BARENDRA KUMAR GHOSE Vs. EMPEROR

JUDGEMENT

(1.) THIS was an appeal from the High Court of Calcutta brought in a criminal matter under Article 41 of the Letters Patent. The Trial Judge reserved no question of law and the case came to the High Court on the certificate of the Advocate-General of Bengal under Article 26. Objection was taken at their Lordships' bar to the competence of this appeal on the ground that Article 41 does not give an appeal to their Lordships from the determination of the High Court, unless the case came before that Court at the instance of the Trial Judge. Thereupon the appellant applied in the alternative for special leave to appeal. The materials being the same in both proceedings though the questions arising are not identical, their Lordships were able to decide the appeal and the application together and, in view of the gravity and urgency of the case, they dispensed with a formal petition for special leave to appeal. After hearing the arguments, they announced last July the substance of the advice, which they would humbly tender to His Majesty, namely that the appeal should be dismissed. At the same time their Lordships intimated that they were unable-to advice that the application for special leave to appeal should be granted. Their reasons are as follows: On August 3rd, 1923, the Sub-Postmaster at Sankaritolla Post Office was counting money at his table in the back room, when several men appeared at the door which leads into the room from a courtyard, and when just inside the door, called on him to give up the money. Almost immediately afterwards -they fired pistols at him. He was hit in two places, in one hand and near "the armpit, and died almost at once. Without taking any money the assailants. tied, separating as they ran. One man, though he fired his pistols several times, was pursued by a post office assistant and others with commendable tenacity and courage, and eventually was secured just after he had thrown it away. This man was the appellant; the others escaped. The pistol was at once picked up and was produced at the trial.

(2.) THERE was evidence for the prosecution, such as the Jury was entitled to act upon, that three men fired at the Postmaster, of whom the appellant was one; that he wore distinctive clothes by which he could be and was identified; and that while these men were just inside the room, another was visible from the room through the door standing close to the others but just outside on the door-step in the courtyard. This man was armed but did not fire.

(3.) THE appellant was defended by five counsel. A few of the witnesses were cross-examined by them but very sparingly, and only to test their adherence to their evidence given in examination in chief. Most of them were not cross-examined at all. No affirmative defence was indicated in any part of this cross-examination and no witnesses were called on the part of the prisoner, but after the case for the prosecution was closed, the prisoner made an oral statement, which, of course, was not on oath and was not cross-examined too. Here for the first time some, foundation was laid, though vaguely, for what eventually became the case raised on this appeal.