Equivalent Citation: (1912)ILR 35Mad247, (1912)22MLJ490, 1912 MWN 207
IN THE HIGH COURT OF MADRAS
Decided On: 15.02.1912
Appellants: The King-Emperor
Respondent: Nilakanta alias Brahmachari and Ors.
Charles Arnold White, C.J., William Bock Ayling and Chettur Sankaran Nair, JJ.
Indian Evidence Act (I of 1872), ss. 25, 114, illustration (b), 133, 157 – Criminal Procedure Code, Act V of 1898, at. 154, 155, 157, 162 and 551–Approvers’ evidence, corroboration of–Admissibility of previous statements of approvers to Police Inspector–Value of such statements as corroboration–“Legally competent to investigate,” meaning of–Competency of officer of Criminal Investigation Department.Sir ARNOLD WHITE, C.J., and AYLING, J.–It is not the law either of England or India that the evidence of an accomplice must be corroborated in material particulars before it can be acted upon. Where a court is judge of fact as well as of law the court as a judge of fact is not precluded from considering the question whether the unsupported evidence of an accomplice is true or not. A court may be warranted in declining to draw the presumption of fact referred to in illustration (b) to section 114, Indian Evidence Act (I of 1872). Section 133, Indian Evidence Act, is the substantive enactment declaring the law whereas section 114 only lays down certain propositions intended to assist the courts in drawing inferences of fact.
Where the court is acting in the capacity of both judge and jury it must direct itself and the proper direction would be:–Consider the evidence of the approvers, always bear in mind that it is tainted evidence, scrutinize it with the utmost care, accept it with the greatest caution, consider it in the light of the circumstances in which it is given and in the light of all the other circumstances in the case of which evidence is legally admissible. Then, if you believe it, act on it even if there is no corroboration in the strict sense of the word. If you do not believe it, reject it.In re Meunier, [(1894) 2 Q.B., 415], approved.Reg. v. Ramasami Padayachi, [(1378) I.L.R., 1 Mad., 394], approved.What are the “material particulars” referred to in the Indian Evidence Act (I of 1872), illustration (b), must depend upon the nature of the charge and the facts of the particular case.Oral testimony of independent witnesses is not necessary.Sankaran Nair, J. (dissentiente).–The Indian Evidence Act [sections 133 and 114, illustration (b)] embodies the rules of English law that the presumption must first be drawn that the evidence of an accomplice is unreliable and exceptional circumstances must be proved to justify its acceptance.
The question is not whether a conviction based on the uncorroborated testimony of an accomplice, is legal but whether there is a presumption that such testimony cannot be accepted without corroboration.A person should not be convicted except under “very special circumstances” upon the uncorroborated testimony of an accomplice.The “special circumstances” are that the grounds on which an accomplice’s evidence has been held to be untrustworthy did not either exist in the case or did not exist in their full strength: that there are countervailing considerations of greater weight which diminish or entirely get rid of the weight due to such presumptions.
In cases tried by a jury, a jury, has to be advised by the Judge of what I have above referred to.The CHIEF JUSTICE and AYLING, J.–It cannot be laid down as a proposition of law that previous statements of an accomplice cannot be regarded as corroborative of evidence given by him at the trial Reg. v. Malapabin Kupana [(1874 11 B.H.C.R., 196], dissented from.Sankaran Nair, J. (dissentiente).–A previous statement by the accomplice himself or a statement by another accomplice is not the corroboration required under the rule as to material particulars.The CHIEF JUSTICE and AYLING, 3.–The words “before any authority legally competent to investigate the fact” in section 157, Indian Evidence Act, are quite general and should not be restricted to police officers and to “investigations” in the technical sense in which the word is used in the Code of Criminal Procedure.
The words are competent to investigate not a case but “the fact.” The words “legally competent” do not mean only competent under some express provision of law.An Inspector of the Criminal Investigation Department has power to investigate in cases to which section 156, Criminal Procedure Code, applies. As such his “local area” is the Presidency of Madras.Sankaran Nair, J. (dissentiente.)–The police officers entitled to investigate an offence are the police officers referred to in the Code of Criminal Procedure, i.e., a station-house officer (sections 156, 157), an officer in charge of a police station [sections 154, 155, clause (1)] and police officers superior in rank to an officer in charge of a police station (section 551).
An Inspector of the Criminal Investigation Department is not such an officer and his evidence is not admissible under section 157, Indian Evidence Act, he not being ” any authority legally competent to investigate the fact” under section 157, Criminal Procedure Code.The CHIEF JUSTICE and AYLING, J.–A statement of a confessional nature made to a police officer by a witness is not a confession of an accused person within the purview of section 25, Evidence Act.Section 25 lays down that such a statement cannot be used against the person making it while on his trial.Sankaran Nair, J. (dissentiente).–The statements of approvers to the Police Inspector being really confessions are inadmissible in evidence against the accused under section 25, Indian Evidence Act. A confession is not the less a confession because it is sought to be used against other persons.Per totam curiam.–Under section 162, Criminal Procedure Code, the written record of a statement made to a police officer in the course of an investigation cannot be used as evidence but the section does not exclude oral evidence of the statement whether the statement has been taken down in writing or not.
CASE committed by A. McG.C. Tampoe, I.C.S., Sub-Divisional First-class Magistrate of Tinnevelly (Preliminary Register Case Nos. 3–6 of 1911 on his file, for trial by the High Court, under the provisions of the Indian Criminal Law Amendment Act XVI of 1908.C.F. Napier (Public Prosecutor), T. Richmond and A. Sundara Sastrigal for the Crown.J.C. Adam for Nilakanta Brahmachari, first accused.T. Prakasam for Sankara Krishna Iyer, second accused, Vembu Iyer alias Mahadeva Iyer, tenth accused and Pichumani Iyer alias Venkatachalam Iyer, fourteenth accused.M.D. Devadoss and J.L. Rosario for Madathukadai Chidambaram Pillai, third accused and Bapu Pillai alias Ramasami Pillai, eighth accused.B. Narasimha Rau and T.M. Krishnasamy Ayyar for Muthukumarasami Pillai, fourth accused, and Subbiah Pillai, fifth accused.N.K. Ramasami Ayyar for Jagannadha Iyengar, sixth accused.Hon. Mr. L.A. Govindaraghava Ayyar and L.S. Veeraraghava Ayyar for Harihara Iyer, seventh accused.M.G. Kuppusami Ayyar for V. Desikachari, ninth accused.S.T. Srinivasa Gopalachari and S. Muthia Mudaliar for Savadi Arunachalam Pillai, eleventh accused and Alagappa Pillai, twelfth accused.V. Ryru Nambiar for Vandemataram Subramania Iyer, thirteenth accused.The charge, as originally framed, ran thus:–
“That you…… conspired to wage war against His Majesty…. and to attempt to wage war…..” At the trial a preliminary objection was taken on behalf of the accused that the indictment was bad as being too vague, as it omitted to mention the names of those with whom the accused were said to have conspired, Emperor v. Lalit Mohan Chuckerbutty (1911) I.L.R., 38 Calc., 559 and Archbold on Pleadings. The Public Prosecutor not objecting, their Lordships ordered the charge to be amended. As amended the charge was as follows:–First count.–
“That you, Nilakanta alias Brahmachari, Sankarakrishna Iyer, Madathukadai Chidambaram Pillai’ Muthukumarasami Pillai, Subbayya Pillai, Jagannadha Iyengar, Harihara Iyer, Bapu Pillai alias Ramasami Pillai, V.Desikachari, Vembu Iyer alias Mahadeva Iyer, Savadi Arunachalam Pillai, Alagappa Pillai, Vandemataram Subramania Iyer, Pitchumani Iyer alias Venkatachalam Iyer–Between the first day of January 1910, and the seventeenth day of June 1911 at Tenkasi, Tuticorin, Shencottah, Punalur, Ottapidaram, and elsewhere conspired with each other and with one Vanchi Iyer and one Dharmaraja Iyer, both deceased, one Arumugam, one Somasundaram, one Ramasami Iyer, and one Madasami, not before the Court, and with diverse persons unknown, to wage war against. His Majesty the King-Emperor–
The King-Emperor of India and to attempt to wage war against. His Majesty the King-Emperor, and further conspired to deprive. His Majesty the King-Emperor, of the sovereignty of British India and further conspired to overawe by means of criminal force or the show of criminal force, the Government of India, and the Government of Madras and that you have thereby committed an offence punishable under section 121-A of the Indian Penal Code and within the cognizance of the High Court of Judicature at Madras aforesaid.”
Second count.–“And you, Nilakanta alias Brahmachari, Sankara Krishna Iyer, Madathukadai Chidambaram Pillai, Muthukumarasami Pillai, Subbayya Pillai, Jagannadha Iyengar, Harihara Iyer, Bapu Pillai alias Ramasami Pillai, V. Desikachari, Vembu Iyer alias Mahadeva Iyer, Savadi Arunachalam Pillai, Alagappa Pillai, Vandemataram Subramania Iyer, Pitchumani Iyer alias Venkatachalam Iyer stand further charged that you at the same time and the same places abetted the murder of one Robert William D’Estcourt Ashe, late Collector of the District of Tinnevelly, by one Vanchi Iyer on the seventeenth day of June 1911, by engaging with each other and with the said Vanchi Iyer and one Dharmaraja Iyer, deceased, one Arumugam, one Somasundaram, one Ramasami Iyer and one Madasami, not before the Court, and with these diverse persons unknown in a conspiracy one of the objects of which was the murder of all the Europeans and that you have thereby committed offences punishable under sections 302, 109 and 111 of the Indian Penal Code and within the cognizance of the High Court of Judicature at Madras aforesaid.
“The second accused, Sankara Krishna Iyer, was also separately charged with having aided and abetted the murder of Mr. Ashe, under sections 302 and 109, and 111 of the Indian Penal Code by being present along with the assassin on the railway platform at Maniyachi on 17th June, 1911. This charge was agreed to be tried in a separate trial after the trial of the above charges but has subsequently been dropped.The following is a short outline of the facts of this case which are also exhaustively dealt with in the judgment.On the morning of the 17th June 1911, Mr. R.W.D’E. Ashe, I.C.S., Collector of Tinnevelly, while sitting in a first-class compartment of a train which was standing at Maniyachi junction, Tinnevelly district, was shot dead from the platform of the station by one Vanchi Iyer.
The murderer was pursued along the platform and took refuge in a latrine where he shortly afterwards committed suicide. The murder was witnessed by two boys, sons of the station-master, while a peon of Mr. Ashe and several others pursued the murderer. It was alleged by the prosecution that one Sankarakrishnan, the second accused herein accompanied Vanchi Iyer to Maniyachi junction and was present with him at the time of the murder and afterwards made his escape.Telegraphic intimation of the tragedy was given to all the officers in the district, and in consequence of it, the Sub-Collector of Tuticorin and the Assistant Superintendent of Police went to Maniyachi at about 1-30 P.M.
They found the dead body of the assassin in the latrine with a Browning automatic pistol in his hand.The body of Vanchi Iyer was conveyed to Tinnevelly where in his coat pocket was found (among other things) a letter (exhibit EE, set out in the judgment of Sankaran Nair, J., at p. 336). This letter gave particulars as to his name and native place and stated some reasons as the motive for the crime.In consequence of the information contained in the letter, orders were sent to the Inspector of Police, Tenkasi, on the same day (17th) to go to Shencottah, communicate with Shencottah Police and make enquiries about Vanchi Iyer.
A second party was despatched to Shencottah on the next day on receipt of further information. As a result of the searches and enquiries made by these parties, two further parties were sent out on the 19th; one to Tuticorin under the Assistant Superintendent of Police (prosecution witness No. 89), accompanied by Criminal Investigation Department Inspector Veeraraghava Aiyar (prosecution witness No. 31) and the other to Ottapidaram to make certain searches.
The Assistant Superintendent of Police and the Inspector who reached Tuticorin at about 10 P.M. on the night of the 19th went to the house of one K.V. Arumugam Pillai (prosecution witness No. 6, the first approver) at about 2 A.M., and the Assistant Superintendent told him that he was going to seal his house and put a guard over it with a view to searching it the next morning. Arumugam Pillai then made a long statement which was taken down in writing by the Inspector detailing all that he knew about Vanchi Iyer and the history of a secret society which had existed for some time previous to the crime.
The house was searched the next morning and certain incriminating documents were seized. As soon as the other searches in Tuticorin were over, the Assistant Superintendent of Police and the Inspector brought Arumugam Pillai into Tinnevelly and handed him over to the District Superintendent of Police. He then repeated the statement to the latter. He had also prayed the police, after he had made his statement at Tuticorin, for protection against possible violence from his associates of whom he had given information.
He repeated this request before the District Superintendent as well. The police alleged that the approver was not under arrest but he himself admitted at the trial that he had been arrested by Veeraraghava Aiyer at Tuticorin. He was subsequently tendered a pardon by the District Magistrate, Tinnevelly, under section 337 of the Criminal Procedure Code and in consequence of his accepting it he was examined as a prosecution witness in this case.As a result of the search at Ottappidaram, the Deputy Superintendent of Police proceeded to Tuticorin and searched the house of one O. Somasundaram Pillai (prosecution witness No. 12, the second approver) whom he had reason to suspect of complicity in the crime. He was arrested and brought to Tinnevelly on the 22nd. He was also tendered a pardon under section 337, Criminal Procedure Code, by the District Magistrate, which he accepted and was examined as a prosecution witness.
The evidence chiefly relied upon by the prosecution was that of the above two approvers and that of a third approver, one Ramasami Iyer, the statements of the first accused (exhibits AAAA and AAAA-1,) correspondence between members of the society which it was alleged showed its seditious nature and pointed to the existence of the conspiracy charged, and a quantity of papers, periodicals, books, pamphlets, photographs, etc., seized from the houses of certain members of the conspiracy, also of a more or less seditious nature.The evidence of the first two approvers, Arumugam and Somasundaram (prosecution witnesses Nos. 6 and 12) was to the effect that they were residents of Tuticorin. They attended the lectures of V.O. Chidambaram Pillai and Subramania Siva which preceded the Tinnevelly riots in 1908.
They then commenced to subscribe to seditious papers from Pondicherry and to believe in, and be influenced by, the ideas advocated by such writings. In April 1910, the second accused Sankarakrishnan went to Tuticorin and informed these two witnesses that one Nilakanta Brahmachari (accused 1) had come from Pondicherry to Tenkasi to hold a meeting and asked them to attend it. Arumugam Pillai alone went as Somasundram Pillai was prevented by work from doing so. He found Nilakanta in the house of Madathukadai Chidambaram Pillai (third accused). He was introduced by second accused to three persons there whom he did not know before. They were Nilakanta (accused 1), Madathukadai Chidambaram Pillai (accused 3) and Vandemataram Subramania Iyer (accused 13).
Nilakanta took the witness aside by himself and told him that he was the contributor to the Pondicherry paper “Suryodaya” and that he had come to Tenkasi to convene a meeting, the purpose of which he proceeded to explain as follows:–
“That persons such as V.O. Chidambaram Pillai and Subramania Siva had tried to do good to the country by lectures, but that Government had punished them, that Bengalis had also manufactured bombs but that too was stopped by the conviction of many persons in the Midnapore and Alipore bomb cases; and that the Collector of Nasik and Babu Asutosh Biswas had been murdered with the result that many persons were hanged for it, that the purpose of killing the English was to obtain swaraj, and that they should drive the English out of the country.”
He then proceeded to describe the meeting which they were about to hold as the beginning of a new plan for effecting what they wanted by means of a revolution similar to the Sepoy Mutiny of 1857 and that they should gather together select men in each village and town for the purpose, that he would supply them with arms that these men should start a revolution all over the country and kill all Englishmen on the same day when he Nilakanta should give the word. The meeting which was to bring into existence one of such bands, then commenced and after a preliminary discussion, Nilakanta told the persons present (viz., accused 2, 3, 13 and Arumugam) that they should all take an oath.
Puja was offered to a picture of Kali, the goddess, by making offerings of sacred ashes and flowers to it. Some ‘ kumkumum’ (red powder) was then mixed in water and each person present put a little of it into his mouth and the picture of Kali was also sprinkled with it.
The red liquid was said by Nilakanta to be symbolical of the blood of the Englishmen. Then a piece of paper was taken, on which was written an oath to the effect that the lives and the property of the persons taking the oath were dedicated for the purpose of obtaining swaraj, that the secrets of the society of which they were becoming members should not be divulged and that, if any one did so, he should be killed as Goshein of Calcutta was killed and that the drinking of the kumkumum water was symbolical of their drinking the blood of the Englishmen. This was read by each of the persons present, in turn, and sealed by affixing their thumb impressions in blood from their thumbs, which had been cut previously.
They were also given new names to conceal their identity in case any correspondence about this society should fall into the hands of the authorities. Accused 1, 2, 3, 13, and the approver Arumugam took the oath in this manner.Their evidence farther was that five or six months later, Sankarakrishnan (accused 2) again went to Tuticorin to make arrangements for a similar meeting by Nilakanta there. The latter arrived a day or two later from Tenkasi.
Arumugam made all the necessary arrangements for their stay and brought in recruits for the society. A meeting similar to the one at Tenkasi, was held and a similar oath was taken. Accused 1, 2, 4, 5, Madasami Pillai (the absconding accused), Arumugam Pillai and Somasundaram Pillai alone were present at this meeting and all of them took the oath there.Ramasami Aiyar (the third approver) was a native of Sundarapandiapuram. His house was searched on the 22nd of June, i.e., five days after the murder of the Collector.
He was then found to be absent from the village and his whereabouts were not known although for two or three days after the date of the murder he had been in the village. The prosecution alleged that he absconded but this was contested by the defence which urged that it was his business to travel about the country and mere absence from his village proved nothing. He returned to the village at the end of July, and was at once taken by the local village magistrate before the Police, who produced him on the same day (the 1st of August) before the Stationary Sub-Magistrate of Tenkasi. He was then taken on the same day, before the District Superintendent of Police, who was then at Courtallam, and who brought him to Tinnevelly the next day.
On the 17th of August he was tendered a pardon by the committing Magistrate on the direction of the District Magistrate, Tinnevelly, under section 337 of the Criminal Procedure Code. This he accepted and was therefore examined as a prosecution witness.His evidence is to the effect that the society took root in Shencottah and Punalur about August 1910. He was travelling about the middle of 1910 in Travancore and Cochin, giving performances with a gramaphone. He had been employed in Travancore when the railway line to Quilon was under construction and was already acquainted with Vanchi Iyer, the assassin, and Harihara Iyer (accused 7).
In his travels on this occasion he came to Alleppey, and met Harihara Iyer there. They then came together in Quilon, where the former introduced him to Bapu Pillai (accused 8) who asked him to sell him the gramaphone for the use of a society in which he was interested. It was agreed that he should hand over the instrument to Bapu Pillai at Punalur.
He and Harihara Iyer came to Punalur a day in advance of Bapu Pillai. They were met at the station on their arrival by Vanchi Iyer who took them to Bapu Pillai’s house This was in the beginning of August 1910. He stayed a few days there and met Nilakatan, Madasami Pillai (the absconding accused), Vanchi Iyer, Sankarakrishnan (accused 2) and Jagannadha Iyengar (accused 6). The witness then went home for Avani Avittam (20th of August), after making the acquaintance of Chidambaram Pillai (accused 3) at Tenkasi.He returned soon after to Shencottah, as he had left his gramaphone in the house of Harihara Iyer there.
He then went to Punalur with Nilakanta, Vanchi Iyer, Jagannadha Iyengar (accused 6), Harihara Iyer (accused 7) and two other men of Shencottah, namely, Pichumani Iyer (accused 14) and Dharmaraja Iyer, who committed suicide while under arrest in connection with this case. Sankarakrishnan (accused 2) went there before them. All of them went to the house of Bapu Pillai (accused 8) and spent some days there, during which Nilakanta delivered lectures about Arabinda Ghose, Subramania Bharati, Bepin Chandra Pal and Tilak describing them as true sons of ‘Bharatha Matha’ (Mother India), and adding that if every one would follow in their footsteps swaraj could soon be obtained.
He further explained that swaraj meant the driving of the English out of India and ruling the country themselves. He also told them that societies similar to the gathering they were having at Punalur existed in Bombay, Baroda, Pondicherry and other places, that guns and arms were ready in Pondicherry and that they could obtain these for killing and driving the English away. When these lectures were over, a special meeting was held for the purpose of taking an oath as members of their society. Puja was offered to the goddess Kali and oath was taken in the same manner and much to the same effect as at the Tenkasi and Tuticorin meetings. No assumed names were here adopted. The persons who were alleged have taken the oath were accused 1, 2, 6 to 9, 14, Vanchi Iyer, Dharmaraja Iyer and the witness.The third approver, and another witness Tirumalaimuthu Pillai (prosecution witness No. 27) spoke to further seditious meetings in April and May 1911, but the Public Prosecutor in the course of the trial intimated that he did not intend to rely upon the latter witness.Prosecution witness No. 29 Venkatarama Iyer spoke to the existence of a political society in Shencottah called the Bharatha Matha Association as early as January 1910 of which several of the members of the conspiracy were said to be members.
He also spoke to a seditious meeting at Shencottah in September 1910.A further charge was preferred against the second accused alone under section 114, Indian Penal Code, but this charge has not been tried.The complaints in these cases were filed before the District Magistrate, Tinnevelly, who transferred them to the Sub-Divisional Magistrate’s Court.
On his taking cognizance of them and the subsequent transfer, the Government, in the interests of peace and good order, directed in its orders–G.Os. Nos. 1289 and 1290, dated the 10th of August and the 15th of August, respectively,–that the provisions of Part I of the Criminal Law Amendment Act (XIV of 1908) should apply to the proceedings.It was argued (inter alia) on behalf of the prosecution (1) that the approvers’ evidence could be acted upon without any corroboration by virtue of section 133, Indian Evidence Act, and that section 114, illustration (b), did not limit the words of section 133;
(2) that there was sufficient corroborative evidence in the case even if corroboration were required by the Court; (3) that the statements of the two first approvers to the Inspector Veeraraghava Aiyer could be used as corroboration of their evidence at the trial; (4) that the statements of the first accused were confessions of guilt and could be taken into consideration as against the other accused.In defence all the accused denied having attended any seditious meetings and pleaded that the evidence of the three approvers was false.
The first accused admitted his connection with Pondicherry but stated that his writings to Pondicherry papers were exclusively on philosophical and religious matters. His journeys in Tinnevelly and Travancore were for religious purposes and to collect money to publish a book. If he had come in contact with persons of a seditious tendency, he was unaware of their aims and objects. He further urged that the Bharatha Matha Society was proved by the prosecution evidence to have been in existence in Shencottah long before he visited Travancore and that he had nothing to do with it, that Vanchi Iyer was the leader of that society and that exhibit DDD showed that that society was responsible for the murder of Mr. Ashe.
He adhered to his first statement (exhibit AAAA-1) pleading that it was not a confession but an exculpatory statement. He resiled from his second statement (exhibit AAAA–set out in the judgment of the majority of the Court at page 14) stating that he had made it in an attempt to save his skin and not of his own free will, but further pleaded that it contained no confession of guilt. As regards the oath meetings at Tenkasi and Punalur he set up alibis.
As regards that at Tuticorin he pleaded that he was handicapped in his defence by no date being assigned to it by the prosecution. He admitted having visited Tuticorin but denied having done more there than pose as a religious teacher. He further pleaded that he had been implicated by the approvers as they had a grudge against him for his having otherwise spent the money subscribed by them for the publication of his books. He admitted that the second accused had been his companion on several journeys.
He pleaded that he knew nothing of the murder of Mr. Ashe, having been in the north of India for some months previously.On the second count, it was urged on his behalf as well as on behalf of the other accused that it was the prosecution case that his plan was for the conspirators all to rise on one and the same day and when he gave the word, and that such a plan was quite inconsistent with the facts of the actual murder which could not therefore have been committed in pursuance of such a conspiracy.The second accused denied his alleged connection with the first accused, but admitted having met him casually in 1908, in Madras, and in 1910 in Travancore.
He further denied being associated with Vanchi Iyer in the murder, pleading alibi for 16th to 19th June 1911.The third accused denied that he ever knew Vanchi Iyer or that any meeting was ever held in his house at Tenkasi. He pleaded that he had been implicated in the case owing to the ill-will of an Inspector and a Sub-Inspector of Police.The fourth accused pleaded that he had been implicated owing to a quarrel he had had with a friend of the first and second approvers.
The fifth accused pleaded that there had been life-long enmity between his family and that of the approver Arumugam.The sixth, seventh, ninth, tenth, twelfth and fourteenth accused set up alibis.The eighth accused denied that any seditious meeting was ever held in his house.The eleventh accused denied all knowledge of the first accused or Vanchi Iyer.The thirteenth accused denied having ever been known as “Vandemataram” Subramania Iyer and pleaded that he had been arrested in mistake for some other Subramania Iyer.It was argued (interalia) on behalf of the accused generally *—
That the evidence of the approvers required corroboration in material particulars and that such corroboration was not forthcoming.That the statements of the approvers Arumugam and Somasundaram to the Inspector Veeraraghava Aiyar at Tuticorin could not in law be used to corroborate the evidence given by them at the trial, inasmuch as (1) they were made to a person who was not an authority competent to investigate within the meaning of section 157, Evidence Act; (2) they were inadmissible under section 25, Evidence Act; and (3) they were inadmissible under section 162, Criminal Procedure Code.That there was no connection between the conspiracy charged and the murder of Mr. Ashe and that further the one was quite inconsistent with the other.That the second count of the charge being that the object of the conspiracy was the murder of all Europeans, proof should have been adduced that Mr. Ashe was a European.
It was argued on behalf of the second to fourteenth accused that the statements of the first accused (exhibits AAAA and AAAA-1) could not in law be used as evidence against them under section 30, Indian Evidence Act, as they did not implicate himself in the offences charged.This case coming on for trial before the abovementioned Special Bench of this Court constituted under the provisions of the said Act on the 11th, 14th, 15th, 18th to 22nd, 25th to 29th days of September, 3rd to 6th, 9th to 13th, 16th to 20th, 23rd to 27th, 30th and 31st days of October, 1st to 3rd, 6th to 10th, 13th to 17th, 20th to 24th, 27th to 30th days of November and 29th day of December 1911, 2nd to 5th, 8th to 12th, 16th to 19th, 22nd to 26th and 29th to 31st days of January and 1st and 2nd days of February 1912, and haying stood over for consideration till this day, the court delivered the following.JUDGMENTS (The CHIEF JUSTICE and AYLING, J.).–
In this case fourteen persons have been committed for trial to this Court under section 6(b) of the Indian Criminal Law Amendment Act, 1908 (Act XIV of 1908). The first count of the indictment charges them with conspiracy within section 121-A of the Indian Penal Code. The conspiracy is alleged to have been entered into between January 1, 1910 and June 17, 1911 at various places mentioned in the indictment. The fourteen accused are alleged to have conspired with certain others, not now before the Court, whose names are mentioned in the indictment,–
One Vanchi Iyer, who was proved in this case to have shot himself after murdering Mr. Ashe on the 17th of June 1911, one Dharmaraja Iyer, who is dead (the case for the Crown being that he committed suicide), one Arumugam, one Somasundaram and one Ramasami Iyer, who have been called as witnesses in this case, and one Madasami who has absconded.
The second count of the indictment charges the same persons with abetting the murder of Mr. Ashe by engaging in a conspiracy, one of the objects of which is set out in the indictment.As regards the first charge the essence of the offence is the agreement to do all or any of the unlawful acts mentioned in the section. It is not necessary that any act or illegal omission should take place in pursuance of the agreement.In this case as regards the accused other than Vembu Iyer, Savadi Arunachalam Pillai and Alagappa Pillai, accused Nos. 10, 11 and 12, we have not to consider whether on the facts proved an antecedent agreement to commit all or any of the offences mentioned in the section may reasonably be inferred.
There is evidence that all the accused persons, except accused Nos. 10, 11 and 12, agreed under an oath to do certain acts which, in our opinion, undoubtedly come within the purview of section 121-A of the Indian Penal Code. In the course of the many legal arguments which were addressed to us by counsel and vakils for the several accused in the course of this protracted trial, it was never seriously contended that the evidence adduced on behalf of the Crown, if true, did not establish an agreement to do any one of the unlawful acts mentioned in section 121-A of the Indian Penal Code.As regards the first charge therefore– and we deal with that first–the question we have to consider is how far have the facts which the prosecution has sought to establish been proved by evidence which is legally admissible.
Although with reference to the second count it was necessary for the Crown to adduce evidence as to the circumstances in which Mr. Ashe was murdered, and it was proved that he was murdered by Vanchi, so far as the first charge is concerned the evidence as to the circumstances in which the murder was committed have very little, if any, bearing on the question whether the accused, or any of them, are guilty under section 121-A of the Indian Penal Code.The murder of Mr. Ashe is, however, the starting point in the history of the investigation of this case.
Mr. Ashe, Collector of Tinnevelly, was murdered on the platform of Maniyachi railway station in the Tinnevelly district on June 17, 1911. The murderer who was identified as one Vanchi Iyer of Shencottah in Travancore territory, used an automatic revolver, and almost immediately afterwards shot himself dead with the same weapon. A paper found on his body pointed to the murder having been committed from political motives: and as, from this and other attendant circumstances, it seemed probable that he had accomplices, an investigation was started and conducted by the local police in conjunction with the officers of the Criminal Investigation Department. As a result evidence is said to have been forthcoming tending to show that Vanchi Iyer and others (including the present accused) had been engaged for some time in a conspiracy for the overthrow of British rule by means of a simultaneous massacre of all Europeans on a day to be fixed.The treasonable conspiracy which is charged in the first count of the indictment according to the prosecution had its inception early in April 1910 and was set on foot by the first accused, Nilakanta Iyer alias Nilakanta Brahmachari.
Nilakanta is a young man of 21 years of age of good education, a native of Erukkoor near Shiyali in the Tanjore district. He had admittedly been previously engaged in journalistic work very largely, if not mainly, of a seditious nature, and his last employment had been as editor of the “Suryodya,” a vernacular paper published in Pondicherry which was proscribed by Government in March 1910.According to the prosecution the suppression of this and other seditious papers compelled the revolutionists who had their headquarters in Pondicherry to adopt other methods of spreading their propaganda; and for this purpose Nilakanta visited Tenkasi in the Tinnevelly district early in April. There is evidence to show that he was no stranger to the district and by his own account he was an old friend of third accused, M. Chidambaram Pillai, a young grocer living in Tenkasi town.It was in the latter’s house that the first meeting is said to have been held on the evening of April 10th.
Besides first and third accused three other men are said to have been present: second accused, a young Brahman of Kadayanallur some twelve miles from Tenkasi, thirteenth accused, another Brahman from a distant village in Ottappidaram taluk, and one K.V. Arumugam Pillai, a young Vellala clerk of Tuticorin, who, for the past two years, had been according to his own evidence taking interest in seditious politics, and who had been summoned for the purpose of the meeting by Sankarakrishna Iyer, second accused. According to Arumugam, who figures as the sixth prosecution witness in the case, Nilakanta explained his views which were briefly to the effect that the injustice of the Government and the miserable state of the country rendered it necessary that the British should be driven out and swaraj” obtained: that previous endeavours to effect this by means of preaching, newspapers and isolated assassinations having failed, a new plan was to be tried: and that this was to take the shape of a general rising all over the country on a date to be subsequently fixed and the massacre of all white people on the same day.
The other persons present assented to these views, and agreed to join the new movement. Accordingly an oath was drawn up and written on a piece of paper: each man pricked his thumb, and affixed his thumb impression in blood. The general effect of the oath was that the members should kill all white men and sacrifice their person, property and life for the society: and that any who revealed its secrets should he murdered and go to hell. Other formalities were observed, which it is unnecessary to set forth here.After this meeting the members dispersed, and Nilakantam appears to have gone to his own village and thence to Pondicherry in which latter place he was seen by third prosecution witness, a Cuddalore Vakil on 2nd May 1910. About the middle of June he seems to have left his native place again according to the prosecution on the same errand; and visited Cochin, Alleppey and Quilon on the West Coast, where he would appear to have been about June 20th. How he occupied his time is not known, but it would seem that he then first came into contact with Vanchi Iyer and other Brahmans of Shencottah.
Vanchi at the time was employed as a clerk in the Travancore Forest Department at Punalur, a place on the railway line half-way between Shencottah and Quilon. In July he was in Shencottah, where Vanchi leased a house for five days from one Sivagaminatha Pillai (prosecution witness No. 21). From this point Nilakantam seems to have posed, and is referred to, as a “Swami,” and the evidence of the prosecution witness No. 21 goes to show that while in his house he held secret interviews with Vanchi, Dharmaraja Iyer, and two young Vellalas of Shencottah, eleventh and twelfth accused.
He was accompanied by second accused: and, preceded by the latter, he went across to Tuticorin about the middle of July where a second oath meeting was held of a similar character to the one at Tenkasi. Here the oath was again taken by the first and second accused and K.V. Arumugam and also by four other men whom he (Arumugam), had directly or indirectly induced to join the society. These were all Vellalars: (1) Somasundaram Pillai, a young vakil’s clerk, examined as prosecution witness No. 12, (2) Madasawmi Pillai of Ottappidaram, (3) and (4) fourth and fifth accused Muthusawmi alias Muthukumarasami Pillai and Subbayya Pillai. The latter two are both middle-aged men, one a pot-seller and the other a vakil’s clerk, and both of Tuticorin.
It was arranged at this meeting that K.V. Arumugam should be the distributing agent of a certain paper called “The Dharmam” published in Pondicherry, which, according to the prosecution, was the chief organ of the movement and a connecting link between the members of the conspiracy.From Tuticorin first accused is said to have returned with second accused to Tenkasi, and in the early part of August he was undoubtedly staying in a room of a bungalow rented from Rama Row, prosecution witness No. 22, at Courtallam, a few miles distant, being visited according to this witness by accused Nos. 2, 3, 5 and 11. From there he appears to have gone to Punalur. From this point the story is taken up by prosecution witness No. 16, Ramasami Iyer. According to the evidence this man, a gramophone performer and petty jewel merchant, was returning from the West Coast to spend the festival of Avam Avittam at his native place near Tenkasi. With him was seventh accused, Harihara Iyer, a young cloth merchant of Shencottah who was doing business with his brothers at Alleppey. Both men halted at Punalur and spent a day or two in a small hut belonging to Bapu Pillai (eighth accused), a native of the place.
First and second accused, Madasami Pillai and sixth accused, Jagannadha Iyengar of Shencottah were all assembled there. According to prosecution witness No. 16, no sedition was talked, though he was sent to fetch copies of “India” a proscribed paper which were in the possession of third accused at Tenkasi.Prosecution witness No. 16 went on to his village, and after the festival again visited Shencottah where he describes two meetings as having been held at the house of Dharmaraja Iyer above mentioned. Those according to Ramasami’s evidence were attended by accused Nos. 1, 2, 6 and 11, Vanchi and Dharmaraja Iyer and also by the fourteenth accused Pichumani Iyer. Third accused and Madaswami both attended the second meeting only.
First accused, Nilakantam, is said to have harangued the others at each meeting on the miserable economical state of India winding up with the pressing necessity of exterminating the English. After the second meeting, third accused and Madasami returned to their villages: but the rest of the party proceeded to Punalur where according to Ramasami’s evidence after more exhortations from Nilakantam a third oath meeting was held, in very similar style to the others. The parties who took the oath are said to have been accused Nos. 1, 2, 6, 7, 8, 9 and 14, Vanchi, Dharmaraja Iyer and four others.After this meeting Nilakantam returned to his native place Erukkur, and does not appear to have visited Tinnevelly district again, though he undoubtedly kept up a correspondence with Arumugam, Madasami, Vanchi and seventh accused for five or six months longer.
The next incident in the story is an attempt to enrol in the society another Shencottah Brahmin, Venkatarama Iyer, prosecution witness No. 29. From the evidence of this man it appears that before the advent of Nilakantam there existed a sort of secret society at Shencottah called the Bharata Mata Association, of which he, accused Nos. 6, 7 and 14, Vanchi and Dharmaraja Iyer were members. This society was clearly of a seditious tendency, its chief object being to procure, read and discuss papers from Pondicherry, but there is nothing to indicate that its members, as such, brought themselves in any way within the reach of the law. In March and April 1910, the Pondicherry papers “India,” “Suryodaya” and “Vijaya” were proscribed by Government; and this was naturally followed by the collapse of the society, which is distinctly referred to in a letter of prosecution witness No. 29, dated the 6th June 1910 (exhibit G-8).
Prosecution witness No. 29, by his own account was prevented by illness from attending the meetings held by Nilakantam in July and August: but some time after the middle of September he met accused Nos. 6 and 14, Vanchi and Dharmaraja Iyer in the house of the last named. Endeavours were then made to induce the witness to join the new society and take a “Blood Oath”: the object of the new society being indicated as the “beating and driving away of the English.” The witness says he refused to join the new society but for the sake of the old one promised to disclose nothing. It has been suggested that the evidence of prosecution witness No. 29 was really the evidence of an accomplice, but we are not prepared to take this view.During the rest of the year the evidence discloses no event of importance.
Vanchi is said to have visited Tuticorin and Ottappidaram; and K.V. Arumugam is said to have continued to distribute the “Dharmam” and pamphlets forwarded to him.On January 9th, 1911, Vanchi took three months’ leave. Two incidents are deposed to in connection with this period. Ramasami Iyer (prosecution witness No. 16) says that while returning to his house for Sankaranthi, he stopped at Dharmaraja Iyer’s house. The latter told him that Vanchi and second accused had gone to Pondicherry by first accused’s orders, and that Vanchi had spoken of shooting Europeans on the way. Somasundaram Pillai (prosecution witness No. 12) says that he visited Madasami at Ottapidaram one day in March and there found Vanchi, whom he had not met before. A conversation ensued between the three.
Vanchi after again emphasising the fact that the English rule was ruining the country and that it could only be removed if all white men were killed, went on to suggest that Mr. Ashe should be first killed as being the head of the district and an officer who had taken a leading part in suppressing the Swadesi Steam Navigation Company, and in the events of 1908. It was generally agreed between the three that Mr. Ashe should be shot, and Vanchi said that arms would be obtained apparently from Pondicherry at the proper time: but nothing definite was settled, not even who should do the deed. After this Ramasami (prosecution witness No. 16) again takes up the story and describes two meetings which took place at Shencottah in the month of Chitrai (April-May 1911) on successive evenings in the houses of the eleventh and twelfth accused. According to the evidence for the prosecution an attempt was made after the first meeting to enlist a friend of second accused (Sundaram Iyer prosecution witness No. 25), whom he had brought with him from Kadayanallur for the purpose. Sundaram Iyer by his own account took fright, and refused to join them, saying he would think it over; at the actual meetings Vanchi is said to have taken the lead, and to have addressed the others much as Nilakantam had done, on the dual necessity of developing the resources of the country and driving out the English. Those present included accused Nos. 2, 3, 6, 7, 8, 11, 12 and 14 and Dharmaraja Iyer.
The evidence however is not quite clear as to whether addresses of this character were delivered at both meetings or only at the first.These are the last meetings of the society of which there is any evidence and the rest of the evidence which relates to the murder of Mr. Ashe and the events immediately preceding it, as we have already observed, has little or no bearing on the charge now under consideration.The nature of the evidence by which the prosecution seek to establish their case has to some extent been indicated above. The most important witnesses are of course prosecution witnesses Nos. 6, 12 and 16, who were all three on their own showing members of the society founded by Nilakantam.
If their evidence be believed there can be no doubt, as we have already said, that they themselves and every other person who took the “blood oath” and thus pledged themselves to the society at the three chief meetings spoken to were guilty of joining in a conspiracy punishable under section 121-A, Indian Penal Code.All the three chief witnesses referred to are approvers: that is to say persons who have accepted a parden tendered them by the District Magistrate conditionally on their giving true evidence in this case. It need hardly be said that the evidence of such persons has to be received with caution: and the extent to which, and the conditions under which, it should be acted upon have been the subject of much argument and contention before us.With regard to the question of corroboration of the evidence of an accomplice it has been sometimes laid down that before it can be acted on it must be corroborated in material particulars.
In our opinion this is not the law either of England or of India. As regards India the substantive enactment is to be found in section 133 of the Evidence Act which expressly declares that a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice. Section 114 deals with presumptions of fact, and by way of illustration of a fact which may be presumed states that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This would seem to mean that a presumption of fact may be drawn having regard to the facts of a particular case that the uncorroborated evidence of an accomplice in that case is untrue. Section 114 says in so many words that the presumption may be drawn regard being had to certain matters “in their relation to the facts of the particular case.” The legislature has attempted to give further assistance by stating a case in which the Court would be warranted in declining to draw the presumption of fact referred to in illustration
(b) to section 114. So far as the statute law is concerned whilst we have an express substantive enactment in section 133 we have in section 114 certain propositions intended to assist the Courts in drawing inferences of fact. Section 114 is not, like section 133, a substantive enactment declaring the law. The authorities have been so fully and so frequently discussed that we do not think any useful purpose would be served by going through them. The High Courts in this country have always professed, as a matter of practice rather than of law, to act upon the principles established in England. Although the practice in strictness rests only upon the discretion of the Judge at the trial it has “obtained so much sanction from legal authority that it deserves all the reverence of law.” ‘Russell on Crimes,’ 6th edition, volume 3, page 646. The question is, what is the practice?.
It is thus stated by the Lord Chief Justice of England in Rex. v. Tate (1908) 2 K.B., 680, “Probably Cave, J., did not state the law too strongly when he said in In re Meunier (1894) 2 Q.B., 415 at p. 419. ‘It is not the law that a prisoner must necessarily be acquitted in the absence of corroborative evidence; for the evidence must be laid before the jury in each case. No doubt it is the practice to warn the jury that they ought not to convict unless they think that the evidence of the accomplice is corroborated; but I know of no power to withdraw the case from the jury for want of corroborative evidence, and I know of no power to set aside a verdict of guilty on that ground’; but I think he ought to have added, ‘assuming that the jury was cautioned in accordance with the ordinary practice.’ “This is in accordance with the view indicated by Cockburn, C.J., in Reg. v. Boyes (1861) 9 Cox C.C., 32 and by Lord Coleridge, C.J. in Reg. v. Gallagher (1883) 15 Cox C.C., 291.
In England, of course, the question has always arisen in connection with the directions given by the Judge to the jury. In the case before us we are Judge and jury. We have to direct ourselves. The proper direction seems to us to be–consider the evidence of the approvers, always bear in mind that it is tainted evidence, scrutinize it with the utmost care, accept it with the greatest caution consider it in the light of the circumstances in which it is given and in the light of all the other circumstances in the case of which evidence is legally admissible. Then, if you believe it, act on it even if there is no corroboration in the strict sense of the word. If you do not believe it, reject it. The view that a Court cannot act on the evidence of an accomplice, unless it is corroborated, would lead to the result that a Court could not act on such evidence, when that evidence stood alone, although the Court was entirely satisfied that that evidence was true.
This, as it seems to us, is not the law. In re Meunier (1894) 2 Q.B., 415 at p. 419: , J., observed “I know of no power to withdraw the case from the jury for want of corroborative evidence.”If there is no power to withdraw a case from the jury on this ground, it cannot be the law that, where a Court is Judge of fact as well as of law the Court as the Judge of fact is precluded from considering the question whether the unsupported evidence of an accomplice is true or not.Mr. Napier on behalf of the Crown contended that the well-established rule of practice was a rule of practice rendered necessary by the fact that juries were not trained to discriminate in the matter of evidence, and that the rule was not applicable where facts were found not by a jury but by the Judge.
We do not think this distinction has been suggested in any of the reported cases. We prefer to put it on the grounds stated by Sir John Edge in Queen-Empress v. Gobardhan (1887) I.L.R., 9 All., 528 at p. 554. The Chief Justice says “If jurors believe the uncorroborated evidence of an accomplice, and that evidence, if believed, establishes the guilt of a prisoner, are they to violate their oaths; and, contrary to their oaths and the uncorroborated evidence of the accomplice which they believe, to return a verdict of acquittal? In such a case, is a Judge to direct the jury to violate their oaths? There can be no difference in this respect between the duty of a Judge acting as a jury and that of a juror.
A Judge would advise a jury that it would be unsafe to act upon, in other words, to believe, the uncorroborated evidence of an accomplice, as he would advise the jury not to act upon the evidence of any other witness whose evidence might from any cause, be open to suspicion; but in either case, he would have to tell the jury that if they believed the evidence, they might legally convict the prisoner. Confusion on this question has sometimes arisen from overlooking the distinction between a caution to be given to a jury and a direction on law.
The questions of fact are for the jury to find on the evidence. On questions of law the jury must accept the direction of the Judge. Similarly, a Judge when trying a case without a jury must, as a juror, come to a finding on the facts, and, as a Judge, direct himself upon the law. I do not think that it has ever been suggested that the advice of a Judge to a jury not to act upon the uncorroborated evidence of an accomplice is a direction on law.”In our opinion the law and practice were correctly laid down by this Court in Reg. v. Ramasami Padayachi (1878) I.L.R., 1 Mad., 394. “Though the tainted evidence of an accomplice should be carefully scanned and received with caution and may be treated as unworthy of credit, yet, if the jury in the one case or the Court in the other, credits the evidence, a conviction proceeding upon it is not illegal.”
In fact to hold otherwise would be to render nugatory the express provisions of section 133 of the Evidence Act (see the judgment of Sir Bhashyam Ayyangar in Ramaswami Gounden v. Emperor (1904) I.L.R., 27 Mad., 271).Although in our opinion in the case before us it would be open to us to convict on the uncorroborated evidence of the informers, even if it stood alone, if we were satisfied that that evidence was true, it is of course of the utmost importance to consider whether the evidence which is relied upon by the Crown really corroborates that evidence or, in other words, whether it establishes facts which go to show that the evidence of the informers is true.As to the character of the corroborative evidence which may lead the Court to believe that the evidence of an informer is true that must depend entirely upon the nature of the charge and the facts of the particular case. It is clear that oral testimony of independent witnesses is not necessary, but it seems impossible to lay down any hard-and-fast rule.
The illustration to section 114 uses the words “in material particulars,” but what are material particulars must depend upon the facts of the particular case. Section 156 of the Evidence Act, read with the illustration, has a very direct bearing upon this question. The illustration is as follows:–“A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.”
As Lord Coleridge observed in Reg. v. Gallagher (1883) 15 Cox C.C., 318 with regard to the amount of corroboration it was not necessary that an informer should be corroborated in every particular, because if it were possible to give such corroborative evidence it would hardly be necessary to call the approver, but there must be a certain amount of confirmation sufficient to satisfy the jury. Numerous authorities have been cited before us but we do not know that they afford us much assistance. We cannot help thinking that there has been a certain amount of confusion between the question of the admissibility of evidence tendered as corroborative testimony and the weight to be attached to it. For instance the defence relied on Reg. v. Malapabin Kapana (1874) 11 B.H.C.R., 196, where it was held that previous statements of an accomplice cannot be regarded as corroborative of evidence given by him at the trial.
See, too, Queen Empress v. Bepin Biswas (1884) I.L.R., 10 Calc., 970. There are also other decisions and statements in the text books to the same effect. If this is intended as a proposition of law we cannot accede to it, though as a proposition of fact, with reference to the facts of the particular case before the Court, it may have been indisputable.In addition to the oral testimony of independent witnesses and the documentary evidence in the case which will be considered later, the Crown relies on certain facts as corroboration of the evidence of the informers.
Among these are the fact that certain statements were made by the approvers Arumugam and Somasundaram to R. Veeraraghava Aiyar (prosecution witness No. (31), an Inspector of Police attached to the Criminal Investigation Department, statements which were substantially in accordance with his evidence before this Court. The witnesses themselves speak to having made these statements but that of course carries the case no further. They are also spoken to by Inspector Veeraraghava Aiyar. It was contended that the evidence as to the making of these statements was not admissible, and that, if it was, it did not corroborate the evidence of Arumugam given at the trial. The grounds on which it was argued that evidence of the statements made by Arumugam was inadmissible were as follows:–
(a) The statements did not come within the purview of section 157 of the Evidence Act since they were not made before an authority legally competent to investigate the fact to which the statement relates.
(b) The statements were confession made to a police officer and under section 25 of the Evidence Act could not be given in evidence.
(c) The statements were made to a police officer and, under section 162 of the Code of Criminal Procedure, could not be given in evidence.
As regards (a) the officer to whom the statements were made is an Inspector of the Provincial Criminal Investigation Department, a department created “to assist in the investigation of crimes which are of such a special character that local officers are unable to deal with them adequately without help ” (G.O. No. 913, Judicial, dated July 2, 1908).
Inspector Veeraraghava Aiyar’s name was not mentioned by the Deputy Inspector-General of Police as one of the officers directing the investigation. The evidence is that when the statement was made he had been sent to Tuticorin for a specific purpose, viz., to search certain houses. Veeraraghava Aiyar stated in his evidence that he was assisting the Deputy Inspector-General and acting under his orders and that the statement was made to him when he was acting under orders. It was contended that the Inspector was not an “authority legally competent to investigate “since he was not empowered to “investigate” under the provisions of the Code of Criminal Procedure.
The law of this country as enacted in section 157 of the Evidence Act differs from the law of England. The principle of the section is that consistency is a ground for belief in a witness’s veracity. The words “before any authority legally competent to investigate the fact” are quite general and we see no reason why they should be restricted to police officers and to “investigations” in the technical sense in which the word is used in the Code of Criminal Procedure. The words are “competent to investigate,” not a case, but “the fact.” Further we do not think the words “legally competent” mean only competent under some express provision of law.
The competency of the authority for the purpose of the section appears to us to be a question of fact, or at any rate a mixed question of law and fact to be determined with reference to the facts of the particular case. On the evidence we are prepared to hold that Inspector Veeraraghava Aiyar was an “authority legally competent to investigate the fact” within the meaning of section 157 of the Evidence Act. Even if this question has to be determined with reference to the provisions of the Code of Criminal Procedure we think the Inspector was legally competent to investigate. Investigation is defined (section 4(1) of the Code of Criminal Procedure) as including “all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.”
Section 156 empowers an officer in charge of a police station to “investigate” without the order of a Magistrate. Section 551 empowers police officers superior in rank to an officer in charge of a police station to exercise the same powers, throughout the local area to which they are appointed as may be exercised by an officer in charge of a police station within the limits of his station.
There can be no question that the Inspector is a police officer superior in rank to an officer in charge of a police station. Prima facie therefore he has power to investigate in oases to which section 156 applies. As a member of the Provincial Department of Criminal Investigation his “local area” is the Presidency of Madras. The fact, if it be a fact, that there is no formal order appointing him to the Presidency of Madras as his “local area” does not, in our opinion, prevent him from exercising the powers conferred by the section.As regards (b)–the objection under section 25 of the Evidence Act as we intimated in the course of the trial, in the opinion of the majority of the Court, this objection fails. Our attention was not called to any authority upon the point, but it was argued that the words of the section were general and not restricted, as in section 26, to the party who makes the confession.
As regards the ‘mischief’ of the two sections there seems no good reason why the suggested distinction should be drawn. No doubt Arumugam’s statement to Inspector Veeraraghava Aiyar inculpated himself, but Arumugam is not now an accused person and does not stand charged before us. It is not sought to use the statement against him in any way. It is sought to use the fact that he made the statement in the circumstances in which it was made as a fact which goes to show that his evidence at the trial was true. In Queen-Empress v. Tribhovan Manekchand (1885) I.L.R., 9 Bom., 131 at p. 134. WEST, J., observed ” ‘confession’ in section 25 of the Indian Evidence Act I of 1872 means, as in section 24, a ‘confession made by an accused person’ which it is proposed to prove against him to establish an offence.”
We do not think we are precluded by section 25 from admitting evidence of the statement as evidence of a fact which goes to show that the testimony of Arumugam at the trial was true. The question of the weight of this evidence is, of course, a different matter.Evidence of the statement made by Somasundaram to the Inspector may be of less weight than the evidence of Arumugam’s statement. But, for the reasons we have stated, we think it is admissible.As to (c), the objection that under section 162 of the Code of Criminal Procedure the evidence is inadmissible, we think this objection also fails.The section is perhaps not very artistically drawn but its meaning, as it seems to us, is clear. It means that the written record of a statement made to a police officer in the course of an investigation shall not be used as evidence.
It may be that the object of the section is easily frustrated by the police officer repeating his written record from memory and relying solely on his memory of the written record for the purpose of giving evidence. But we are not concerned with this. All we are concerned with is the construction of the section, and, as a question of construction, it seems to us that for the purposes of this section using as evidence means putting in the written record as documentary evidence in the case.
It was contended that this construction would lead to hardship since although the proviso provided means, by the use of the written statement, of discrediting a witness who spoke to the facts of the case, it provided no means of discrediting a witness who was called to prove that another witness had said the same thing on a previous occasion. There may or may not be some force in this criticism, but we should not be warranted in straining the language of the section so as to avoid a possible hardship.As pointed out in Fanindranath Banerjee v. Emperor (1909) I.L.R., 36 Calc., 381 at p. 285 in section 162 of the Code of Criminal Procedure as it now stands, a distinction is drawn between the statement and the writing.
The Calcutta case is no doubt not on all fours with the present case, because there was no writing, but in view of the plain language of the section, we are of opinion that oral evidence of the statement is admissible whether the police officer took it down in writing or not.
As regards the case of Rustam v. King-Emperor 7 All. L.J., 468 in which two Judges differed on this question we need only say that we agree with the judgment of Karamat Husain, J. and the reasoning on which it is based. We think the legal objections to the admissibility of the evidence of these statements fail, and that the statements are admissible under section 157 of the Evidence Act as corroborative evidence in this case.
The weight of the evidence is of course, another question. We consider this later on.As corroborating the evidence of the two informers Arumugam and Somasundaram, the Crown also relies on the statements made by Nilakantam, the first accused, which were recorded as confessions (exhibits AAAA and AAAA-1) in the case as being confessions which under section 30 of the Evidence Act may be taken into consideration against the persons who have been tried jointly with Nilakantam. The first statement (exhibit AAAA-1) was made to the Sub-Divisional Magistrate on July 12 and the second statement on July 14, 1911.
The first statement purports to give an account of Nilakantam’s life since 1903 up to the time of his arrest. The second statement (exhibit AAAA) is in these terms:–Q.–Yon asked this Court on the 12th at the close of your statement before it, for permission to come up before it again in two days’ time to say something more about yourself. Do you wish to say anything?A.–Yes, I do. I want entirely, to unburden my mind. If any persons are to be punished for what I say, I should be the first among them, but I believe I am innocent.
When I was in Tenkasi in May 1910, I sent Sankara Krishna to bring Vande Mataram Subramania Iyer from Ettiyapuram, and K.B. Arumugam Pillai from Tuticorin. They came and in Chidambaram Pillai’s house we formed a society, and undertook by an oath that each of us would devote his life and property to the cause of the country. We offered puja to the mother Kali, and then we wrote the conditions of our vow on a piece of paper, which we signed. We then cut our thumbs, and put our thumb marks on the paper in our blood. This was to create some awe in the minds of the members.Q.–Did Chidambaram Pillai sign it too?A.–Yes he also signed. I have something more to say about Tuticorin. I went there as I have said before from Tenkasi.
Sankara Krishna came there in advance of me. We formed a similar society there. We took a similar vow, and signed a paper and put our thumb-impressions in blood. Myself, Sankara Krishna, Arumugam Pillai, Madasami Pillai of Ottapidaram, one Sakaralingam of Tuticorin, Somasundaram Pillai of Tuticorin signed. We did not clearly state what the purpose of the society was I myself was not clear about it. I did not teach anything to these people. Then I went to Courtallam, where I met Veerabhadra Sarma, who gave me definite views about the reformation of the country. I did not start any society either with Vanchi or with the Shencottah people, nor did I teach against Government any hostile views to the Shencottah people.
I went to my native place, and never mentioned anything about the society to any of my acquaintances either in Tinnevelly or in other places. I do not know what these people did after I went to Madras. This is all true, and I have not hidden anything.
At the trial Nilakantam made a statement to the Court. With reference to the two statements made to the Magistrate he said “The next day after I reached Tinnevelly, i.e., the 12th July I made a voluntary statement before the Committing Magistrate. The events recorded in that statement as well as my statement before the Deputy Commissioner at Calcutta are perfectly true. But, a day after that, i.e., the 14th of July, I was compelled to make another statement before Mr. Tampoe in consequence of a threatening piece of information I received from a responsible police officer.
I was given to understand that Arumugam had made a statement to the effect that two oath meetings were held at Tenkasi and at Tuticorin when I had been to these places, and that the only way for my escape was by upturning an approver by corroborating Arumugam’s evidence and by implicating myself with some others who are not charged in this case in a similar meeting at a different place, and thereby throwing off my responsibility in the Tenkasi and the Tuticorin affair. Besides, I was kept separate from the rest of the prisoners from the very day I was taken to Tinnevelly and consequently I was unable to understand what the case was about, and how many were arrested, and in what connections.
I was naturally in a state of fear and bewilderment from the time I heard of Arumugam’s statement and believed what all was said to me. I went thus far in my second statement marked Exhibit AAAA and beyond that I was unable to say anything and I stopped. I deeply regret my weakness in attempting to say a falsehood for the purpose of saving my skin.
The detailed incidents relating to the cause of my statement of the 14th of July, and the foolish manner in which I gave way to the threatening and inducement are all so very painful and shameful for me to relate that I do not want to record them here But, I merely declare that the information contained in my statement of the 14th of July are all false and that I did not make the statement of my own free will.”There is not a shred of evidence to show, and we see no reason to think, that the second statement was made under pressure from the Police.
It may no doubt be said that reading the two statements and the retractation together it was Neelakantam’s intention to implicate himself and the others whose names he mentions in the second statement in the charge on which he has been jointly tried with them.Mr. Napier contended that if these statements had been made to a police officer they would have been inadmissible under section 25 of the Indian Evidence Act as against the person making them, and that if they would have been inadmissible under section 25 as amounting to a “confession,” they can be ” taken into consideration,” as amounting to a “confession,” under section 30.
We should hesitate before adopting the view which has been taken in some of the reported cases (See, for instance, Empress of India v. Ganraj (1879) I.L.R., 2 All., 444 and Queen-Empress v. Jagrup (1885) I.L.R., 7 All, 646, that the confession before it can be taken into consideration under section 30 must be sufficient, if it stood alone, to justify the conviction of the party making it.
It seems to us that the question of the admissibility of these statements under section 30 as against the persons who have been tried jointly with Neelakantam, is so doubtful, and their value against such persons, even if they are admissible, is so slight that as against these persons we ought to exclude them from consideration.As we have already stated, evidence of the statements made by Arumugam and Somasundaram to Inspector Veeraraghava Aiyar is in our opinion admissible. A point of the utmost importance in judging of the truth of the evidence of these two witnesses is the circumstances in which their first statements were made.
The murder of Mr. Ashe occurred on June 17th: and the investigation practically commenced on the following day, when Vanchi’s house at Shencottah was searched as well as those of accused Nos. 6, 7 and 11, and some letters seized mostly addressed to Vanchi. Some of these were signed by or contained references to Arumugam; and on the evening of the 19th, immediately after the arrival of the Deputy Inspector-General of the Criminal Investigation Department (Mr. Thomas) a party was despatched to Tuticorin with a view to the search of his house. This party was in charge of Mr. Johnson (prosecution witness No. 89), Assistant Superintendent of Police, a Gazetted Officer of some three years’ service, and of Veeraraghava Aiyar (prosecution witness No. 31) an Inspector of the Criminal Investigation Department who had just arrived with Mr. Thomas.
These officers with their men surrounded Arumugam’s house about two hours after midnight and sealed it with a view to search after daybreak. Arumugam was awakened, told that his house would be searched in connection with the murder and asked if he knew anything about it. He then offered to tell all he knew and his statement was thereupon taken and recorded in the Inspector’s note-book. We have dealt with the question of the legal admissibility of this statement. As summarised by prosecution witness No. 31, it was to substantially the same effect as prosecution witness No. 6’s deposition in this Court: and it is extremely difficult to believe that it was either invented by the witness or dictated by the Police–both of which suggestions have been advanced on behalf of the defence. One guarantee against the possibility of the story having been dictated by the Police is afforded by the presence of Mr. Johnson, who appears to have been passing in and out of the hall where the examination was going on.
It is difficult to believe that any “tutoring” can have taken place without Mr. Johnson’s knowledge. But possibly a stronger guarantee is provided by the fact, which is beyond doubt, that the statement was not what the Police wanted. They were investigating the murder of Mr. Ashe and anxious to discover traces of the immediate accomplices of the crime. Arumugam’s statement had reference to a secret society which might well be the basis of another case, but which was in no way connected with the murder except in the single fact that Vanchi was said to have been a member of the society.
Vanchi was in fact barely mentioned either in this statement to the Inspector or in the statement (exhibit CCCCC) recorded by the Magistrate, Mr. Coxe, four days later under section 164, Criminal Procedure Code. The information furnished was in fact so useless to the police, that no action appears to have been taken on it, till Somasundaram’s statement given on the 21st, which included his interview with Vanchi at Madasami’s house, supplied some suggestion of a link between the society and the murder.So much for the general purport of the information; but the individuals implicated are no less remarkable. The principal persons implicated in Arumugam’s statement are accused Nos. 1, 2, 3, 4, 5 and 13, Somasundaram and Madasami.
Vanchi and seventh accused are just referred to. Now, Inspector Veeraraghava Aiyer swears that he had never heard of any of the first-named eight persons: and there is no reason to doubt him. He admits that he had met first accused some years before: but under another name. It has been ingeniously suggested that the search party came down to Tuticorin primed with the contents of the letters seized in the Shencottah searches, and prompted Arumugam to give a statement to fit in with them. Few, if any, of the letters seized could at that time have borne much significance; and it is difficult to believe that any police, however unscrupulous, could at this early stage of their investigation have subordinated everything else to building up an entirely false case upon them. Of the persons named by prosecution witness No. 6, Somasundaram and accused Nos. 4, 5 and 13 are not referred to in the letters seized, and third accused only incidentally and innocently at one passage. On the other hand, accused Nos. 6, 10 and 14, Dharmaraja Iyer, prosecution witness No. 16 and prosecution witness No. 29 who are all implicated in some degree or other in the letters are not even referred to by prosecution witness No. 6. Obviously it is impossible to hold that the statement was framed to fit in with the letters.
It was suggested that the interval which elapsed between the arrival of the search party at Tuticorin and the sealing of Arumugam’s house afforded an opportunity to some subordinate Police officer to interview and “coach” Arumugam. We do not think the delay was unreasonable in the circumstances and we attach no importance to this suggestion.The alternative suggestion is put forward that the statement was concocted by Arumugam (prosecution witness No. 6) either by himself or in consultation with Madasami and Somasundaram to save themselves from prosecution for complicity with Vanchi. It seems to us that if Arumugam had contemplated such a plan before the advent of the police he would certainly have destroyed the highly seditious literature (e.g., exhibits T-9 and T-10) found in his house on search and would have cast his story in a form more calculated to minimise his own share in the society. The last consideration applies still more forcibly to the story told next day by Somasundaram.
Moreover, on this hypothesis, the names given as those of the conspirators are equally inexplicable. In the case of accused No. 5 there are some allegations of enmity which will be dealt with later. But accused Nos. 2, 3 and 13 were by their own account entire strangers to Arumugam; and he had no grievance against first or seventh accused.
It is suggested that some of the Shencottah accused may have borne a grudge against Neelakantam for misappropriating money advanced to him by them in connection with a book he wished to publish. But this motive has certainly no bearing on either Arumugam or Somasundaram nor so far as is shown on Madasami. In view of the circumstances in which the statement was made we find it impossible to accept the defence theory that it was “tutored” or “concocted” even if the statements to the Inspector are discarded and only those recorded by Mr. Cox are considered.The evidence of the third approver Ramasami stands on a somewhat different footing.
This man absconded after the murder, and in spite of warrant and proclamation was only arrested on August 1st. However little basis there may be on the evidence for the defence suggestion that he was not really absconding but was being “primed” by the Tenkasi Police Inspector there can be no question that his evidence lacks some of the factors which make for credibility in the case of prosecution witnesses Nos. 6 and 12.It may be stated at once that the impression left in our minds by the three approver-witnesses was favourable to the general truth of their story.
None of the three appeared to be a person of education or of particularly sharp intellect; and each was subjected to the most rigorous and searching cross-examination at the hands of one after another of the ten learned counsel and vakils appearing for the defence, for periods extending over two or three days. The defence had the further advantage of being able to compare their statements in this Court not only with those recorded by the committing Magistrate but also with earlier statements recorded under section 164, Criminal Procedure Code, by the Magistrate, and (in the case of Arumugam and Somasundaram, prosecution witnesses Nos. 6 and 12) with their statements to the police at an early stage.
In such circumstances and in view of the lapse of time between their examination and the events to which they were speaking it would be extraordinary if a certain degree of confusion and contradiction were not exhibited from time to time: but we have no hesitation in saying that the prolonged cross-examination did not succeed in breaking down the evidence of any of the three approvers. Much of the cross-examination was directed to the dates of the various incidents.As regards the dates none of them was able to speak with any distinctness. This is a matter of considerable importance in view of the defence set up, and will be dealt with later: but in the present connection it is sufficient to remark that the vagueness and confusion exhibited by the witnesses in some instances on questions of dates appear to us in no way unnatural or such as to suggest the falsity of their story.
In some instances as regards the drinking of Kunkumam water at the time of taking the oath and the writing of the real names of the members on the oath paper the discrepancy merely consists in the omission of one witness to refer to a detail spoken to by another.
Prosecution witness No. 12 (who is still a bachelor) states that it was written on the oath paper at Tuticorin that members should not get married. Prosecution witness No. 6 who actually got married six months later ignores such a, rule It is pointed out that accused Nos. 4 and 5 were both married men at the time; but a natural explanation is that the prohibition of marriage was a mere counsel of perfection which as prosecution witness No. 12 himself admits was not pressed on the notice of married men and which no member scrupled to disregard when it suited him. As regards the question of assumed names, prosecution witnesses Nos. 6 and 12 agree that at both Tenkasi and Tuticorin meetings assumed names were given to the conspirators and also to certain places.
Much stress is laid by the defence on the fact that nothing of the kind is said to have been done at Punalur and that the use of these assumed names in the various letters exhibited is of the most fitful nature. That the assumed names undoubtedly are used in certain passages is a most important point (which will be dealt with later) but it seems most probable that this substitution of names was simply an idea of Nilakantam’s which his less intelligent followers adopted very partially and which he did not take the trouble to introduce at his last meeting.
On one point, the person referred to by an assumed name in exhibit X, the evidence of prosecution witness No. 12 is certainly hopelessly confused; but it would be unfair to attach undue importance to a single lapse of this nature in the course of so protracted and searching a test. We do not consider that there is anything in the evidence of the witnesses inconsistent with its substantial truth.In reference to the question of corroborative evidence, regard must be had to the nature of the offence, and to the ease or difficulty which may be expected to be experienced in obtaining independent corroboration.
Obviously in the case of a secret conspiracy of this kind the difficulty must be very great. It is practically impossible for any one to speak to the exact nature of the conspiracy, or the identity of the conspirators with any degree of certainty, without being himself to some extent an accomplice. Incriminating correspondence too is so easily destroyed, that it is only by good fortune that any patently inculpatory document can be expected to be discovered especially in a case like this where the news of the murder of Mr. Ashe by Vanchi should have given the alarm to every man, who may have been in treasonable relations with him.
It is in evidence that Arumugam had destroyed his correspondence at the end of 1910, and again on one subsequent occasion; while Vanchi on the other hand had evidently made away with all his later correspondence, the latest letter found being one dated 4th January 1911. The letters found in Madasami’s house again are all dated from January to April 1911, though it is clear from exhibits G-15 and G-16 that he had been receiving letters from Vanchi in October 1910.
The seventh accused again appears from letters on record to have maintained an active correspondence with Vanchi and Madasami but no letters from either were found on search of his house either at Alleppey or Shencottah.Nevertheless there is on record a mass of evidence oral and documentary tending to corroborate the evidence of the approvers as to the existence and nature of the conspiracy organised by the first accused, Nilakantam.
There is the evidence of prosecution witnesses Nos. 21 and 22 as to Nilakantam’s stay in their houses at Shencottah and Courtallam and in particular to the secret interviews granted by him at the former place. There is the evidence of prosecution witness No. 29 as to the “lecture” delivered by Nilakantam in prosecution witness No. 21’s house. As he was not present, he cannot speak to what took place: but it is difficult to avoid the inference that it was in consequence of the teaching inculcated by Nilakantam at this and other meetings that Vanchi and Dharmaraja, who were present, subsequently endeavour to induce this witness to transfer his allegiance to the new and more dangerous society formed “to drive out the English.”
As regards Tuticorin, there is the evidence of prosecution witnesses Nos. 8, 9 and 10, who depose that Nilakantam visited Tuticorin and stayed with the second accused in a house engaged for him by Arumugam. Prosecution witnesses Nos. 8 and 9 were both taken to visit him by Arumugam, who states that he hoped to enlist them as members, but Nilakantam did not approve of them.
The evidence of prosecution witness No. 9 is consistent with Nilakantam’s visit being, as is now suggested, of a harmless nature: but prosecution witness No. 8 speaks to having been sent away, when Somasundaram and fourth and fifth accused arrived. Prosecution witness No. 10 deposes to visits from the same three persons as well as Madasami.As regards the Tenkasi meeting there is, not unnaturally, very little corroboration. Arumugam was an entire stranger to Tenkasi, and except for a visit to some eating house to which he was conducted by the second accused spent all the time he was there in the third accused’s house.
In such circumstances, it would be strange if he were in a position to give information of such a nature as to enable corroborative evidence to be procured more than a year afterwards. There is however the evidence of his employer (prosecution witness No. 7) to show that he borrowed a rupee for the purpose of going to Tenkasi and that of prosecution witness No. 8 as to second accused’s visit to call him.
The corroborative evidence of two witnesses (prosecution witnesses Nos. 25 and 27) as to the Chittrai meetings will be discussed separately.Passing to the documentary evidence we have in all about 50 letters found on search in the houses of various persons implicated in the alleged conspiracy but mostly in that of Vanchi. In no single instance is the genuineness of the letter impugned. It is unnecessary to discuss here their effect as regards individuals: but one or two considerations call for notice.
The first is the extraordinary degree of intimacy evidenced by certain of the letters between persons so widely separated by caste, occupation and residence as Vanchi and the seventh accused on the one side and Madasami and Arumugam on the other. Vanchi and the seventh accused are Brahmans of Shencottah working at Punalur and Alleppey respectively.
Madasami and Arumugam are Vellalars of Ottappidaram and Tuticorin. Yet we have Madasami writing to Vanchi on 4th October 1910 in exhibit G-15 and signing himself your ” affectionate youngster of the caste (jati) of Bharata” and again exhibit G-21, 9 days later referring to himself as Vanchi’s “dear brother” and “affectionate youngster.”
We have the seventh accused in exhibit GG-1 and GG-2 writing to Madasami as “your affectionate F and B” (friend and brother), referring to Arumugam and begging them both to come to a wedding at Shencottah after which the seventh accused proposes to visit Ottappidaram. We have the seventh accused writing to Arumugam as “yours brotherly” in exhibits T-3 and T-7 and proposing to visit him.
These expressions in the letters support the case for the prosecution and have special importance with reference to the statement of prosecution witness No. 16 that the members of the society had laid aside all caste distinctions and are together as brothers.The explanation offered by the defence is of the most inadequate nature and unsupported by a particle of evidence. The seventh accused states that in 85th Andu (1909-1910) Madasami came to Alleppey to buy a mast post, and as he was staying in the shop of a customer of the accused for 15 days they became acquainted and subsequently corresponded.
If this were true, it should be susceptible of easy proof: and no attempt has been made to prove it. But even if true, it does not in any way explain the intimacy indicated by the letters above referred to. The seventh accused further states that he met Arumugam in Vanchi’s house in Shencottah about the end of 1910, and was invited to his marriage. How they came to be such friends or what Arumugam was doing in Vanchi’s house is not explained.
No evidence is adduced as to Arumugam having been to Shencottah and Arumugam denies that he ever went to Shencottah or met the seventh accused.The letters themselves primarily relate to a variety of topics mostly of an innocent nature: but they contain numerous passages for which no alternative explanation has been or apparently can be offered except the community of interest due to Nilakantam’s secret society.
A few instances may be quoted. Exhibits G-20 and G-26 are letters written by Madasami to Vanchi. Each is signed “Ramamurti,” but while exhibit G-26 is headed “Ottappidaram,” exhibit G-20 is headed ” Azhagai.” From internal evidence there cannot be the slightest doubt that “Ramamurti” and “Azhagai” are used to signify “Madasami” and “Ottappidaram”. and these are the substituted names which according to the approvers were settled for use in correspondence.
No other explanation of their use is suggested by the defence. In exhibit DD a letter written by Vanchi to the eighth accused there are two references to Azhagai obviously as indicating Ottappidaram. Other instances of the unexplained use of alternative names might be given and there are frequent references to the distribution of the “Dharmam” by Arumugam. Too much stress need not be laid on the constant occurrence of such phrases as “mother Bharatha help” which may indicate certain political views, not necessarily seditious: but there are numerous passages clearly indicative of close connection.
In exhibit G-15, for instance, we find Madasami asking Vanchi for the address of Ramasami Iyer, prosecution witness No. 16, and mentioning the death of the third accused’s father. Now the third accused disclaims all knowledge of Madasami; and apart from the conspiracy, there is no reason why Madasami should ever have heard of either of these men.It is not necessary here to consider how far the letters afford evidence of the complicity of individual accused: but it will be clear from what has been stated that they afford strong corroborative evidence of the existence of a conspiracy.
A large number of pamphlets and newspapers found in the houses of the accused have been put in evidence. We only propose to refer to the two pamphlets marked exhibits T-9 and T-10. They purport to be issued from the Faringhee Destroyer Press. They are of a violently seditious nature. One passage in T-9 runs–“Cherish rancour in your minds. Swear in the presence of God that you will remove this sinner of a Faringhee out of our country and firmly establish swaraj therein!
Take an oath that as long as the Faringhee exercises authority in our land of Baharata you will regard life as worthless. Beat the white English Faringhee you get hold of even as you beat a dog, and kill him with a knife, a stick, a stone or even by the hand given by God! Mercilessly kill the policeman or official who, helping the Faringhee, teases the people–any people whatsoever! Because, Lord Vysa himself has stated that the white empire would be ruined between the years Nandana and Ananda (1892 and 1914). According to these words the Swadeshi war has begun in oar country.
A violent war should take place within the year Ananda. Death may occur either in the sixth or in the hundredth year! Regarding this worthless life as a trifle, we shall make Swaraj and our name shine in the country by killing the white Faringhees and then go to the paradise of heroes.” The evidence is that 10 copies of each pamphlet were sent to Arumugam by post addressed in the handwriting of Nagasami Iyer who was conducting the ” Dharma ” paper in Pondicherry, that Arumugam distributed them and discussed them with the accused Nos. 4 and 5 and Somasundaram and that the accused Nos. 4 and 5 expressed their general approval of the pamphlet marked exhibit T-9. Assuming this is not evidence under section 10 of the Indian Evidence Act against individuals other than the accused Nos. 4 and 5, it is in our opinion evidence as regards the nature of the conspiracy.
A few general remarks may not be out of place here regarding the nature of the defence set up by the various accused and the evidence adduced to rebut the prosecution case. The fourteen accused have been separately defended and the case of each must he separately dealt with. There is however a broad distinction between the defence of the first accused and that of the others.
The first accused, Nilakantam, while denying that he was guilty of conspiracy or of forming seditious societies in the manner alleged admits his presence in Travancore and Tinnevelly at or about the times referred to by the prosecution and more or less close association with Vanchi and with certain of the other accused. He admits having visited the third accused and stayed in his house though at a different time from that fixed by the prosecution.
He admits having visited Tuticorin in July 1910 and having stayed with Arumugam. He admits having stopped in the houses of prosecution witnesses Nos. 21 and 22 and having twice visited Punalur though here again he fixes a slightly different time from that shown in the prosecution evidence. He admits close and constant association with the second accused from the middle of June till the middle of August when he returned to his home and he admits having associated at different times during this period with Vanchi, Dharmaraja Iyer, the approver Ramasami and the accused Nos. 3, 6, 7 and 8.
The other accused, on the other hand, either deny or minimise their acquaintance both with Nilkantam and Vanchi. Thus the second accused states that he only met Nilakantam on a single occasion for a few hours between Cochin and Alleppey and lad only one short meeting with Vanchi. The third accused says he never knew Vanchi or Madasami and does not refer to any acquaintance with Nilakantam. The seventh accused only admits a single meeting with Nilakantam at Alleppey and the sixth and eighth accused as well as all the others confess to no acquaintance with Nilakantam. All represent themselves as loyal subjects and deny having ever taken part in seditious conspiracy.The evidence of the 76 witnesses examined for the defence has been almost entirely devoted to attempting to prove the various alibis set up by the accused in connection with the different incidents in the prosecution story. There are in all 19 such alibis–all entirely distinct. Most of these will be most conveniently dealt with when considering the case against the individual accused, but there is one which from its general importance may be first disposed of. This is the alibi set up by Nilakantam for the Punalur blood oath meeting.
This has been much relied on not only by counsel for the first accused but by those representing all the other accused: and indeed if we could accept the defence evidence as showing that at the time Nilakantam is represented as presiding at the Punalur meeting he was actually in his own village in Tanjore, there would practically be an end to the prosecution case in so far as the alleged proceedings in Travancore Territory is considered. A good deal of evidence has been adduced to prove this, which however on careful consideration we feel compelled to reject as untrustworthy.
We have spoken of the Punalur blood-oath, meeting but the alibi, if accepted, would cover, not only all the proceedings at Punalur but also the meetings at Dharmaraja Iyer’s house at Shencottah which are said to have preceded it. The exact dates of all these occurrences have been hotly contested and in our opinion it is impossible to fix them with any accuracy. An examination of Ramasami’s evidence shows that he is quite unable to speak with certainty of the period he spent at this or that place: and as already stated such inability, in the absence of some circumstance calculated to fix the fact or date in his mind is entirely natural. The one point on which he is clear is that he spent Avaniavittam (August 20th) in his own village, Sundarapandiapuram: a day or two after which he says he went to Shencottah and after spending four days there, he and the rest of the conspirators went on to Punalur where the blood-oath meeting was held on the second or third day after arrival.
Every endeavour has been made by the defence in the course of a very prolonged cross-examination to induce him to extend the various periods, so as to put the blood-oath meeting as late as possible. As a result, counsel for the defence give us a calculation by which the blood-oath meeting would fall on the 30th or 31st August: while the learned Public Prosecutor adopting the earlier statements of the witness made in examination-in-chief places it on the 28th as the most probable date, with the possibility of one day’s variance on either side. The difference is not great and we may say at once that we cannot find any solid ground for holding that the meeting was later than August 28th.
The importance of the date is in connection with an endeavour of the defence to show that the date of the meeting is inconsistent, not only with their alibi evidence, but also with certain prosecution exhibits which show that Nilakantam was undoubtedly at his village on September 3rd. These are exhibits G-1 and QQQQ. The former is a letter written by Nilakantam from Erukkur on September 3rd to the eighth accused at Punalur and exhibit QQQQ and connected documents show that a telegraphic money order for Rs. 25 was sent by Dharmaraja Iyer on September 2nd from Shencottah to Nilakantam and paid to the latter at Erukkur on September 3rd.Now Ramasami first said that he left Punalur with some others by the morning train on the day after the blood-oath meeting, but subsequently remembered that it was on the second day.
He left Nilakantam there: but Nilakantam had no reason to delay, and if he started by the midday train even on the second day, he could have reached Erukkur on the evening of the third day after the meeting. This, on the prosecution calculation, would have been on the 31st August: and according to the defence on the 2nd or 3rd of September at latest. It is only the very latest date that is irreconcilable with exhibits G-1 and QQQQ.
There is nothing in exhibit G-1 incompatible with a very recent arrival and although it may be somewhat singular that his friends at Shencottah should be wiring money to him a day or two after his departure, it cannot be said to amount to a grave improbability, and the improbability, such as it is, decreases with every day that is added to the interval.
It is even possible that Nilakantam might have left on the understanding that Dharmaraja would raise the money as soon as he got back to Shencottah and telegraph it so as to meet Nilakantam on arrival at Erukkur. We do not think it can be said that exhibits G-1 and QQQQ, are really inconsistent with Ramasami’s evidence.It remains to deal with the defence evidence which is directed to show that Nilakantam returned to his village on August 24th after breaking his journey for two days at Kumbakonam and therefore could not have been in the neighbourhood of Punalur or Shencottah after August 21st.
The chief witness is his own father, defence witness No. 13: but there is also the evidence of defense witnesses Nos. 12, 14, 16 and 19 and of prosecution witness No. 36, an uncle of Nilakantam’s who was called by the prosecution to prove the hand-writing of exhibit Gr-1, but who is essentially a defence witness.Defence witness No. 13 deposes that hearing that his son had been seen at Courtallam and being anxious for him to return home in time for his (witness’) daughter’s marriage, he went to Courtallam, found Nilakantam there, and persuaded him to return home.
The witness reached his village on August 21st, and Nilakantam who had remained a few days longer arrived on August 24th. The marriage was postponed and ultimately took place on September 14th, but great reliance is placed on a post card (exhibit 93) said to have been written by this witness on August 26th, to his son-in-law (defence witness No. 19) announcing Nilakantam’s return.Of the other witnesses, prosecution witness No. 36 fixes Nilakantam’s return by memory as 7 or 10 days before the date of exhibit QQQQ or 10 days before Shravanam (6th September).
Defence witnesses Nos. 14 and 16 speak to seeing him at Erukkur on August 25th and 26th. Defence witness No. 12 says Nilakantam spent a day with him at Kumbakonam about August 22nd. Defence witness No. 19 simply speaks to the receipt of exhibit 93.It is instructive in this connection to turn to accused’s earliest statement, exhibit AAAA-1, which was recorded by Mr. Tampoe on July 12th, and to which he still adheres.
In this he fixes the date of his return exactly as prosecuting witness No. 36 does as 7 or 10 days before receipt of the money; but there all correspondence ends. There is absolutely no mention of the proposed marriage, of his father’s visit, or of his own visit to Kumbakonam–omissions in strong contrast to the manner in which the most unimportant happenings about the same time are set forth in detail. Nor is there anything in exhibit AAA A-1 consistent with the statement on which so much stress is now laid, regarding his intention to proceed to the north of India or to devote years to penance and study.
No witness is examined to speak to this somewhat improbable visit of defence witness No. 13 to Courtallam: and prosecuting witness No. 22, the one witness who must have seen him, had he really spent five days with his son there, has been asked no question about it.The evidence regarding the date originally fixed for the marriage and its postponement is hopelessly confused. Prosecution witness No. 36 says that Nilakantam had not returned on the date originally fixed for the ceremony–a point on which he could hardly have made a mistake. Exhibit 93 purporting to have been written only two days beforehand contains no reference to any postponement, and simply says that no date has been fixed. Exhibit 94, dated 5th September, is to the same effect.
Defence witness No. 13 at one point states that the marriage was never definitely fixed for the 28th August: at another, that it was decided on the 24th to change the date. As against this, we have the evidence of defence witness No. 16 that on the 27th he was engaged in procuring flowers for the wedding, which the vendor was considerate enough to take back on the 28th when it was found they would not be wanted. The evidence of defence witness No. 14, an old friend of the family, who professes to remember the date on which he lent Nilakantam Rs. 25, carries no weight.
The post card, exhibit 93, is, as has been shown, inconsistent in terms with the oral evidence, and refers to a visit not to Courtallam but to Quilon. The only guarantee that it was in existence on the date it bears is afforded by the post-marks: and these should present no special difficulty, especially when it is remembered that Nilakantam’s uncle, prosecution witness No. 36, is himself the Branch Postmaster of Erukkur.
There remains only the evidence of defence witness No. 12, the value of which depends entirely on his ability to fix the date when Nilakantam came to him. In examination-in-chief he professed his inability to fix it more accurately than “about the end of August” and adhered to this when cross-examined. But in re-examination after an adjournment of the Court, he was able to make the definite statement that it was the 22nd or 23rd August. Such a statement must be regarded with grave suspicion. It may be that Nilakantam really did stay with the witness on his way home: but no reliance can be placed on the date fixed by the witness.
We are unable to accept the alibi evidence in this connection.Other alibis were set up for the purpose of meeting the case for the prosecution with regard to alleged presence of certain of the accused, viz., accused Nos. 2, 3, 6, 7, 8, 10, 11, 12 and 14 at the meetings said to have been held at the houses of the eleventh and twelfth accused which have been referred to as the Chitrai meetings. For the reasons which we state hereafter in dealing with the cases of the eleventh and twelfth accused we think the evidence of the prosecution with regard to these alleged meetings ought to be disregarded and we accordingly leave it out of consideration.
We now proceed to consider the case of the different accused individually, with reference to the first count of the indictment, and the evidence against each. Against the first accused, Nilakantam, the evidence is overwhelming. He is implicated by all the three approvers whose evidence shows him to have been the originator and leader of the conspiracy from its inception till his departure at the end of August 1910. Although only one letter of his, exhibit Gr-1, is on record, it is clear from passages in the other exhibits that for the next six months he maintained correspondence with Madasami, Arumugam, Vanchi and the seventh accused. There are numerous references to him in the letters which have been put in evidence sometimes by his proper name, but more frequently as the “Swami” a designation which there can be no doubt was intended to apply to him. The oral corroborative evidence of prosecution witnesses Nos. 8, 9, 10, 21, 22 and 29 all implicates him. Lastly there is a statement, exhibit AAAA, already referred to.
Whatever view may be taken of it, whether or not it may be considered against the other accused, there can be no question of its admissibility against Nilakantam himself. As already stated we do not find the slightest ground for doubting that it was freely and voluntarily made: and we may add that when questioned by the committing Magistrate Nilakantam so far from repudiating practically affirmed it. He stated, “I have already made a statement before this Court. I have nothing more to give.”There is no reason why full weight should not be given to this statement as against the person making it: and it will be seen that as far as the Tenkasi and Tuticorin meetings are concerned he only just stops short of a complete confession.
He admits having convened the meetings in question, and having with the other persons present taken a “blood-oath” in the manner described by Arumugam and Somasundaram. As regards the Tenkasi meeting he names the same persons as are spoken to by the approvers; but in the case of the Tuticorin meeting he substitutes one “Sankaralingam” for the accused Nos. 4 and 5, agreeing as to the others. It is only as regards the object of the oath and of the society that he becomes vague.
He represents that the purpose of the society was not stated, and he himself was not clear about it; and that the oath was merely to devote their lives and property to the cause of the country. It is impossible to believe that meetings were convened in this fashion and ” blood-oaths taken” as he says “to create awe in the minds of the members” with no more definite object: and we see no reason to doubt the evidence of the approvers as to what the object really was.
As regards the Punalur meeting, there is no admission, except that contained in the earlier statement made two days before and practically reiterated before this Court; to the effect that he had a perfectly innocent meeting in Bapu Pillai’s house with Vanchi, Dharmaraja Iyer, approver Ramasami, seventh accused and others between August 15th and 19th.
The denial of this meeting as contrasted with the admission of the others is probably to be explained by Nilakantam’s anxiety to admit no treasonable dealings with Vanchi which might suggest complicity in the murder committed by the latter.
If it be accepted as established that oath meetings as described by the approvers were held under the presidency of the first accused at Tenkasi and Tuticorin, there need be no hesitation in accepting Ramasami’s evidence coupled with the unretracted admissions of the first accused and those made by him in this Court as to the occurrences at Punalur.
In this Court he has made a very long statement largely devoted to showing that his visit to Travancore and Tinnevelly in June–August 1910 was of a perfectly innocent character, that his chief interest at this time lay in the publication of certain essays in book form and that in February 1911 he had a violent quarrel with Vanchi at Pondicherry, broke off all relations with the extremists there, and soon after left for Benares, where he was staying at the time of the murder.
There is no evidence of the quarrel with Vanchi; but there seems to be no doubt from an article published in the Dharmam early in March 1911 (exhibit 5) that Nilakantam had shortly before quarrelled with the Pondicherry people responsible for that paper: and it seems likely that from that time forward his connection with the seditious movement may have ceased.
What we are concerned with, however, is his earlier conduct, more particularly in the period from April to August 1910 inclusive. And here there is a remarkable lack of evidence in support of his statements. He now represents that he left his home in June with the object of spending some years in study and meditation in the Nilgiris with his friend, the second accused: and that finding this impracticable he drifted down to Shencottah where he spent his time writing and reading moral essays to the friends whom he made there and in inducing them to advance money for their publication.
That he was either contemplating or engaged in some literary work about this time is pretty certain: and it is most probable that the sums remitted to him after August by either the seventh accused or Dharmaraja Iyer were in connection therewith. What the character of the work was there is little or nothing to show: and even if it was purely innocent, this is in no way inconsistent with the writer having been engaged at the same time with the treasonable conspiracy charged against him.
That his occupation during his absence from home was of the innocent character claimed by him, no attempt has been made to show. No witness from Shencottah, Punalur or Courtallam has been examined by him, though one witness who would have carried considerable weight was cited. This is Mr. Veerabadra Sarma, Editor of an English Weekly paper published in Trivandrum. Nilakantam says he had long talks with this gentleman at Courtallam, was converted to his moderate and sensible views and actually travelled as far as Punalur in his company. The evidence of such a witness might have been of much value to the defence; but though cited he was not put into the box.The defence in fact, apart from that of a number of witnesses who speak to his journey towards the north in March 1911, was devoted to proving alibis.
One of these, relating to the Punalur meeting, has already been dealt with. The others relate to the Tenkasi meeting on April 10th and to an encounter at Pondicherry deposed to by prosecution witness No. 3, a Cuddalore vakil, as occurring on May 2nd, 1910.
Neither calls for much remark. Both depend on the evidence of Nilakantam’s own father, defence witness No. 13, who says Nilakantam remained at Erukkur from Panguni 25th till Vykasi 15th. This would be from about April 7th to May 28th. On April 12th, he is said to have accompanied his father to a festival at Vaidisvarankoyil about 10 miles from Erukkur.
The witness is so obviously and closely interested in saving his son from the present charge that it is impossible to place any reliance on such testimony. The only other witness examined is defence witness No. 17, who says he met defence witness No. 13 at the festival and was told Nilakantam was there too. This witness goes to the same festival every month; and appears to have absolutely nothing whereby to fix his memory to the particular month when this occurred.
We see no reason to doubt the truth of the evidence given by Chakravarti prosecution witness No. 3, with reference to his interviews with this accused in May 1910 and the views expounded to this witness by the first accused and we are of opinion that this evidence is relevant as against the first accused.On a survey of the whole evidence we have no hesitation in pronouncing the first accused guilty on the first charge.We now pass to the case against the second accused, Sankara Krishna Iyer, which except that he has made no inculpatory admissions is nearly as strong as against Nilakantam. The same approvers speak to him and the same witnesses corroborate them; and if their evidence is believed there is no doubt that he was throughout the period of Nilakantam’s activity in the south of the Peninsula, Nilakantam’s trusted henchman. In the face of this evidence the defence set up is somewhat remarkable.
It consists in a total denial of every one of the incidents with which he is connected in the prosecution story. He specifically denies having ever met either of the three approvers, and he limits his acquaintance with Vanchi and Nilakantam to the single occasion of a visit which he paid to the West Coast in June 1910 in search of employment. He gives a very detailed account of this visit, but gives no account whatever of his movements or whereabouts for the succeeding twelve months.Such a story naturally leads to wonder as to how, if it were true, he came to be implicated, as he has been, in this case.
The only suggestion put forward is that in consequence of a letter of his, exhibit G12, found in Vanchi’s house and of three others, exhibits G-9, G-10 and G-11, in which he is referred to, the Police suspected him to be an accomplice of Vanchi’s, and “tutored” all the witnesses who were absolute strangers to him to give this false evidence against him. The flimsiness of the ground for so atrocious a concoction is obvious.
All the three letters relate to a period a year before the murder; and, to take no higher ground, it is impossible to believe that the Police at the outset of the case should have elected to abandon all attempt at tracing the real accomplice and decided to build up a case on such remote data.Taken in conjunction with the other evidence now forthcoming, the letters referred to are of importance as affording some corroboration of the evidence of the approvers; but read by themselves in the early days of the investigation they could have conveyed very little–merely that a year prior to the murder, the second accused was travelling with the editor of the recently suppressed “Suryodaya” and had had an interview with Vanchi on some important matter which was not to be disclosed.Sankarakrishnan now states that he left his home secretly to visit his brother-in-law, defence witness No. 29, who lives near Cochin in the hope of obtaining an employment in that neighbourhood. Knowing that Vanchi, who was living in his (accused’s) wife’s village, had friends on the West Coast, he wrote to him (exhibit G12), with a view to obtaining letters of introduction.
Vanchi met him as requested at Punalur railway station and gave him a letter to the seventh accused at Alleppey. The second accused visited defence witness No. 29, but failed to obtain work and returned home, spending a few hours in the company of Nilakantam whom he met on the journey. Defence witness No. 29 supports this story as far as the visit to himself is concerned. There is no reason to doubt his veracity: for even the second accused, as now seems probable, had other objects in the journey, it is quite likely that these were cloaked by a pretended quest for employment. But it is very difficult to reconcile accused’s version with the tenor of the four letters.
The reason assigned for such secrecy the fear lest his parents should prevent him from going to the West Coast is very improbable. There is nothing in exhibit G12 suggestive of the intention now alleged, and it is most improbable that Vanchi could have written a letter to any one during the short time the train stopped at the small station of Punalur.
The remainder of the defence evidence, leaving out such portions as are not relevant to the present charge, is in support of an alibi set up by the second accused for the Tenkasi meeting. Defence witnesses Nos. 23, 24, 26, and 27 are examined to prove that the second accused’s nuptial marriage took place at Krishnapuram (near Kadayanallur) on Panguni 29th (April 8th) which would certainly be inconsistent with his having gone to Tuticorin the next day or been present at the Tenkasi meeting on the 10th. The weak point of the evidence is that there is absolutely nothing to fix the date of the ceremony except the witnesses’ memory. It is impossible to feel any confidence in this (vide cross-examination of defence witnesses Nos. 26 and 27).
The other two witnesses (defence witnesses Nos. 23 and 24) are close relations who may be more likely to remember; but who are obviously interested in saving their young relative. Indeed the evidence of defence witness No. 23 regarding the Police proceedings is chiefly instructive as showing the lengths to which he is prepared to go in support of the defence. The Public Prosecutor pointed out the improbability of a nuptial marriage being fixed for the day preceding the new moon–as would be the case here (April 9th being new moon day).
We do not consider that an alibi has been made out for this meeting; and for the others, none has been even attempted. We consider that the guilt of the second accused on the first charge is established.The chief evidence against third accused M. Chidambaram Pillai is that of approver Arumugam who deposes that the Tenkasi oath meeting was held in his house and that he (accused) was present and took the oath.
There is also the evidence of approver Ramasami who says that it was third accused who gave him certain “India” newspapers to be taken to Punalur for the first accused’s reference, and that he (third accused) was present at the second of the two meetings held in Dharmaraja Iyer’s house after Avani Avittam. There is the independent evidence of prosecution witness No. 22 to the effect that third accused was one of the persons who visited first accused daring his stay at Courtallum.
Lastly there is independent evidence to show that he was in the company of Vanchi on June 12th and 13th which the defence have been at great pains to rebut. It is unnecessary to discuss this, as, apart from going to show that; accused’s denial of Vanchi’s acquaintance is false, it is irrelevant in regard to the present charge.We see no reason to doubt the truth of the evidence above referred to: or why that of Arumugam (prosecution witness No. 6) should not be accepted and acted on. It has been argued that Arumugam’s present evidence is not altogether borne out by Inspector Veeraraghava Aiyer’s account of what Arumugam originally told him.
The witness now deposes that after his arrival he was taken to a room apart, whore first accused explained his views to him and the necessity of resorting to the “new plan” of universal massacre of all Europeans on a fixed date. They then returned to the others, and first accused in the presence of all spoke to the same effect. All agreed: and they then took an oath by affixing their thumb-impressions in blood to a paper on which it was written the object of the society,” killing all white men” being specifically stated. According to Veeraraghava Aiyar’s account Arumugam, after describing to him first accused’s private discourse and proposals, simply stated that they all took oath by affixing their thumb-impressions to a paper on which it was written that whoever joined the society must not reveal its secrets on pain of going to hell.In our opinion the difference, such as it is, possesses no significance.
There is nothing in the Inspector’s evidence with reference to the statement made to him by Arumugam which is incompatible with the evidence given by Arumugam in this Court and we see no reason to think that the fuller statement made before us is the result of a desire to “improve” his evidence. Some allowance must be made for the circumstances in which the first statement was taken. We may remark that in Arumugam’s second statement (exhibit CCCCC), dated four days later the full knowledge and complicity of each of the persons present is clearly indicated.
Neither as indicating that Arumugam has intentionally varied or “improved” his story, nor as throwing doubt on the complicity of this accused, do we find this point important.Accused in his statement denies that any meeting was held in his house or that he ever attended one at Shencottah. He denies all acquaintance with Vanchi or Madasami (but says nothing about Nilakantam) and described himself as a loyal subject taking no interest in politics. Lastly he says that he has been included in this case at the instigation of the Tenkasi Police Inspector, who bore him ill-will for not giving evidence properly in a criminal case in which the Inspector was interested. The evidence as to the suggested ground for ill-will is very unsatisfactory, and, apart from this it is very difficult to believe that a subordinate officer like a Taluk Police Inspector could have exercised the influence which the defence would ascribe to him outside his own range in a case closely watched by so many superior officers as the present one.
Apart from this, the enmity alleged is by no means satisfactorily established. The accused’s statement as to his indifference to politics is difficult to reconcile with the literature found in his house on search (vide exhibit Z). Endeavours to show by defence witnesses that it was impossible to hold a meeting as described in third accused’s house owing either to its size and arrangement or in consequence of his father’s illness, failed.
It only remains in our opinion to consider the evidence adduced to show that in consequence of the death of accused’s father on August 25th, 1910, he could not have attended the second meeting in Dharmaraja Iyer’s house. All that we find to be established is that the father died at some time on August 25th. It would therefore be most improbable that accused should have attended any meeting on that or a later date. But from Ramasami’s evidence it seems clear that the two meetings were not later than the 23rd and 24th, respectively. Shencottah is within six miles of Tenkasi; and in view of the lingering nature of his father’s malady (diabetes) there is no improbability in accused (who is not an only son) having spent a couple of hours there the day before his death.
We cannot rely on the interested oral evidence intended to show that for a week before he died accused’s father was in extremis with accused in constant attendance: and it is significant that neither the native physician nor the Civil Apothecary who are said to have attended him have been placed in the box.It is a circumstance not without value as indicating the bond-fides of the approver Ramasami that he only speaks to third accused’s presence at one of the meetings held about this time. The natural inclinations of a false witness would have been to implicate him in the blood oath meeting at Punalur. Ramasami is positive that third accused was not there, though he gave no explanation for his absence.
The explanation is now supplied by the defence evidence. Of course, the defence suggest that the ingenious Police Inspector was aware of the date of the death and primed the witness so as to avoid it. Had such been the case the witness would certainly have been prepared with an explanation of third accused’s absence: but it is much more likely that the date of the Punalur meeting would have been shifted backwards so as to permit of the implication of this man, whom above all others, according to his own defence, the Inspector was anxious to bring to trouble.A similar feature may be here noted in connection with the eleventh accused (whose absence from all these meetings is unexplained as far as the prosecution goes). The defence makes it clear that he was busy at the time over his own marriage and in his case it can hardly be suggested that the Inspector knew of the difficulty, or provided for it.We consider that the guilt of the third accused on the first count is established.
We now pass to the fourth and fifth accused who both belong to Tuticorin and according to the evidence of both approvers Arumugam and Somasundram, were present at the meeting held there by Nilakantam and took the blood oath for the extermination of the English. That Nilakantam came to Tuticorin, preceded by second accused, and there put up for a week in a house engaged for him by Arumugam is proved by independent evidence: as also that he was visited while there by these two accused with Madasami and the approvers. Of what took place at the meeting there is naturally no independent evidence, and it would have been open to the learned vakil for these accused to contend, as Mr. Adam did for the first accused, that it was of an innocent nature.
We do not think such a contention could have been sustained in the light of all the evidence adduced; but, as a matter of fact, it has never been set up, the plea of these accused being that they never visited Nilakantam at all and that the evidence against them is false. The motive assigned by fifth accused Subbayya Pillai is enmity between himself and the approver Arumugam and also prosecution witness No. 8, one of the corroborating witnesses.
We have considered the evidence of this alleged enmity, and do not find anything established which would provide a sufficient motive for the malicious inclusion of the fifth accused, or would materially affect the credit of the witnesses in question.The fourth accused has set up the plea that the man originally named by Arumugam to Inspector Veeraraghava Aiyer was a different man altogether, one Muthukumarasami Pillai, his own (accused’s) name being Muthusami. No personal motive is suggested on the part either of the witnesses or the police. All that the defence put forward is the theory that the police finding some difficulty in tracing the man originally named by Arumugam, persuaded him to identify somebody else: and, for no special reason beyond what the defence vakil calls his client’s “misfortune” lit upon him.
We can find no basis whatever for such a suggestion. If (and we understand this to be the defence theory) the police were so unscrupulous, and the witnesses so amenable the opportunity would certainly have been taken to implicate some person whom there was some motive to get into trouble and not a harmless stranger like accused. The fact seems to be that, as explained by the prosecution, fourth accused is sometimes referred to by one name and sometimes by another, a state of affairs to which several undoubted parallels can be found in this very case. There is nothing at any stage of the case to suggest that the police were conscious of an error, or substitution, or were endeavouring to conceal or misrepresent anything regarding this man: and all the witnesses make it quite clear that the man they saw is the individual in the dock.
We accept the evidence as establishing the guilt of these two accused and we accordingly convict them on the first charge.We shall next deal with the case of the sixth accused Jagannadha Aiyangar of Shencottah. According to the approver Ramasami this man was present at his first visit to Punalur, at the meetings at Shencottah after Avani Avittam and at the blood-oath meeting at Punalur. He is further stated to have been present, when Ramasami conversed with Dharmaraja Iyer in January 1911 (which, in itself, has not much significance) and at the Chittrai meetings. The evidence of prosecution witness No. 29 shows that he was a member of the old Bharatha Matha Association and that he was one of those who were present, when endeavours were made to induce the witness to take a “blood-oath” and join a new society for beating and driving away the English.
This latter incident has been chiefly impugned on the strength of an alibi set up by another person alleged to have been present (fourteenth accused) which will be dealt with in considering his case. We may say here that neither on that ground nor on any other that has been indicated do we find any reason for rejecting the evidence of prosecution witness No. 29 which corroborates the evidence of the approver both as to the existence and objects of the conspiracy and as to the sixth accused’s complicity in it. It is not suggested that the society which prosecution witness No. 29 was urged to join was other than the one established by Nilakantam.
The chief documentary evidence relating to him is anterior in date to the conspiracy; but shows him to have been a very intimate friend and devoted admirer of Vanchi (vide exhibit G-3). In so far as his political views are relevant as showing the likelihood of his joining such a conspiracy as that formed by Nilakantam, we may refer to the expressions used in the last named letter and to the discovery in his house of an old number of the India paper preserved for nearly two years and containing a most pernicious article on the assasination of Sir William Hutt Curzon Wyllie (exhibit MMMM).No attempt has been made to rebut or explain the evidence of Ramasami (prosecution witness No. 16) against this accused.
No witness has been cited by this accused; and no motive has been suggested for his implication in a false case, no attempt has been made to show that he could not have been present at any of the meetings or that his character or position was such as to render it unlikely that he would join the conspiracy. His defence statement consists in a simple denial of everything and protestation of loyalty. We find him guilty on the first count.
The case of the seventh accused Harihara Iyer must be next considered. This man was undoubtedly, as shown by the letters exhibited (i.e., exhibits G-9 to G-11), a close friend of Vanchi prior to June 1910 and according to prosecution witness No. 29 he was a member of the Bharatha Matha Association spoken to by prosecution witness No. 29.
It is clear from exhibit G-9, one of his own letters, that he met Nilakantam for the first time in June 1910 and was very much impressed by him. He refers to him as looking like the first-born son of mother Bharatha. It is equally clear that he was one of the persons who subsequently supplied Nilakantam with funds: according to approver Ramasami who seems to have been a sort of hanger-on of his, he was present at each of the meetings held in August, including the blood-oath meeting at Punalur. It is subsequent to that time that we have the letters which have been noticed above indicating such an extraordinary degree of intimacy with Madasami and Arumugam.
It has been suggested that this intimacy may be accounted for by co-membership of the comparatively innocent Bharatha Matha Association spoken of by prosecution witness No. 29 as existing in Shencottah. There is nothing to indicate that either Madasami or Arumugam belonged to this society: which, so far as the evidence indicates, was confined to young Brahmans of Shencottah. And it is significant that, so far as we can see there is nothing to indicate that the seventh accused ever knew either Madasami or Arumugam until Nilakantam is said to have brought them together in the links of his conspiracy. It seems to us the reasonable explanation for this extraordinary intimacy is joint participation in Nilakantam’s conspiracy, and it furnishes strong corroboration of the approver’s evidence against this accused.
The defence evidence is mainly directed to proving an alibi for a meeting of the Bharatha Matha Society held about the latter part of February 1910 at which accused is said by prosecution witness No. 29 to have been present, and to showing that although accused was in Shencottah in the latter part of August 1910, he was so ill that he could not have possibly attended the meetings.The February meeting is of very minor importance. Its date is very roughly fixed by prosecution witness No. 29 and as pointed out by the learned Public Prosecutor it might well have taken place in the interval between February 18th and 24th when accused, according to entries in the apparently genuine account books of his firm was undoubtedly absent from his place of business, Alleppey.
To account for this gap, there is only the oral evidence of defence witness No. 53 and prosecution witness No. 51 (another Shencottah man and a former partner of Dharmaraja Iyer’s called solely to prove the hand-writing of Dharmaraja Iyer). It may be that accused really made this pilgrimage to Kaladi as stated, but there was time for him to first go to and return from Shencottah and a possible motive for so doing is supplied by the fact that his mother was of the party and that some one is likely to have gone to Shencottah to fetch her.
To return to the much more important subject of the August meetings– there is no trustworthy evidence that the accused was ill at all the time, much less so ill that he could not have attended these meetings.
Three friends and relations say that he returned from the West Coast suffering from sore eyes, emaciation, etc., and was confined to his bed; but in a letter to Vanchi (exhibit G-13) written on 8th August just before starting for home, seventh accused says not a word suggestive of ill-health, and appears to contemplate a stay at Punalur with Vanchi (exactly what according to the prosecution took place. We regard this evidence of ill-health so as to disable him from taking part in the August meetings as worthless and we find the seventh accused guilty on the first count.
The case against the eighth accused, Bapu Pillai, is very similar to that against the seventh accused, except that there is no evidence to show that he belonged to the Bharatha Matha Society or attended the Shencottah meeting. In addition to the testimony of Ramasami we have the evidence furnished by the letters.
Exhibit G-1 is a letter to him from Nilakantam, dated 3rd September 1910, it contains no phrase or sentence of an incriminating nature, but strongly suggests recent and intimate acquaintance and refers to Dharmaraja Iyer and Vanchi as mutual friends. Exhibit G-20 is a letter from Madasami to Vanchi about December 1910, it is signed “Ramamurthi” and headed “Azhagai,” refers in mysterious terms to the “Tuticorin friend” and “Sri Ni” (Arumugam and the first accused) and enquires after the health of “our mother” and M.R. Ry. Bapu Pillai Avargal, eighth accused. In our opinion this letter has reference to the common intention of the conspirators and is admissible against the eighth accused under section 10 of the Evidence Act. Exhibit DD is a letter by Vanchi to eighth accused himself, dated 1st November 1910.
It is addressed to him as the writer’s younger brother, refers to Madasami as the “elder brother” whom the writer has just been to “Azhagai” to see. It refers to the “Swami” and “our friend Harihara Iyer,’ the seventh accused. Exhibit G-27 is another letter from Arumugam to Vanchi “his beloved brother,” dated 19th December 1910, enquiring for “our friend M.R. Ry. Pillai Avargal.” Arumugam says this refers to eighth accused, whom he had never met but of whom he had heard from Vanchi in November as being a member of the society. Eighth accused offers no explanation of his intimacy with Vanchi and Nilakantam or how Madasami and Arumugam from the opposite side of the country name to know and take an interest in him, or what was meant by “Azhagai” in a letter addressed to him. He simply denies everything in evidence against him and calls no witnesses. We consider the evidence sufficient for his conviction on the first count.The case of the next man, ninth accused Desikachari, stands on a different footing. There is absolutely nothing to corroborate or support the statement of approver Ramasami that he was one of those who took the oath at Punalur. Even Ramasami says he never saw him on any other occasions and when they met at Punalur he learnt his (accused’s) name from others.
Under these circumstances we do not consider that the case against this man reaches that degree of reasonable certainty which would justify a conviction: and we direct his acquittal on the first count.The case against the tenth accused, Vembu Aiyar, may be summarily disposed of. Apart from the evidence of prosecution witness No. 27 which is not relied on by the prosecution, not a single witness speaks to this man’s presence at any of the meetings or incidents which go to make up the prosecution case. There are four letters written to or by him (exhibits G-4, J-2, P & LL). The letters undoubtedly indicate considerable intimacy between this accused, seventh accused and Vanchi; but as all three are Brahmans from the same village who might naturally be expected to be close friends, no special inference can be drawn from this fact.
There is nothing against the tenth accused which goes beyond suspicion, and he must be acquitted on the first charge.As regards the eleventh accused, Chavadi Arunachellam Pillai, there is no doubt a considerable body of evidence against him. It is not however, the case for the Crown that he was present at the meeting at Punalur when the blood-oath was taken.As regards this accused the prosecution mainly rely on the evidence as to what took place at what have been termed the Chittrai meetings, two meetings which are alleged to have been held at Shencottah on two successive days, one at the house of this accused and the other at the house of Alagappa Pillai, the twelfth accused, at both of which this accused was alleged to be present.
These meetings are spoken to by Ramasami and, according to his evidence in cross-examination, Vanchi made a violently seditious speech at one or both of these meetings. The twenty-fifth prosecution witness, Sundaram Iyer, spoke to the presence of this accused at his own house when the alleged meeting took place and to his attempting to persuade the witness to join the society.Neither of these witnesses attempted to fix the date of the Chittrai meetings with any precision, but a witness was put into the box (the twenty-seventh prosecution witness), one Tirumalaimuthu Pillai who gave the date of the meeting at Alagappa Pillai’s house as May 1st.
He professed to be able to do this after refreshing his memory by referring to his diary. This diary was not put in evidence by the prosecution but it was put in by the defence.
At a late stage in the case, after evidence had been given for the purpose of showing that the eleventh accused was not in Shencottah on May 1st, that Ramasami was at Alleppy on that date, and that Pichumani (the fourteenth accused) was at Tanjore, Mr. Napier discarded the witness Tirumalaimuthu Pillai altogether and said that he placed no reliance on his evidence. He contended that there was evidence to establish the holding of the Chittrai meetings and the presence of the eleventh accused thereat, but suggested that these meetings took place at a later date. On behalf of the defence it was contended they could not have been held after May 2nd.
We need not discuss the evidence as to this. Also we need express no opinion as to whether the evidence adduced on behalf of the Crown establishes that these meetings at Shencottah were in fact held.The defence must be taken to have disproved the original case of the Crown that the meetings took place on the dates to which Tirumalaimuthu Pillai spoke. In view of the evidence which the defence were able to put before the Court, Mr. Napier had to abandon one of his own witnesses and suggest a later date for the Chittrai meetings.
This being so, and in view of the fact that the evidence as to these meetings was the strongest part of the case against this accused, we do not think we ought to convict him. He is accordingly acquitted on this charge.As regards the twelfth accused, Alagappa Pillai, he was not implicated by Sundaram (prosecution witness No. 25) in the same way Chavadi Arunachallam was, and the observations we have just made in connection with the case of the eleventh accused as regards the Chittrai meetings are applicable to this accused.
“We would accordingly acquit him on the first charge.As regards the thirteenth accused, Vandematharam Subramaniam, he was not arrested till a comparatively late date some time after the police were in possession of the information given to them by Arumugam.
We think however the delay can he satisfactorily accounted for.
The case against this accused is that he took the oath at the Tenkasi meeting and the case rests on the evidence of Arumugam. The incident spoken to by A. Arumugam (eleventh prosecution witness) in connection with books brought by the accused to Tuticorin for sale, although no doubt susceptible of explanation, may perhaps be said to throw some doubt on the identity of this accused with the man, who, according to K.V. Arumugam’s evidence, took the oath at Tenkasi. We give him the benefit of the doubt and acquit him on the first charge.
There remains only the fourteenth accused, Pichumani Iyer of Shencottah, the case against whom is somewhat similar to that against the sixth accused. According to the approver Ramasami, he participated in the blood-oath meeting at Punalur, and was present at the Shencottah meetings which preceded it, and also when Ramasami visited Dharmaraja Iyer in January 1911.
Ramasami also said he was present at the Chittrai meetings, but, for the reasons we have already stated, we do not take this portion of the evidence into consideration against this accused. The evidence of prosecution witness No. 29 is of the utmost importance.
He deposes that the fourteenth accused was another member of the Shencottah Bharatha Matha Association and was present at two meetings about February 1910.
This is of little importance; but he goes on to depose that the fourteenth accused was present at the meeting in the following autumn when endeavours were made to get him to join the new society, and took an active part, the accused assuring the witness that he (fourteenth accused) had taken the blood oath and saying that he (witness) might also do so.
Accused states that he and Vanchi were simply neighbours and family friends, and that he took no part in seditions proceedings.
He assigns no special reason for his unjust implication in the case: and has endeavoured to rebut the prosecution case by evidence of alibi. He and the tenth accused are brothers and both appear to be in the habit of going out to service as cooks in Brahman eating-houses.
There seems to be no reason to doubt that he was employed in this capacity in Madura by defence witness No. 71 from 1st January till 22nd May 1910 and again from 20th January 1911 up to his arrest on 21st June. It also seems clear that he was similarly employed in Tanjore by defence witness No. 72 in the autumn of 1910, quitting that service on November 16th. According to the defence, he joined duty on August 15th (so as to cover the Shencottah and Punalur meetings): but, as will be shown, there are good reasons to believe it was nearly a month later.The evidence relating to accused’s employment in Madura may be first dealt with. It was originally adduced chiefly to rebut the evidence of the accused’s presence at the two meetings held in Chittrai 1911.
These meetings, as already explained, must be excluded from consideration and the only other meetings covered by this alibi are those of the Bharatha Matha Society held about February 1910. It cannot be said that anything treasonable took place at these, so that the value of this alibi evidence is simply in its bearing on the general credibility of prosecution witness No. 29. The backbone of the alibi such as it is, is a rough ledger (exhibit 186) produced by defence witness No. 71 containing accounts of a few individuals including his cook, the fourteenth accused. According to defence witness No. 71 himself the entries in this account are written up in the most casual manner. He himself is unable to write well, and he says he used to get any customer or servant to write entries, in the book as occasions arose. None of the writers is called as a witness and we feel considerable doubt as to whether such a book can properly be regarded as a book of account maintained in the ordinary course of business.
Certainly the existence of an entry relating to the fourteenth accused under any given date in some unknown person’s handwriting is the very poorest evidence of accused’s presence at Madura on that day; and the few entries in accused’s own hand do not relate to the period (February 1910) with which we are concerned. Defence witness No. 71 has endeavoured to complete the alibi by deposing that accused was never absent from work during the whole of his employment except on one or two specified occasions: but we cannot place the slightest reliance on this evidence.
The witness prevaricated a good deal and it is clear (1) that he cannot speak from memory, but only from the entries in his account book and (2) that if a substitute were available he might easily give the cook a few days’ leave without entering it at all. In other words, as proving that the fourteenth accused could not have been present at the meetings, the evidence of defence witness No. 71 and his account book is worthless.As regards the Tanjore alibi defence witness No. 72 deposes that the fourteenth accused presented himself at the end of Adi (about August 15th), and asked for work saying he had previously served under defence witness No. 71 in Madura. Defence witness No. 72 being in want of a cook employed him straight away: and a couple of days later advanced him Rs. 7 to be sent to his home.
This is sought to be connected with a money order, for the same amount which from exhibits 180, 181 and 187 appears to have been sent by some one in Tanjore to the tenth accused in Shencottah on August 18th. The money orders for that month have been destroyed and it is now impossible to say who sent it: but we are certainly not prepared to hold that it was the fourteenth accused, or to place the slightest reliance on the evidence of defence witness No. 72 and another hotel-keeper defence witness No. 73 as to accused’s participation in a ceremony of Avani Avittam day.
There are much better grounds for holding that the fourteenth accused only came to Tanjore about the 12th September 1910.Exhibit 176 is a money order for Rs. 5 sent to the fourteenth accused at Shencottah by some one in Tanjore on September 9th. The name of the sender is unknown, as the order is signed by one “S. Rajam for remitter.”
The money order was redirected from Shencottah to Tanjore on September 12th as it was found the payee had left the former place, and payment was ultimately made to the fourteenth accused at Tanjore on September 15th.
Now this record undoubtedly shows that the fourteenth accused was in Tanjore on September 15th, but it also goes strongly to show that he had only arrived there three or four days earlier, and not in the middle of August. The defence explains that this remittance was probably made by some other eating-house keeper who wished to secure his services and did not know he was already in Tanjore. If so, it should have been quite easy to substantiate the fact by evidence: for the fourteenth accused received the money and must have known from whom it came.
The fact that the same day he despatched Rs. 3 of it to his mother at Shencottah strongly suggests that he was entitled to keep it. It seems most probable that the money was sent by defence witness No. 72 himself as is usual, for an advance after securing the accused’s services by letter and that the accused left Shencottah about September 10th without waiting for it. This is entirely consistent with approver Ramasami’s evidence.It remains only to consider the bearing of this evidence on that of prosecution witness No. 29 regarding the meeting which he fixes roughly at September 21st.
Of course, if we could place any reliance on the statement of defence witness No. 72 that accused never quitted work for a day while in his service this would constitute a good alibi whether the service commenced on August 15th or about September 12th. But this we cannot do in view of the manner in which he has in our opinion antedated accused’s employment to help the defence.
It is not very likely that accused would have gone back to Shencottah simply in connection with the conspiracy: but the readiness with which a Brahman will undertake a long journey in connection with some family ceremony is notorious: and there is nothing improbable in his having returned home for such a purpose within a very short time after having left Shencottah and attending any meeting which happened to be going on while he was there.
It is instructive in this connection to note the evidence of prosecution witness No. 46, Vanchi’s own father, who is certainly not ill-disposed towards the accused, and who says that the tenth and fourteenth accused while employed at Tanjore and other places would return to Shencottah at times for a day or two.
Even if the date of the meeting be fixed, strictly on September 21st, it would be impossible to say that the improbability of such a visit was such as to seriously impair the credibility of prosecution witness No. 29’s evidence: but this witness like most of the others is hazy about dates and it may have been much later.
Prosecution witness No. 29 is clear that it was after he wrote a certain letter dated 14th September: but there is nothing to enable him to speak with certainty as to how long after. The later the date of the meeting, the less becomes the improbability of accused’s having been in Shencottah on a flying visit when it occurred.We have dealt at some length with this alibi evidence, because considerable reliance is placed on it by the defence, but in our opinion it does not meet the prosecution case.
We consider that the charge is made out against the fourteenth accused, Pichumani Iyer, and we convict him on the first count.
Second count.–We now pass to the consideration of the second count in the indictment, the charge of abetting the murder of Mr. Ashe by conspiracy. The conspiracy is described in the indictment as “a conspiracy, one of the objects of which was the murder of all Europeans.”
The object of the conspiracy as stated by the witnesses called on behalf of the Crown was (in examination-in-chief) “That people should be collected in all the villages and that all the white people should be killed on the same day and that a similar mutiny to the one which took place in 1857 should be organized.” In examination-in-chief, “We should kill all white men. The affairs of the society should not be revealed. We must sacrifice our person, property and life for this society. Whoever reveals the affairs of this society will go to hell and he will be killed just as Gossain was killed, murdered.
Just as we drink the red powder solution now it is the white men’s blood.”…..(In cross-examination).–
Q.–From what you told us I gather that the object of your association was to collect people to rise against the Government on a stated day and drive Europeans out of India by killing them all. Is that so or not?
A.–That is so.
Q.–Who was to fix the day?
Q.–And was he to communicate the day to the various members of the society?
A.–He said he would intimate the dates…..
(In cross-examination).–“He (Nilakanta) said that a new idea has come about, that is to effect a revolution, that is, people should be collected in the several villages, that we should effect a mutiny like the Sepoy Mutiny of 1857.”
(In examination-in-chief).–“To establish swaraj in India the whites should be driven out of India. They should be killed wherever we meet them; if anybody should reveal the secret societies and the members connected therewith, he should be killed just as Gossain was shot and killed and he should go to hell.”…..
A.–“Nilakanta said he would fix a time and announce it.”
Q.–And when he announced it, what was to happen?
A.–He said “more persons should be collected and at the time which I fix and announce all in a body should kill the whites at the same time.”
(In cross-examination).– Q.–Did he tell you that the plan with Nilakanta was to give the word and when the word was given that everybody was to rise on the same day?
(In examination-in-chief).–“That the English are ruining our country very much. Through them several diseases are spreading in the country. They are oppressing the people by imposing several taxes. In this manner as they are bringing much trouble to the people they should be driven out from India. That the weapons necessary to drive them out were being prepared in Pondicherry”…
(In examination-in-chief).– Q. What was the new means?
A.–People should be collected in towns and villages for secret societies and a revolution like that of 1857 should be effected….
The effect of the evidence as to the nature and objects of the conspiracy is that the conspiracy was a plan for a general rising to take place on a day to be fixed by Nilakantam for the purpose of killing all white men and driving them out of India.
The new idea to which Nilakantam refers is contrasted with the old plan of “members standing near and shooting” as in the case of the Nasik Collector and Asutosh Biswas and Nilakantam apparently suggested that the “new idea” should be substituted for the old plan.Arumugam stated in his evidence that he knew nothing about the murder of Mr. Ashe.
Speaking of a conversation between Muthukumarasamy Pillai, Subbayy’a Pillai, himself and K.V. Arumugam which took place after the murder of Mr. Ashe, Somasundaram said it never struck him one of his society had committed the murder. No doubt, he also said speaking of the murder of Mr. Ashe “We had already intended to kill him God himself has worked and he had been killed.”
But this intention would seem to have reference to the conversations which were spoken to by Somasundaram between himself, Madasami and Vanchi on one occasion and between himself, Arumugam and accused Nos. 4 and 5 on other occasions–all much later in date than the oath meetings which cannot be relied upon as showing the nature and objects of the conspiracy organized by Nilakantam.
The document found upon the body of Vanchi (EE) suggests that the murder of Mr. Ashe was in pursuance of a conspiracy (of which there is no evidence) entirely distinct in its nature and object from the conspiracy which has been proved in this case.Mr. Napier contended that though the act done (the murder of Mr. Ashe) was different from the act abetted, it was a probable consequence of the conspiracy which constituted the alleged abetment, and was committed in pursuance of that conspiracy.
It may be that the murder of Mr. Ashe was a probable consequence of the conspiracy proved in the sense that Vanchi’s mind had been inflamed and his criminal propensities aroused by the pernicious influences exercised by the members of the conspiracy, but that is not enough. We must be satisfied that, although the members of the conspiracy which is charged in the indictment and which has been proved to have existed did not conspire to murder Mr. Ashe, Mr. Ashe was murdered “in pursuance” of that conspiracy within the meaning of section 111 of the Indian Penal Code. On the evidence we are unable to take this view.As regards the second count of the indictment all the accused are acquitted.
As regards the first count we acquit Desikachari (the ninth accused), Vembu Aiyar (the tenth accused), Chavadi Arunachalam Pillai (the eleventh accused), Alagappa Pillai (the twelfth accused), Vandemataram Subramania Iyer (the thirteenth accused).
We convict Nilakantam alias Brahmachari (the first accused), Sankara Krishna Iyer (the second accused), Madathukadai Chidambaram Pillai (the third accused), Muthukumarasamy Pillai (the fourth accused), Subbayya Pillai (the fifth accused), Jagannadha Iyengar (the sixth accused), Harihara Iyer (the seventh accused), Bapu Pillai (the eighth accused), and Pichumani Iyer (the fourteenth accused).
Chettur Sankaran Nair, J.
The accused, 14 in number whose names, occupations, etc., are given below are charged with having entered into a conspiracy to wage war against the King-Emperor:–
- The case is that they with certain others conspired to rise against the British Government on a certain day to be fixed by the first accused and on that day to massacre simultaneously all the white men and to expel the British Government. It is also alleged that the murder of Mr. Ashe was due to this conspiracy. They are accordingly charged for the first offence under section 121-A and for the second offence under sections 302, 109 and 111, Indian Penal Code. In the charge it is stated that the accused became members of the conspiracy on various dates between the 1st January 1910 and 17th June 1911, the day of the murder. But the date when the first conspiracy was entered into is now ascertained to be the 10th April 1910.
- The evidence in the case refers to various meetings held between January 1910 and June 1911. There is a mass of correspondence between the alleged conspirators themselves who are not less than twenty in number. There is a mass of newspapers, pamphlets, leaflets, filed in the case and the oral evidence is voluminous.
- The terms swadeshi and swaraj have been very often used by the witnesses and they will be used in the course of this judgment. According to the evidence, swadeshi articles meant “articles manufactured in India by Indians.” Generally the term is applied to native industry or enterprise. Swaraj literally means “own Government” or “self-Government.” Arumugam Pillai, the principal witness in this case, states that he meant by swaraj not the driving of Europeans but “that India should be governed by Indians.” Other witnesses say that swaraj implies the exclusion of white men. Whether it means self-Government to the exclusion of British sovereignty or under it must be determined by the context.
- I shall first state the prosecution case about this conspiracy. Nilakantam, the first accused, left Pondicherry towards the end of March or the beginning of April 1910. He proceeded at first to Tenkasi with Sankarakrishnan, the second accused, and sent Sankarakrishnan to bring Arumugam Pillai, the approver (prosecution witness No. 6) from Tuticorin. Arumugam Pillai, the approver (prosecution witness No. 6) 19 years old, is an accountant getting a pay of Rs. 7 in the firm of S.M.S., Tuticorin. The account that we have of the meeting at Tenkasi is given by him. Sankarakrishnan, the second accused, met Arumugam Pillai, when the latter and the prosecution eighth witness were talking together in one of the streets of Tuticorin. The second accused enquired for Arumugam Pillai who was known to Nilakantam as a contributor to “Suryodaya” published at Pondicherry and prosecution witness No. 8 pointed at Arumugam to the second accused as the man he was in search of and the two together went to the house of Arumugam Pillai. Sankarakrishnan then told him that Nilakantam who had published the “Suryodaya” had come to the district, that a meeting was going to take place and that Arumugam and his party were required to be present at the meeting. Arumugam agreed to go to that meeting. Sankarakrishnan went to Tenkasi the same night. The next night, Arumugam followed him and there at the house of the third accused Chidambaram Pillai met with Sankarakrishna Iyer, Nilakantam, the first accused, Chidambaram Pillai, the third accused, himself and Subramania Iyer, the thirteenth accused. There was first a general conversation about swadeshi matters. Nilakantam soon took him to a separate room and introduced himself as editor and correspondent of “Suryodaya.” He then pointed out to him how patriots have been working for the cause of India; that many of them edited newspapers and published books but were convicted; that the Bengalis therefore took to manufacturing bombs in the interests of the country and murdered certain Europeans–they too were arrested and convicted; that now, they have a new idea, that is, to carry on a revolution like that of 1857; that people should be collected in all villages and they should be prepared to rise in rebellion on a stated day and massacre the Europeans and India was to attain swaraj. Nilakanta agreed to fix a day for the revolution. The witness Arumugam Pillai agreed to what Nilakanta said. Accordingly they joined the other persons who were there and they took an oath. What happened may be described in his own words:–
“There was a picture of Kali there. There was red powder, sacred ashes and flowers kept on the floor there. We five sat in a line, Nilakanta was a little aside and wrote on a paper. We put that red powder into water and made a solution of it and each of us drank it separately saying that that was the white man’s blood.” As to what is contained in that paper this is what he said “on the top Vande Mataram was written, we should kill all white men. The affairs of this society should not be revealed. We must sacrifice our person, property and life for this society. Whoever reveals the affairs of this society will go to hell, and he will be killed just as Gossain was killed, murdered. Just as we drink the red powder solution now it is the white man’s blood.”
- Then that they might carry on secret correspondence among themselves, other names were given to them. And Arumugam states that these new names in lieu of their proper names were written below. Against each of these five names each man cut his finger and impressed his thumb on the paper. Arumugam Pillai was also asked to enlist recruits and to distribute the “Dharma” paper published at Pondicherry for the purpose of enlisting the sympathy of the readers and getting recruits.
- Nilakanta went back to Pondicherry and then a short while afterwards went again on a tour to the west coast. It is proved that Sankarakrishna Iyer who was then at Tenkasi proceeded to meet him and there is no doubt that he did it in consultation with Vanchi Iyer (see exhibit G12) who is proved to have murdered Mr. Ashe. From there he proceeded to Alleppey in the native state of Travancore where they met Harihara Iyer, the seventh accused, and they both went to Cochin. Hariharan sent Sankarakrishnan to Ernakulam and he himself returned to Alleppey on or about the 1st of June, where he met Nilakanta and Sankarakrishnan. All of them proceeded to Punalur. These facts are proved by documentary evidence, see exhibits G9, G10 and G11. From Punalur they appear to have gone to Shencottah, also in the same native state where, it is alleged that Nilakanta held a meeting at the house of prosecution twenty-first witness, Sivagaminatha Pillai. The only evidence that we have of what they talked about at that place is that of this witness, who states that Vanchi told him they were discussing swadeshi matters. From there, according to the prosecution, Nilakanta went to Tuticorin. Arumugam Pillai who had been already enlisted as a member of the conspiracy at Tenkasi, was there. Somasundaram, the other approver, prosecution twelfth witness, and Madasami, who is now absconding, were Arumugam’s particular friends whose sympathies he had already enlisted. There, at a meeting Nilakanta is alleged to have enlisted the fourth and the fifth accused as members. He was accompanied by Sankarakrishnan. Nilakanta is stated to have been at Tuticorin about the end of July.
- The story is next taken up by Ramasami Iyer, the prosecution sixteenth witness. Ramasami Iyer says that he and Hariharan, the seventh accused, left Alleppey about the 10th of August, met Bapu Pillai, the eighth accused, at Quilon, negotiated with him for the purchase of his gramaphone and from there Hariharan and he went away to Punalur where they met Vanchi Iyer, the assassin, and lived in his house. They met there Nilakanta, the first accused, Sankarakrishnan, the second accused, Madasami, now absconding, and Jagannatha, the sixth accused. The next day Bapu Pillai also returned from Quilon and came to Vanchi’s residence. Nilakanta then said that the paper “India” should be fetched from Tenkasi Chidambaram Pillai. Hariharan and the witness left for that purpose. Hariharan stayed at Shencottah, Ramasami and Madasami went to Tenkasi, where they went to Chidambaram Pillai’s concubine’s house. Madasami obtained “India” from Chidambaram Pillai and handed it to Ramasami to take it to Punalur. Ramasami accordingly took it to Shencottah, gave “India” to Hariharan and then went back home for Avani Avittam. Avani Avittam fell on the 20th of August. Then, two days after Avani Avittam, Ramasami and Hariharan went to Shencottah where they lived in Dharmaraja Iyer’s house. He met there Nilakanta, the first accused, Sankarakrishnan, the second accused, Vanchi Iyer, the assassin. Jagannadha Iyengar, the sixth accused, Pichumani, the fourteenth accused, Savadi Pillai, the eleventh accused, and one Subramanian Pillai; he stayed there two days and he states that, on the two days he lived there, after meals in the nights, Nilakanta delivered addresses to them. In his examination-in-chief, the witness says “Nilakanta told them that it was their duty to see that native industries were fostered, that trade should he developed and that English goods should not be purchased at all, but they should purchase only goods of Indian manufacture.” Ramasami added in cross-examination that Nilakantan also said that we should obtain Swaraj; “and for that purpose the English people should be killed.”
- From Shencottah some of them went farther. Dharmaraja Iyer, Vanchi Iyer, the first, sixth and the fourteenth accused and the witness first went to Punalur where they met the eighth accused Bappu Pillai, and Venkatrama Iyer and the ninth accused, Desikachari. Hariharan, the seventh accused, is also stated to have come afterwards. Nilakanta delivered addresses there also speaking about the attaining of Swaraj. He told them that machines and looms should be established and that the English were ruining the country very much, that diseases were spreading in the country, people were being oppressed with severe taxes and for that reason they must be driven out of India. He said the weapons necessary for driving them out of the country were being prepared at Pondicherry and finally they took an oath which was in many respects like that already taken at Tuticorin and at Tenkasi. Certain differences will be referred to later. The men who took the oath were the accused Nos. 1, 2, 6, 7, 8, 9, 14 and Vanchi Iyer, Dharmaraja Iyer, Subramaniam Pillai, Venkatrama Iyer, two others and the witness. Nilakanta seems to have insisted upon them, after the taking of the oath, of the necessity of erecting oil-mills and of manufacturing of soaps, candles, etc., and asked them all to contribute money for that purpose. After that he seems to have left the place for Pondicherry, concerned himself only with the publication of the book and gone away to Northern India early in 1911. His movements will be referred to later.
- On behalf of the prosecution, we have also the evidence of two other meetings held at the houses of the eleventh and twelfth accused at the end of April and early days in May 1911. Here however Nilakantam was not present, no oath was taken and no society was formed but at one of these meetings at the house of the twelfth accused Alagappa Pillai, the necessity of fostering home industries and of driving out the English is alleged to have been insisted upon.
- These are the various meetings mainly relied on by the prosecution for the purpose of proving the conspiracy. There are three–at Tenkasi. Tuticorin and Punalur at which societies were formed and oaths taken binding the members to secrecy and to take steps to drive out the English. In one place they seem to have suggested that the English should be expelled without any oath being taken. On other occasions, only Swadeshi was talked of.
- On the 17th June, Mr. Ashe was murdered by Vanchi Iyer. When his house was searched, certain letters were discovered which showed that Arumugam Pillai, prosecution witness No. 6, the approver, was in communication with him and when the Police Inspector therefore proceeded to search his house, he is alleged to have disclosed this conspiracy and given all information about the meetings at Tenkasi and Tuticorin. On information supplied by him, Somasundaram, the other approver, prosecution witness No. 12, was arrested, when he disclosed to the Police Inspector all he knew. The name of the third approver was referred to in the correspondence discovered, and when he was arrested later, he gave all information about the meetings in Travancore.
Before I deal with the evidence of conspiracy, it is desirable to state a few facts leading up to it; and, as the Public Prosecutor dwelt at some length on “the extraordinary way in which the town of Pondicherry seems to permeate this case,” before referring to the rest of the evidence, I shall first refer to the events at Pondicherry.
- In Pondicherry, a French town, there were certain persons whose aim was to thoroughly discredit the British Government. Some of them pointed out in newspapers, published by them in Tamil and circulated in British India, the economic evils arising out of the British administration; they also referred to the offensive conduct of the English officials. Besides publishing the newspapers, there were also sympathetic lives of certain leaders of Indian agitation like Tilak, Aravinda Ghose and Chidambaram Pillai. Pamphlets advocating Swadeshi, boycott of everything foreign, were published; union among the Indian classes was advocated and also revolutionary leaflets advocating assassination and expulsion of the English from India. In these publications, all the benefits of the British rule were denied and the evils were portrayed in flowing colours. Exhibit GGGG, for instance, dated the 23rd February 1909, is a pictorial presentation of a ship loaded with wheat to England with fat officials speaking to three famine-stricken ryots depicted as mere skeletons with the following explanation:–
English official: “You people, we give you protection, security and peace in this country.”
People: ‘ Sir, you gave sufficient peace, but you take away the food.”
This kind of teaching is enforced on various occasions. Over and over again, it is pointed out that “owing to the wealth of India which is our motherland being taken away by foreigners every year in crores immeasurable, poverty and disease have been increasing and many people dying of famine and meeting with untimely death from plague and other frightful diseases”; and to enforce this, it is pointed out ” 8 crores of persons always remain hungry and depart this life in our country, our land of Bharata, which is said to be the paradise on earth, not having sufficient food for the stomach and famine has begun to settle permanently in our country. The plague also has taken a foothold in our country.” “Every week not less than 40 thousands of our people are dying of this disease. As for malarial fever, it has been causing the death of not less than 15 lakhs a year for the last ten years and more.” And then that there might be no doubt about the facts it is added “all these figures have been taken only from the white faringhees who are our enemies.” It is repeatedly pointed out that so long as the major portion of the crops is exported, the country cannot be free from these evils. One leaflet states “all the higher appointments are given only to faringhees. It is only occasionally that he gives one or half of these appointments, those which carry no powers, to natives, taking care to select such persons as would deal with the people cruelly just as the throwing bones to dogs.”
Again it is in another place stated “all the industries of the country are ruined by Englishmen, the shipping trade of the various places (mentioned) were also ruined and if a ‘blackman’ starts a ship in trade, he is sentenced to six years’ rigorous imprisonment, as the great man Chidambaram Pillai.”
The Englishmen “have vowed not to impart to our people industrial education.” “Railways are really constructed to carry away food crops and for military purposes. Confidential reports are written that if people do not die like this, they will increase very much. Revenues are collected by making people raise loans at exorbitant interest.
As to the administration of justice, it is said in exhibit UUUUU that people are suddenly deported. It is written there “the 9 gems Sriman Aswini Kumar Dutt and others and Sriman Tilak and other great men who are the patriots of our country have not yet come in our midst. They are lying in prison. Would we have the mind to rejoice at the dry bones of the new reforms while even the elementary rights of man are in difficulty? What security is there to life and property in our country if our people be thus exiled from the country!” England is stated as a very wealthy country, the income per head per annum amounting to more than Rs. 695, yet the State there feeds more than 9 lakhs of paupers. The income per annum per head in India is stated to be Rs. 9 1/4 to 21, yet all the money is spent for the army, for European officers and for pensions. The cry always is “in India there is no poor person at all, the Indians have a superfluity of wealth, they are keeping treasures hidden and exhibiting poverty”–see exhibits UUUUU–1 and HHHH.
Punitive Police is established for no cause whatever–see exhibit HHHH; and Police oppression is insisted on in these publications. They point out that these students who have received very good English education are treated disgracefully, though they might be as capable as Englishmen. The use of bombs is said to be the result of the British rule–see exhibit KKKK. The treatment of Indians in South Africa is referred to. The education imparted in English schools is condemned, because those who enter those schools do not know the greatness which the land attained of yore, the lowness enveloping it in these days, and it is added, they do not know the state to which it will come hereafter–see exhibit BBBB.
The Government is charged with playing one race against the other. It opposes the Hindus and the Muhammadans to each as co-wives with the threat that Government which is the husband would, if one of the wives showed a temper, go to the company of the other wife and enjoy himself with her.
The Hindu religion is said to be persecuted; putting down Sati and the Widow Remarriage Act are given as instances.
The man who was appointed a guardian to Sankaracharya was a faringhee who eats cow’s flesh and has come to root out the Hindu religion through the Christian Missionaries. As a remedy for all these things, it is said, that independence is absolutely necessary–exhibit EEEE.
In answer to the argument that the English rule alone prevents the various classes of the country from breaking out into sanguinary strife, it is pointed out that the English said the same thing about the Americans before they won their independence. It is reported that the Englishmen then said that the colonists residing in the different parts differed from each other greatly in quality, in conduct, in observances, in religion and in private interests. If only they were left free (without the English Government), war extending from one end to the other of the Continent of America would arise. Extracts supporting these views from historians are referred to. These pamphlets invent or discover a golden part; they tell the people that this is a holy land with sacred shrines and with sacred rivers whose names are recited to impress them in their memory. They tell the readers that it is a land in which the Gods live and labour for their good, and then exhort them to see that such a land is prosperous and Dharma flourishes there. The readers are told briefly that Dharma is trampled under foot and that for Dharma, Swaraj or self-Government is indispensable. “The two are connected as means to an end. Swaraj without Dharma is despicable and so Dharma without Swaraj is powerless. The sword of material power swaraj, should always be drawn for our object, our safety in the other world, Swadharma. The command of God is to obtain Swaraj, for that is the chief key for the protection of Dharma. He who does not intend to acquire Swaraj, he who sits silent in slavery, he is an atheist and a hater of religion.”
Then the poet Saint Ramadoss is quoted as saying to the Mahrattas “Die for your Dharma, kill the enemies of your Dharma before you are dying in this way, fight and take back your kingdom.”
It is possible that the very violence of these teachings might have proved their antidote, but for the fact that it is mixed up with a teaching of a very different kind. Over and over again economic questions are discussed with a good deal of ability. It is proved that English competition has destroyed Indian industries. It is explained that the Indians have no means of reviving their industries and that the English trade is favoured. Swadeshi and boycott is repeatedly insisted on for the protection of the Indian industries and for the progress of the country. And, above all, various writings like the Vandemataram songs, Aril Oru Pangu make passionate appeals for union between the followers of different religions, like the Hindus, Muhammadans and Christians, between the various castes amongst the Hindus, tell them that they are all brothers, children of the same mother, and ask them to live with one another as brothers. India is personified and deified and over and over again in the newspapers and pamphlets people are called upon to worship her and love her as a common mother. All this is done not only in powerful prose, but in verses of power and feeling. There is evidence that Tamil songs were sung at one of the seditious meetings that will be referred to later and there is little doubt these songs must have been sung at others as well and they are bound to have produced an immense effect.
The necessity for the sacrifice of oneself to the country’s good is always insisted upon. The people are told that they must expect prosecutions. “The patriot must bear with patience and courage the prosecutions which resemble waves which he may meet with by his doing the great virtuous action of service to the country. Even if perchance he should meet with trouble, he should consider all that a pleasure. When cattle die the Pulayan (pariah or low caste man) covets them. Giving up the false attachment to this body which is not liked even by such a Pulaya (carcass-eater) and doing at all times with a strong faith the duty of his strong faith, the duty of service to the country, undaunted even if hardships occur by crores, is the paramount duty imposed by God on every Indian. This itself is the paramount duty of an Indian”–see exhibit AAA. That this life should be regarded as a trifle is referred to also in other places. To encourage the people, an old religious prophecy is invented. Veda Vyasa is said to have declared that the Empire of the white men will be ruined before Ananda (i.e., 1914) and for that reason the great sages and men who have attained supernatural powers are standing behind and guiding in this precious task.
Aravinda Ghose who is proved to be living at Pondicherry is stated to have declared in reply to a Karmayogin correspondent that 5,000 years of the Kaliyuga have expired, that a new epoch has commenced and in the next four or five years there will be “great deluge, change, revolution, great revolution, great persons falling, low persons rising, change, change, change everywhere, change in the Government, change in our people, new methods, new ideas in all”–see exhibit BBB.
As a specimen of the verses inciting to independence, the following translation may be referred to (exhibit OOOO). It does not of course convey the force of the original:–
“When will subside this thirst for liberty?
When will perish our love for servitude?
Oh! when will snap our mother’s manacles?
And when will our troubles cease and become null?
Oh! Thou! that came once for the Bharata war,
Thou, Protector of Aryans’ lives!
Is it not Thy mercy to assist us with victory?
Is it proper Thy devotees still suffer?
Are famines and epidemics (reserved) for Thy true servants?
To whom else is all greatness in this world?
Canst Thou give up those who have taken shelter under Thee?
And can the Mother cast her child away?
Is not Thy duty to say–‘Fear not.’
Oh! Arya! Hast Thou forgotten Thy virtue?
Oh! Thou, Destroyer of the evil Rakshasas (demons)!
Oh! Gem of warriors, Oh! Best of Aryans! ”
All this and more appear from the various newspapers, pamphlets, lives, leaflets, discovered during the search of the houses of the accused persons except one, and that was found with Nilakanta. I am not prepared to hold any one of the accused responsible for the opinions expressed in the papers found in his house; they are only useful to show their wide distribution. It is impossible to say whether the editors of the newspapers at Pondicherry were responsible for the opinions expressed in the leaflets or pamphlets. The newspapers generally point out the economic evils attendant on British administration and the oppressive character of such an administration. It is the leaflets that are revolutionary.
It is to this hot bed of treason against the British Government that Arumugam and Somasundram, disgusted with what was taking place in Tinnevelly and Tuticorin, turned, as will be presently pointed out, for guidance and for help. Arumugam states that not only did he receive those papers, but began to contribute articles to one of them, “Suryodaya.”
The prosecution case is that it was from Pondicherry that Nilakantam was sent out or at any rate that he proceeded to the southern districts of the Madras Presidency and to the Native State of Travancore to preach sedition and treason against the British Government and to form these revolutionary societies of which the other accused are alleged to be members. It is only right to say that in March 1911 the Pondicherry newspapers asserted that he was an impostor and did not go out on their behalf. Nilakantam was on the staff of the “India” newspaper, published originally in Madras and afterwards removed to Pondicherry in October 1908. He was also sub-editor of another paper “Vijaya”–see exhibit ZZZ. He was editor or sub-editor of “Suryodaya” and he had something to do with the “Dharma,” paper as he undertook, it appears clearly from the documentary evidence, to send it to some of the accused in the case. He professed to be a sanyasi. The first place to which he proceeded was, as I have stated already, Tenkasi. With reference to the use he made of religion in his lectures there, Arumugam, prosecution witness No. 6, says “I took it at that time all that he preached was sedition in the shape of philosophy.”
“Q.–Did he preach any philosophy to you apart from sedition?
A.–All his words appeared to me to be philosophy and appeared to me also proper.
Q.–Can you answer my question?
A.–Whether it was philosophy or sedition, all sedition he preached appeared to me to be philosophy.
Q.–You mean he might have preached pure philosophy to you without any sedition in it–which you were willing to take as sedition?
A.–It is like this, all that he talked was sedition and it appeared to me to be philosophy.”
The word used for philosophy was vedantism.
At Tuticorin three months after what he did was the same.
“Q.–What directions did he give you with regard to the people who were to be brought?
A.–He said that he wanted only vedantis. He would speak about the ephemeral nature of the body, that they would not mind their person also. He said that such persons were most fit for revolution business. He also said that if there were good patriots they could also be joined.
Q.–He spoke about people of this class being brought, did he say anything also about anybody besides the direction about vedantis?
A.–He only spoke about the ephemeral nature of the body.
Q.–Did he give any directions as to the thing to be done about these vedantis?
A.–He said that vedantis should be brought and made to take part in the meeting “–that is the character he adopted.
How he set about his business is instructive to note. That appears from the evidence of one of the prosecution witnesses, prosecution witness No. 8,–according to whom people were invited to go to him on the ground that he was a yogi and that he was learned in the vedanta. And, when these witnesses went to him, this is what took place. Prosecution witness No. 8 says “I had a sandal-paste mark and also a red powder on my forehead. He asked me why I had kept them. I said ‘It is the swami, i.e., Nilakantam that should say everything, I cannot say.’ He said it is the mark of swami. It is always kept there for that purpose and the powder is the symbol of Sakti. Those marks should be placed considering Siva and Sakti. He must always be prayed to. And the days should not be wasted in vain. Always you must be devoted to Easwara.” Of course, there is nothing wrong in this and with this witness he did not proceed further, but the teaching about the ephemeral nature of the body is consistent with the teaching in the leaflets above alluded to. Its effect upon some of the accused appears from the documentary evidence as well. Hariharan, the seventh accused, writes in exhibit G-11 that he feels that “action” is useless. There is no doubt that Vanchi, the assassin, came under the same influence also (exhibit G-14) and when I refer to the murder of Mr. Ashe I shall set out the evidence on this point in greater detail. The admitted evidence in the case snows that after he left Madras, say about March 1911, he proceeded to Northern India and gave out that he was interested in religious and social matters (see the evidence of defence witnesses Nos. 1, 3 and 6). Mr. Govindaraghava Ayyar referred to the authority of Max Muller on the point that vedantism could not possibly have any pernicious effect. No higher authority can be referred to, and I entertain if I may express an opinion, no doubt he is right, but, as the Public Prosecutor pointed out, this is not the question; it only shows that the noblest religious principles may be used for such treasonable purposes.
All this, it is certain, would not have led to the murder of Mr. Ashe, nor, in all probability, to the treasonable conspiracy now in question but for the contemporaneous swadeshi and boycott agitation in Tinnevelly and its consequences.
- It appears from Arumugam Pillai’s evidence that his attention was first drawn to swadeshi questions by Mr. G. Subramania Aiyar when he delivered lectures in 1907 at Tuticorin to collect funds for the National Fund and the Industrial Association at Madras. This is an industrial and non-political association intended to help young men to receive education in technical subjects and to take steps for the industrial development of the country. Arumugam states that Subramania Aiyar’s lecture drew his attention to the fact that foreign goods must be boycotted and that swadeshi goods must be purchased to help native industries. After Subramania Aiyar left the place he came under the influence of Subramania Siva and Chidambaram Pillai. Subramania Siva received his education in Travancore, assumed the garb of a sanyasi and was tramping through the country as an itinerant preacher lecturing on swadeshi and boycott, among other subjects. He came to Tuticorin where he delivered a series of lectures in 1908; some of them were attended by the two approver-witnesses Arumugam Pillai and Somasundaram. For these lectures he was tried and convicted (see Chidambaram Pillai v. Emperor MANU/TN/0221/1908 : (1909) I.L.R., 32 Mad., 3).
At Tuticorin Subramania Siva came under the influence of Chidambaram Pillai whose name appears so often in these proceedings. Chidambaram Pillai was a second-grade Pleader of Tuticorin who had given up his practice to deliver lectures to his countrymen pointing out to them the benefits which would accrue by supporting swadeshi enterprise. He was mainly instrumental in starting the Swadeshi Steam Navigation Company, Limited, in October 1906 and he was also connected with several swadeshi concerns in Tuticorin. The Navigation Company attracted to itself a good deal of the traffic between Tuticorin and Colombo till then in the hands of the British India Steam Navigation Company. He thus became, perhaps naturally, a violent opponent of the British India Steam Navigation Company and certain other English companies in Tuticorin. He delivered a series of lectures in which he advised mainly a boycott of English goods, English Courts and in fact everything appertaining to the governing race. He also was tried and convicted along with Subramania Siva. The substance of his lectures is fully set out in the judgment of the High Court upholding his conviction by the Sessions Judge of Tinnevelly. According to that judgment he pointed out three ways “to regain our lost position” (1) refuse to buy foreign goods, (2) refuse to appeal to the authorities on any occasion and (3) refuse the education by Government Schools; and afterwards he said “you must avoid the courts both civil and criminal; they must do this if they want to obtain swaraj.” His speeches were also concerned with the boycott of the Madura Company and the strike at the Coral mills. He was found dissuading the mill-hands from continuing the strike; “go back to work,” was his advice, “but demand more pay.” The judgment on this point concluded thus: –‘the absolute swaraj’ is to be arrived at by means of the boycott and abstention from all recourse to the authorities, swaraj through boycott is the burden of the speeches and the swaraj aimed at clearly involves the departure of all foreigners from India.
“It may be that Chidambara Pillai’s own object was to some extent commercial; he was interested to a great extent in the Swadeshi Steam Navigation Company and other industrial enterprises and he may have discovered by the 19th February 1908 that ordinary commercial competition was not likely to be effectual against such powerful and long established rivals as the British India Steam Navigation Company and the Coral mills and that his best chance of success was to secure the adhesion of his countrymen to his concerns by appeals to patriotic motives.
“To succeed, it was necessary to instil into their minds an aversion from everything foreign and it may be that some such object as this inclined him to the adoption of the political programme of the ‘absolute swaraj’. That he did adopt that programme, his speeches leave no room for doubt. He cannot be acquitted of disloyalty merely because he deprecated violence; and his exhortations not to create disturbances and his acquiescence in the request of the authorities as to closing the meeting early are in our opinion due to a natural desire that the course of the meetings should not be interrupted” Chidambaram Pillai v. Emperor MANU/TN/0221/1908 : (1909) I.L.R., 32 Mad., 3 at pp. 43 to 46.
I shall now complete the narrative of what took place in Tinnevelly after the 4th March, the latest date referred to in the judgment. We have to go a little further back. It appears that under the influence of the speeches delivered by Chidambaram Pillai on the 27th of February 1908 there was a strike of the mill-hands of the Coral Mills Company, a European Company. On account of that strike, public meetings were forbidden by the Divisional Magistrate, Mr. Bracken, who thought that the mill-hands had been induced to strike without any real grievance of their own and that serious mischiefs would probably ensue if the speeches were continued. This order was set aside by the District Magistrate and two public meetings were accordingly reconvened on the 1st of March. An increase of wages was given and the mill- hands returned to work on the 7th of March. They continued to work till the 12th of March; on that day Subramania Siva and Chidambaram Pillai were arrested in Tinnevelly under the orders of the District Magistrate which were afterwards set aside by the High Court. There was a riot at Tinnevelly on the 13th and it was found by the High Court that the arrest was the immediate cause of the outbreak, though there is very little doubt that it would not have occasioned a riot had it not been for the excited state of public feeling in Tinnevelly and Tuticorin, brought about by the seditious speeches of these two men. It is in evidence in this case that four (4) Indians were shot dead at that disturbance under the orders of the Collector, Mr. Wynch, and that the approvers thought that they were unjustly shot and killed (see page 339 of the printed evidence).
At Tuticorin also on the morning of the 13th, the people were excited and all the bazaars were shut. Accordingly at about 2 P.M., the Joint Magistrate Mr. Ashe issued an order prohibiting the meeting which was intended to be held in the evening at 5 P.M. In the evening however there was an assembly of about 4,000 people in the Pettai where the address was advertised to be delivered. Mr. Ashe proceeded to the scene of disturbance and the Deputy Superintendent ordered the meeting to disperse and, on their failure to do so, one round of ball was ordered to be fired in the air. The people did not disperse but threw stones on the police and a round of buck-shot was fired on the mob and the police charged out. The Deputy Superintendent had called on the mob in Tamil to disperse. The police had to fire some more shots on the crowd. A large number of persons was arrested for rioting but the Magistrate who tried the case found that it had not been proved that they had any information or notice prohibiting the meeting and they were not charged therefore on that account. But he held that those who threw stones were guilty of rioting and those who remained in the mob must also be deemed guilty of rioting, because violence was used by many of the members of the mob. The Magistrate held “that as no buck-shot was fired until after the mob was ordered to disperse and a warning shot had been fired in the air, this must have been heard by everybody for a long distance all round and anybody who remained in the crowd afterwards did so at his peril. The burden of proving that he did not hear the warning shot or did get away is on the accused. There must have been plenty of time to run away and their presence within buck shot sound is prima facie evidence of their guilt,” and he accordingly convicted those of the accused who were proved to have been there. (See exhibit 135.) It is the prosecution case that the brother of one of the accused was one of the convicted persons in this case. That after this the mill-hands returned to work for the wages that were paid to them before the 7th March not claiming even the increased wages allowed to them on that day need excite no surprise. It was also found in the riot case that the coolies made no distinction between official and non-official foreigners. The learned Judges say at page 30 (Chidambaram Pillai v. Emperor MANU/TN/0221/1908 : (1909) I.L.R., 32 Mad., 3) “there is much force in the observation of the Additional Sessions Judge that ‘to the mind of the average mofussil cooly there is no distinction between official and non-official foreigners. The non-officials are to them merely the kinsmen of the officials and the departure of the one at once involves the departure of the others’.” This want of confidence in the officials on account of their assumed partiality towards non-officials even in their official dealings may possibly account for a good deal of what followed. Arumugam Pillai states in his evidence in this case that he associated Chidambaram Pillai and Subramania Siva with swadeshi matters as distinct from politics and Nilakanta with politics. He also states that he thought that the officials were doing unjust acts and the Englishmen must be driven out and swaraj obtained. He also says that he talked with men like Madasami about the unjust convictions and about the unjust laws, though they did not discuss any definite plan. I have already shown that the seditionists at Pondicherry were pressing forward every grievance real and imaginary and they were not slow to avail themselves of this opportunity. In the “Janma Bhumi” they gave expression to and perhaps clarified the South Indian Tamil feeling. The following are the translations of some of the extracts read in evidence (exhibits 0000-1 and 0000-2].
Collector Mr. Wynch’s address to Chidambaram Pillai.
(Just like the Brahmin overlord of Nanda (the Pariah saint) rebuked Nanda for spreading Siva worship in the country, so Mr. Wynch reproves Chidambaram Pillai as follows):–
- You have spread the desire for liberty throughout the land and started the conflagration, and I will put you in the jail and torment you there and establish my strength.
- You collected crowds and shouted Vandemataram and abused us and you have steered ships and produced wealth for us to run away.
- You spoke truths to the timid people and you transgressed the law, you mockingly said that dying with poverty in the country is peace.
- You made men of slaves and dispelled (their) wretchedness and you redeemed those that were content with poverty and gave them hopes.
- You incited those who were content with servitude as a profession and thirsted for glory. You showed the way to learn all sorts of industries and drove away lassitude.
- You induced this desire for swaraj everywhere and you sowed the seeds (of discontent). Can the tiny rabbit do the work of the lordly lion and thrive for ever more ?
- I will teach order and sense by firing (on the mob ?) and will kill and stab. Who is there to obstruct ? I will put you in prison and wreak vengeance.
Chidambaram Pillai’s reply to Mr. Wynch:–
- We will no longer be serfs to foreigners in our own land–fear we will not hereafter–will this injustice be tolerated in any land ? Will the Almighty tolerate (this) ?
- We will bow and until death cry Vandemataram. Is it base and degrading to praise our dear mother ?
- Is this perpetual plundering of our wealth to continue and are we to die ? Shall we be weeping ? Are we not men and is life (sweet as) jaggery ?
- Are the thirty crores of us cars? And young ones of pigs ? Are you alone men ? Is it just ? Why this stubbornness ?
- Is it sinful to love India ? Why do you misunderstand us ? Is it wrong to seek deliverance from our poverty ? Is this hateful ?
- We have considered and understood well that the way of unanimity is the only way. We will no longer be afraid of all your cruelties and lose heart.
- Can you gain your object even though you cut us to pieces and our life perish thereby ? The great love that shines in our hearts–will that go away ? Will our hearts grieve ?
The murder of Mr. Ashe was a direct consequence of this bitter hostility. It very probably led also to the formation of swadeshi and boycott societies legal in themselves, but some of whose members, Nilakanta, in my opinion, tried to convert into and in some oases possibly succeeded in converting into traitors. I shall fake up the evidence of secret societies distinct of course from the treasonable conspiracies now in question as it is earlier in point of time and may possibly throw light on the murder of Mr. Ashe.
Bharata Mata Association.
- Venkatarama Aiyar, prosecution witness No. 29, states that in the month of Thai, i.e., sometime between 14th January to 11th February 1910, he was told by Dharmaraja Aiyar at Shen-cottah in the Native State of Travancore adjoining the district of Tinnevelly. “We young men have formed a society. You shall also join it. We must make some contribution and send for papers from Pondicherry. We must hold tea parties, etc.” On his agreeing to this, fifteen days later in the month of Masi, i.e., between 12th February to March 1910 he was made to take an oath; Pichumani Aiyar, the fourteenth accused blindfolding him with a cloth and Dharmaraja Aiyar dictating the oath in the following terms: “I shall join the society. I shall treat the members who have already joined as friends and brothers and render them necessary help. I will not reveal the secrets which take place in the society. If I should reveal I shall be subject to such sin as to have killed Rishis and black cows.” The oath was first taken on a book and then again on a candle. By the time the oath was taken, Vanchi also appeared and told him that henceforth ‘we are all brothers’ and then Dharmaraja Aiyar said that ‘we should greet one another with Vande Mataram and in correspondence should write Bharatha Matha Sahayam’ and told him that the name of the society was Bharatha Matha Association. About fifteen days later in the month of Masi, i.e., between 12th February to 13th March they had a tea party in Dharmaraja Aiyar’s house where in addition to the persons already named the witness met Jagannatha Aiyangar and Harihara Aiyar, the sixth and seventh accused. They read the paper ” India” and in the words of this witness “We were talking about swadeshi matters that no English goods should be purchased, that we must use only goods manufactured by Indians and that we must carry on swadeshi” business. If we carry on such trade we should be benefited thereby. “The idea was in the words of this witness ‘that the members should contribute subscriptions and funds should be formed and from that trade should be carried on’ He further states that even at the first meeting when the oath was taken ‘he understood that the objects of the society were the encouragement of swadeshi goods in addition to the reading of papers obtained from Pondicherry’ and that there also the paper “India” was read. The witness paid subscription for two months and they continued to read the papers obtained from Pondicherry. The persons who were really working the society were according to this witness Dharmaraja Aiyar and Vanchi Aiyar. Then for some time they apparently did nothing. The evidence of this witness is corroborated by the documentary evidence in this case. In exhibit G-3, January 1910, a letter written by Jagannatha Aiyangar, the sixth accused, to the deceased, Vanchi Aiyar, it is written ‘that a meeting without Vanchi will be like the sky without the moon’ and Jagannatha Iyengar states, that ‘by the grace of Mother Bharatha everything will go on.’ Exhibit G-4 is a letter written by the tenth accused to Vanchi in which he asks whether the latter has read the “India” paper forwarded by him. Exhibit G-5 is written by prosecution witness No. 29 to Vanchi. The letter begins ‘in the name of Holy Mother Bharatha.’ It is dated the 6th April 1910. In exhibit G6, a letter by Harihara Aiyar to the deceased Vanchi, he says ‘May Mother Bharatha help’! It is dated the 9th April 1910. It is to be noticed that according to the prosecution the first meeting held by Nilakanta which had for its purpose the starting of a revolutionary movement was held at Tenkasi on the 10th April and all these letters were written before that date. They cannot be and are not relied upon to support the case for the prosecution so far as the revolutionary movement is concerned. But they support the evidence of prosecution witness No. 29. That witness states that when Vanchi first met him in January 1910 Vanchi told him that they had already formed a society. This is supported by the statement in G-3 which is dated 16th January 1910 which shows that a society had been started before that date. The evidence of this witness and G-3 place beyond doubt that there was a secret society in existence before the middle of January 1910. We do not know the date of its origin. The prosecution evidence makes it quite clear that the treasonable conspiracy which forms the subject of this prosecution was started only on the 10th April 1910. Why was this association formed as a secret society ? There was nothing illegal in its avowed objects. It was only to get papers from Pondicherry, to advocate and foster swadeshi enterprise. The unfortunate impression that swadeshi will be crushed as at Tuticorin and those who are responsible for it will meet Chidambaram Pillai’s fate is the only explanation I can find. It is possible that this may account for the society being started at Shencottah in a native state. If it had not its origin at Shencottah, then there must have been other Bharat Mada Associations in British territory of which Arumugam must have been cognisant. I am disposed to accept the suggestion of the Public Prosecutor that there may have been more than one such Association. These Associations were probably a consequence of the events at Tinnevelly. Mr. Ashe’s murder was directly due to them. Mr. Wynch and Mr. Ashe were the two chief officials in the district and responsible according to the approvers Arumugam Pillai and Somasundaram and those who thought like them for the conviction of Chidambaram Pillai and the ruin of the Swadeshi Steam Navigation Company and other native industries. I have already referred to their evidence that they regretted that there was no one to shoot Mr. Wynch. He left the district and was succeeded by Mr. Ashe who was till then only his subordinate. Their feelings were bitter against him also.
Murder of Mr. Ashe.
- The detailed evidence on the point is that of Somasundaram the approver. Somasundaram states that when he met Vanchi, who is proved to be the assassin, at Ottappidaram he first learned of the intention to murder Mr. Ashe. Vanchi asked how the swadeshi was getting on in Tuticorin.
Q.–What did he say about Steam Navigation Company, Chidambaram Pillai and Subramania Siva ?
A.– Steam Navigation Company Chidambaram worked for everything. The white men have ruined that, saying that the Indians should not conduct the Steam Navigation Company. The two persons who lectured have been sent to jail.
Q.–Yes, anything else ?
A.–For these two things, it is Mr. Ashe who is the cause. Generally all white people should be killed. He is the Chief Officer of the district, Mr. Ashe. He should be first killed.
Q.–Did they say anything of importance ?
Q.–What is it ?
A.–They were speaking about the murder of Mr. Ashe.
Q.–Well, what did they say ?
A.–He has spoiled the Steam Navigation Company. It is he that sent to jail those who worked for the country, viz., Subramania Siva and Chidambaram Pillai. First he should be murdered and the other white people should be killed afterwards.
- This is the evidence on behalf of the prosecution; that Mr. Ashe’s conduct at Tuticorin with reference to the conviction of Subramania Siva and Chidambaram Pillai and with reference to the Steam Navigation Company was one of the main causes of the murder. This has not been impeached in cross-examination and there can be no doubt about it, as the murder was clearly not in pursuance of the conspiracy to expel the British Government, of which the accused are alleged to be members. According to the prosecution evidence, and such is the prosecution case, as I have already set forth, these treasonable societies were started because assassinations of individuals proved a failure in Bengal and at Bombay. They resulted only in the conviction of the assassins. Assassinations of individuals like that of Mr. Ashe were not therefore within the scope of the treasonable conspiracy to which the accused, it is alleged, were parties. The object of the conspiracy was to collect people to rise against the Government on a stated day. This murder will not be in pursuance of that design. Mr. Ashe’s murder would obviously defeat that purpose by provoking an enquiry. The evidence of all the approvers is also against the prosecution in this point, Arumugam Pillai the first approver, states that the murder of Mr. Ashe was not suggested or mentioned at any of these meetings. Somasundaram Pillai, the second approver, states that, when he heard of the murder of Mr. Ashe, it never struck him or Arumugam Pillai that anybody connected with their society committed it. Ramasami Iyer, the third approver, also states that the murder was a surprise to him and that it never struck him that it was done by a member of the society and that there was no talk about it amongst them. The murder is otherwise accounted for, I have already referred to the evidence of Somasundaram Pillai that at Ottappidaram Vanchi told him that Mr. Ashe was responsible for the conviction of Chidambaram Pillai and the ruin of the Steam Navigation Company and that therefore he should be killed. Somasundaram also says that, when they heard of the murder, he and Arumugam and certain others discussed it and they all thought that Mr. Ashe was rightly killed because he had killed the Swadeshi Steam Navigation Company. That Vanchi, the assassin, was a strong Swadeshi Advocate is proved by the prosecution evidence and is clear from the fact that it was he and Dharmaraja Iyer who started the Bharata Society (see paragraph 14) about which prosecution No. 29 has given evidence, which I have already referred to. In exhibit G-14 he laments that though born a Brahman in these days one should without following the occupation of a Brahman consider service–by which he no doubt meant the Government service–superior to it–and he states in that letter that he must render some service to “the nation,” “as the family can exist only if the nation exists.” In exhibit 53 he states his intention of foresaking his family. It is proved he was reading newspapers that came from Pondicherry and that he was there sometime before the murder. Exhibit EE, the letter found in his pocket after he had murdered Mr. Ashe, and committed suicide and which has been proved to be in his handwriting runs thus:–
- “The English enemies have wrested our country and are destroying the imperishable ‘Sanatana Dharmam’ (eternal religion) by trampling it under foot. Every Indian is at the present time endeavouring to drive out the Englishmen, who is the enemy of (our) country and to establish Dharma and liberty. In a country where our Rama, Sivaji, Krishna, Gurugovind, Arjuna and others lived and ruled so as to make Dharma thrive, grand preparations are being made with a view to crown George Panchame ‘George V’ a Mlechcha (foreigner) given to eating the very cow’s flesh. To kill him (George) the moment he sets his foot in our country, we 3,000 Madrasis have taken a vow. To make it known I the least of them did this day commit this act. This alone is the duty which every one in Hindustan ought to do.”
- This supports the inference suggested by G-14 that his religious feelings were inflamed, Swadeshi and boycott generated dislike and disloyalty towards the Englishmen in general and Mr. Ashe in particular and his excited religious feelings nerved him to undertake the dreadful task. The evidence places beyond doubt that Mr. Ashe’s murder had nothing to do with the alleged treasonable conspiracy now in question.
I shall now consider the evidence of such conspiracy.
- I have already stated the prosecution case as disclosed by the evidence. It rests really upon the evidence of the three accomplices who have been granted pardon by the local Government on condition of their speaking the whole truth. Against some of the accused there is no corroboration of the approvers’ evidence. Against others there is some kind of corroboration. It is strenuously contended on behalf of the defence that their evidence should not be accepted without corroboration in material particulars, and that such corroboration is wanting in this case. On the other hand, the Public Prosecutor contends that it is unnecessary to insist upon such corroboration and that these approvers must be treated like any other witnesses coming before the Courts and their evidence believed or disbelieved according to the circumstances of each case. Section 133 of the Evidence Act (omitting certain words which are unnecessary) runs thus: “A conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.” Section 114 illustration
(b) is this: “the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars” and to this illustration there are certain exceptions pointed out which may be referred to later. Both sides have referred to the English law of evidence on this point. All the earlier cases are fully discussed by Sir Barnes Peacock in Elahee Buksh’s case (1866) 5 W.R. Crl. Rulings, 80 and the later authorities are discussed in Queen-Empress v. Maganlal (1890) I.L.R. 14 Bom. 115 and Queen-Empress v. Chagan Dayaram (1890) I.L.R. 14 Bom. 331, and by my learned brother ABDUR RAHIM, J., in Vyasa Rao v. Emperor (1911) M.W.N., 927. I shall only refer to two or three cases to illustrate the sections. In Reg v. Boyes 1861 9 Cox’s C.C., 32 Martin, B, has thus commented upon the evidence of an accomplice in summing up (page 34) “Assume for the purpose of the present discussion that this man was speaking the truth. Is there any law which prohibits a jury from believing a man who (it must be assumed for the sake of the argument) spoke the truth, simply because he is not corroborated ? I know of none. I know of no rule of law myself….”
This is really section 133 of the Indian Evidence Act.
Then Martin, B., goes on “but there is a rule of practice which has become so hallowed as to be deserving of respect. I believe these are the very words of Lord Abinger, it deserves to have all the reverence of the law.”
This is in effect as I shall point out later really section 114, illustration (b). Similarly COCKBURN, C.J., in the same case in the course of the argument said at page 35 “I protest against its being the duty of the Judge to direct the jury to acquit because the evidence of an accomplice is uncorroborated.” This again is section 133. But in delivering the judgment of the Court he stated both the rule of law and the practice. He said at page 36 “it is stated very well in Taylor on ‘Evidence,’ page 796, ‘The degree of credit which ought to he given to the testimony of an accomplice is a matter exclusively, within the province of the jury. It has sometimes been said they ought not to believe him unless his evidence is corroborated by other evidence, and without doubt great caution in weighing such testimony is dictated by prudence and reason. But no positive rule of law exists upon the subject, and the jury may, if they please, act upon the evidence of an accomplice, even in a capital case, without any confirmation of his statement. It is true that Judges in their discretion will advise a jury not to convict a prisoner upon the testimony of an accomplice alone, and without corroboration, and the practice of giving such advice is now so general that its omission would be deemed a neglect of duty on the part of the Judge. Considering too the respect which is always paid by the jury to this advice from the Bench, it may be regarded as the settled course of practice not to convict a prisoner, except under very special circumstances (the italics are mine), upon the solo and uncorroborated testimony of an accomplice. The Judges do not, in such cases, withdraw the case from the jury by positive directions to acquit, but only advise them not to give credit to the testimony.’ I think that is a fair exposition of what the present practice is. We think that he ought not to have told the jury to acquit if the witness was uncorroborated.” Here again he states the law as laid down in section 133 and illustration
(b) to section 114.
Similarly in Reg. v. Gallagher and others (1883) 15 Cox’s C.C., 291, the law is laid down in the same terms. Lord COLERIDGE, L.C.J., states (page 318) “There was no doubt that the law, as very many generations of lawyers had always laid down in the same way–whether it was most convenient, it was not for him to say, but he only repeated the language of those who had sat on that seat before him in laying it down again–that there was no reason why the evidence of an approver should not be acted upon by a jury if they thought it true, because the jury were to be satisfied of the truth of the matters proved before them and stated in evidence, and if from the evidence of the approver himself they were perfectly satisfied that he was speaking the truth, then there was no reason in point of law why on his evidence they should not act and find the accused guilty.
This again is section 133. The Lord Chief Justice goes on “But it had been usual, for Judges always to recommend that there should be some corroboration of the evidence given by an informer. The danger of acting upon the uncorroborated statement of an informer was obvious and the wisdom of requiring that some corroborative evidence should be given before such statements are acted upon was perfectly apparent to an intelligent mind. The law was as he had stated but the practice was always to require corroboration.”
This again is illustration (b) to section 114.
I will only quote two more cases. In re Meunier (1894) 2 Q.B., 415 at p. 418, CAVE, J., says “it is not the law that a prisoner must necessarily be acquitted in the absence of corroborative evidence; for the evidence must be laid before the jury in each case” (cf. section 133). “No doubt it is the practice to warn the jury that they ought not to convict unless they think that the evidence of the accomplice is corroborated” [cf. illustration (b) to section 114].
In another case, Rex v. Tate (1908) 2 K.B., 680, Lord ALVERSTONE, the Lord CHIEF JUSTICE, states (page 682) “‘In Taylor on evidence’, 10th edition, page 688, the practice is thus stated ‘Judges….in their discretion, generally advise a jury not to convict a prisoner upon the testimony of an accomplice alone; and although the adoption of this practice will not be enforced by a Court of Review, its omission will, in most cases, be deemed a neglect of duty on the part of a Judge. Considering too the respect which is always paid by the jury to such advice from the Bench it may be regarded as the settled course of practice not to convict a prisoner, excepting under very special circumstances (the italics are mine) upon the uncorroborated testimony of an accomplice.’ That appears to me to be a correct statement of the practice. And in ‘Russell on Crimes’, 6th edition, Vol. III, page 646, it is said that although the practice in strictness rests only upon the discretion of the Judge at the trial, “it may be observed that the practice in question has obtained so much sanction from legal authority that it ‘deserves all the reference of law’, and a deviation from it in any particular case would be justly considered of questionable propriety.”
“In the present case, the Judge did not direct the jury in accordance with the settled practice, but told them that the question for them was which of the two witnesses they believed, the boy or the prisoner thereby leading them to suppose that if they believed the accomplice’s story they might properly convict although his evidence was entirely without corroboration. Under these circumstances, we are of opinion that there has been a miscarriage of justice, and that the conviction should be set aside.”
It will be observed here that though he refers to the judgment of CAVE, J. who according to him did not state the law too strongly, he cites both from Taylor and from Russell only the extracts dealing with the practice omitting altogether what they state to be the rule of law, and sets aside a conviction by a jury although they believed the story of the accomplice on the ground that his evidence was entirely without corroboration, and that the Judge did not direct the jury in accordance with the practice as set out by Taylor and Russell. It is clear therefore that according to the learned Chief Justice the attention of the jury must first be drawn to the presumption of the unreliability of an accomplice’s evidence and it is only if they find that even, with such presumption against such witness’s credibility they believed him, they are entitled to convict, or in other words the circumstances must be such as to rebut that presumption.
The presumption must first be drawn that the evidence is untrustworthy. All the Courts are agreed that a conviction by a jury on the uncorroborated testimony when the Judge has not cautioned them against accepting it must be set aside. If therefore a case cannot be left to the jury without such direction, it seems to follow that this presumption must be raised.
In the latest case, Rex v. Everest (1909) 73 J.P., 269 at p. 271 DARLING, J., said that “it was long ago established that a Judge should direct a Jury to acquit if the evidence against the accused is that of a person put forward as an accomplice and his evidence is not corroborated in some material particulars.” The learned Judge here apparently goes beyond what the text writers and the previous Judges stated as a rule of law that the evidence should be left to the Jury.
As to the text writers, Taylor on Evidence and Russell on Crimes have been already referred to. I shall refer only to one more text writer, Best on Evidence. In the tenth edition, paragraph 171, it is stated “although with strictness a Jury may legally….convict on the unsupported evidence of an accomplice or socius criminis, yet it is a rule of general and usual practice–now so generally followed as almost to have all the force of law–for the Judge to advise the Jury not to convict on the evidence of an accomplice alone.” It appears to me that these authorities place it beyond doubt that in England the law may be taken to be what is stated in Taylor’s book which three learned Chief Justices, Cook burn, L.C.J., Coleridge, L.C.J., and Alverstone, L.C.J., declare to be a correct statement of the practice that a prisoner is not to be convicted “except under very special circumstances upon the uncorroborated testimony of an accomplice.”
If he is convicted by a Jury for presumably exceptional reasons, then the conviction is not for that reason illegal.
In this country we are however governed by the Indian Evidence Act, and though it is stated by Sir James Stephen in his introduction (page 2) quoting from the report of the Select Committee that “it is little more than an attempt to reduce the English Law of Evidence to the form of express propositions arranged in their natural order, with some modifications rendered necessary by the peculiar circumstances of India,” we are not entitled to assume the English Law of evidence and then to enquire what modifications have been introduced into it; but we have to follow the provisions of that Act with reference to the matters therein provided for.
I shall briefly refer to few of the decisions cited to see whether the question has been finally settled and whether it is open to us for discussion.
The leading case in India which was decided however before the Evidence Act is what is usually called Elahee Buksh’s case (1866) 5 W.R., Cr. R. 80 Sir Barnes Peacock reviewed all the English and Indian cases and declared the law as laid down in the English cases. This was however before the Evidence Act. It has been generally assumed that these rules have now been embodied in the Evidence Act. The law as laid down therein has accordingly been followed after the Evidence Act came into operation in Calcutta. See Kamala Prasad v. Sital Prasad (1901) I.L.R., 28 Calc., 339 at pp. 342 and 345, Jemiruddi Masalli v. Emperor (1902) I.L.R.29 Calc. 782 at p. 787, Deo Nandan Pershad v. Emperor (1906) I.L.R., 33 Calc., 649 and Emperor v. Lalit Mohan Chuckerbutty and others (1911) I.L.R., 38 Calc., 559.
The provisions of that Act are fully discussed in the Queen v. Sadhu Mundul (1874) 21 W.R., Cr. R., 69 and the result is thus stated by Phear, J. (page 70). “On the whole the result appears to be that the Legislature has laid it down as a maxim or rule of evidence resting on human experience that an accomplice is unworthy of credit against an accused person, i.e., so far as his testimony implicates an accused person, unless he is corroborated in material particulars in respect to that person; that it is the duty of the Court which in any particular case has to deal with an accomplice’s testimony to consider whether this maxim applies to exclude that testimony or not; in other words, to consider whether the requisite corroboration is furnished by other evidence or facts proved in the case, though, at the same time the Court may rightly in exceptional cases, notwithstanding the maxim, and in the absence of this corroboration, give credit to the accomplice’s testimony against the accused, if it sees good reason for doing so upon grounds other than, so to speak, the personal corroboration” or in other words, the evidence of an accomplice is to be believed only “in exceptional cases.”
In Bombay also, the law has been laid down in the same terms. In Queen Empress v. Chagan Dayaram (1890) I.L.R., 14 Bom., 331 at p. 344, Mr. Justice Jardine states the law in the following terms:– He says: “as pointed out by Bayley, J., in Maganlal’s case the Courts must give proper effect to the long experience of the ways of rogues embodied in section 114, illustration (b) of the Indian Evidence Act…. The rule in section 114 and that in section 133 are part of one subject and both are found in most of the great judgments mentioned in our judgments in that case; and neither section is to be ignored in the exercise of judicial discretion. The illustration (b) is, however, the rule, and when it is departed from, I think the Court should show, or that it should appear, that the circumstances justify the exceptional treatment of the case. As I said in Queen-Empress v. Maganlal (1890) I.L.R., 14 Bom., 115 at p. 138, it has been held by two eminent Judges now Members of the Judicial Committee of the Privy Council, that it would certainly be unsafe to depart in India from the established practice of England in the application of the rule requiring corroboration. These are the words of COUCH, C.J., in Reg. v. Imamvalad Baban (1867) 3 Bom. H.C.R., 59 C.C. and they pervade Sir Barnes Peacock’s decision in Elahee Buksh’s case (1866) 5 W.R. Cr. R. 80. It is not enough for a Court to state the rule pro forma and merely as a reason to evade it; the Courts must act up to it.” Mr. Justice Birdwood (p. 335) also citing Phillipps’. Treatise on the Law of Evidence, Vol. I., page 95, states the law in nearly the same terms. This case was followed in King-Emperor v. Mahar Martand Kulkarni (1902) I.L.R., 26 Bom., 193.
Or, in other words, the law laid down is the same as in Calcutta that the presumption is that the evidence is unreliable and exceptional circumstances must be proved to justify its acceptance.
In a case reported in Queen-Empress v. Ram Saran (1886) I.L.R., 8 All., 306 at p. 310, the learned Judge, STRAIGHT, J., discusses the effect of a conviction based on the evidence of an accomplice and holds that the law as laid down in sections 133 and 114 of the Evidence Act is in no respect different from the law of England. He states that it simply reproduces a rule of practice which the English courts have recognised and which their tendency has of late been–(see the case referred to in 73 Justice of the Peace Reports 271)–to apply–Rex v. Everest (1909) 73, J.P. 269, with great strictness. The English cases are therein referred to and discussed. The law as herein laid down is followed by the Chief Justice of that Court in another case, Queen-Empress v. Imdad Khan (1886) I.L.R., 8 All., 120 at p. 138 and the same learned Judge Mr. Justice STRAIGHT as Chief Justice adheres to that rule as laid down before in a case, Queen-Empress v. Baldeo MANU/UP/0128/1886 : (1886) I.L.R., 8 All., 509. In a subsequent Volume, Queen-Empress v. Gobardhan (1887) I.L.R., 9 All at p. 554 Sir John Edge also lays down the law substantially in the same terms. He lays down that there is no rule of law that a conviction cannot be based upon the evidence of an accomplice; this is section 133; Evidence Act, but it is “most unsafe” as a general case to convict on his uncorroborated evidence, hence the presumption that arises according to section 114 illustration (b), but “if a Judge after making due allowance for the considerations which make it unsafe to accept the evidence of an accomplice resolved to convict him then that conviction should not be disturbed” that is, first, you had to presume that the witness is unreliable and then you have to see whether there are circumstances which justify the court in disregarding the presumption in that particular case.
In Madras, the earliest case brought to our notice after the passing of the Evidence Act is reported in (Reg v. Ramasami Padayachi (1878) I.L.R., I Mad., 394), where the Indian law is stated after a consideration of the provisions of the Evidence Act in the same terms as the English law. In Ramaswami Gounden v. Emperor MANU/TN/0082/1903 : (1904) I.L.R., 27 Mad., 271, BODDAM, J., also arrived at the conclusion that the Indian law and the English law were the same and went so far as to say that it would be the duty of the Judge to direct a jury that there was not sufficient evidence before them if they had only the evidence of an accomplice upon which they would be justified in finding an accused guilty. From this latter statement, BHASHYAM AIYANGAR, J., dissented. He says “it may be that except under very special circumstances the settled course of practice is not to convict a prisoner upon the sole and uncorroborated testimony of an accomplice and if, in the opinion of the Judge, there are no special circumstances which would induce him to give credit to the evidence of the accomplice and convict the prisoner on his sole uncorroborated testimony he may no doubt under section 298 of the Criminal Procedure Code express such opinion to the jury and in that sense to advise them to acquit the prisoner.” Or, as I understand him, he takes the same view as in all the cases above referred to. His observations as to the officials who take bribes availing themselves of this section to escape punishment may be safely disregarded as almost every rule of evidence which is intended to protect the innocent is availed of by guilty persons to escape the punishment which they justly merit. SUBRAMANIA IYER, J., quotes that portion of the observations of MARTIN, J., and of COCKBURN, C.J., in Reg v. Boyes (1861) 9 Cox. Crl. Cases, 32 which are dealt with by section 133 and states that the rule that the evidence of an accomplice requires corroboration is not a rule of law but a rule of general and usual practice and the application of it is for the discretion of the Judge by whom the case is tried. In so far as the learned Judge states that the rule is one of general and usual practice, it is in accordance with all the authorities. If the learned Judge means that the Judge need not advise a jury for instance, that ordinarily the evidence of an accomplice should not be accepted unless corroborated and that a Judge trying a case need not start with that presumption, then with all respect to him, it is clearly wrong, according to all the cases cited above. I have not been able to find any Judge laying down the rule in those terms. But if he only means that though that is the presumption it is open to the Judge to find that the special circumstances of that case rebut the presumption, then according to my view of law he is right, It is not argued before us that there is any rule of law that the evidence of an accomplice must be discredited but the argument is confined, as I understand it, to what is stated to be the law by the English Judges that it is “most unsafe to convict on the evidence of an accomplice without material corroboration and that the Court must be satisfied that special reasons exist in the case to accept such tainted testimony without such corroboration.”
In Vyasa Rao v. Emperor (1911) M.W.N., 927, Mr. Justice ABDUR RAHIM reviewed all the decisions of the English Courts and stated the law in the terms it was stated in Rex v. Tate (1908) 2 K.B., 680 at p. 682, namely, “that it is the settled course of practice not to convict a person except under very special circumstances upon the uncorroborated testimony of an accomplice” and as there were no exceptional circumstances in that case he set aside the conviction. I entirely concur with him in that judgment. It was however a case in which the revisionary jurisdiction of the High Court was invoked and AYLING, J., declined to interfere as the credibility of the witness is ultimately one of fact.
- But we have been invited by the learned Public Prosecutor to consider the Evidence Act itself which he contends supports his contention.
By section 2 of the Evidence Act all rules of evidence contained in any Act are repealed. In so far therefore, as the law about the credibility of the evidence of an accomplice is a rule of evidence, that is abolished.
Under section 18 all persons with certain exceptions to which it is not here necessary to refer are competent to testify. An accomplice is therefore competent to testify. This is further declared by section 133 in express terms. That section states also that “a conviction is not illegal merely because it proceeds from the uncorroborated testimony of an accomplice.” This is strictly in accordance, as I have already pointed out, with the English rule as stated in Taylor’s book. But such a provision in section 133 was unnecessary if the evidence of an accomplice stood on the same footing as that of any other witness. The distinction is pointed out in section 114. It states that the courts may presume the existence of any fact regard being had to the common course of natural events and the illustration (b) to the section is that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This section is intended to get rid of any artificial rules of the effect of evidence, and to give them the effect of presumptions or maxims; all rules of evidence which are not statutory having been abolished by section 2. The illustrations here given are for the most part such rules of evidence as are treated as presumptions of law; the Act converts them into maxims or presumptions to be drawn by the Court. I will take some of these illustrations to see how far it is open to a court to disregard them. To take the first illustration: the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or is the receiver of the goods knowing that they were stolen unless he can account for their possession. Now it is clear ordinarily that every court is bound to act on this presumption. The possessor has to account for his possession. But, it is also clear that there may be exceptions as the instance of the shop-keeper referred to in the section. But the shop-keeper has to prove the fact that he is continuously receiving these rupees in the course of his business. The presumption in illustration (c) has been since made the subject of special enactment and all the other illustrations are cases in which the courts, save in exceptional instances, are bound first to draw the presumption as indicated by the section. Failure to draw such presumptions without adequate grounds being shown has also been a ground for interference by a superior Court. Similarly, in the case of an accomplice also, the same section 114 refers to two instances where “very special circumstances” exist for believing an accomplice. In the last exception to the illustration both the accomplices must be proved to be men of the highest character, and that the offence does not import any stain on moral character or truthfulness. In the second exception to the illustration the practical impossibility of three accomplices not having any means of communication with one another telling the same story is a guarantee of its truth. That they bad no opportunity for communication with one another has to be proved. Be it noted that both are treated as instances where the evidence of an accomplice might be accepted without corroboration, not as cases of corroboration of one accomplice by another. Other instances might be easily multiplied. If we keep before us the reasons for not accepting an accomplice’s evidence, it is not difficult to apply the rule. An accomplice by admitting his complicity in a crime admits his infamous character. He does not redeem it by betraying those who trusted him. He is a man who usually tries to throw the burden of the guilt on others as much as possible. He knows generally that if his evidence is not accepted and the accused convicted, he himself stands a chance of trial and conviction. The strength of the presumption will be weakened in each case according to the extent these considerations are not shown to operate. It will thus depend upon the facts of each case. An Englishman, for instance, who, when threatened by a constable in India with detention in jail, where he knows he will not be treated with any severity, bribes the policeman, is in a very different position, so far as his character is concerned, from a caste Hindu youth who apprehends violent treatment, and to whom such incarceration might mean civil death. The evidence in the one case has to be received with very great caution. Similarly, a man who is already convicted for his offence and undergone his sentence has not much to fear from the future consequences. His evidence need not be disregarded on that ground.
The law is the same as in England and is rightly in my opinion laid down in the Indian cases. My conclusions therefore are that–
- The question is not whether a conviction based on the uncorroborated testimony of an accomplice is legal but whether there is a presumption that such testimony cannot be accepted without corroboration;
- A person should not be convicted except under “very special circumstances” upon the uncorroborated testimony of an accomplice;
- The “special circumstances” are that the grounds on which an accomplice’s evidence has been held to be untrustworthy did not either exist in the case or did not exist in their full strength; that there are countervailing considerations of greater weight which diminish or entirely get rid of the weight due to such presumptions;
(4) In cases tried by a jury, a jury has to be advised by the Judge of what I have above referred to.
- As regards the nature of the corroboration which is required, all the cases in India lay down the same rules as those adopted by the English cases. Corroboration of course is of two different kinds. There may be corroboration of the evidence as to the offence itself and corroboration as to the identity of the accused. Independent evidence might be admissible under section 156, Evidence Act, to corroborate the evidence of an accomplice about certain incidents unconnected with a robbery in which he took part. But this will not be “material particulars” under section 114, clause (b). Further as the accomplice certainly knows all the facts of the crime, the evidence which he gives with reference to the occurrence will be no corroboration of his evidence to show that the accused took part in the occurrence. As pointed out by Baron Alderson in Rex v. Wilkes (1836) 7 C. & P., 272 cited in the case of Elahee Buksh (1866) 5 W.R. Cr. R., 80 at p. 83. “The confirmation that is required is the confirmation of the accomplice in some fact which goes to fix the guilt on the particular person charged,” or in other words, the corroboration must be of some incident which will raise an inference of guilt on the accused. To the same effect is the decision in Rex v. Imam (1867) 3 Bom. H.C.R. C.C., p. 59, Queen-Empress v. Krishnabhat (1886) I.L.R. 10 Bom. 319, Queen v. Mohesh Biswas (1873) 19 W.R. Cr. R. 16 at p. 20, King-Emperor v. Mohiuddin Sahib MANU/TN/0137/1901 : (1902) I.L.R., 25 Mad., 143, see also Queen-Empress v. Baldeo MANU/UP/0128/1886 : (1886) I.L.R., 8 All., 509. It has been already stated that when soon after the murder of Mr. Ashe, the Police Inspector went to the two accomplices they disclosed all they knew about the conspiracy. It is argued by the Public Prosecutor that these previous statements made by Arumugam Pillai and Somasundaram to the Police Inspector which is proved by the Inspector himself is corroboration of the evidence now given by them. Further after the arrest of the first accused, he made, certain statements, exhibits AAAA and AAAA1, which, it is contended by the Public Prosecutor are confessions and therefore admissible evidence to corroborate these accomplices.
- As to the question whether the statement, exhibit AAAA1, made by Nilakanta may be used to corroborate the evidence of the accomplices against the other accused, reliance is first placed on section 30 of the Indian Evidence Act. Under that section a confession made by any one person affecting himself and another person who is tried along with him may be taken into consideration “as against such other person as well as against the person who makes such a confession.” It is necessary therefore that the statement made by Nilakanta must be a confession. There must be an admission of guilt of the person making the statement, or facts must be stated from which there may be an inference of his guilt. Neither of these conditions is complied with in the case. Nilakanta does not admit that he is guilty; and if the facts stated by him are true, even then no inference arises that he has committed any offence. I am therefore clearly of opinion that there is no confession in the case and, if there is no confession, it cannot be taken into consideration at all against the other accused. It is unnecessary to consider the further question whether, even if it could be taken into consideration as a confession, it may be taken as corroborative evidence.
- We have next to deal with the question whether the previous statements made by the approvers to the Police Inspector may be used as corroborative evidence. The authorities appear to me to be clear on the point that a statement by the accomplice himself or a statement by another accomplice is not the corroboration required under the rule.
- Under English law there is no doubt on this question. In Taylor on “evidence,” 10th edition, paragraph 970, it is stated “in any case moreover in which two or more accomplices are produced as witnesses, they are not deemed to corroborate each other; but the same confirmation is required as if they were but one,” and authorities are cited in support of that proposition. Of course, if one accomplice does not corroborate another in this respect, a fortiori, a man’s own statement made on a previous occasion cannot be said to be a corroboration of the later statement for this purpose. In the Queen v. Mohesh Biswas (1873) 19 W.R.C.R., 16 PHEAR and AINSLEE, JJ., held that the corroboration, needed to make the testimony of an approver witness trustworthy, should be corroboration derived from evidence which is independent of accomplices. This case was decided in 1873–after the Indian Evidence Act. So also in Reg. v. Malapabin Kapana (1874) 11 Bom. H.C.R., 196; the learned Judges after a consideration of section 157 of the Evidence Act came to the same conclusion. This decision was followed in Queen-Empress v. Bepin Biswas (1884) I.L.R., 10 Calc., 970 and they state the law in the same terms. In Allahabad the law has been laid down practically in the same terms that there must be corroboration independently of the accomplice and it makes no difference if there are two accomplices. In Madras the same view has been acted upon though no reported decisions have been referred to us. The text writers also adopt the same view. Mr. Mayne points out that the previous statements of the same accomplice to the same effect as his sworn evidence are not corroboration by virtue of section 157 of the Evidence Act–see paragraph 758 of the 3rd edition. Sir Horatio Male Shepherd, who was a Judge of this Court in his edition of the commentaries on the Evidence Act by Sir Henry Cunningham of the Calcutta High Court also states that the evidence must proceed from an independent trustworthy source and the previous statements made by the accomplice himself, though consistent with the evidence given by him at the trial is insufficient for such corroboration. The Public Prosecutor argues that section 157 of the Evidence Act itself makes it quite clear that a prior statement is a corroboration of his present statement. That may be so, and the effect of that section has already been considered by the Judges in the cases referred to. It may be pointed out that what is required by section 114 is that the testimony of the accomplice must be corroborated in material particulars which evidently implies that his statement cannot be a corroboration. It might be equally well contended that any particular statement made by a witness in one part of his deposition is supported by another statement made by him in the same deposition; whether made before or after, at any distance of time, it remains the testimony of an accomplice and all the statements together form such testimony and it is his testimony comprising all his statements that require corroboration. For instance, if it is shown that the prior statement of Arumugam Pillai is a false one in itself, then the fact that it is made is no corroboration. It is only when the previous statement is not proved to be tainted testimony that it can be used to support the present statement. That in itself is tainted testimony and subject to the same infirmities as the present one. If the prior statement had been made for instance at a time when there was no inducement, as in the present case, to make any false statement, and made under circumstances which would show that they were true, then it is possible the case might be different. Therefore looking to the words of the section, the previous statement made by a witness cannot be a corroboration of that witness himself in any material particular. The illustration to illustration (b) of section 114 of the Evidence Act places in my opinion the matter beyond doubt. The statement made by three accomplices are treated as an exception to what is declared by illustration (b) and is not given as an instance of corroboration. If the testimony of one accomplice may be taken to corroborate that of another, this illustration to illustration (b) is meaningless. For these reasons following the course of decisions which are uniform I hold the previous statement made to Veeraraghava Aiyer cannot be treated as the kind of corroboration that will satisfy the conditions of illustration (b). But the defence pleaders go further and they contend that these statements of the approvers are not even admissible in evidence on various grounds.
- It was first contended that this statement cannot be admitted, as section 25 of the Indian Evidence Act excludes that statement. The words of section 25 are “no confession made to a Police officer shall be proved as against a person accused of any offence.” It is not denied that the statement in question is a confession in the sense that therein Arumugam Pillai expressly admits that he is guilty. It is also not denied that he is guilty of the offences with which the accused are charged in this case. It is not denied that Veeraraghava Aiyer to whom the confession was made is a Police officer. And it is not further denied that it is sought to be proved against persons who are accused of various offences. All the conditions laid down in this section, it appears to me, are thus complied with. Prima facie therefore the statement appears to he inadmissible. But it is contended by the Public Prosecutor that the section only precludes its proof when it is sought to be used against the person making it, who may be accused of any offence, or, in other words, that the section should be read as meaning that no confession made to a Police officer shall be proved as against a person making it, when he is accused of any offence. I am unable to accept the view. The section is inserted as pointed out by Sir James (then Mr.) Stephen who framed the Act to prevent torture by the Police for the purpose of extracting confessions. And the danger is all the greater when it is sought to be used not against the person making it but as against another person as the inducement not to make any false statement will be much less. I am unable to see any principle on which this contention, that a statement which is inadmissible against a person making it may be admitted against others, can be supported. It is conceded that the statement would be inadmissible against Arumugam Pillai himself to prove any offence against him, and a confession is not the less a confession, because it is sought to be used against another person. It has not the sanction of an oath or solemn affirmation. It is not against self-interest as it is inadmissible against himself. The rule of public policy arising from the practices of the police which requires such a provision applies with greater force when it is sought to be used against others. The words of the section themselves are clear and other words have to be interpolated to support the opposite contention. I therefore uphold this contention.
- It is also argued that this statement is inadmissible under section 162, Criminal Procedure Code. That section runs thus: “No statement made by any person to a Police officer in the course of an investigation under this chapter shall, if taken down in writing, be signed by the person making it, nor shall such writing be used as evidence; provided that, when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid, the Court shall, on the request of the accused, refer to such writing, and may then, if the Court thinks it expedient in the interests of justice, direct that the accused be furnished with a copy thereof: and such statement may be used to impeach the credit of such witness in manner provided by the Indian Evidence Act, 1872.”
- It is conceded and there can be no doubt, about it that the statement made by Arumugam Pillai reduced to writing by Veeraragava Aiyer is not admissible under the section and it is contended by Mr. Govindaraghava Ayyar that if the written record of the statement is not admissible, a fortiori oral evidence of such statement is not admissible; and it is also contended that the defence in similar cases would be precluded from contradicting the Police officer by the production of the original record itself when such police officer gives false evidence. It is argued that such a result could not have been contemplated by the legislature, and that, therefore, the oral evidence also must be held inadmissible for the reasons given by KNOX, J., in Rustam v. King-Emperor 7 All. L.J., 468. These objections have no doubt great weight. That a police officer should be allowed to depose from his memory to a statement made by a person, it may be months before, when the writing itself is declared inadmissible by the legislature on account of the untrustworthiness of the Police, may require explanation. But the words of the section are quite clear and I agree therefore with the decision in Fanindranath Banerjee v. Emperor (1909) I.L.R., 36 Calc., 281, that oral evidence of what a person stated to a police witness is not precluded by section 162, Criminal Procedure Code.
- Then another objection is taken that in this case the writing was substantially used in evidence and therefore the evidence given by Veeraraghava Aiyer is inadmissible. This contention is based on the following statement made by the Police Inspector Veeraraghava Aiyer.
Q.–So you looked into the note-book with a view to give evidence here ?
A.–I looked into the note-book before I came to give evidence. As soon as I was told that I was to be examined, I referred to my note-book to refresh my memory.
Q.–I take it the proof refreshing your memory that you gave was a proof from your note-book ?
Q.–To whom gave you the proof ?
- Now if the words of the section are to be construed strictly as meaning that it is “the writing” alone that cannot be filed as evidence it would imply that a true copy taken in any form either issued by a Court or by any mechanical process would be admissible. Also if a police officer repeats the statement word for word, sentence by sentence, in Court, then also such evidence would be admissible. This is a construction which, if possible, should not be adopted as it not only renders the section nugatory but aggravates the mischief which it is intended to mitigate. I do not think the words of the section compel us to that conclusion The words “such writing shall not be used in evidence” may fairly be construed to mean not only that such writing cannot be proved but also that secondary evidence of such writing cannot be given. But in this case it does not appear that what has been deposed to by Veeraraghava Aiyar is really the contents of a written record. It is further contended that he has certainly refreshed his memory by reading the document and he has therefore substantially used that writing in evidence. I am of opinion that a police witness cannot refresh his memory by referring to his note-book in the witness box because under section
- of the Indian Evidence Act the opposite party would be entitled to inspect in that case. Under section 162, Criminal Procedure Code, a police witness is not bound to produce the note-book to be inspected by the other party. The Court alone is entitled to demand inspection. The provision in the Indian Evidence Act, i.e., section 161, must therefore give way to section 162 of the Criminal Procedure Code, and it follows therefore that a police witness cannot refer to his diary in the witness box. I agree with the judgment of Sunder Lal A.J.C. in 11 Crl. L.J. Reports 121 on this question. But in this case the witness has not referred to the diary in the witness box. If after referring to the diary outside the Court, the police witness simply testifies to the facts mentioned therein not having any specific recollection of the facts themselves (see section 160 of the Indian Evidence Act), then I am of opinion that the writing is used in evidence, because otherwise such evidence would not have come before the Court and is therefore inadmissible. But in this case Veeraraghava Aiyer states that he has also independent recollection of the facts themselves, and the evidence is not therefore inadmissible on that ground. Where a witness gives his evidence from actual recollection of the facts which come to his memory on reading his diary, then he cannot be said to be using the document in evidence. I do not think therefore that this contention can be upheld.
- It is further contended that this evidence is not admissible under section 157 of the Indian Evidence Act, because Veeraraghava Aiyar was not “any authority legally competent to investigate the fact” under section 157, Criminal Procedure Code. Under section 156, it is an officer in charge of a police station who is entitled to investigate the fact. Under section 161, it is a police officer making an investigation who may examine any person, and under section 551, Criminal Procedure Code, the powers of an officer in charge of a police station may be exercised by any police officer superior in rank to that officer within the limits of the local area of his jurisdiction. It is not denied that Veeraraghava Aiyar is not an officer in charge of a police station. Leaving out of consideration for the present the Police Act of 1859, I am also of opinion that he is not an officer superior in rank to such an officer under section 551, which is evidently intended to include the Inspector, the Deputy or Assistant Superintendent, the Superintendent, the Deputy Inspector-General, etc., having jurisdiction over that local area. Veeraraghava Aiyar is an officer attached to the Criminal Intelligence or Investigation Department working under superior officers in that department without any defined area of jurisdiction and they have not been shown to have any power of control over a Station-house officer. The sections in chapter XIV of the Criminal Procedure Code (see sections 154, 155, clause (1)) contemplate information to be given to an officer in charge of a police station. The right to investigate cognizable cases is also given to a Police Station-house officer (see sections 156 and 157). The obligation to report to the Magistrate is also imposed upon the same officer. Similarly, the power to require the attendance of witnesses is also given to the same officer, and he can summon witnesses living only within the limits of his own or adjoining station. The contention of the Public Prosecutor if upheld would enable Veeraraghava Aiyar who is not attached to any police station to summon witnesses from any place in the Presidency. It is clear to me that the police officer making an investigation referred to in sections 161 and 162 are also Station-house officers. Section 165 also gives the power to a Station-house officer or to any officer deputed by the Magistrate to investigate. When he is unable to make the search himself he may require an officer subordinate to him to make the search. It was suggested by the Public Prosecutor that as Veeraraghava Aiyar has been authorised to make the search he must be taken to be an investigation officer. I cannot agree with this contention. The right given to him is limited, i.e., only to (conduct) search. It does not carry with it to do anything further, or to make an investigation generally. Sections 166 and 167, Criminal Procedure Code, also contemplate the officer in charge of the police station being an investigation officer, and section 168 states that when any subordinate police officer has made an investigation under this chapter he shall report it to the officer in charge of the police station. Sections 169 and 170 strongly support the same view. It leaves it to the officer in charge of the police station to report to the Magistrate whether there is sufficient evidence or reasonable ground of suspicion to justify further proceedings. Section 174 specially refers to an officer not in charge of a police station who may be empowered to hold an inquest. These sections leave no doubt in my mind that the police officer entitled to investigate an offence are the police officers referred to in the Criminal Procedure Code, i.e., the Station-house officer or his superior officer as referred to above. All these provisions restricting the right of investigation to certain defined officers would be rendered nugatory if the contention of the Public Prosecutor is allowed.
The Criminal Procedure Code does not make him legally competent to investigate a case. It is also contended by the Public Prosecutor that by the Police Act, XXIV of 1859, section 21, the police officers have got powers to detect crimes which implies the power to investigate, and that therefore Veeraraghava Aiyar, being a police officer, is entitled to make the investigation under section 157. So to construe the section, would really be to nullify the provisions of the Criminal Procedure Code which, as I have pointed out, imply the power to investigate being vested in those police officers who have only local jurisdiction. This would give a police officer power to detect throughout the presidency. It is not explained whether that statutory power could be in any way limited by his superior officers. I am not able to agree to the contention that the question, whether any authority is legally competent to investigate the fact or not, is a question of fact or a mixed question of fact and law. The power to investigate must be given to him by law. I therefore disallow this contention of the Public Prosecutor. But it has been already held by the majority of the Court in the course of this trial that this evidence is admissible. I shall therefore treat it as evidence.
- Thus far I have dealt with the general rules as to corroboration and also with the question whether certain evidence put forward as such is any corroboration under section 114(b) of the Evidence Act. I shall now consider how the story now told affects the usual presumption against the testimony of accomplices. It will be seen that there is no overt act alleged by the accomplices, nor, does the story of the witnesses derive any support from the conduct of the alleged chief conspirator. The last of these meetings is that at Punalur between the 28th of August and the 1st of September. We find (exhibit G-1 dated 3rd September) that soon after that, Nilakanta was contemplating leaving for Madras and indicated that intention to his alleged conspirators. The letters exhibits ZZZ3 (19th September 1910), ZZZ5 (21st September 1910) ZZZ6 (24th September 1910), ZZZ7 (14th October 1910) and 21 form part of the correspondence between him and the Guardian Press at Madras about the publication of a book for which he admits having received pecuniary contribution in exhibit G-3. The other letters exhibits NNN1, NNN2 and PPPP1 all show that in September he was devoting his attention to the publication of his book and not to any conspiracy. Exhibit G-21, dated 13th October 1910 and exhibit DD, dated 1st November 1910 show that he was not keeping correspondence with his friends and that Vanchi and Madasami did not know his whereabouts. Exhibits T-4, T-5 and T-6 show that Vanchi and Madasami were growing uneasy about Nilakanta and had no news of him. Exhibit ZZZ-8 undoubtedly shows that Nilakanta was at Pondicherry in November and exhibit G-26 that he was there on the 11th December. Exhibit 98 shows that on the 21st of December he was in Madras, and he continued to remain in Madras on the 26th and 28th December. He was also there on the 10th January. It is clear that before March, Nilakanta must have fallen out with his Pondicherry friends. In exhibit 5 it is stated that Nilakanta Brahmachar is an impostor, has been going about the country pretending that he was a Yogi named Swamigal Nilakanta and that he was the proprietor and editor of the “Dharma” newspaper, that he has been collecting large amount for the paper and appropriated them for himself and collecting money also on the pretence that he is a disciple of Aravinda Ghose, and money was wanted for his use, that Aravinda Ghose denies all connection between himself and Nilakanta and that they also deny all connection with Nilakanta. After his final breach, he seems to have left the Madras Presidency and gone to the north. His evidence on that point is clear and is not impeached by the prosecution. It shows that he was masquerading as a sanyasi and wandering about the northern parts of India. It is hardly the conduct of a man who is organising a revolution against the Government. Apparently equally inconsistent with the idea of rising is the fact that there was no talk about the acquiring of arms, about the training of any men either at the meetings at Tenkasi or Tuticorin or Punalur. The omission as to arms is no doubt supplied at Punalur in August where Ramasami Iyer states that Nilakanta informed them that arms will be collected in Pondicherry, a fact of which no evidence was given, and which, coming after the evidence of other two approvers, cannot be deemed to have been proved.
I shall now take up the witnesses separately.
- Arumugam’s evidence is open to all the infirmities that attach to an approver’s evidence. On his own showing he is not only a conspirator, a traitor to the British Government, but he has also taken a dreadful oath not to betray his comrades and he is now betraying them. An oath of course is not binding on him. There is no redeeming feature about this witness. He is giving his evidence under a conditional pardon with a natural inducement therefore to earn it by giving such evidence as would satisfy the prosecution. He says that, after he made the statement to Veeraraghava Aiyar, he asked for police protection against the other conspirators from whom he apprehended violence to himself. He would now be anxious to see them out of the way. There is of course the natural tendency of all approvers to make others more responsible than themselves. In addition to all this, it is pressed by the defence, that the story is mainly a police concoction. I am not prepared to accept that view. Veeraraghava Aiyar to whom the statement was made is an Inspector of the Criminal Intelligence Department. He was on duty at Madura on the 18th June. On receipt of telegraphic orders on that night he met the Deputy Inspector-General of Police, Criminal Intelligence Department and Railways, next day at the railway platform, and proceeded with him to Tinnevelly where he arrived at 5 o’clock on the 19th. From there he was directed by the Deputy Inspector-General and the Tinnevelly Superintendent to proceed by the next Shuttle train to Tuticorin with Mr. Johnson, Assistant Superintendent of Police, to search certain houses (among them, this approver K.V. Arumugam Pillai’s). He left the place within half an hour and arrived at Tuticorin about 9-30 P.M. The Assistant Superintendent of Police proceeded to his own bungalow, and after some delay they proceeded to the house of K.V. Arumugam at about 2 o’clock in the night and on their arrival there, Arumugam is alleged to have made this statement at once. Now, though it is possible, may, probable from the letters discovered at Shencottah and elsewhere, from the letter which was found on the dead body of Vanchi and from what they generally knew of the state of things about the distribution of seditious literature in the country, that there may have been a conspiracy, the evidence adduced is not one which in its broad outlines looks like a police concoction. Veeraraghava Aiyar did not stay long at Tinnevelly himself. There was hardly time for the police at Shencottah to have manufactured a story and communicated that story to Veeraraghava Aiyar. The letters discovered at Shencottah on search contain references to various persona some of whom are not implicated by Arumugam. There were others accused by Arumugam against whom no evidence has been discovered. There is no suggestion, nor is there any evidence to show, that Veeraraghava Aiyar knew these or anybody amongst them. Veeraraghava Aiyar would have been naturally anxious to get any information about the murder of Mr. Ashe, as it is with reference to that matter that he proceeded to Tinnevelly. The story given by Arumugam to Veeraraghava Aiyar throws no light on the murder of Mr. Ashe, though as it now appears Arumugam knew something about it. Another suggestion is that Arumugam had ample time to concoct a story and that therefore it cannot be presumed that he stated the truth when he was surprised by Veeraraghava Aiyer. It is in evidence in this case that Arumugam and the other approver Somasundaram heard of the murder of Mr. Ashe and that they had frequent discussions amongst themselves. It is clear therefore that if they wished it they had ample time to concoct a story before Veeraraghava Aiyar saw them. Nor have I any doubt that they must have bestowed some thought upon the story to be told the police, if any occasion arose for it. Seeing that Veeraraghava Aiyar went there to enquire into the murder of Mr. Ashe, it is surprising that though Arumugam, as it now turns out, knew a good deal about it, he did not give any information on that point to the Police Inspector. It is also possible that, though the main outline of the story must have been given by Arumugam Pillai, only Veeraraghava Aiyar may have made suggestions to him, as the interval between the date of his arrival there and the confession is suspicious. There was no need for any enquiry, as the locality in which Arumugam lived, the name of the street, was already known to them. The letters discovered at Shencottah gave full information.
- I shall now consider whether there is anything in this story itself to strengthen or weaken the suspicion that attaches to an accomplice’s evidence as to the occurrence at Tenkasi. Arumugam’s evidence cannot be contrasted with any other Tenkasi evidence. There was another meeting at Tuticorin at which some of those who were present here–Nilakanta, second accused and Arumugam Pillai–were present. Now Arumugam states that what took place at Tuticorin was exactly the same as that at Tenkasi. According to him there was a paper there on which was written everything “just similar to what had been written at Tenkasi. The altered names also had been given”; as to the oath “just in the manner in which we took in Tenkasi” and they drank just as they drank in Tenkasi. Now about the occurrence at Tuticorin there is also another witness, that is, Somasundaram Pillai, who also gives his evidence in detail. It is possible therefore to compare the evidence of these two witnesses. Somasundaram Pillai does not refer to any drinking of blood. Somasundaram Pillai states that those who joined the society should be young men and that they should not be married, as married men are less fit for this sort of work. Arumugam Pillai says that, so far as he remembers, there was nothing of that sort. The case is not one of omission but of direct contradiction. According to Arumugam Pillai, it is only the new names that were written on the paper and against which they impressed their thumbs. According to Somasundaram Pillai, their own proper names were written first and against them the assumed names and the thumb impression was made opposite to their names. These are some of the material differences: we come to a more serious matter. Both of them said that, as already pointed out, new names were given to them by Nilakanta. According to Arumugam Pillai it was with a view to carry on secret correspondence with one another and that if anybody should come across any of their letters he might not discover them, that it was resolved by Nilakanta that names should be selected to be known only amongst themselves which they might use in their correspondence with one another. But Ramasami (prosecution witness No. 16) denies that any new names were given to the conspirators at Punalur. This omission has not been explained by the prosecution. If it is said that it was only an idea of Nilakanta and the others attached no value to it then all the arguments which were strenuously urged by the Public Prosecutor based on the use of secret names falls to the ground. Further it does not appear, and the evidence is against that view, that Nilakanta retained his influence in full at Punalur. Arumugam further states, as I said, that these secret names were first written on the paper in which oaths were taken and they cut their thumbs and put impression with their blood. At Tenkasi there were (1) Nilakanta, first accused, (2) Chidambaram Pillai, (3) Arumugam Pillai, the approver, (4) Sankarakrishna Iyer, the second accused, and (5) Subramania Iyer, the thirteenth accused. All these five are alleged to have done so. At Tuticorin the same procedure was adopted by six conspirators. There were present (1) Nilakanta, (2) the second accused, (3) the fourth accused, (4) the fifth accused, (5) Somasundaram Pillai and (6) Madasami Pillai. Now according to the approvers, Arumugam Pillai was given the name of Kumarasami, Madasami Ramamurthi, Subba Pillai, the fifth accused Subramania Pillai, Somasundaram Pillai Srinivasan or Srinivasagan. The evidence of the other approver Somasundaram Pillai (prosecution witness No. 12, is to the same effect with this difference that according to him Nilakanta was given the name of Bharadwaja at the meeting at Tuticorin. The evidence of the third approver Ramasami Iyer (prosecution witness No. 16) is that at Punalur there were no other names given to them but they fixed their thumb impression against their true names which they wrote on the paper. I am satisfied that the prosecution has proved beyond all reasonable doubt that Madasami bore the name of Ramamurti and that he was known by that name at least among some of the conspirators. Exhibit G-26 referred to Ramamurti at Ottappidaram where admittedly Madasami is; exhibits G-24 and DD referred to Madasami at Azhaghai. Exhibits G-2 and G-20 show that Ramamurti belongs to Azhaghai. Exhibits G-19, G-27 and XX, letters from Arumugam Pillai to Vanchi Iyer, show that Arumugam knows who Ramamurti is, Exhibits G-24, T-4 and T-8 are letters from Madasami to Arumugam. Arumugam swears that G-2, G-20 and G-26 signed by Ramamurti are in Madasami’s handwriting. The contents of the letters show that Madasami and Ramamurti at Azhaghai are probably one and the same persons. Arumugam’s evidence therefore must be accepted in the absence of any evidence that there is another person known as Ramamurti. Taking next the accused persons it is said that the two approvers were given the name of Kumarasami and Srinivasagam. Some letters written by them are produced. They give their true names only. No letters written by or to the approvers containing their secret names are produced. Kumarasami in exhibit X cannot obviously refer to Arumugam Pillai as stated by prosecution witness No. 12 because according to the same witness Arumugam is separately mentioned in it. It must therefore refer to another and Kumaran in the other exhibit also may refer to the same person. These are the only two letters written by others in which it is alleged Arumugam’s name is used. It is also to be noticed that, in those letters in which Arumugam considers it necessary to refer to these by these assumed names, he does not use his own secret name. See exhibits XX and G-19. Similarly, though Madasami is alleged to conceal his identity by using the name of Azhaghai for Ottappidaram, he uses Arumugam’s true Dame. Arumugam only swears that he must have used his name when he remembered it and his true name on other occasions. There is no evidence that Arumugam or Somasundram ever used their secret names.
- We have next to consider the names of Nilakanta and Subramania Pillai. Approver Somasundaram says that Nilakanta’s name is Bharadwaja. Before the Committing Magistrate he did not recollect his name. Before Mr. Cox (exhibit EEEEE) he said that Nilakanta’s name was Brahmachari. In exhibit X which is addressed to himself by Madasami, the name of Kumaran, he said before Mr. Cox (exhibit EEEEE), stands for Nilakanta and in this Court at first he said the same and he gave it as his reason that he had written to Madasami where Nilakanta was. Then he changed his ground and said Kumaran was Arumugam Pillai; though he had to admit afterwards that “V.A.” in the same letter also referred to Arumugam Pillai, which is absurd. His statement in these circumstances that Nilakanta is given the name of Bharadwaja cannot be accepted. That Nilakanta was not given such a name is clear from the evidence of Arumugam Pillai. He says that he does not remember Nilakanta’s name. This is incredible, if Nilakanta the prime-mover in these conspiracies had a name. Moreover in exhibit CCCCC before Mr. Cox, Arumugam said like Somasundram that Nilakanta’s name was Brahmachari. In many letters, exhibits G-19, G-26 and others, Nilakanta is called ‘friend’ and not by his private name. Exhibit G-26 in particular in which the Goddess is prayed “to free us from a state of slavery” gives Nilakanta’s full name; and he is called only ‘friend’; Madasami in that case signs his assumed name. I have no doubt he would have used his secret name if he had any. I have no hesitation therefore in holding that Nilakanta was not given any name.
- There remains then the fifth accused who is called Subbayya Pillai who is alleged to have been given the name of Subramaniam. Defence witness No. 42 states he is known by both the names. Defence witness No. 43 says that Subbayya is a contraction for Subramania. This accused is a clerk of defence witness No. 49, apparently a respectable pleader who states that he is known by both the names. Exhibits 138 of 1905, 139 of 1910 and 146 of 1911 show that, on documents public and private, he was known by the name of Subramania Pillai: and even prosecution witness No. 13 admits that he was generally known as Subramania Pillai. It is clear therefore that name could not have been given to him as alleged by the prosecution for use in private correspondence. On these facts, it appears to me that the proper conclusion, if not the only conclusion, is that these names were not given to any of the accused at any of the two meetings; Tuticorin or Tenkasi; that Arumugam has forgotten Nilakanta’s name is impossible, and the evidence as to Nilakanta’s name is fatal to the prosecution on the point. There remains then the fact that Madasami was admittedly called by another name and this has to be accounted for and Ottappidaram is called Azhaghai. It appears however in this case that many of the accused were known by other names than their own. Vanchi Iyer the murderer had another name–Sankara Iyer. The tenth accused Mahadeva Iyer was called also Vembu Iyer. Pichumani Iyer, the fourteenth accused, was called also Venkatachella Iyer. It may be possible therefore that Madasami had another name. As to the names of places I do not attach any weight to Pondicherry being called Pandi. It is only an abbreviated form. As to Ottappidaram being called Azhaghai, there is no evidence of any meeting having been held there and it is not explained why neither Tenkasi nor Tuticorin had any name. Anyhow this name as well as Ramamurti is used in letters in which no concealment is attempted or was necessary. It is also conceded for the purpose of explaining the fact that no names were given at Punalur, that the members attached no value to it and under any circumstances all this does not counterbalance the weight due to the considerations I have above set forth. I have already pointed out that there is no reason to believe that Arumugam Pillai’s evidence is a concoction between him and the Police Inspector. So far as Somasundaram Pillai’s evidence is concerned it is a matter for observation that it was available only some time after and it is possible–there is no evidence of it–that he may have come more than Arumugam Pillai under Police influence.
- As to Ramasami Iyer, his evidence is more unsatisfactory than that of Arumugam Pillai or Somasundaram. His house is said to have been searched on the 22nd June. He was arrested however only on the 1st of August and his evidence was taken only towards the end of August. It is said that he was absent form his village. The evidence about the search is very suspicious. The search list, exhibit XXX, is certainly not in the usual form prescribed for searches. It is in pencil writing, it is not attested, the village munsif was absent. The evidence of the Police Sub-Inspector prosecution witness No. 20 is very unsatisfactory and does not explain why the ordinary procedure in the case of searches was not carried out. He was produced and examined only towards the end of August. There is no satisfactory evidence of what Ramasawmi Iyer was doing in the interval. Whether his first statement supports his present evidence has not been proved as in the case of the other approvers. He has given evidence about the meeting in 1911 in Savadi Pillai’s house, while in the charge sheet he is not entered as a witness for that meeting. It was therefore material for the prosecution to show that at that time he had given information to the police about that meeting also. The failure therefore to follow the same procedure in his case as in that of the other approvers is suspicious, and this suspicion is strengthened by the fact that at that time probably he must have given some information against the ninth accused whose detention otherwise there is nothing on record to justify. I am also satisfied that he came into Court to repeat a story that he had already learnt. I shall refer only to one such statement here. Early in his examination-in-chief before he had been many minutes in the witness box, after speaking about the arrangement for the sale of the gramophone, this was what took place.
Q.–What arrangement was made as to the making over of the gramophone ?
A.–A meeting was held.
Q.–Was any arrangement made at that time for the handing in of the gramophone ?
A.–He said that after Avani Avittam all should come and join.
Q.–But I am speaking about handing over of the gramophone,….
I am therefore of opinion that the evidence of the accomplices requires corroboration in material particulars both because they are accomplices whose evidence is open to impeachment on all the grounds on which an accomplice’s evidence is ordinarily disregarded in the absence of corroboration but also on the ground that there are suspicions in this particular case for not accepting that evidence without corroboration in material particulars.
Let us see now whether there is any corroboration as to the conspiracy itself.
- Nilakantam, first accused.–So far as Nilakantam is concerned the Crown strongly relies upon two statements made by him before Mr. Tampoe, exhibits AAAA and AAAA1. The Public Prosecutor also relies upon an entry in his diary that he was at one time an anarchist. Nilakantam admits in his statements that he went to Chidambaram Pillai’s house and that he formed societies at Tenkasi Chidambaram Pillai’s house and at Tuticorin and that along with others undertook by an oath to devote his life and property to the country. He admits having offered puja to mother Kali and having written the conditions of their vow on a piece of paper. He admits having signed that paper. He also states that they cut their thumbs and put thumb marts on the paper in blood. He enters in his diary that he has been an anarchist. In this Court he explains that the statements in exhibit AAAA are not true and that he made them under police influence. There is no suggestion in the cross-examination of the witnesses of any police interference with him. He does not state who the Police officers were. He had opportunities of making this allegation before Mr. Tampoe: he is not an ignorant man to be imposed upon by a subordinate officer. I have therefore come to the conclusion that these statements must be taken as having been made voluntarily by him. Taken with his entry in the diary that he was an anarchist, they strongly corroborate the evidence of Arumugam Pillai. He gives no explanation whatever why he made the statement except to say that it was to instil awe into the minds of the people. He does not explain with whom the paper is. In these circumstances so far as Nilakanta is concerned, even if we had no other evidence, I must hold that the evidence of Arumugam Pillai is sufficiently corroborated both as to the occurrence and as to the identity of Nilakanta. I think however there is other corroborative evidence.
- I am satisfied that Nilakanta left Pondicherry in order to preach revolutionary politics. His previous life lends support to it. As Narain Dube he was at Tuticorin as a public man during Chidambaram Pillai’s time. He was connected with “India,” “Suryodaya,” “Dharma,” etc., in Pondicherry. The evidence of the three approvers so far as Nilakanta is concerned bears strong internal evidence of the truth of this part of the story. His procedure is remarkable. Everywhere he first preaches swadeshi and boycott. This is Chidambaram Pillai’s teaching without its political flavour. He then preaches on the evils they suffer from or are assumed to suffer from. These are easily brought home to the mufassal ryots. He tells them that their Sanathana Dharma is in danger. He tries to show that it is impossible that their swadeshi industries can be fostered and the administration of the country improved without the expulsion of the British Government. He preaches to them that all peaceful methods, or in other words, constitutional agitation has failed; that if articles are published in newspapers or lectures are delivered for the improvement of the country, the patriots are sent to jail; that assassinations of individuals have done no good. He passes as a religious preacher and gives a religious turn to his preaching. He professes himself a vedantist not concerned in the material affairs of this world, he tells them to disregard the body and sacrifice themselves for the country. He deifies the country and makes it an object of worship. All this is not only in strict consistency with but is the actual teaching on its economic side insisted upon at Tuticorin and of the agitators at Pondicherry. Subjected to all kinds of cross-examination during many days the witnesses adhered to the main point of the story referring to various incidents connected with it in such manner as to make it difficult to believe that the story which they were saying that Nilakanta preached revolution is false. There can be no doubt that in the minds of all three of them was impressed this one broad fact by Nilakanta that a revolution for the purpose of expelling the British Government was absolutely necessary. I doubt whether the Police Inspector could have invented the story given by these approvers. It is very difficult to believe that they themselves could have invented such a story and such a character to fit in with the accounts above given of what had happened at Tinnevelly and Pondicherry; contrasted with what happened in those places it is difficult not to accept it. His tour to these places stands unexplained. The ostensible purpose of collecting money for the publication of his book, assuming that the book is not seditious, will only apply to a few persons and does not explain his various journeys. I therefore find that his story has been confirmed and I hold Nilakanta is guilty on the first count.
- As to the second accused.–It appears from exhibit G-12 that the second accused met Vanchi on his way to meet Sankara-krishnan. His pleader argues that he met Nilakanta during that trip only by accident and there was no preconcerted plan between them. The subsequent correspondence between the parties and their conduct disprove any such accidental meeting. He came with Nilakanta to Alleppey where Hariharan met them. In exhibit G-11, Hariharan asks Vanchi Iyer to tell him what the second accused besides the first told him about himself. It is not the first accused alone but both of them that promised Hariharan to send the “Dharma” paper. In the face of the other evidence, the suggestion of his counsel that the words may have been carelessly used cannot be accepted. Prosecution witness No. 8, Umayorubagam Pillai and prosecution witness No. 10, Chidambaram Pillai say that they were together at Tuticorin and the correspondence that I have referred to shows the intimate terms in which they moved. There is very strong presumption that he was in the confidence of Nilakanta and the two were acting, together. This presumption has not been rebutted by any evidence given by the accused. He pleads that his nuptials were celebrated on the 8th of April and that he could not have left his bride’s house for three or four days. The day fixed for the celebration of the nuptials is an unusual day before Amavasaya. His oral evidence is worthless. I think accordingly that the evidence of the accomplices is sufficiently corroborated and I hold the case proved against him.
Before I deal with the case of the third accused and other accused, I shall notice the contention of the parties with reference to the numerous letters filed in the case.
- The correspondence between the parties is relied upon by the Public Prosecutor to prove that the parties thereto belonged to a secret revolutionary society of which according to the prosecution these accused are members. I now proceed to refer to them.
I have already referred to the letters, exhibits G-3, G-4. T-1, G-5 and G-6 as supporting the story told by prosecution witness No. 29 about the Bharatha Matha Association. (See paragraph 14.) In exhibit G-12 (2nd June 1910) Sankarakrishnan, the second accused, writes to Vanchi that he has to speak to him about an urgent and important affair and therefore asks him to meet him at the railway station and to keep the matter confidential. Exhibit G-9 (20th June 1910) shows that the seventh accused, Harihara Iyer, met Sankarakrishnan at Alleppey, went with him to Cochin, sent him on to Ernakulam where he probably met Nilakanta, as Harihara Iyer met them both at Alleppey on his return. Harihara Iyer was much interested in him as in his own words “he looked like a first born son of Mother Bharatha” and he spent liberally in making supplies to him and also gave him money on separating from him. In exhibit G-10 (30th June 1910) and in exhibit G-11 (8th July 1910) Hariharan writes to Vanchi to let him know what Nilakanta and Sankarakrishnan told him about himself. In all these letters, exhibits G-9, G-10 and G-11 he invokes the help of Mother Bharata, and in exhibit G-11 he says he intends to wait for the time when mother Bharata shows the way. These letters also show that Hariharan expected Nilakanta to go to Punalur and speak to Vanchi about all matters. In exhibit G-13 (8th August 1910) Hariharan again writes to Vanchi informing him that he is starting soon to Punalur.
The above letters undoubtedly prove the intimate relation that existed between Vanchi, Hariharan, Nilakanta and Sankara-krishnan.
- Exhibit G-21 (13th October 1910) is a letter from Madasami to Vanchi asking for news of Nilakanta. Exhibit G-24 (28th October 1910) is a letter written by Madasami to Vanchi wanting to know whether Hariharan is alright and whether he sent any money to Nilakanta and telling him that he shall communicate to Arumugam Pillai Vanchi’s wishes. In exhibit G-26 (11th December 1910) Madasami in his assumed name of Ramamurthi complains of “our state of slavery,” gives Nilakanta’s address at Pondicherry and invokes “mother’s” help. Exhibit DD (4th November 1910) is a letter by Vanchi to Bapu Pillai, the eighth accused, styling him younger brother, informing him that he went to Ottapidaram to see elder brother Madasami, tells him that friend Harihara Iyer is now better, speaks to receiving parcel from Tuticorin, and also asking for information of Nilakanta. Exhibit T-4 (6th February 1911) is a letter from Madasami to Arumugam informing that Vanchi Iyer is now at Pondicherry. In T-6 Madasami informs Arumugam that it is difficult to get any letter from Nilakanta for some time and that Vanchi had been there and had returned. Exhibit XX shows that Arumugam distributed “Dharmam” papers to Vanchi and others. Exhibit G-15 (4th October 1910) is a letter from Madasami to Vanchi in which he says “I do not know when mother will bestow her grace.” Madasami in this letter states that he desires to see “you all” once more, signs himself as a young member of the caste of Bharata. In exhibit G-19 (18th October 1910) Arumugam wants to know from Vanchi the welfare of “our friends” there and says he is himself alright by the grace of the mother. In exhibit G-17 (14th September 1910) prosecution witness No. 29 is anxious to hear about mother Bharata and invokes the help of that holy mother.
The references in these letters to mother Bharata, the fraternal terms in which Brahmans and non-Brahmans refer to one another belonging as they do to places situated at such distances as between Alleppey, Punalur and Tuticorin, the references in all the letters to various matters which are unexplained and which they do not attempt to explain, the request, in exhibit G-20 by Madasami to Vanchi to destroy all letters, support the Public Prosecutor’s contention that these letters prove a secret brotherhood, Madasami going so far as to suggest themselves members of one Bharata caste.
- It was contended by Mr. Govindaraghava Ayyar that these letters do not lend any support to the contention of the Public Prosecutor that the names used therein like Bharata Matha… are terms that are usually used in correspondence between persons in the position of these accused, and that therefore such expressions call for no remark, and that even if they show that they were members of an association, the terms are the same as those used in the letters which have been already referred to and that therefore these letters cannot be assumed to prove anything else than that they have been members of the Bharata Matha Association which was spoken to by prosecution witness No. 29. As to the names, it is enough to say that they do not stand alone though the coincidence with the name of the older association is suspicious. With reference to the other contention, it is contended by the Public Prosecutor, first, that the Bharata society was dropped and that the men who have been carrying on this correspondence are not only those who have been proved to belong to the old association but certain others in British territory, who there is nothing to show ever belonged to the old Bharata Matha Association. It is however placed beyond all doubt that in December 1910 there was a Bharata Matha Association. Exhibit EEE, the letter to the Collector, is according to Arumugam Pillai in the handwriting of Madasami and he gives that warning in the name of that association. All the probabilities point to these references having been made by them as if they are members of the association referred to by prosecution witness No. 29 or a similar association. Bharatha Matha, i.e., “Mother Bharata” is referred to in many of them. Bharata Matha was the name expressly given to the old association. As to the revolutionary society alleged to have been formed by Nilakanta, Arumugam Pillai distinctly says that it has no name and that it had no such name as Bharata Matha Association (page 184, line 34, page 271, line 44, page 272, line 2). The other approvers also say the same thing, Ramasami (page 510, line 25), whereas prosecution witness No. 29 distinctly states that the name of the old association was Bharata Matha (see pages 803 and 804). The members of the old Bharata Association were to be brothers to each other. It is said that this association is confined to Brahmins only. But there can be no doubt, as will presently appear, if prosecution witness No. 16 can be believed that Bapu Pillai was also a member of a society other than any revolutionary society of which there is any evidence and Madasami Pillai, a member of a Bharata Matha Association, if the approver’s evidence that EEE is in Madasami’s hand-writing can be accepted. Arumugam’s explanation for using the term mother in letter Exhibit G-19 is that “mother Bharata” was the country of India and according to the arrangement made by Nilakanta at Tenkasi they worshipped their mother as “our goddess.” Even if this explanation be accepted, it will only show that Arumugam Pillai and others used it but it will not imply that those other persons who were members of the older Bharata Matha Association did not use it as members of their own older association, and it certainly cannot be presumed that any such use implies association with the members of the revolutionary society. But there are other strong reasons to think that the older association survived till at any rate the date of the letter, exhibit EEE, and that these men were only members of that association. Prosecution witness No. 16, Ramasami Iyer, says that he and the seventh accused met Bapu Pillai, the eighth accused at Quilon and that Bapu Pillai offered to purchase a gramophone which Ramasami had in his possession “for his society.” Ramasami states that he did not ask him what the society was, nor had he the curiosity to inquire of Harihara Iyer about it. This was before the Punalur meeting when Bapu Pillai and Harihara Iyer were according to the prosecution enrolled as members of this revolutionary society. Further, Ramasami (prosecution witness NO. 16), states that when they met some of these accused persons in Dharmaraja Iyer’s house at Shencottah also before their enrolment at Punalur, Vanchi Iyer told him that Madasami was a very important person connected with “our society.” Ramasami asked Vanchi Iyer what the society was and Vanchi Iyer promised to tell him all about the society afterwards. It is also significant that according to Arumugam, everybody reading Patrika, his Pondicherry paper, is called “friend.” Now the Public Prosecutor contends that though the prosecution has offered no evidence of the formation of any revolutionary society in Travancore or about Vanchi, or Madasami or Bapu Pillai, or Hariharan being members of such secret societies, yet still it must be presumed that they were members of such revolutionary societies because before that time such societies had been formed at Tenkasi and at Tuticorin. But both Tenkasi and Tuticorin are not on the west coast and there is no suggestion in the prosecution evidence that any such societies were formed on the west coast. It is hardly likely that, if any such societies were formed, Ramasami Iyer would not have known of them. Nor is it likely that, if these persons were members of the revolutionary societies formed in Tinnevelly, Arumugam would not have known about them. Moreover exhibit EEE shows that in 1910 Madasami considered himself to be a member of Bharata Matha Association. Exhibit 14 is in consistent with the prosecution theory and supports the defence. When the facts proved are reconcilable and consistent with and supports the state of facts favourable to the accused, we shall not be warranted in assuming a different state of facts and the existence of a certain treasonable association of which there is no trace in the evidence. I accordingly come to the conclusion that these letters are refer (sic) to the Bharata Matha Associations and not to the revolutionary societies started by Nilakanta. And this evidence coupled with the statements of Ramasami and exhibit EEE shows that the Bharata Matha Association as such continued to subsist till December 1910. It is quite possible that the Bharata Matha referred to in exhibit EEE and in the letters may refer to other associations than that referred to by prosecution witness No. 29. But that only strengthens the conclusion that they should not be assumed to refer to any revolutionary societies. If this conclusion is right, then it lies on the prosecution to prove that the alleged revolutionary society in question was not similar to these–and, whether my finding is right or wrong, seeing that the Bharata Matha Association was in existence till a few days before this society was started and the possibilities at any rate of similar associations cannot be denied, the corroboration required must show not only that there were meetings at which the accused were present but they were parties to that part of the occurrence which constitute it a criminal conspiracy. Because the oaths were almost the same to a certain extent. Swadeshi and boycott were also the subjects of the lectures at the alleged revolutionary meetings.
- Third accused.–I shall now take up for consideration the case of the third accused. When Nilakanta started on his tour, he naturally would first approach those who, he knew, had been receiving papers from Pondicherry and would therefore be naturally interested in swadeshi and boycott, and who, he thought, were likely to come round to his revolutionary views. It may be that he succeeded with some, it may also be that he did not succeed with others. We have therefore to see not only that Chithambaram Pillai was at Tenkasi but became a convert to Nilakanta’s views. I have already referred to the evidence of the seventh, eighth, and twelfth witnesses which go only to show that there may have been a meeting at Tenkasi. Their evidence would be no corroboration of any matter to implicate Chidambaram Pillai, but there is this fact in favour of the prosecution that it was at Chidambaram Pillai’s house that the meeting took place. And if a secret society was formed there or if Arumugam Pillai or anybody else who was present there is guilty of the offence charged, then it may be fairly contended that unless Chidambaram Pillai is able to prove his innocence, he must be deemed to be a participator in the offence; but there are certain special circumstances in the case which show that much weight should not be attached to that presumption. Arumugam Pillai swears that the third accused as well as others took the oath; and they swore to kill white men; and they drank the saffron water to indicate the drinking of the blood of the white men. In his statement Exhibit CCCCC which was made before Mr. Cox, Arumugam Pillai referred to the killing of white men but not to the drinking of blood. Veeraraghava Aiyar (prosecution witness No. 31) is examined by the prosecution to corroborate Arumugam’s evidence and he states that, when Arumugam Pillai gave him the story on the night of the 19th or the morning of the 20th, he told him of the conversation between himself and Nilakanta in the separate room; but with reference to the oath itself, in the statement that Arumugam made to him there was no reference either to the killing of white men or to the drinking of blood. There is nothing in that oath or in the paper referred to show that it was a treasonable society either at Tuticorin or at Tenkasi. With reference to Somasundaram when speaking about the Tuticorin meeting he says Somasundaram told him that it was the duty of everybody to shed the white men’s blood in order to obtain swaraj. The difference between Arumugam Pillai’s and Somasundaram Pillai’s statements before him cannot be due to Veeraraghava Aiyar’s forgetfulness and it would be unsafe to accept Arumugam Pillai’s evidence in its developed form when it appears that the earliest statement before Veeraraghava Aiyar was of a different kind and is consistent with Chidambaram Pillai’s innocence. It is clear, as I already said, that he has improved his story. (See exhibit CCCCC.) The reference to the massacre of Englishmen or to the drinking of, saffron water as symbolical of the white man’s blood derives no support from his evidence before this Court. After describing what happened between himself and Nilakanta separately from the others, as I have stated above, he said that they came back to the others and what passed between them in the presence of Chidambaram Pillai is thus stated by him:–
Q.–Then you all five assembled together ?
A.–Yes, Nilakanta said that we should take oath.
Q.–After Nilakanta said that you should all take oath what happened first ?
A.–We were all staying outside.
Q.–What next ?
A.–Then we all agreed to take oath.
Q.–You say you were talking, what were you talking about ?
A.–We were talking about swadeshi matters and about persons who went to prison and who had been hanged.
Q.–Were you talking about the matters about which Nilakanta had spoken to you ?
A.–Yes, only matters relating to that.
Q.–You told us what he told you. Tell us what Nilakanta said in the presence of all the accused during this time ?
A.–He said about the very same matter which he talked to me in the room as well as about the matter which took place in 1857, the Sepoy Mutiny.
In cross-examination, this is what is stated.
Q.–When you were all talking together for 2 or 3 hours, you did not talk about bombs ?
A.–I do not remember having discussed about bombs, when we were all together, and again later.
Q.–After you joined the other three did Nilakanta repeat all that he had said to you in the room ?
A.–I don’t remember whether he related about those matters. He only told me repeatedly about the mutiny.
Q.–I don’t want to know about what he told you in the room but outside, what did he say when you five met ?
A.–Five of us were talking.
Q.–What did Nilakanta say? Did he repeat what he had told you in the room ?
A.–I don’t remember his having related what he had told me before. He said that oath should be taken.
Q.–This is the first thing he said ?
A.–For a long time we five of us were talking.
Q.–What was the conversation about ? Do you remember ?
A.–About the mutiny which took place in 1857. About the several persons who had been hanged, about several of the patriots having been sent to jail, such matters we were talking about.”
It will be noticed that in examination-in-chief he mentioned in reply to a leading question that Nilakanta spoke about the same matter that he had been talking about to Arumugam Pillai and from his cross-examination it seems probable that after he joined Chidambaram Pillai and the rest they may not have spoken about any conspiracy to drive out the British by force. It is said that the fact that Ramasami Iyer does not allege that the third was not at Punalur but only in Shencottah is in favour of the truth of the story. But it appears from the defence that he has a conclusive alibi in that respect. The defence can certainly be not expected to prove that the Police officials were aware of it.
The probabilities of the case point to the same conclusion. It must be remembered that when Arumugam Pillai went to Tenkasi according to Somasundaram he thought he was going on swadeshi business. Arumugam himself states that he spoke only to Somasundaram and Madasami but did not ask Umayorubhagam to accompany him as he thought he was not interested in the matter. Chidambaram Pillai may have been labouring under the same impression. Then again according to Somasundaram Pillai soon after Arumugam returned from Tenkasi, he told them all that passed at Tenkasi. This is explicable if the treasonable plot was only a concern between himself and Nilakanta. And so far as Chidambaram and some others were concerned it is only a swadeshi business about which he might well speak to his intimate friends. It is probable that Bharata Matha Associations intended to read newspapers from Pondicherry already existed. There is no evidence of Chidambaram Pillai having attended any swadeshi or swaraj lectures before. It is not explained why Nilakanta thought it necessary to invite Arumugam Pillai to a separate room and there is no reason to assume as the Public Prosecutor invited us to assume that Nilakantam must have already discoursed to them on these matters, and procured his assent to a treasonable conspiracy. We have other instances, where it appears that ordinarily when speaking to strangers or men who have not been already initiated he confined himself at first to swadeshi lectures to pave the way apparently for ultimately converting them to the necessity of expelling the British Government. This was what he did at the next meeting in order of time, spoken to by Sivagaminatha Pillai. I therefore acquit the third accused.
- The thirteenth accused.–The other accused who is alleged to have been present at Tenkasi is Vandemataram Subramania Iyer, the thirteenth accused. Arumugam Pillai speaks to his presence there. There is no letter written by Subramania Iyer to any of the other accused produced in the case nor any letter to him by any person suspected of seditious tendencies. Nor is there reference to any letter written by him to any others. This is the first of the seditious meetings alleged to have taken place and it is scarcely likely that if the man were a conspirator the prosecution would not have been able to show some correspondence referring to him. No overt act is alleged. The only alleged corroboration that is forthcoming is the evidence of prosecution witness No. 11 that the accused came to Tuticorin to sell copies of two books, Kanavu and Arilorupangu. The books themselves were not prescribed by Government at that time. I am not satisfied that the mere sale of the books is any corroboration of the evidence as to the guilt of the accused-Arumugam Pillai did not mention this incident before Mr. Cox or to Veeraraghava Aiyar. There is however the fact in favour of the accused that prosecution witness No. 11 states that when the accused first went to Tuticorin he the witness was asked by him whether he was K.V. Arumugam Pillai. The thirteenth accused certainly does not appear to have remembered Arumugam Pillai at that time. There is also the unexplained fact that the purchase-money of the books was remitted to one P.V. Subramania Iyer and not to this Subramania Iyer. Information was given against the accused on the 28th June and he was arrested only on the 3rd August. The explanation that Arumugam was not taken as an approver till that time is scarcely satisfactory because there can be no doubt that it was the intention of the Crown to take him as an approver. The accused himself is the son of a karnam. He had nothing to do with Ettiyapuram and Arumugam describes him as belonging to Ettiyapuram. I therefore acquit him not only on the ground that there was no corroboration of the evidence of Arumugam on any material point but the other facts proved in the case raise a strong inference that Arumugam must have been mistaken about his identity.
- The fifth accused.–I now come to the case of the fifth accused. No letter from any person alleged to be a conspirator was found in his house. His name is not mentioned in any letter produced. No newspaper even was found in his house. The evidence of the prosecution witnesses Nos. 8 and 10 shows that the accused only went to Nilakanta just as they themselves did. He went with the fourth accused to see him as he was a swami and a sanyasi. There is nothing to show that they knew he was a seditionist. It is alleged by the prosecution that the fifth accused was given the name of Subramania Pillai, but in considering the evidence about the names given to the various accused, I have shown that this evidence is beyond all doubt (see para 35) untrustworthy. He is a vakil’s gumastah, he is known as Subramania Pillai in documents, in judicial proceedings, his master the vakil says that he is known by that name, and it is difficult to believe that the name Subramania Pillai would have been given for use in secret communications. The fact that they forget what name they gave to the fourth accused is significant. My opinion is that no such name was given to him and Arumugam’s evidence on this point is false. Why then did Arumugam Pillai fasten this name on the fifth accused appears to be clear. In exhibit CCCCC he stated that it was himself who took Somasundaram Pillai and these two accused Nos. 4 and 5 to Nilakanta. The statement that he made to Veeraraghava Aiyar is to the same effect, while the evidence before this Court is that it was Somasundaram Pillai who took them both to Nilakanta. This alteration in the story is in my opinion deliberate because there can be no doubt that the terms in which the families lived preclude the supposition that he would have taken the fifth accused to a meeting for this purpose. It is true that there is no evidence as pointed by the Public Prosecutor of any personal animosity between Arumugam and the fifth accused, but exhibits 140 to 145 show beyond all doubt litigation between the two families and the bitter feelings between them; Arumugam Pillai’s maternal uncle complained against Palania Pillai, the nephew of the fifth accused, who conducted the case engaging vakils, giving them instructions and fees on behalf of his uncle, defence witness No. 43, a second-grade pleader who was a witness in the proceedings supports this statement. The above exhibits show that the approver’s uncle was convicted once, that the nephew of the fifth accused obtained a decree against the approver’s uncle in execution of which there was an order for arrest and there was also sanction granted in the case. There can be no doubt therefore that Arumugam Pillai’s family bore great enmity against the fifth accused, and though Arumugam may not have borne any personal animosity against this man on account of anything done to himself, it is impossible to believe that he did not share in the feelings entertained by the other members of his family. It is quite clear to me therefore that the alteration in the story is deliberate to meet the argument of improbability of Arumugam taking them to a treasonable meeting. The enmity is also sufficient to show that the fifth accused would not have taken any such oath when Arumugam Pillai was present or join a society of which Arumugam Pillai was such an important member. The story which the approvers tell appears to me to be improbable on the face of it. Arumugam states that while Sankara Krishna Iyer, the second accused, and Nilakanta were sitting there, prosecution witness No. 8 came and Madasami turned up; Somasundaram came with the fourth and fifth accused. Nilakanta, it appears, asked Umayorubagam Pillai, prosecution witness No. 8, to go away because it seems that from his appearance he did not appear to be a proper person to be enlisted as a member. The reason given is unsatisfactory. All at once then, he states, an oath was taken. He does not say that there was any discussion, that there was any attempt to persuade these two men (see page 102, line 40). Somasundaram Pillai examined subsequently supplies the omission and gives a more detailed account. He states that Nilakanta repeated the usual story about the mis-government of the country, etc., and they at once proceeded to take the oath. This appears to me to be improbable. It is difficult to believe that these two persons agreed at once to become members of a revolutionary society on being asked by a man like Nilakanta though it may be that Arumugam and Somasundaram also may have tried to persuade them to agree to Nilakanta’s proposal. These two approver-witnesses do not hold such a position of confidence, nor does the evidence show that they were such friends of these accused that they would at once agree to any proposals made by them. One of them is apparently an enemy. It is not alleged that there was any prior meeting or that these two accused were spoken to either by Nilakanta or by these approvers before on the subject. To avoid no doubt this improbability, Somasundaram Pillai now states that he knew them before. He states that soon after Arumugam Pillai disclosed to him all about the secret society he spoke about them to the fourth and the fifth accused. But it is shown beyond all doubt that the name of the fourth accused is Muthusami Pillai (exhibit Y), prosecution witnesses Nos. 8 and 13 and defence witnesses Nos. 38, 39, 40 and 43 and this witness Somasundaram called him Muthukumarasami Pillai. However this story is very improbable if the Tenkasi meeting is a seditious meeting. It has also to be borne in mind that before this, was the meeting at Sivagaminatha Pillai’s house and at that meeting the talk was only of swadeshi and there was nothing about swaraj. It is possible that something of that sort may have taken place here too. But without corroboration of the evidence of the accomplices I am unable to believe that any oath was taken or that these accused pledged themselves to take steps to attain swaraj or absolute independence by the expulsion of the British Government. For these reasons I find that the case against the fifth accused is a concoction by Arumugam Pillai and acquit him.
- Fourth accused.–The direct evidence against the fourth accused is the same as against the fifth. In corroboration it is said that some newspapers from Pondicherry were found in his house and he paid some subscription for the Dharman newspaper. It is unnecessary to consider the effect of this evidence if the direct evidence is discredited and I have already discredited that evidence. If the fifth is acquitted, he also must be acquitted. I may add even otherwise the evidence against him does not afford sufficient corroboration.
- Eleventh and twelfth accused.–Some of the accused are alleged to have been present at certain meetings held in Chithrai month at Shencottah. Ramasami Iyer says that he went to Shencottah in that month where he stayed for two days at the house of Harihara Iyer, the seventh accused. On the first day there was a meeting held in the house of the eleventh accused Savadi Arunachalam Pillai where there were present accused Nos. 2, 3, 6, 11, 12 and 14. They spoke about the steps to be taken for the encouragement of native industries by their manufacture and by boycotting all articles of English manufacture. On the second day also there was a lecture by Vanchi Iyer about the encouragement of swadeshi industries and the way in which they should conduct themselves and then he added that people should be going about from village to village and collecting people to drive the English out of India.
THE CHIEF JUSTICE.–Q.–In what way ?
A.– That Sabhas should be collected and just in the same way in which we conducted meeting in Punalur we should teach these people also and in that way drive the English out of India.
Sankaran Nair, J.–Q.–Teach what ?
A.–That Dorais should be driven out of our country. That should be taught.
THE CHIEF JUSTICE.–Q.–How driving out ?
A.–By shooting them with bombs and drive them with what we can get at.
He says that at the meeting held the next day at the house of the twelfth accused he met accused Nos. 2, 7, 11, 12 and 14, i.e., all those that were present at the previous day’s meeting with the exception of the third accused.
- The date of this meeting is definitely fixed by prosecution witness No. 27, Thirumalaimuthu Pillai. He states that he accompanied Babu Pillai to Shencottah on the 1st of May. He himself went to his sister’s house when Babu Pillai, and certain others who were with him left him saying that they were going to the house of Alagappa Pillai, the twelfth accused. After he had finished his business, he went to Alagappa Pillai’s where he meet accused Nos. 2, 6, 8, 10, 11 and 12 and Vanchi Iyer. He says he also met the prosecution witness No. 16, Ramaswami Aiyar, whom he had met before at Alleppey; and Babu Pillai and he with the others who had accompanied them before returned to their village. On their way back, Babu Pillai told him that there were societies in various places for the attainment of swaraj and that they had formed a society in Shencottah also with a view to Europeans not ruling India and that India might be ruled by the Indians themselves. He refused to join the society. Afterwards in Babu Pillai’s house he saw Vanchi Iyer who asked him to take what they called “blood oath” and join the society but he refused to do so. The meeting at Alagappa Pillai’s house being according to this witness held on the 1st of May, the meeting at Arunachalam Pillai’s house should be on the 30th of April. Taking those as the dates of the meetings in these two houses, the accused adduced evidence to show in the case of some of them that they were not at that time at Shencottah, and the seventh accused adduced evidence to show that at that time Ramaswami Iyer could not have been at Shencottah and that therefore the whole evidence must be false. I will only briefly refer to this evidence as the Public Prosecutor has subsequently stated that he does not rely on prosecution witness No. 27 and on the dates given by him. The reason which prosecution witness No. 27 gives for remembering the dates is that he keeps a diary. In that diary he had stated that he had gone on that day to see his sister at Shencottah and that, as he remembered that when he went to see his sister at Shencottah this incident took place, he is enabled to state that it took place on that day. Now it appears from the evidence adduced on behalf of the seventh accused (see exhibits 156 and 157 and defence witnesses Nos. 53 and 57) that on the 2nd of May Ramasami Iyer was at Alleppey, and that he could not therefore have been at Shencottah on the 1st of May. Exhibit 156 is the ledger and exhibit 157 is the day book. On the 19th of Chithrai corresponding to 2nd of May there is an entry which shows that Ramasami Iyer must have been at Alleppey on that day. The account books have been duly proved and there is no doubt about their genuineness. The eleventh accused has proved that he was at Tinnevelly between the 12th and 24th of April and that he left Tinnevelly for Shencottah on the 24th of April and returned on the 26th to Tinnevelly where he remained up to the 20th of Chithrai, i.e., the 2nd of May. His diary, exhibit 58, shows that he left Tinnevelly on the 2nd of May for Shencottah with prosecution witness No. 64 and arrived there at 4 P.M. Besides the strong support it derives from the prosecution witness No. 64 himself, it is also supported by the evidence of his uncle (defence witness No. 63). Exhibits 168 and 169 show that notices of a, meeting were printed by him at Tinnevelly on the 1st of May (see on this point the evidence of defence witness No. 65). The fourteenth accused also has adduced evidence which places it beyond doubt that he was at Tanjore on the 1st of May. On that day he had signed a book kept by the Brahman hotel-keeper at Tanjore in which he acknowledges to have received payment of his wages. It is therefore proved beyond all doubt that the evidence of this witness is false, if we are to take it that the meetings at Shencottah took place on the 30th of April and 1st of May as stated by prosecution witness No. 27. But the Public Prosecutor now gives up the prosecution witness No. 27 as not being a true witness, and states that there is nothing in the defence evidence inconsistent with his suggestion which is supported by the evidence in the case that this meeting may have taken place not on the 30th of April and 1st of May as appears from Tirumalaimuthu Pillai’s evidence but at some time after the 2nd of May and before the 7th and he invites the Court to hold that between those dates the meetings spoken to by Ramasami Iyer took place at Dharmaraja Iyer’s house in Shencottah. It appears to me that this change of front cannot be allowed. When examined before the Committing Magistrate, Tirumalaimuthu Pillai referred to his diary as showing the date of his presence at Shencottah. In this Court also the prosecution relied upon his evidence. When the defence pleaders opened their cases they stated that they were going to prove alibi so far as that date was concerned, and it is only after the evidence was closed and the counsel for the first accused concluded his address and in the course of the argument by the pleader on behalf of the second accused that the Public Prosecutor intimated that he did not propose to rely on the evidence of this twenty-seventh witness. As he himself conceded, the eleventh accused has adduced evidence to meet a case of a meeting at Dharmaraja Iyer’s on the dates alleged by Tirumalaimuthu Pillai. So far as he is concerned therefore I feel no hesitation in saying that it would be unfair to let the Public Prosecutor rely on any date other than the 1st of May. As regards the fourteenth accused also, the exhibits filed by him which show beyond all doubt that he was at Tanjore on the 1st of May show, if believed, that from the 1st of May up to the end of 31st May he received his pay for his services under that hotel-keeper. It was argued by the Public Prosecutor that in exhibit 185, after the receipt in the book which is dated 1st May signed by Venkatachala Iyer, the next entry is on the 6th of May made by the hotel-keeper himself (defence witness No. 71); the accused is debited through another one anna which implies that he was not there on the 6th of May and that it is very probable that the hotel-keeper allowed his servants leave of absence for a day or two and Venkatachala Iyer might have therefore run up to Shencottah to attend the meeting. This may possibly be so though I do not think it probable that a cook like Venkatachala Iyer would leave his business for a day or two to attend a meeting like that at the eleventh accused’s where nothing in particular was done. However it is enough to say that this man Venkatachala Iyer was not called upon to meet a case of the nature set up and the examination of his witnesses by him and his cross-examination of the prosecution witnesses does not indicate that he attempted to meet such a case. As to the other accused, the seventh, it was contended by the Public Prosecutor that besides trying to show that Ramasami Iyer was not at Shencottah on the dates alleged he has tried further to show that Ramasami Iyer was at Alleppey on the 2nd and that therefore he could not have been prejudiced by this change in the prosecution case. I do not think that meets the difficulty. It is contended on behalf of the defence that he would have been able to show that his client could not have been at Shencottah on those dates and that he was elsewhere, though from the date now available in Court he might not have been able to show that. I think there is a good deal of force in this contention and I think therefore that so far as the accused in this case are concerned we must take it that the case they were called upon to meet was that the meetings were held on the 30th of April and the 1st of May. There is no doubt however that the evidence of Tirumalaimuthu Pillai is false. It is conceded by the Public Prosecutor that if his diary is believed then he could not have been present at these meetings as he states therein and that he was elsewhere on the subsequent days also. This man’s house was searched on the 22nd July. He was taken to the police station and though he was not under legal arrest he was detained in the station itself. He was taken by the police to Tenkasi and he made a statement to the Superintendent of police at Courtalum and from there was taken to Tinnevelly. His wife also was taken to the police station and kept there for many hours and he says he does not know now why she was taken there. I have no doubt that he gave his evidence under police influence.
- Apart however from the prejudice to the accused on account of this change of front, I am also satisfied that Ramasami Iyer’s evidence in this respect cannot be accepted. The fact that Tirumalaimuthu Pillai gave false evidence does not in itself affect the credibility of Ramasami Iyer. He may have spoken the truth though on account of Tirumalaimuthu Pillai having been put forward as a true witness we are obliged to accept the 1st of May as the true date of the meeting. As to Ramasami Iyer’s own evidence it is contended that he also states that the meeting must have been before the 2nd of May and thus it completely rebuts the suggestion made by the Public Prosecutor. In his examination-in-chief he states that from Alleppey he went to Cochin on the 2nd of Chitrai. He stayed two or three days at Cochin and after that he came to Shencottah where he stayed in Harihara Iyer’s house and attended the meetings in Savadi Pillai’s house and Alagappa Pillai’s house. It is obvious that if he spent only two or three days at Cochin he must have arrived at Shencottah before the 2nd of May unless some business on his way to which however he does not refer to in his evidence detained him for some days (page 477). He says that the last time he saw Vanchi (see pages 532 and 537) was at these meetings and that it was before the 20 of Chitrai, viz., the 2nd of May. It is contended on behalf of the prosecution that these dates which he gives in cross-examination should not be accepted. But it is in a way supported by what he said in examination-in-chief. It is consistent with and supported by the evidence of Tirumalaimuthu Pillai and there is no reason to suppose that when he gave that evidence he was not deliberately making them seeing that at that time that was the prosecution case. In exhibit I-a the charge sheet that was put in Ramasami Iyer is mentioned as the thirty-fifth witness on behalf of the prosecution. His name is given there as a witness to speak to all the other meetings about which he has given evidence in this case. But these meetings of Chitrai are omitted. And taking into consideration that he was an approver and the prosecution knew full well what he had to say, I think there is very little doubt that at that time it was not expected that he was to give evidence in the case about the meetings. Prosecution witness No. 25 is therein mentioned as a witness to speak to these meetings.
Against the twelfth accused the evidence is only with reference to the part he took at the Chitrai meetings and Alagappa Pillai must accordingly be acquitted. As to Arunachallam Pillai, there is the evidence of prosecution witness No. 25 who swears that at the second meeting in Alagappa Pillai’s house, Arunachallam Pillai asked him to take the blood-oath. The evidence as to the meeting having been rejected this cannot be relied upon to corroborate Ramasami Iyer’s evidence as to that meeting. The evidence even if accepted might only raise suspicion. It does not amount to prove any conspiracy as alleged. There is evidence in this case to prove that he went to Northern India to join the Medical College and it is probable that as pointed out by the Public Prosecutor he had some suspicion of what Vanchi was going to do. It may be that he might have remonstrated with Vanchi and to avoid the consequences he ran away to Northern India. But this of course does not prove the offence with which he is charged and I accordingly acquit him. So far as the other accused are concerned, these meetings must be left out of consideration.
- Tenth accused.–The evidence against the tenth accused is only that of prosecution witness No. 27, Tirumalaimuthu Pillai, whom I have already found to be a false witness. The approver Ramaswami Iyer does not speak to his presence. There are no doubt a few letters (exhibits G, G-4, J-1, J-2, P and LL) in which he is referred to, but they are in my opinion worthless. I do not think they prove anything against him. He is therefore acquitted.
- Seventh, eighth and ninth accused.–The case against the other accused, i.e., accused Nos. 7, 8 and 9 depends mainly upon the evidence of the third approver Ramasami Iyer who speaks to the meetings at Dharmaraja Iyer’s house in Shencottah and the meeting at Punalur.
Before referring to this evidence I shall deal with a meeting alleged to have been held at the house of Sivagaminatha Pillai, prosecution witness No. 21. This evidence is given, I presume, to corroborate the evidence of Ramasami Iyer with reference to the other two meetings. This man’s evidence is that Vanchi Iyer took his house for a few days for Nilakanta and that Dharmaraja Iyer, Vanchi Iyer, Arunachallam Pillai, Alagappa Pillai, the eleventh and twelfth accused frequently met Nilakanta in that house. There when they were together they shut the door and were always talking about something. When he asked Vanchi Iyer what it was about, Vanchi Iyer replied that they were talking about swadeshi matters and that he would know all about the society if he took the oath and joined them. The witness did not take any oath and he knows nothing more about the society. There are many suspicious circumstances about the evidence of this witness. When he was examined before the District Magistrate he said that this meeting in his house at Shencottah was about the time of the wedding of Savadi Arunachallam Pillai, the eleventh accused, which was in the month of Avani (16th August to 16th September). According to the evidence given before this Court, the Public Prosecutor states here that this man’s evidence refers to the first visit to Shencottah made by Nilakanta on his way to Tuticorin, that is about the beginning of July. If the statement of the witness in the lower Court is right, then this meeting would be about the same time as the meeting at Dharmaraja Iyer’s house after the 20th August and would contradict the evidence of that witness. And it is contended by the defence that the date of the meeting is now pushed further back to avoid that inconsistency. The witness was first examined by Mr. George, the Superintendent of police, in Travancore. Before him he did not say that the eleventh and twelfth accused were present. The evidence of his master, prosecution witness No. 49, shows that he has to sleep at nights at the temple at Aryankavu, and to attend to his duties there and renders it exceedingly improbable that he would have been present at Shencottah to witness these meetings as alleged by him. There are good reasons not to place reliance on his evidence. The witness states that all that Vanchi told him was that they were talking about swadeshi matters. It is possible that as Nilakanta stated, he lived in his house and that the witness met him and talked about only swadeshi. To what was purely a swadeshi meeting he has now apparently tried to impart an air of secrecy and suspicion. As corroboration of Ramaswami Iyer’s evidence, I think, this is untrustworthy; and even if it is accepted, I think, it is useless because he simply states that they were discussing about swadeshi affairs. The difference between swadeshi and swaraj is well understood by these witnesses and there is nothing seditious about that meeting so far as is disclosed by the evidence.
- I now pass on to the meetings at Shencottah and Punalur spoken to by the approver Ramaswami Iyer. As it has been strongly pressed upon us by the defence that the whole evidence of Ramaswami Iyer with reference to these meetings is false, if the dates given by him of those meetings are accepted, I proceed to give his evidence with reference to the dates. He says that he was in his house at Sundarapandiapuram in the Tenkasi taluk for Avaniavittam in 1910 which fell on the 20th August in that year. The next day, i.e., 21st August was the Gayatri day, and the witness states that he remained in his own home that day. The day after, i.e., 22nd August also, witness states that he remained at home. The day after, i.e., 23rd August, at about 4 o’clock he left his home for Shencottah which is only about ten miles distant and arrived at Shencottah about 7 in the evening. For four days after that, excluding the 23rd, the date of his arrival, i.e., 24, 25, 26 and 27, he remained at Shencottah. According to his evidence, on the 24th and 25th, i.e., the day after his arrival and the next day, they had meetings to discuss treasonable projects. Then on the morning of the 28th at about 5-30 A.M., he left Shencottah for Punalur and arrived at Punalur at 8 or 9 in the morning. On the night of the day he arrived, he says there was gramophone entertainment. It is not quite clear whether this entertainment was on that day or the day after. But I shall take it to be on the night of that day in favour of the prosecution. There was another meeting and at that meeting they took the oath by which they pledged themselves to rise on a certain day and massacre all the English men in the country and obtain swaraj. The next day, i.e., 31st August, they all remained at Punalur itself. On the following day, 1st September, by the morning train at about eight o’clock or nine Ramaswami Iyer left Punalur with the deceased Dharmaraja Iyer and the sixth, seventh and fourteenth accused leaving Nilakanta there. These are the facts elicited in the cross-examination of the approver and the plea of the defence is that on these days Nilakanta was elsewhere. Before considering that plea I might here notice the contention advanced on behalf of the prosecution that the date of the approver leaving Punalur must be put back three days, i.e., to the 29th August. The reason alleged is that Ramaswami Iyer remained in his house at Sundarapandiapuram not four days but really two days only, as stated in examination-in-chief and very probably left Punalur not on the second day after the meeting when the oath was taken but the very next day. It is argued that his statements in cross-examination should not be relied upon as it was in reply to a series of embarrassing questions and they were made without a knowledge of the purpose for which the questions were asked. Now, there is no doubt that the witness’ statements in cross-examination are definite and clear and when he said in examination-in-chief that he remained at Punalur he evidently meant that he stayed there after Gayatri. The witness seems to have understood the object also as he tried to put Gayatri before Avaniavittam. I am therefore unable to accept the prosecution suggestion that for this reason his statements in cross-examination should not all be upset, nor am I able to accept that he remained a day less at Punalur according to his evidence. The witness has no doubt that he left Punalur by the morning train at 8 o’clock; and he clearly remembers that he stayed there for a day. If he had left it after the oath was taken which was in the night, he could not have stayed there for one day, a fact about which he has no doubt. Therefore he must have left it the day after and not the next day. I am therefore of opinion that the evidence of the witness as to the dates was not under mistake or pressure only but with deliberation.
- It now appears that according to exhibit QQQQ, Dharmaraja Iyer who accompanied this witness from Punalur to Shencottah on the 1st of September, as above stated, despatched a telegraphic money order for Rs. 20 to Erukkur to Nilakanta where it was admittedly paid to him on the 3rd September. The despatch of the money order and payment are clearly proved and not denied by the prosecution. Now, it is true that it was possible for Nilakanta to leave Punalur at 8 A.M. by a train leaving at that time and arrive at Erukkur at 7 P.M. the next evening and to receive the money order on the 3rd. But this is very improbable. Furthermore, exhibit G-1, dated 3rd September, shows that a sufficient number of days must have elapsed for Nilakanta to complain of delay on the part of Dharmaraja Iyer to send the deer skin promised by him. If therefore this evidence as to dates is to be accepted, then I think Nilakanta has proved an alibi, but I am not satisfied that Ramaswami Iyer’s evidence in this respect should be accepted. He was speaking to facts that occurred some time ago. His memory is not very clear and I am not therefore prepared to hold that we are bound to accept these dates. At the same time this evidence shows sufficiently that we must accept Ramaswami Aiyar’s evidence with caution. The defence goes further and produces exhibit 93 which, if genuine, disproves the prosecution story. I consider it unsafe to act upon that. In that letter the first accused’s father says that he had been to Quilon and fetched Nilakanta, while according to his present evidence it is to Courtalum that the father went and it is also admitted that he did not bring Nilakanta who only promised to come later. There was no reply to that letter by the son-in-law to whom the letter was written and the son-in-law appeared to be very reluctant in the witness box and he gave his evidence in favour of the post card with reluctance, though it must have come from his custody. Nor do I attach any importance to the other oral evidence on behalf of Nilakanta. But as I have already stated, though it is not disproved so far as Nilakanta is concerned, there is sufficient to show that Ramaswami gives evidence that cannot be trusted. I have already discussed the question and have stated my conclusion that the correspondence is quite consistent with their being members of the old Bharata Matha Association spoken to by prosecution witness No. 29, or similar associations, if any came into existence. The correspondence therefore above referred to cannot be treated as any corroboration. If any particular letter referring to any one accused is inconsistent with this conclusion, it would be considered with reference to the case of that accused. I now proceed to take up the case of each accused.
- Seventh accused.–The seventh accused is proved by prosecution witness No. 29, as I have already stated, to be a member of the Bharata Matha Association. As pointed out already he met Nilakanta and the second accused at Alleppey (see exhibit G-9). Afterwards in August he travelled with Ramaswami Iyer to Quilon, met Bapu Pillai, negotiated the sale of the gramophone and from there went to Punalur, met Vanchi in the railway station and remained there. Bapu Pillai came the next day and he met him at his house. Nilakanta sent for the paper “India” from Chidambaram Pillai’s house at Tenkasi. Harihara Iyer arranged with Ramaswami Iyer to get those papers. Ramaswami Iyer got them from Tenkasi and handed them over to Harihara Iyer at Shencottah. He came back and stayed with Harihara Aiyar who took him and two others to Dharmaraja Iyer’s house and then they went to Punalur where a society was formed and oath was administered. Then he is alleged to have been present also at a meeting in Alagappa Pillai’s house. I have already held that the evidence as to that meeting must be disregarded as against all the accused. That is the prosecution case about him. With reference to the letters, exhibits G-8, G-13, G-9, T-3, T-8 and GG-1, I have shown that they are consistent with their having been members of the Bharata Matha Association. I do not attach therefore much weight to them. It is then pointed out that according to the account books that he produced, he was absent from Alleppey during the days these meetings are said to have taken place at Dharmaraja Iyer’s house and at Punalur. This may be so. But it does not serve as any corroborative evidence in support of Ramaswami Iyer’s statements. Exhibits G-9, G-10 and G-11, show no doubt that he went to Punalur and to that extent supports Ramaswami Iyer’s story. But it has nothing to do with the meeting at Punalur where the society itself was formed. It may be possible that Harihara Iyer sent prosecution witness No. 16 to Tenkasi to bring the issues of the “India” newspaper but that is not in support of the prosecution. The prosecution has to show that it is not consistent with the original purposes of the Bharata Matha Association or of similar associations. The inference derivable, if any, is not in support of the prosecution. I see no evidence whatever to support the evidence of Ramaswami Iyer as to what the seventh accused is said to have done at Punalur or at Dharmaraja Iyer’s house in Shencottah. I would therefore acquit him.
- But the Public Prosecutor has invited us to draw inferences against the accused for their failure to prove what they have set up in their defence. I am not prepared to draw any such inference against any accused person, as it is not unusual to make such statements without any attempt being made to prove them. The accused make their statements to explain the evidence against them; to show that it is consistent with their innocence; and if such statement discloses that there is evidence which they might have produced in its support, then their statements might be disregarded if they do not produce it; but failure to prove any such statement should never lead to any inference against an accused. It is the failure to observe this caution that often leads accused persons in this Presidency not to speak the truth which might lead to inferences against them. The fact that dharmam was sent to him from Pondicherry is no corroborative evidence, nor is the fact that he paid any money to Nilakanta. It is not shown that the money was in any way paid to further the objects of the conspiracy and to expel the British Government. But the evidence shows clearly that he was contributing towards the publication of a book of Nilakanta. There is no evidence in this case whether the book was a seditious one or not. There is no doubt the evidence of Arumugum Pillai that Vanchi told him that Hariharan was a member of the revolutionary society. But the fact that Vanchi said so rests only on Arumugam’s statement which cannot be accepted without any corroboration. Ramasami Iyer’s evidence is not therefore corroborated in any material particular and I therefore acquit this accused.
- Eighth accused.–Against this man also the only evidence is that of Ramasami Iyer. Of course Ramasami Iyer implicates him to the fullest extent. Arumugum refers to a letter by Vanchi in which this man is stated to be a conspirator. The letter itself is not produced and Arumugam’s sole testimony cannot be accepted. Letters (exhibits G-1, G-19, G-27, DD, XX and G-20) are relied upon to show that this man must have been a member of a revolutionary society. Exhibit DD is particularly relied upon in which the secret name of Azhaghai is used and Bapu Pillai is styled as younger brother. I have already discussed this document with reference to the question of the names and while I think it is true that Madasami had another name I do not think it has been proved that the name that was given to him was intended to be used in secret communications. It is also noticeable that at the Punalur meeting where Bapu Pillai was admitted a member no secret name was given. In exhibit DD, Vanchi uses his own proper name. He gave his address at Shencottah. Madasami’s name is also given and so Hariharan’s. It is quite clear that exhibit DD could not have been intended to be a letter devised to conceal the identity of those who were referred to from the police and other persons. Nor do I attach any weight to the reference in exhibit G-19 to “our friends” as Arumugum states that all those who were reading his patrika were called “friends”. Therefore I am of opinion that Ramasami Iyer’s evidence has not been corroborated as required. As to the meeting at Alagappa Pillai’s house also, for the reasons given in the discussion of the evidence of that meeting I hold that that evidence also cannot be relied upon. I accordingly acquit the eighth accused.
- Ninth accused.–As to the ninth accused Desikachari who is connected with the Travancore Agricultural Trading Company, Limited, registered under the Indian Companies Act, there is no evidence against him except that of prosecution witness No. 10. Not even any letter written by him or to him nor any letter in which his name is referred to is produced. Ramasami Iyer’s evidence is not satisfactory. He said at first that he saw him first at Bapu Pillai’s house and afterwards said that he came from Shencottah. The Public Prosecutor complained that he has not even stated where he was or rendered any assistance to this Court. Considering that statements of the other accused have only been of use to help the prosecution, I cannot help thinking that his pleader exercised a wise discretion in preserving what is called a sulky silence. I am of opinion that the case against this man has not been proved and I accordingly acquit him.
- Sixth and fourteenth accused.–Against these two accused in corroboration of the evidence of the approver, there is the evidence of prosecution witness No. 29 which, if believed, seems to be sufficient corroboration. This witness states that a week after exhibit G-17 which is dated 14th September 1910 there was a meeting at Shencottah in Dharmaraja Iyer’s house where they were present, Dharmaraja Iyer, Vanchi Iyer, Jagannadha Iyengar, Pichumani and himself. It appears from his evidence that the others were already members of a society for the purpose of expelling the British Government and that they had already taken an oath for that. Pichumani said that he had already taken an oath, the witness also might do that. He refused to do so. If we take the date of this meeting to be the 21st of September, then I think it is very probable that Pichumani was not at Shencottah on the 21st. He had shown that on the 12th and on the 15th he was not at Shencottah but at Tanjore (see exhibits 176 and 177). A money order was sent on the 9th September from Tanjore to be delivered to him in Shencottah; it was redirected from Shencottah and paid to him at Tanjore on the 15th. It is very probable therefore that Venkatachalla Iyer was at Shencottah between the 9th and the 12th and it is improbable that a man in his position would have come to Shencottah again to attend the meeting about which prosecution witness No. 29 has given evidence if it was held on or before the 21st; but the date given by the witness (prosecution witness No. 29), viz., a week after G-17, is also an approximate date and it might very well be a few days after. I see no reason to distrust this witness on that account; he is not an accomplice and no sufficient reason has been shown why his evidence should not be believed. I accordingly accept it as sufficient corroboration of the evidence of the approver against the sixth and the fourteenth accused. I accordingly find them guilty on the first charge.
- Second charge.–On the second charge, I have already found that the murder of Mr. Ashe had nothing to do with the treasonable conspiracy. It was neither a consequence of it nor in pursuance of it. On the question whether those convicted on the first charge are guilty of abetment under section 111 of the Code I agree with my learned colleagues.
The following therefore are my conclusions:-
Tuticorin was a centre of swadeshi activity and those who were advocating the fostering of swadeshi industries and boycott of English goods came into conflict with the European non-official community and the officials; among them Mr. Ashe was believed by them to have used his official position to strangle these industries.
The murder of Mr. Ashe by Vanchi was due mainly to the impression that he ruined the Swadeshi Steam Navigation Company to benefit his country-men and Vanchi was nerved to undertake it either by the pernicious teaching of Nilakanta or of the writings already referred to. It was not only not a consequence of the conspiracy but was against its objects.
The above impression of official attitude led to the formation of secret societies whose object was swadeshi and boycott.
In Pondicherry there were a number of persons actively engaged fostering swadeshi, boycott, feelings of hatred towards the British Government.
Nilakanta was one of these. Whether he was sent out by others or started on his own account is not clear. But he went to various places in the Presidency as a religious teacher, preached swadeshi, boycott, the incompatibility of British rule with Indian progress, both material and spiritual; converted some of its members to his views; very probably by getting into touch with the secret societies that already existed; made them take oath to expel British Government. It is very doubtful whether any of them realized the effect of their promise and accepting for this purpose the findings of my learned colleagues the only persons intelligent to realize the consequence appear to be Arumugam Pillai the approver, and first, second and seventh accused; it is certain that the cooks sixth and fourteenth accused, the grocers third and fourth accused, could have had no idea of what they were undertaking.
There was no overt act. No preparation for a rebellion. The principal man, Nilakanta, collected money for the publication of a book from his dupes, misappropriated it and ran away to Northern India where others lost sight of him. The conspiracy is contemptible and farcical.
On the second charge I acquit all the accused.
On the first charge I convict 1, 2, 6, 14 and acquit the rest.
By the Court.–As regards the sentences it is scarcely necessary to point out the crime of which the accused Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 14 stand convicted is of a most serious character. The offence is the conspiracy itself. But although it is not necessary that anything should have been done to further the objects of the conspiracy the question whether any overt act has been committed in pursuance of the conspiracy is material in connection with the question of punishment. There is no evidence that any acts were done to carry out the purposes for which the conspiracy was formed.
Although in a sense the conspiracy was contemptible it was certainly not negligible and even though no acts of violence or lawlessness have been proved as the direct outcome of the conspiracy it is difficult to overestimate the mischievous effect of a conspiracy such as has been proved in this case on the minds of all brought within its influence.
Nilakanta alias Brahmachari (the first accused) was the organiser of the conspiracy and the leading spirit amongst the conspirators. It may well be that but for him the men who allowed themselves to be misled by him would not now find themselves in the dock. Wo sentence him to seven years’ rigorous imprisonment.
Sankarakrishna Iyer (the second accused) actively co-operated with Nilakanta and acted as his henchman. We sentence him to four years’ rigorous imprisonment.
Harihara Iyer (the seventh accused) is a man of some position and education. We sentence him to three years’ rigorous imprisonment.
We sentence Chidambaram Pillai (the third accused) to two years’ rigorous imprisonment. The remaining accused whom we convict are men of no importance and we think we are justified in dealing leniently with them. We sentence Muthukumarasami Pillai (the fourth accused), Subbayya Pillai (the fifth accused) Jaganadha Iyengar (the sixth accused), Bapu Pillai alias Ramasami Pillai (the eighth accused) and Pichumani Iyer alias Venkatachela Aiyar (the fourteenth accused) to one year’s rigorous imprisonment each.
* The important points of law argued in this case were re-argued before a Full Bench of the High Court in Muthukumarasami Pillai v. King-Emperor, I.L.R., 33, Mad. 397
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