EMPEROR Vs. BARENDRA KUMAR GHOSH

JUDGEMENT

(1.) This was an appeal from the High Court of Calcutta brought in a criminal matter under Art. 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 wider Art. 26. Objection wan take at their lordships bar to the competence of this appeal on the ground that Art. 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, Ghosh 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 la 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 advise that the application for special leave to appeal should be granted. Their reasons are as follows

(2.) On August 3, 1923, the Sub-Fostmaster 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 fled, separating as they ran. One man, though he tired his pistol 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.

(3.) 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 doorstep in the courtyard. This man was armed but did not fire.