KING EMPEROR Vs. BARENDRA KUMAR GHOSE

JUDGEMENT

(1.) This is an application for review of a criminal case on the certificate of the Advocate- General under Clause 26 of the Letters Patent. The petitioner Barendra Kumar Ghose was tried on the 16 and 17 August at the fourth Criminal Sessions of this year by Mr. Justice Page and a Special Jury, on a charge of offences punishable under sections 302 and 394 of the Indian Penal Code. He pleaded not guilty to the first count and guilty to the second count. The Jury returned a unanimous verdict of guilty of murder, with the result that the accused was convicted and sentenced to death under Section 302. On the 22 August, an application was made on his behalf to the Advocate-General for a certificate under clause 26 of the Letters Patent. On the 27 August, the Advocate-General heard Counsel for the prisoner in support of the application. On the 29 August, the Advocate-General granted a certificate in the following terms: Certificate of the Advocate-General of Bengal under clause 26 of the Letters Patent of 1865.

(2.) I. Whereas the accused abovenamed was on the 16 August 1923, charged at the Criminal Sessions holden in this Hon ble Court in its Criminal Jurisdiction before the Hon ble Mr. Justice Page and a Special Jury on an indictment as follows: First - That he, the said Barendra Kumar Ghose together with certain of the other persons on or about the 3 day of August in the year of our Lord 1923 in Calcutta aforesaid committed murder by causing the death of one Amirta Lal Roy and thereby he, the said Barendra Kumar Ghose, committed an offence punishable under Section 302 of the Indian Penal Code. Second - That the said Barendra Kumar Ghose together with certain other persons at or about the time and in the place aforesaid were jointly concerned in attempting to commit robbery on the said Amrita Lal. Roy, and that at the time of committing such robbery Voluntarily caused hurt to the said Amrita Lal Roy and thereby he, the said Barendra Kumar Ghore, committed an offence punishable under Section 394 of the Indian Penal Code. II. Whereas it has been represented to me that the accused pleaded "guilty" to the aforesaid charge under Section 394, Indian Penal Code, with the reservation that he did not cause hurt to the Post Master and pleaded "not guilty" to the charge under Section 302, Indian Penal Code, and the trial was proceeded with thereafter in respect of the latter charge. III Whereas it has been represented to me that the case for the prosecution as opened by the learned Standing Counsel and as disclosed in the evidence of the prosecution was as follows: That the accused and three other persons made their appearance at the Sankaritolla Post Office at about 3-30 P.M., on the 3 of August 1923 armed with firearms, that three of them including the accused entered the Post Office through its south-eastern door while the fourth man remained outside, that of the three who Came inside, the accused stood in the middle and the masked man on his left and the other man on his right, that they stood within less than two yards of the Post Master of whom all the three demanded money with the words "Post Master Rupey deo," that the Post Master asked "laser taka," whereupon all the three levelled their weapons and fired at the Post Master's right palm and another struck him on the right side under the right arm-pit whereupon he fell down with a cry, that a clerk named Sham Dulal Das who was working in the same room at that time ran to the Post Master's aid whilst Hari Prasad Das, the Post Office Packer, ran after the three men who were immediately escaping along with the fourth man who was outside, that the chase was taken up by two other men named Sita Ram and Khapasram, employees of one Promotho Lal Sircar, residing at 15, Mohendra Sircar's Lane opposite the Post Office, that as they got to the turning of Mohendra Sircar's Lane and Sankaritolla East Lane, the accused ran down the latter lane firing his pistol from time to time whilst the other three ran by Mohendra Sircar's Lane to Creek Row, that the accused was followed by the Packer and the two others whose number was swelled by other pursuers who all kept following him until he was arrested in front of St. James Square and brought back to the Post Office along with his pistol which the accused had thrown away near the said Square but had been picked. up by a small boy who gave it to the Packer. That the prosecution case further was the Post Master had expired within a short interval of being shot, that one bullet was found inside his body which on being extracted fitted into the empty cartridge case picked up inside the room of the Post Office which in its turn was found to be of the same bore as that of the automatic pistol carried by the accused, that the dent of the bullet was found on the wall of 15, Mohendra Sircar's Lane fronting the Post Office, that no other empty cartridge was found inside the same room, that no trace of the third bullet was available in or out of it, and lastly that two revolvers and three daggers were found at premises No. 181, Harrison Road, a Chemist Shop where the accused was employed. IV. Whereas it has been further represented to me that the case for the defence as disclosed in the evidence was as follows: (a) That the case for the defence was embodied in the statement made by the accused in Court which according to him was identical with the statement he had previously made to Inspector Bonbehari Mukherji; a copy of the accused's statement in Court is hereto annexed and marked "A." (b) That the main points in the accused's version were as follows: (1) Three and not four persons went to the Post Office, that the accused went there with the assured feeling that no life would be taken by any one, that the accused stayed outside whilst the other two went in, and that only two shots were fired inside and not three. (2) That the accused was so taken by surprise on account of the shooting of the Post Master that he was temporarily robbed of locomotion and self-control and remained back, whilst his two companions ran away, that he recovered himself later on hearing the cry "chor chor," that he was running by himself, that he for the first time tried to fire his revolver in course of being pursued, that his pistol did not go off when he pulled the trigger, that he thereupon remembered his instructions to pull out a portion of the pistol and as he did so, a live cartridge fell out. (3) That the accused kept on firing in the air as he ran along and deliberately refrained from shooting the Packer and others who followed him at close quarter. V. Whereas it has been further represented to me that the learned Judge charged the Jury and in such charge which was taken down in short-hand completely said as follows: Therefore in this case if these three persons went to t hat place with a common intention to rob the Post Master and if necessary to kill him and if death resulted, each of them is liable whichever of the three fired the fatal shot. If you come to the conclusion that these three or four persons came into the Post Office with that intention to rob and if necessary to kill and death resulted from their act, if that be so, you are bound to find a verdict of guilty. I say if you doubt that it was the pistol of the accused which fired the fatal shot, that does not matter. If you are satisfied on the other hand that the shot was fired by one of those persons in furtherance of the common intention, if that be so then it is your duty to find a verdict of guilty. VI. Whereas it has been further represented to me that the learned Judge omitted to draw the attention of the Jury to the defence of the accused, save and except a mere reference to the statement made by the accused. VII. And whereas the facts hereinbefore set out have been certified to me by Counsel for the accused as appears from the Certificate hereunder written. Now, I, Satish Ranjan Das, Advocate-General of Bengal, do under and by virtue of the powers entrusted to me by the Letters Patent for the High Court of Judicature at Fort William in Bengal bearing date the 28 September 1865 certify that in ray judgment whether the alleged direction and the alleged omission to direct the Jury do not in law amount to a misdirection should be further considered by the said High Court. (Sd.) SectionR. Das. We the undersigned defended the above accused at his trial by the Hon ble Mr. Justice Page at the last Criminal Sessions of the High Court on the 16 and 17fch instants and were present at his trial throughout and we certify that the facts hereinbefore set out have been correctly stated to the best of our recollections and belief. (Sd.) B.C. CHETTEJEE, (Sd.) SectionK. SEN. (Sd.) N.R. DAs GUPTA. Counsel for the accused."

(3.) Thereupon on that very date, Counsel for the prisoner applied to the Chief Justice to appoint a Bench to hear the application for review, and the present Bench was constituted by the Chief Justice under clause 26 of the Letters Patent read with Section 108 (2) of the Government of India Act, 1915.