JUDGMENT Rankin , C.J.
1. This is an appeal by three accused persons who have been tried before a Special Tribunal sitting under the powers conferred by the Bengal Criminal Law Amendment Act. The charges were in respect of an alleged dacoity or attempted dacoity upon a certain bus which on 11th September last was going from Rajshahye to Natore carrying passengers and also stopping at the post offices on the way in order to pick up the mails. The bus in question was being driven by witness 3 in the case Ramkrishna and there were certain employees of the Bus Company and there were also certain passengers who had got into the bus. In the driver's seat there was the driver, Satis the manager of the company and a certain other person. In the mail box or the middle part of the bus, there were witness 1 Ashutosh and witness Balavi (P.W. 17). The witnesses Khitish, Sukumar and certain others were in the back portion which has been referred to as the body of the bus. What happened was that after the bus had reached Pathia motor stand which was about 19 miles from Rajshahye and about 9 miles from Natore, one of the passengers in the bus asked the driver to stop on the ground that his watch had been dropped. The driver was unwilling to do so but soon of the other passengers apparently induced him to stop and he stopped the bus though the engine was left running. Thereupon, certain passengers inside the bus got out, raised the cry "hands up," one or more of them broke the headlights and punctured the front tyres and one or more stood over the driver threatening him with a dagger and threatening the people in the mail box to get down. The passenger who had been sitting in the front next to the manager got down and fired two shots with a revolver. He may have intended and probably did intend to hit the driver but he hit the manager Sates who was sitting next to him once in the arm and once in the chest. One of the dacoit passengers is said to have remained at the door of the bus with a dagger in order to prevent any of the other passengers in the bus from getting out. As the driver was not bit by the revolver he started the bus and in the end the bus got away and ultimately reached Natore. It appears according to the prosecution case that the accused Sushil who was at the back of the bus guarding the door was taken by surprise as the bus went off and he appears to have been thrown from the bus and to have sustained certain injuries in that way.
2. The commissioners in a very careful judgment have set out the whole narrative of the events which throw light upon this case. We find that certain persons went to the police station. We find what the people in the police station did, how they came along a part of the road, how they made a search list of what had been discovered and how they came ultimately to the police station of Natore. Curiously enough late in that evening the accused Sushil was brought to the police station, and it appears that he had been found in the field or premises of a certain agriculturist at a considerable distance to the south of the road along which the motor bus was going. The agriculturist called in his munib who advised him that the police should be given notice and Sushil was taken to the thana. There is evidence that he at first, at ail events, gave a false name and said that he belonged to a place called Sherpur. It would appear from the medical evidence that he had sustained a certain amount of concussion because there was bleeding from his ear, which showed that this had happened, and it is probably true that he was in a semiconscious condition at the time when he was found and also even at the time when he was taken to the police station. Proceeding upon the suspicious feature of this discovery near about the spot where the attack upon the bus had taken place, of a young man suffering in this way the police appear to have commenced investigation as to the antecedents and past history of Sushil, and in that way they discovered that Sushil and his co-accused Dharani were students of the Rangpore College, and they further found that these two had come on the 2nd to a mess at Rajshahye and that they had afterwards returned there on the 4th and stayed in the room belonging to the accused Rakbal until the 11th, the date of the occurrence. It appears that on the 7th Rakhal joined them and there is evidence to show that at about 6-30 p.m. on that day Rakhal was seen in Rajshahye, so that he was not a person who could have taken part in the attack on the bus, if the prosecution evidence is to be believed. In the end the commissioners have given full and adequate reasons for their finding that there was this attack upon the bus as alleged by the prosecution. They have also given reasons and good reasons, for finding that more than five persons took part in the attack and they have further given reasons for finding that the object of this attack on the bus was to secure the mail, there being indeed no other object that could very well be served by this attack so far as the evidence discloses.
3. The case therefore comes back as regards each accused to the question whether it is shown that he was a party to the attack; in other words whether the evidence of identification is sufficiently ample to justify the Court in holding that each prisoner has been satisfactorily identified.
4. So far as Rikhal is concerned the prosecution in the end abandoned the case that he did take any part in the actual attack. So we have to deal, first of all, with the prisoner Sushil and then with the prisoner Dharani in considering whether it is proved that they took part.
5. As against Sushil I am of opinion that the evidence which has been very plainly and clearly marshalled in the judgment of the tribunal is amply sufficient to show that he was one of those who took part in the attack. To begin with, there was found on him at the time of his discovery a ticket which had been issued for this very bus for the journey with which we are concerned. The witnesses who identified him are P.W's. 1, 16, 17, 18, 19 and 21, and they identified him as the one who remained inside the bus near the door to prevent other people from descending. Then we come to this: that curiously enough on this very evening, some time after this occurrence, Sushil is found not very far away in a wounded condition by the witness who speaks to having seen him there. There is further the fact which is clearly proved that when he was asked to give an account of himself after he had been taken to the thana he gave a false name and a false address. It appears also that a revolver and a dagger were found some 400 yards away from the place where Sushil was found. This last fast certainly by itself is no very secure foundation to identify the accused; but it certainly points to this: that whoever assisted Sushil to the place where he was found threw away the3e articles in the course of the journey. Having regard to the corroborative evidence and the direct evidence, I cannot think it possible that this Court should differ from the opinion of the members of the tribunal who found that Sushil's complicity in the dacoity was amply proved.
6. In the case of Dharani, the evidence is not quite so extensive. The evidence against Dharani consists, first of all, of the evidence of association with Sushil staying wtih him at a mess in Rajshahye both being students of the Rangpore College. I need not say that that of itself would be a highly insufficient foundation for conviction of Dharani merely upon evidence which implicated Sushil and certain others. There is also the fact that when Dharani was arrested he immediately denied that he had ever been in Rajshahye in his life. That may be some evidence that he was endeavouring to extricate himself from being accuse of something connected with Rajshahye; but again that in itself is no evidence that Dharani was taking part in the dacoity.
7. The evidence to implicate Dharani is the evidence of P.W. 2 Satis, the manager who was shot and of P.W. 3 Ram Krishna, the driver; and the real question in this case is, having regard to a certain amount of antecedent corroboration in the evidence of association, whether these two witnesses' evidence is sufficient. Now, it appears that on 7th October a certain number of people, including some people who were present in the bus at the time of the occurrence, were brought to the jail to sea if they could identify, among others, Dharani. None of the eyewitnesses identified him on 7th October, but neither the driver nor Satis was present at this identification. Another identification was held on 7th November and it is true that other persons as well as Dharani, who, were suspect's, were put among the persons paraded. On this occasion Satis and the driver both identified Dharani as the person who took part in the attack going in front and threatening the driver, and they did not apparently identify certain other suspects who were shown to them.
8. The question, is whether we can rely upon the evidence of these two witnesses. In my opinion, the evidence of the driver Ram Krishna is very definite and strong. To begin with, he says:
I say that Dharani first stool over mo with a dagger and broke the lights after. He was on my right. I saw him in the light of the headlights. If this hid not been there, I would not have recognized him. I moan that I could see him by the headlight when he was standing over me, bat I could not have S3en him in the lights if the headlights had not bean on.
9. He says of Dharani:
He was in the bus at the time. He it was also who punctured the tyres, broke the lights and stood over me with the dagger....
10. Satis says:
At Rajshahye, I identified Dharani... At Baneswar he asked me the cause of the delay.
11. That was because the bus had to wait there for mails.
He also was the man at Putia who broke the headlights and pierced the tyres.
12. And in cross-examination ho says:
I first noticed Dharani at Baneswar. I saw him get in behind at Baneswar. He did not sit beside me. I identified Dharani only. I made a statement to the police. I did say to the pollen that I recognized the man who sat by ma but not the other dacoits well. The man who shot the revolver was the man who sat next to me, and so forth. In my judgment, the criticisms of the evidence of these two witnesses are not sufficient to induce one to think that there is any reasonable doubt about the identification of Dharani; and, in my opinion, the conviction of Dharani by the tribunal must be upheld.
13. I come last to the ease of Rakhal. With regard to Rakhal, I am clearly of opinion that the evidence is entirely insufficient to bring home to him the charge of conspiracy under Section 120-B, I.P.C. Indeed, it is difficult to see that the evidence against Rakhal amounts to very much more than some circumstances of suspicion. It is said that his movements were peculiar and suspicious. He was employed, it seems, by an Insurance Company and his business no doubt was to get people who would take policies and arrange for agencies with other people who would extend the business of the company. It would seem that he was at Berhampore about the 4th of the month. It would seem that on the 7th he came to Rajshaye and stayed there till the 11th. It is true that his two accused were then putting up with his consent in his room in the mess. It seems that he left Rajshaye on the evening of the day of the occurrence, that next morning he was found at the Ranaghat station, that he spent the time from 11th to 13th again at Berhampore and that he was not finally arrested till some time after that at the house of a relative. All this is very well; but it has nothing in the world directly to do with the attack on the bus. It amounts merely to some evidence of association with Sushil and Dharani, and it shows that he was sufficiently friendly with them to be putting them up in the mess in Rajshahye where he was living. It does not seem to me that it is possible, by saying that when 11th October had passed he was anxious to escape observation or even was doing his best to conceal his whereabouts, that the prosecution can complete what is necessary in order to show that he was a person who concerted with others and agreed with them that this attack on the bus should be made. The commissioners-said that, as he no longer did any business with the Insurance Company, he was thus prepared to sacrifice his employment and his pay rather than to give any clue as to his whereabouts. Be it that he was most anxious to escape observation. The commissioners inferred from this:
We do think that the other points which we have mentioned above have established beyond reasonable doubt that Rakhal's friendship with the other two accused was not unconnected with the project of dacoity and was find it impossible to hold the facts proved to be consistent with his innocence.
14. I can only say that to my mind the facts proved are in no way conclusive of an agreement on the part of Rakhal that this attack on the bus should be made. No doubt it may be, for anything that I can say, that the absence of any further evidence against Rakhal is due entirely to the fact that he lets the younger people do the work and undertake the peril of his scheme, but that must remain entirely in the region of hypothesis. Until we are first convinced by proper proof that Rakhal was a conspirator, no such consideration can arise. We have to be satisfied that he was agreeing and intending that this attack upon the bus should be made before we can find him guilty of a charge such as has been framed against him. In my opinion, the appeal of Rakhal must be allowed and he must be acquitted and released. As regards the other two accused Sushil and Dharani, nothing has been said upon the question of sentence. The tribunal have sentenced both of them to six years' rigorous imprisonment each. In my opinion, that is a very proper sentence and ought not to be interfered with. Their appeal is accordingly dismissed.
C.C. Ghose, J.
15. I agree.
16. I agree.