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The Alipur Judgment
THE judgment of the Appeal Court in the Alipur Case has resulted in the reduction of sentences to a greater or less extent in all but two notable instances, and on the other hand, the maintenance of the finding of the Lower Court in all but six cases, on five of which there is a difference of opinion between the Chief Justice and Justice Carnduff. So long as these cases are still sub judice, we reserve our general comments on the trial. At present we can only offer a few remarks on special features of the judgment. The acquittal of the Maratha, Hari Balkrishna Kane, must give universal satisfaction, as his conviction in the absence of any evidence in the least establishing his guilt would have been a gross miscarriage of justice. The rejection of Section 121 and the consequent elimination of the death sentences is also a result on which the Government and the country may both be congratulated. Even in the case of actual political assassins the infliction of the death sentences, however legally justifiable, is bad policy. Death sentences for political crimes only provide martyrs to a revolutionary cause, nerve the violent to fresh acts of vengeance and terrorism, and create through the liberation of the spirits of the dead men a psychical force making for further unrest and those passions of political revolt and fierceness to which they were attached in life. The prolongation of terrorism is undesirable in the interests of the country; for, so long as young men are attached to these methods of violence, the efforts of a more orderly though not less strenuous Nationalism to organise and spread itself must be seriously hampered. We are glad to note that the Chief Justice has in no case condemned and accused on the evidence of the watch-witnesses alone. Such evidence is always suspect in the eyes of the people of this country and the gross blunders, if they were no worse, committed by several of the police witnesses in this case deprive their identifications of all evidential value. Once the confessions were admitted as entirely voluntary and entirely true,
Page – 287 the fate of the confessing prisoners and of those directly implicated by them as active members of the society was a foregone conclusion. The conviction of an accused on such a serious charge when there is no clear incriminating evidence against him except the confessions of others, is no doubt permissible under ordinary jurisprudence when these confessions create a moral certainty in the mind of the judge; but if this rule sometimes prevents the escape of the guilty, it not seldom lends itself to the punishment of the innocent. Of more importance, however, and the one serious flaw we are disposed to find in the Chief Justice's judgment, is the exaggerated importance attached to familiarity and intimacy between the leaders of the conspiracy and those whose guilt was open to doubt. When there is a secret conspiracy, it is inevitable that there should be numbers of men intimately associated with the members, perhaps even co-operating with them in surface political action, who are yet in entire ignorance of the close and dangerous proceedings of their friends. It was a recognition of this obvious fact that largely governed Mr. Beachcroft's findings; but we cannot help feeling that neither he nor the Appeal Court, ignorant, like all Englishmen, of the actual workings of the National Movement, have given sufficient weight to this consideration. As a result, the benefit of the doubt has not been extended where it should have been extended. Already it was a general conviction in the public mind that one innocent man had been convicted and succumbed to the rigours of jail life, while two are hopelessly condemned to the brutal and brutifying punishments by which European society avenges itself on the breakers of its laws, — we refer to the Kabiraj brothers found by Mr. Beachcroft to be innocent of conspiracy and therefore presumably innocent tools of conspirators. There is an uneasy sense that some at least have been added to the list by the judgment in appeal. Even if it be so, however, the judges have done their best, and the European legal system has always been a lottery by which it is easy, without any fault on the part of the judge, for the guilty to escape and the innocent to suffer. It is perhaps one of the necessary risks of joining in Nationalist movements to be liable to be confounded in one fate with secret conspirators who happen to be associates in social or legi-
Page – 288 timate political relations, and when the C.I.D. throws its nets with a generous wideness, we ought not to whine if such accidents bring us into the meshes. The State must be preserved at any cost. In any case, the whole country must be grateful to Sir Lawrence Jenkins for the courtesy, patience and fairness with which he has heard the case and given every facility to the defence, an attitude which might with advantage be copied by certain civilian judges in and outside the High Court and even by certain Judges, not civilians, in other provinces.
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