expressly aimed amongst other things at objections on the ground of variance between the charge and the evidence [See illustration (b)] as it provides that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or such particulars shall be re garded at any stage as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. I am, therefore, of opinion that it is enough if the substance of the words used is set out in the charge and that it is enough if the substance of the words proved to have been used is the same as that of the words set out in the charge.

49. To come now to the facts of the present case, the accused gave his age as 18 years, stated that he was a “failed Matriculate” and described himself as a Swadeshi preacher. He further stated that he had been lecturing on home industries, and also about boycotting foreign articles and about national education; but if the police reports of his speeches during his stay at Karur from March 14th to 20th are at all correct, he by no means confined himself to these topics, but seems to have taken an active part in the political agitation that was going on about that time. Up to the time of the accused's arrival in Karur Governmant had not sanctioned the institution of any prosecution for sedition, and as appears from the evidence and was observed by the Sessions Judge and Mr. Justice Benson, it doss not appear that the notes of the accused's statements at Karur were taken with an immediate view to his prosecution or that the local police anticipated any sanction to prosecute being given. What appears is that the authorities considered it necessary that they should be kept informed of what the accused and people like him were saying in the districts. Accordingly he was kept under observation, and some of the Salem police accompanied him from Salem where he had been lecturing to Karur and that he was kept under observation by the Karur police who ware instructed to take notes of his speeches and submit ??? of them; and similar arrangements appear from the statements of the accused to have been made when he left Karur for Trichinopoly on the conclusion of his stay. The Inspector at Karur, defence 21st witness, did not consider the accused's speeches of sufficient importance to attend himself, but left the duty to the station writer, 2nd witness for prosecution, and the Head Constable, 4th witness for prosecution. These observations as to the general attitude of the authorities and the local police appear to me to be material on the question whether the 2nd and 4th witnesses for prosecution had any motive for fabricating seditious urtterances and putting them into the mouth of the accused as alleged for the defence. It should further be observed that the riots at Tinnevelly took place on the morning of the 13th March and that soldiers from a native regiment stationed at Trichinopoly were at once requisitioned for the purpose of quelling any further disturbances. These facts appear from the evidence to have become known in Karur by the 17th, as they obviously must, seeing that Karur is a station on the south-west line between Salem and Erode.

50. Now as to what took place at the meeting on the 17th there is a direct conflict between the evidence for the prosecution and the evidence for the defence, and if the defence witnesses can be believed the accused is entitled to be acuitted. I am, however, unable to accept their evidence, because it seems to me clear that the defence witnesses who speak to this meeting, have one and all come forward with a manifestly false story as to an incident which happened at this meeting, and that they have done so for the purpose of screening the accused. It is admitted that an interruption took place and that an attempt was made to stop the meeting by 5th witness for the prosecution who cannot have been specially prejudiced against the accused and his case as he was one of the persons in Karur whose assistance the accused had been recommended to seek. So much is common ground, and the difference is as to what the accused said to provoke the interruption. According to the defence witnesses the interruption was provoked by some remarks of the accused as to the necsesity for reducing military expenditure and spending more on education. It appears to me quite incredible that the expression of such a trite and harmless sentiment could have led the 5th witness for prosecution to attempt to stop the meeting or have led to the talk as to the arrest of the accused which the 2nd witnesss for defence speaks to, and I am unable to place any credit in witnesses who come forward with such a story.

51. Of course it is not enough to disbelieve the evidence for the defence. The Court must satisfy itself that the evidence for the prosecution is such as may safely be acted on and is sufficient to establish the guilt of the accused.

52. The most serious utterances charged against the accused are that he referred to the destruction of public buildings in the recent riots and suggested that the people of Karur should act in the same manner and that he referred to the native troops and said “Why should they not exert on behalf of the Swadeshi cause and to help our Mother, use their guns to shoot the white faces?” Now the 5th prosecution witness is positive that it was the suggested destruction of public buildings and shooting at the white faces that lei him to interrupt the meeting and I see no reason to disbelieve him. It is true that in the Sessions Court he gives the words thus: “Natives who love their country are taken as Sepoys and are paid a small amount and they are trained to use guns. Why should not we, who have been trained in the use of guns turn the guns upon the white faces and so obtain Swaraj.” But it appears to me that here “we who have been trained in the use of the guns” must, having regard to the context, mean “those of us who are sepoys” and not the audience who are debarred for the use of the guns under the Arms Act; and I see in his deposition in the lower Court, filed by the defence as Exhibit I, the witness in the lower Court when his memory was fresher gave the words as Why should not our Swadeshi low paid men tarn their guns on the white faces and we usurp the Government?” In this he is corroborated not only by the police witnesses, 2nd and 4th witnesses for prosecution, but also by the 6th and 7th witnesses and by the 8th witness for the prosecution” as to the destruction of the buildings—what followed he did not hear well—and also by prosecution witnesses Nos. 9 and 10. Prosecution 6th witness says that after referring to the demolition of the Courts, the accused said: “ln the same way, why should not all of us work in the cause of Swadeshi?” and that he understood him to mean that they should cause rioting, and prosecution 7th witness says that after referring to the demolition the accused added—“Why should not we in Karur be similarly in hsrmony?” and that he understood him to mean that they should cause a similar disturbance. I do not think the words spoken to by thess witnesses taken in the connection in which they state they were uttered are susceptible of explanation as an appeal for harmonious co-operation in the cause of Swadeshi. As to the general credibility of prosecution witnesses Nos. 5 to 10, I agree with the observations of Mr. Justice Benson and need not repeat them. As against the evidence of these witnesses we have the incredible story of the defence witnesses that the interruption by the 5th witness for prosecution was occasioned by the accused's remarks in favour of reducing military expenditure and spending more money on education, remarks further which the prosecution witnesses say they never heard. As further discrediting the defence evidence as to the nature of the accused's speech on the 17th, I may refer to facts proved by the Tahsildar who was called by the defence that the reports which reached him as to the acccused's speech were such as to lead to his taking action and sending for the police when he was informed that notes had been taken of the speech by the police under instructions. I may also refer to the action of the temple authorities, who after this speech refused to allow the accused to make any further speeches in the temple, and were in consequence referred to by him in terms which were not intended to be complimentary as appears from Exhibit G, the report by prosecution 2nd witness of the accused's speech on the 20th.

53. I have so far dealt with the case apart from the evidence of the notes taken by 2nd and 4th witnesses for prosecution. Now the Inspector of Karur, 21st witness for defence, speaks to a carbon copy of the notes of each speech taken by 2nd and 4th witnesses for prosecution having been filed in his officeon the following day, and these carbon notes bear his initials and the date of the receipt. He also states that Another cop, y was sent to the District Superintendent of Police. I attach no importance to the non-proiuction of this copy, which was not called for by the defence, and would in the ordinary course hare been sent on to the police higher authorities and then to Government and possibly by Government to its law officers before the present proceedings were sanctioned. The fact which I accept that the carbon copies, Exhibits E (1) and M (1) of the notes, Exhibits E and M of 2nd and 4th witnesses for prosecution, on the 17th were filed in the Inspector's office on the 18th March, in my opinion, shows that the notes Exhibits E and M were made sufficiently near the date of the meeting by 2nd and 4th witnesses for prosecution to entitle these witnesses to refer to them for the purpose of refreshing their memory under section 159 of the Evidence Act, and to render the notes themselves admissible under section 160, and it was not argued before me that they were not. But as detracting from the weight to be attached to them it was strongly argued by Mr. Ran gachariar for the defence that the notes Exhibits E and M were not, and could not have been, taken down at the meeting by 2nd and 4th witnesses for prosecution as these witnesses swear they were. Now both the learned Judges who heard the appeal were struck by the great similarity of the notes, Exhibit E of 2nd witness for prosecution, and the notes, Exhibit M of the 4th witness for prosecution, and came to the conclusion that they could not have been produced independently. Mr. Justice Benson thinks Exhibit M was written afterwards by the 4th witness for prosecution in consultation with the 2nd witness for prosecution. Mr. Justice Sankaran Nair thinks that prosecution 2nd witness' notes, Exhibit E, ware also written after the meeting, relying on the want of light and on the admission that the first two pages of Exhibit E containing the names of the persons present and the hour of beginning and ending were not written at the time, prosecution 2nd witness' story being that he came late and left two pages blank for this purpose, Mr. Rangachariar also relies on the remarkably neat and clean appearance of Exhibits E and M as showing that they do not contain notes taken down by the constables during the meeting, and also on the fact that in prosecution 2nd witness' notes of the speech on the 20th, Exhibit G, there is interposed a note by the witness as to the antecedents of one K.S.R Chandra, which, however, the witness explains as having been made during an interval while the accused was distributing leaflets regarding a company about which the report shows he had been talking. I am not much pressed by the last objection or by the objection as to want of light and I cannot place any reliance on the evidence of the defence witnesses who say prosecution 4th witness did not take any notes. On the other hand I realise the force of the contention that the resemblance between Exhibits E and M can hardly be fortuitous, and I am also struck by the very neat and clean appearance of the books, Exhibits E and M, though on the other hand certain words to which my attention was directed for the Grown appear to have been written in a hurried manner and it appears by the evidence of 4th witness for prosecution that he was not able in the lower Court to read his notes themselves, Exhibit M, with facility owing to their having been written hurriedly, whereas he was able to read the carbon copy, Exhibit M (1), prepared next day. In these circumstances I hesitate to draw any definite conclusion as to what exactly happend—whether it was prosecution 2nd witness or prosecution 4th witness who wrote out his notes afterwards with the aid of the other's notes, or whether Exhibits E and M were both drawn after some consultation by prosecution 2nd and 4th witnesses with the aid of notes taken by one or both during the speech. If anything of the sort was done, as I fear it was, it was of course very reprehensible as well as very foolish, but in the circumstances of this case I should be inclined to attribute it to a desks to give their work a good appearance rather than a desire to distort the accused's words. My conclusion that the statements of prosecution witnesses Nos. 2 and 4 as to how their notes Exhibits E and M were drawn up cannot be implicitly relied on, no doubt, detracts from the weight of their evidence as to what the accused said, but I am not prepared on this ground alone to reject it in the circumstances of the present case, corroborated as it is by the evidence of other witnesses whom I see no reason to disbelieve, and opposed only by evidence which appears to me to contain obvious fabrications intended to benefit the accused.

54. I may say further that the internal evidence of Exhibits E and M in my opinion goes to show that they are notes made at the time, or compiled from such notes. As to the alleged want of connection between the Tuticorin incidents and the shooting of the whites by Sepoys which is made to follow, the connection seems to me very clear. Sepoys had been Bent for to quell the riots and it appears to me only natural that after referring to the riots the accused should have been led to speak of the Sepoys. The suggestion thai the reference to the Sepoys did not immediately follow the reference to the riots appears to me to be opposed to the probabilities as well as to the evidence; and the fact that the accused is made to refer to the Sepoys later in his speech appears to me to be perfectly consistent with his having referred to them here also. As regards those portions of the speech which are not included in the charge, I do not think the references to Mr. or Colonel. Boycott and to Mr. A.O Hume can have been inventions of these two up-country constables who are not likely to have heard previously either of Captain Boycott Mr. A.O Hume. The accused on the other hand who says he was lecturing on boycotting would probably have heard of the former and very possibly of the litter. It is I think vary likely that prosecution witnesses Nos. 2 and 4 misunderstood what the accused said about Captain Boycott; as to whether they also misunderstood the remarks about Mr. Hume's attitude, I have no means of judging. In conclusion I would observe that the accused has been convicted by the Sessions Judge and the Assessors who had the advantage of seeing the witnesses and I see no reason for disturbing the conviction. As to the sentence, the words which the accused has been convicted of using, were highly seditious and mischievous and through the exciting news from Tinnevelly may have led the accused to go further than he would otherwise have gone, I cannot regard his speech on the 17th as an isolated act. The evidence as to his other speeches at Karur appears to show that there was a good deal of sedition mixed up with his Swadeshi preaching. I think, however, that in determining bis sentence, his youth and inexperience and the probability that he was an instrument in the hands of others may properly be taken into account, and that in the circumstances of the present case those considerations warrant his being dealt with more leniently than an older and more experienced offender. The justice of the case will, I think, be met by a sentence of three years' rigorous imprisonment; and I dismiss the appeal and reduce the sentence accordingly.

55. Sentence reduced.