SHIBADAS DAW Vs. EMPEROR

JUDGEMENT

(1.) The appellants Madhu Sudan Sen Gupta, Shiba Das Daw and Nikhil Chandra Guha Roy were tried with one Ramphal in the Court of the Special Judge of Murshidabad Under Sub- sections 4(a) and 5, Explosive Substances Act (6 of 1908) and Section 410 read with Section 120-B, I. PC. The trial was under Ordinance 2 of 1932. Ramphal was acquitted and the other three were convicted and sentenced to various terms of imprisonment. It is unnecessary to deal in detail with the evidence, because the case turns almost entirely upon the evidence of the approver Kalu. This evidence was very full and, if it is believed, there can be no question about the guilt of all the three appellants. The real question therefore for us to decide is whether it is safe to allow the conviction to stand upon the evidence of the approver or, in other words, whether there is sufficient and proper corroboration in law of this evidence.

(2.) The prosecution story begins with the association of some of the appellants in an Athletic Club. The leading spirit there was Madhu and it appears that there was some theatrical talk among some of the appellants about making oneself physically fit in order to enable one to fight for independence. The Magistrate has rightly disregarded that part of the story which is associated with this club. The Sub-divisional Officer thought apparently that the club was not altogether desirable and it was closed by his orders, and there is evidence to show that Madhu, Shiba Das and Kali talked about frightening the Sub-divisional Officer for what he had done. The evidence shows that sometimes they spoke of punishing him by throwing a bomb, at other times merely of frightening him. It is clear that they were in touch with the accused Nikhil who was a detenue living at Bharatpur and who had been sentenced to imprisonment for life. There is ample corroborative evidence of association between Madhu, Nikhil, Shib Das and Kalu. It is suggested that Nikhil advised or taught them how to make bombs or bomb " patkas" which is said to be another name for "crackers": but there is no corroboration of the approver's story on this point except the evidence of P. W. 7, Samed, who says that he was present behind a purda or partition when Nikhil was talking to the others and that he heard them say that they would frighten the Sub-divisional Officer. Kalu said that he purchased the materials necessary for making bombs upon the instructions of Madhu who gave him the money, and though there is corroboration of the fact that Kalu purchased the articles there is none of the fact that Madhu had told him to do so.

(3.) Similar criticism may be made of Kalu's evidence that he was told by Madhu to get pieces of iron and waste paper for the purpose of preparing bombs. According to Kalu, bombs were made and Madhu produced them on 11 March. There were four bomb-patkas and a bundle containing iron pieces and other things. Madhu took two light bomb-patkas, Kalu a heavy bomb-patka and a man who has not been identified took the bundle and another bomb-patka. They went to the house of the Sub-divisional Officer and stood at various places round the house. Then they threw their missiles and there were three explosions, the bundle did not explode, and they ran away. Upto this point Kalu's evidence, so far as it implicates Madhu is not corroborated. But P. W. 27 Bholanath, gave evidence that he was on the road near to this house and that he heard the explosions and saw some men running away and by the light of the hurricane lantern which he held, he recognized Madhu and Kalu. There is no doubt that some of the bombs or bomb-patkas were dangerous both to property and life. The evidence of the expert witnesses is sufficient to show that if some of these articles had exploded within about 15 feet of a human being, it would have been sufficient to kill him. On the other hand they were not powerful bombs as is shown by the fact that where one of them had struck the wall of the house only the plaster was damaged. The real danger doubtless lies in the fact that some at least of them contained pieces of iron and glass. Kalu was tendered a pardon at the commencement of the trial.