# [1959] 1 S.C.R. 1324

- **Citation:** [1959] 1 S.C.R. 1324
- **Court:** Supreme Court of India
- **Decided:** 1958-03-28
- **Case number:** Criminal Appeals Nos. 102 and 103 of 1958
- **Bench:** JAFER hIA:Y, S. K. DAs, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1959-1-s-c-r-1324-1552
- **Pages:** 13

## Headnote

Crimii<al Trial -
l'ard-On, lender of -
Refusal by ac"rnsed to
t11m approver -
Trial of such accused jointly witli other accused -
Legality of -
Code of Cr11ni11al Procedure (V of i.198), ss. 337
and 339.
The two appellants and one other person were accused of
committing a murder.
The second appellant made a confession
before a
~!agistrate. The police submitted a charge sheet
against the three accused.
Thereafter the prosecution made a
prayer to the sub-divisional ~lagistrate that the sec-Jnd appellant
may be tendered a pardon under s. 337, Code of Criminal Procedure and the Magistrate recorded an order to the effect thai he
was tendered a pardon under s. 337 on condition of his making a
full and true disclosure of the whole of the circumstances within
his knowledge.
Before the Committing Magistrate the second
appellant stated that the confession made by him was not voluntary and that he did not \\•ish to become an approver.
The
appellants were committed to the Court of S<issions and were
convicted of the murder and were sentenced to death. 'On.
appeal the High Court confirmed the conviction and sentence.
It was contended by the appellants that the secJnd appellant
having been tendered a pardon the joint trial of fae appell~nts
was vitiated as it was barred by the proviso to s. 339(1) of the
Code.
•
Held, that !here was no effecti\'e pardon unde: s. 337 of the
Code and consequently the provisions of s. 339 did not come into
operation in this case.
A mere tender of pardon does not
attract the provisions of s. 339; there must be an acceptance of
the pardon by the accomplice and he must be examined as a
witness.
It is only after this that s. 339 comes in\o play if the
accomplice who has accepted the pardon fails to comply with
ll!e conditions on which the pardon was ten<lt:red,.
In the
present case though a tender of pardon was made to the second
appellant there was no proof that it was accepted by him anrl
as such it could not be said that there was in existence an effective pardon under s. 337.
CRIMI!fAL
APPELLATE
JURISDICTION:
Criminal
Appeals Nos. 102 and 103 of 1958.
•
Appeals by Apeciftl leave from the judgment a:nd
"rder daiiecl March 28, 1958, of tho Calcutta High
Court in Criminal Appeal No. 428 of 1957 and reference u/s. 374 Cr. P. C. No. 8of1957 arising° out of tho
•
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SUPREME COURT REPORTS'
1325
judgment and Qrder dated September 21, 1957, of the
z958
Court of the Sessions Judge.of Cooch Behar in Sessions
B' . B h
.
Trial No. 2 of 1957 (Sept. Sessions) (Sessions Case Sark'!,'~ ~::;her
No. 18 of 1957).
v~
The Stata of
S. K. Kapur, for the appellants.
B. Sen, P. K. Ghosh for P. K. Bose,
dent.
•
West Bengal
for the respon1958. September 19.
was delivered by
The Judgment of the Court
IMAM J.-ln these appeals the appellants were convicted for the murder of Malchand Bhadani. A charge
under s. 302, Indian Penal Code had been framed
against each of them. The Sessions Judge found that the
murder had been committed in the furtherance of their
common intention. In his opinion as appellant Bipin
Behari Sarkar had actually committed the murder he
convicted this appellant under s. 302 of the Indian
Penal Code. He convicted the appellant Bishnu Charan
• Saha under s~ 302/34 of the Indian Penal Code.
He
sentenced both the appellants to death. The appellants appealed to the Calcutta High Court while the
s~sions Judge made a refere:rrne for the confirm a ti on
of the death sentence passed by him. The High Court
found the appellants guilty under s . .302)34 of the
Indian Penal Code. It accordingly confirmed the
sentence of death impos'ed on the appellants by the
Sessions Judge.
According to the prosecutiOn, one Tarachand Bhadani had a" cloth shop at l\fathabhanga in the district
of Cooch Bihar. He was joint in business and mess wi.th
his two• sons, Prithiraj and the deceased Malchand.
The annual turn-over of the shop was between
Rs. 50,000 to Rs. 60,000. On
December 18, . 1956,
Tarachand had gone to Rajasthan and

## Text

Septtmb1r 19.
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1 SUPREME COURT REPORTS
[1959)
BIPIN BEHAR! SARKAR AND 0 AXOTHER
(JAFER hIA:Y, S. K. DAs and J. L. KAPUR JJ.)
Crimii<al Trial -
l'ard-On, lender of -
Refusal by ac"rnsed to
t11m approver -
Trial of such accused jointly witli other accused -
Legality of -
Code of Cr11ni11al Procedure (V of i.198), ss. 337
and 339.
The two appellants and one other person were accused of
committing a murder.
The second appellant made a confession
before a
~!agistrate. The police submitted a charge sheet
against the three accused.
Thereafter the prosecution made a
prayer to the sub-divisional ~lagistrate that the sec-Jnd appellant
may be tendered a pardon under s. 337, Code of Criminal Procedure and the Magistrate recorded an order to the effect thai he
was tendered a pardon under s. 337 on condition of his making a
full and true disclosure of the whole of the circumstances within
his knowledge.
Before the Committing Magistrate the second
appellant stated that the confession made by him was not voluntary and that he did not \\•ish to become an approver.
The
appellants were committed to the Court of S<issions and were
convicted of the murder and were sentenced to death. 'On.
appeal the High Court confirmed the conviction and sentence.
It was contended by the appellants that the secJnd appellant
having been tendered a pardon the joint trial of fae appell~nts
was vitiated as it was barred by the proviso to s. 339(1) of the
Code.
•
Held, that !here was no effecti\'e pardon unde: s. 337 of the
Code and consequently the provisions of s. 339 did not come into
operation in this case.
A mere tender of pardon does not
attract the provisions of s. 339; there must be an acceptance of
the pardon by the accomplice and he must be examined as a
witness.
It is only after this that s. 339 comes in\o play if the
accomplice who has accepted the pardon fails to comply with
ll!e conditions on which the pardon was ten<lt:red,.
In the
present case though a tender of pardon was made to the second
appellant there was no proof that it was accepted by him anrl
as such it could not be said that there was in existence an effective pardon under s. 337.
CRIMI!fAL
APPELLATE
JURISDICTION:
Criminal
Appeals Nos. 102 and 103 of 1958.
•
Appeals by Apeciftl leave from the judgment a:nd
"rder daiiecl March 28, 1958, of tho Calcutta High
Court in Criminal Appeal No. 428 of 1957 and reference u/s. 374 Cr. P. C. No. 8of1957 arising° out of tho
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S.C.R.
SUPREME COURT REPORTS'
1325
judgment and Qrder dated September 21, 1957, of the
z958
Court of the Sessions Judge.of Cooch Behar in Sessions
B' . B h
.
Trial No. 2 of 1957 (Sept. Sessions) (Sessions Case Sark'!,'~ ~::;her
No. 18 of 1957).
v~
The Stata of
S. K. Kapur, for the appellants.
B. Sen, P. K. Ghosh for P. K. Bose,
dent.
•
West Bengal
for the respon1958. September 19.
was delivered by
The Judgment of the Court
IMAM J.-ln these appeals the appellants were convicted for the murder of Malchand Bhadani. A charge
under s. 302, Indian Penal Code had been framed
against each of them. The Sessions Judge found that the
murder had been committed in the furtherance of their
common intention. In his opinion as appellant Bipin
Behari Sarkar had actually committed the murder he
convicted this appellant under s. 302 of the Indian
Penal Code. He convicted the appellant Bishnu Charan
• Saha under s~ 302/34 of the Indian Penal Code.
He
sentenced both the appellants to death. The appellants appealed to the Calcutta High Court while the
s~sions Judge made a refere:rrne for the confirm a ti on
of the death sentence passed by him. The High Court
found the appellants guilty under s . .302)34 of the
Indian Penal Code. It accordingly confirmed the
sentence of death impos'ed on the appellants by the
Sessions Judge.
According to the prosecutiOn, one Tarachand Bhadani had a" cloth shop at l\fathabhanga in the district
of Cooch Bihar. He was joint in business and mess wi.th
his two• sons, Prithiraj and the deceased Malchand.
The annual turn-over of the shop was between
Rs. 50,000 to Rs. 60,000. On
December 18, . 1956,
Tarachand had gone to Rajasthan and Prithiraj had
gone to :E'alakata Hat. Aceordingly at the• shop ori
that dmy Malchand was the only person in-charge of it.
At about 8-30 p. m~, after the close of the day's business, Malchand was counting the cash jn th~ iron safe
in an ante-room of the shop when the appellants with
one Sanailan Das, who was acquitted at the trial, •
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'SUPREME COURT REPORTS
[19511] ..
1 958
called at the shop. Ma.Icha.nd cam~ i;iut of the anteB . . 8 h
.
room into the shop to sttand to these late customers.
lf.'ttl
t ar•
H I d 1 . f
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.
Sarkar <>· A,,011,,r e 1a
e t open the s~fe and one of its drawers on the
v.
floor.
The appellants purported to make certain
The State of
purchases and examined various pieces of doth. After
w,,, lien~"'
selection of the cloth they were put into pe.ckcts.
Imam j.
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•
Cash memocs in duplicate were prepared and signed
by Malchand and the appellant Bishuu Charan Saha.
The cash mcmoes had been completely filkd in. Two
of them had been separated from the cash-memo book,
but before the 3rd cash-memo could be dete.ched from
the book, )falchaud was struck down by thn appellants
with a hea,·y cutting instrument which they had
carried. The neck wa.s so severely cut thnt the head
was nearly severed from the trunk. Just a.bout t~n,
a neighbour called out to Malcha.nd by way of casual
enquiry before retiring for the night. This 30 frightened the miscreants that they fled.
The money in the
open safe was left untouched. The mot.ive for the
murder was to steal the money from th~ safe.
On December 25, 1956, the police seiz.,d a sharp·
cutting weapon variously described as a sword or a
dagger. It was found lying close to some shrubbery
near .l\la.lcha.nd's shop." It was stained with hunran
blood.
It was a-practice of the shop of Tarachand Bhadani
to despatch from time to time, after obtaining Hundi~,
the accumulated proceeds of the business to Calcutta.
On the morning of December 18, 1956, Prithiraj, before
he went to Falakata Hat, had ma.de enquiries from the
firm of Bhairabdan Bhowrilal whether any liundi was
available.
As Bhowrilal was not able to sup,Ply him
the Hundi the cash remained in the shop. T11e contents of the safe showed that on Deccmb•ir 18, 1956,
before Malcha.nd was murdered there was a sum of
Rs. 3,913 in cash and Si tolas of gold. There was,
therefore," a substantial amount in the safe at the shop
which would have been stolen were it not tliat the
misercantH fled after murdering ~falchand because of a
neighbour-calli1'g out to him.
The conviction of the appellants, as pointed out by
• the High Court, .depended entirely'on circumstantial
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SUPREME COURT REPORTS
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·evidence. Tjl!! High Court did not rely upon the conI958
fessional statement ~ade 8y t~e _appel!a~t Bishnu
Bipin Behad
Charan Saha to a Magistrate: as, m its opm1011, it was sa,ka• & Anoth"
not a voluntary statement. Reference will be made to
v.
the circumstantial evidence, upon which the High
The State of
Cou~t relied, in due course.
Before we deal wi~h that
West Bengal
aspect of the case it is necessary to refer to a submission made on behalf of the appellants concerning the
tender of pardon under s. 337 of the Code of Criminal
Procedure to Bishnu Charan Saha and the failure of
the prosecution to comply with the provisions of s. 339
of the Code of Criminal Procedure.
It was urged that the provisions of s. 339 of the Code
not having been complied with the trial was vitiated
"'s the appellant Bishnu Charan Saha could not be
tried alongwith the appellant Bipin Behari Sarkar. In
order to understand this submission it is necessary to
state a few facts.
Bishnu Charan Saha was arrested
at about 3 p. m. on December 19, 1956. His confession
was record~ by the Magistrate Mr. S. C. Chaudhury
'on December 20, 1956.
A charge-sheet against the
appelhmts and Sanatan Das was submitted by the
police on June 20, 1957. On June 22, 1957, a prayer
was made to the Sub-divisio"nal Magistrate on behalf of
the prosecution that Bishnu Charan. Saha may be
tendered a pardon under s. 337 of the·C01.le of Criminal
Procedure and the Magistrate recorded an order to the
effect that this appellant was tendered pardon nuder
s. 337 of the Code of Criminal Procedure on condition
of his making a full and true disclosure of the whole of
the circumstances within his knowledge relating to
the ~ffence and to every other person concm-ned
whether as principal or abettor in the commission
thereof. The Sub-divisional Magistrate had already
reported on June 20, 1957, to the District Magistrate
that both he and the other Magistrate of Mathabhan_ga should not hold the commitment proceedings as
theynad had something to do with the investigation.
On August 1, 1957, the Magistrate Mr. Sinha, to whom
the case had been ultimately transforred,. recorded an
order to the effect that the three accused- had been
· producea befor.; him and that he had seen the Court
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S~PREME COURT REPORTS
[1959]
'958
Inspector's petition praying that the ac~u.qed Bishnu be
Ripi" IJeh.,,;
mad~ .an. approver in the ~asr UQ.dcr s. 337 of the Code
s.,,,., &
A>wtl·n of Crumnal Procedure.• Tins accused had, however,
v.
stated that he miide the confessional statement before
The State of
the :IIagistratc at !\lathabhanga as he had been assaultJVest He•gal
ed by the police a.nd that he did not wish k
be~ome
Imam /.
an approver.
After the completion of t.he enquiry
before commitment, the appellants and Sa.1rntan Das
were committed to tho Court of Session to stand their
trial for the murder of :llalchand.
Section 339( I) of the Code provides that " where a
pardon ha.s been tendered under s. 337 or s. 338, a.nd
the Public Prosecutor certifies that in his opinion any
person who ha~ accepted such tender has, .;ither by
wilfully concealing anything essential or by givin~
false evidence, not complied with the condition on
which the tender was made, such person may be
tried for the offence in respect of which tlie pardon
was so tendered, or for any other offence of which he
appears to have been guilty in connect~on with the
same matter". The proviso to this sub-section pro-·
hibits the trial of such person jointly with a.ny of the
other accused and that such person Hhall he entitled
to plead at such trial that he had complied with the
condition upon which such tender was made.
The
prodsions of.this section clearly pre-suppos•l that the
pardon which had been tendered to a pcrsor had been
accepted by him and that thereafter that person had
wilfully concealed anything essential or had giYen
false evidence and there fore had not complied with
the condition on which the tender was ma1!e" to him.
Section 337 of the Code, under which a pardon is
tendered, Hhows that such tender is made oh the
condition thM the person tp whom it
i~ tendered
makes a full aud true disclosure of the w~.ole of the
c:ircumstancns within his knowledge relative to the
•
offeuee aud" to every other person concer1wd whether
as a principal or an abettor to the commissi•Jll thl!reof.
Sub-section (2) of this section requires that every persou .who has. accopted a tender shall be examined as
a witness ;n the court of the Magi•trate taking cognizance of the offence and in the subsequent triat, if any .
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SUPREME COURT REPORTS
1329
It is clear, tli.erefore, that. a mere tender of pardon
z958
does not attract the prov.isioos of s. 339.
Ther¢ must
. . B h ...
b
f .
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h h
t
R1pm e ari
e an acceptance o it an tu" person w o as accep - Sarkar & Another
ed the pardon must be examined as a witness. It is
v.
only thereafter that the provisions of s. 339 come into
The Stat• of
play and the person who accepted the pardon '!!lay be
w.,1 Bengal
tried for the offence in respect of which the pardon
was tendered, if the Public Prosecutor certifies that in
his opinion he has, either wilfully concealed anything
essential or had given false evidence and had not
complied with the condition on which the tender was
made. In the present case, there is nothing on the
record to show that on July 22, 1957, although
Bishnu Charan Saha had been tendered a pardon,
he had accepted the tender. Indeed, the order-sheet
of the Sub-divisional Magistrate of that date does not
even disclose that. Bishnu Charan Saha had been produced before him.
On the other hand, when Bishnu
Charan Saha and his co-accused were produced before
the Magistrttte Mr. Sinha, to whom the case had been
·transferred, the prosecution made a prayer 'to the
Magistrate that Bishnu Charan Saha may be made
an approver in the case under s. 337 of the Code of
Criminal Procedure. This would show that upto that
time Bishnu Charan Saha had not accepted the tender
of pardon made to him by the Sub-divisional Magistrate on June 22, 1957. On the prayer of the Prosecu.tor
made to Mr. Sinha on August 1, 1957, Bishnu Charan
Saha flatly denied that he wished to be an approver and
had stated that the confessional statement made by
him to ltfr. Chaudhury was not a voluntary one. On
the fstctsof the present case, therefore, all that is .[lrov,
ed is that at one stage of the proceedings a tender of pardon had been made to Bishnu Charan Saba. There was,
however, no proof that that tender had been accepted
by him. Such being the situation it could not be said
that there was in existence an effective pardon under
s. 33"; and that its provisions applied to the facts of
the present case. Consequently, no question arises
about the applicability of s. 339 to the- proceedings
before the Magistrate holding an enquiry b!lfore commitment or to the trial of the app~llants, because th;
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1330
~PRE:ME COURT REPORTS
(1959)
'9.58
provisions of s. 339 can only come into. operation if
Bipiu Beha>i
there is in existence an effective pardon under s. 337
SurAar e;, Another of the Code.
In our opil'lion, on the facts of the prev.
sent case, there is no foundation for the submission
The Slate of
which had been made.
t·Fe~/ Bengal
Imam J.
•
Coml'ug now to the circumstantial evidence ii? the
case upon which the High Court relied for upholding
the conviction of the appellants, which may be summed up as follows:
(I) The evidence clearly established that the
appellants were local men who lived or worked not far
from :\lalchand's shop.
They accordingly had tho
means and the opportunity of knowing the state of
thing~ obt.aining at his shop 1Lt a particular date.
(2) The association of the appellants and Sana.tart
Das immediately prior to the murder.
(3) Tho evidence of their movement£ towards tho
direction of ;\lalchand's shop.
(4) The evidence concerning their presence in the
shop of Malehand short.ly before the latt<!r was mur-·
dered.
(5) The evidence concerning the 1tppellant Bipin
Bihnri Sarkar hurrying away from tho direction o{
Malchand's shop closely followed by the ;tppellant
Bishnn Charan ~aha.
(6) The
0e-vidence of InJUries
fingers of the appellants found at
arrest which took place within 24
thereafter, of the murder.
on the palms or
the time of their
hours, or Hhortly
(7) The e\'idence of the presence of huma.n bloodHt1Li11s on the shirt of Bishnu Charan Saha 1tnd bloodstains on the wrappn of Bipin Benari Sarkar- with
burnt holes at places where the stains were found.
(8) The cash-memoes with the signatures of the
appellant Bishnu Charan Saha.
(9) In the opinion of the doctor tho nature of the
injuries on Malchand showed that probably he- was
overpowered by someone first and then another person ,pressed t):ie w~apon against his neck.
The matter for consideration is whether th•J circumstantial evidence, as stated abO'l'O, is snfficier.t to prove
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S.C.R.
SUPREME COURT REPORTS'
1331
that the appell~nts had participated in the murder
'958
of Malchand.
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Two findings of the ~igh C6urt. may . be sta~ed at Sark:!': ~;;;h,,
this stage before the mrcumstantial evidence is rev.
ferred to. One concerned the cash-memoes signed by
Th• Stai• of
Bishna Charan Saha and the other concerned' the
·West Ben1al
colour of the wrapper worn by Bipin Behari Sarkar
•
when he was seen by ~ali Mohan Sarkar, P. W. 7
going away from a place near the shop of Malchand
after the murder. The cash-memoes bore the date
z,nam ].
11-12-56 and not 18-12-56. The High Court gave
good reasons for holding that the date 11-12-56 was
wrongly entered in these cash-memoes after examining the account books of Malchand's shop and the
other circumstances in the case as well as the admission of Bishnu Charan Saha that on December 18,
1956, between 1-30 and 2 p. m. he had caused three
cash memoes to be issued in the shop of Malchand.
We find ourselves in COJ?1plete agreement with the
findings of the ·High Court in this respect. The
·wrapper worn by Bipin Behari Sarkar at ·the time
he was seen by Kali Mohan Sarkar was described by
the witness as blue in colour whereas, in fact, the
recbvered wrapper from the house of this appellant
was green in colour. The High Court thought and,
in our opinion, rightly that what was i!f faet green in
colour might have appeared to be blue to a witness
when seen at night by him. A mistake in describing the
colour accurately in the circumstances of the present
case did no~ materially affect the evidence that Bipin
Behari Sarkar was wearing a.wrapper at the time he
,
was seen, at a spot near Malchand's shop after tlie
murder. Further reference to the wrapper will be
made when we consider the case of this appellant.
Mohan Lal Sarma, P. \V. 4 had stated that at ·about
$ p.m. on December 18, 1956, he had seen tqe appellants a~d Sanatan Das sitting in the latter's shop.
Bishnu Charan Saha wa~ the first to leave the shop.
10 or 15 minutes later, Bipin Behari Sarkar and
•
Sana tan Das left after . padlocking Sttnatan's shop.
,-~ The evidence of this witness had been fully accepted
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' SUPREME COURT .REPORTS
[1959) '!
i958
by the High Court.
Sudhir Ra.nj~ De, P. W. 8
lJ . . -fl h
.
deposed that in the evening of December 18, 1956, at
1pu1
e or1
b
3
h h I
B'
5.,k., 6- A•oth" a out 7 · 0 p.m.
e
&f seen
1shnu Charan Sa.ha
v.
passing in front of Gostha's shop which was nearly
The S1a1e of
opposite i\lalchand's shop. He had on his body a
West TJe•g•I
S11j11i Chaddar.
4 or 5 minutes later, Bipin .Behari
/mum].
•
Sarkar aud Sana.tan Das were seen going in the samo
direction. The High Court believed the evidence of
this witness. It came to the conclusion that on the
evidence of Mohan Lal Sarma and Sudhir Ranja.n De
it was established that at about 8 p.m. tho appellants
and Sana.tan Das were moving towards Malchand's
shop. There was no doubt some discrepancy about
the timing but, as was pointed out by the High Court,
the witncRses were giving the time approximately ~nd
did not purport to give the oxa.ct time. Kumud Lal
Saha, P. W. 2 deposed that at a.bout 8-30 p.m. on
December 18, 1956, he saw the appellants 1md Sana.tan
sitting with Malchand in the latter's shop.
Malchand
'ms at that time placing cloth for t1;ieir inspection.
The High Court referred to the various criticisms·
levelled against the testimony of this witness and
after dealing with them came to the conclusion that
the witnes.~ was a truthful witness and that his evidence established that the appellants wer1i at the shop
of Malchood at about 8-30 p.m. and that l\Ialcha.nd
was last seen alive with them. The evidence of Khum
Chand Bothers, P.W. 3 proved that at a.bout 8-30 p.m.
on the night of Ma.lcha.nd's murder he had ca.lied out
"l\falcha.nd" "Ma.lchand ",but had receiYed no reply.
Ka.Ii Mohan Sarkar, P. W. 7 proved that a.t. about
8' p.m. on the night in question when he ":'a.s going
home he met the appellant Bipin Bcha.ri Sarkar who
was going a.way hurriedly from the direction of the
Bazar. On some enquiry ma.de by the witness this
appellant Rta.te(I that he had been pressed by a. ca.II of
nature. 'Thereafter, the appellant lliHhnu Charan
Sa.ha. was seen coming behind Bipin Eehari Sarkar.
Bipin Bchari Sarkar had on liis person a blue coloured
wrapper. ·The "Spot at which he had met the appellant
Bipin Beha.ri Sarkar was a.t a. distance of a.bout 100
• cubits to the south of the passage 'meant ior sweepers
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SUPREME COURT REPORTS'
1333
of Malchand's Jiouse.
He had heard Bishnu Charan
Saha calling out " Hei, Hei•" tl> Bipin Behari Sarkar.
Th
"d
f th
"t
.o,
h' h h d b
Bipin Behari
e ev1 ence o
ese w1 ne •• es, w 10
a
een 5 k
& A
th
accepted by the High Court, established that the "' "' v.
no er
appellants were seen going in the direction of Mal·
The state of
chandls shop.
Thereafter, they were seen •with
West Bengal
Malchand at his shop. Subsequent to that, Bipin
Behari Sarkar was seen going away hurriedly at a
place not far from Malchand's shop followed by
Bishnu Charan Saha who was calling out to him
"Hei, Hei ". The last time that Malchand was seen
alive was in the company of the appellants. The
existence of the cash-memoes, which were stained with
human blood, with the signatures of Bishnu Charan
Saha clearly established that at least Bishnu Charan
Saha must have been present at the time of the
murder because the cash memoes were being made out
for him and they were stained wit.h human blood
which shows that Malchand was murdered while he
was handling the cash-memoes. It had been further
•proved that Bishnu Charan Saha had on him certain
injuries of which one was an incised injury.
The evidence of the doctor was that this injury could have
beGn caused by the same instrument with which the
neck injury of Malchand had been caused. It had
been further established that the shirt tJf Bishnu
Charan Saha was stained with human blood.
The
explanation offered by Bishnu Charan Saha for the
injuries on his person was not accepted by the High
Court and., in our opinion, rightly. Bishnu Charan
Saha had stated to the doctor at the time of his examinatior.i that injury No. 1 was caused as the result bf
contact with a grass cutting dao and injuries Nos. 2
and 3 by having drawn his hand over a rough piece of
wood, but to the doctor this explanation was unacceptable inasmuch as this appellant was not a left handed
person-a fact which appeared clear from hls formation ana development. .When examined under s. 342
of the Code of Criminal Procedure, Bishnu Charan
Saha told the Court that 2 days prior to hiB' examination by the doctor he had been cutting straw' for his •
cattle with
0 his left
0hand when his daughter aged about
.
.
•
Imam j.
•
•
I
• '
1334
' SUPREME COURT REPORTE:
[1959]
1958
4 came up from behind and pushed biin which result-
.
. ed in the injury to his 'finger by its contact with the
Bipin Behan
da
d I
h h d r
. d . . .
h b k
5 ., •• , <>-
Another
o ~n t 1at c a a so receive lllJUl'leS on t e ac
v.
of his finger by striking it against a piece of wood.
The Stat• of
So far as the shirt stained with human blood, which
West Bengal
was found on his person at the time of his ~rrcst, was
Imam j.
•
•
concerned, Bishnu Charan Saha seriously disputed the
identity of the shirt. The identity of the >hirt, however, had been clea.rly established. His explanation
to tho Court was that some of the staim had been
caused by betel spit and that one or two might have
been caused by some drops of blood falling on the
shirt at tho time he had sustained his injuries. This
explanation was also not accepted by the High Court
and, we think, rightly. The evidence therefore e~a
blished that so far as Bishnu Charan Sah11 was concerned he was seen in the company of Bipin Behari
Sarkar and Sana.tan Das near about 8 p. m.
He was
seen shortly thereafter, as were the other two, going in
a direction which was towards the shop. of :lfalchand.
Ho was seen along with tho other two persons at the•
shop of Malchand at about 8-30 p.m. Th•ircafter, ho
was seen not far from the shop of Malchaad going in
the same direction as Blpin Beha.ri Sarkar and calltng
out to him. The cash-mcmoes at J\falchand's shop had
been signed by him.
He had injuries on his person
consistent with their having been caused while the
murder of the deceased took place. The shirt that he
was wearing at the time of his arrest was Htained with
human blood for which ·he gave no reaso11a.ble explanation. In our opinion, tho sum total of the evidence
against Bishnu Charan Saha. established bey<:Jnd any
reasonable doubt that he had participated in the
murder of Malchand.
Coming now to the case of Bipin Behari Sarkar the
evidence p.gainst him is the same as against Bishnu
Charan Saha about the movements towards the shop
of :lfalcha.nd, presence at the. shop of Malch~nd and
being seen going away at a place near the shop of :lfalchand and the !!xistcnce of injuries on his person. In
• addition there was the evidence that a wrapper was
seized the next morning after his arrest witfi marks of
. .
.
.
•
• •
"'
•
•
...
.>
•
' •
S.C.R.
SUPRE;r.IE COURT REPOR'.PS
1335
burning rouI!Jl 'which there were traces of blood. Uilr958
like the case of Bishnu CJ:iam.n Saha no signatures of
8 . . 8 h .
.
h
I .
ipin
e ari
his were found on the cas -memoes.
t IS a matter Sarkar & Another
for consideration whether in the case of this appellant
v..
.
any reasonable doubt could arise as to his guilt. It
The State of
was. urged that mere movements towards the .shop of
West Bengal
Malchand, his presence at the· shop of Malchand and
his being seen going away at a place near the shop of
Malchand would not be sufficient circumstantial
evidence .to convict him. So far as the injuries were
concerned the doctor had admitted that they could
have been caused by a split .bamboo. The doctor .had
at no time stated that they could have been caused by
the same weapon which caused injuries to the neck of
Jl'Ialchand. The existence of the injuries, therefore,
was no additional incriminating circumstance from
which any conclusion could be drawn against this
appellant.
So far as the wrapper was concerned,
there was
no evidence that the burnt
marks
found on it were not there before December 18, 1956.
·Although bfood-stains had been found on this wrapper
it had not been established that they were human
blood-stains. The wrapper was also, therefore, no
11dditional incriminating d'ircumstance against this
appellant. It is, however, to be remembered that this
appellant was with Bishnu Charan. SQ.ha and that
Malchand was last seen alive in the company of the
appellants. The murder of Malchand had already
taken place when this appellant followed by Bishnu
Charan Saha was seen going away hurriedly at a spot
near the shop of Malchand and Bishnu Charan Saha
was calling out "Hei, Hei " to him. It is · remarliable ·
that this appellant was seen not only at the shop of
Malchand. but near that shop after he had been
murdered and that he was found to· have injuries' on
his person when he was arrested l).t 10-30 p.m, on
December 19, 1956, It would be. a remarkable coincid'ence that both he and Bishnu Charan Saha
should have injuries On their persons so shortly after
the murder. 'Bipin Behari Sarkar denied.ownership of
the wrapper. His explanation was not that.the burnt ·
marks d'n the WTapper were there before December 18:
•
Imam J~
•
•
• ,
1336
StTPREME COURT REPORTS
[1959]
r958
This wrapper had blood-stains. They (l;itre too sma.11
B . .
.
in quantity to enable a. S@rologist to determine their
tpon /Jtloa"
• •
b
• •
k Ll
h
h
h bl d
SarAar &
Another Or11pn, Ut It IS rema.r a .. e t at W ere\·er t 0
00 •
v.
sta.ms were found on the wrapper a.n a.tternpt had
The State of
been ma.de t-0 burn out those ma.rks.
Unfortunately,
Wtst Bencal
for the a.ppella.nt, his attempt to burn out th•3 bl<iodImam ].
Stplrmbtf' r9
•
•
stains on the wrapper was not entirely successful.
This was, in our opinion, an incriminating circumstance against this appellant.
Tho circumstantial
evidence taken as a whole leaves no room for 1~ reasonable doubt in our minds about the guilt of th is appellant.
In our opinion, the High Court rightly found the
appellants guilty under s. 302/34 of the lndiim Penal
Code. It could not be said that the sentence of death.
for a. murder of the kind proved in this case was unduly severe. The appeals a.re accordingly dismisser!.
Appeals dismi8sed .
•
•
RATAN GOND
v.
THE STATE 01'' BIHAR
(JAFER IMAM, S. K. DAS and J. L. KAPUR JJ.)
Jo:videncc-Statemwt of dt'ad person 11ot made in j"dicial proceeding or to puso" at4lhorised nor relating to the cause of hts deathAdmis~ibility-Co,.fession-Perso" in authority- Cir.:umstantial
t:vidence-Use in corroboration of confession-/11dian Ei·ide1Ju Act,
(/ of 1872), ss. 24, 32 and 33.
The appellant was charged with the murder of a girl
Haisakhi. On information gi,·cn by Aghani, younger sister of
the deceased, the headless body of the decease<! was recovered. The "appellant absconded but was found ;n another
village and was brought back by
the village voluTlteer
force.
On interrogation by the
~lakhia, Sarpanch and a
panch of the Gram Panchayat the appellant mad< an extraju<licial confessi'on.
A blood-stained cutting ."'c~pon was rep
covered fronra room of the appellant. At 111s mslance some
sttands of hair \Vere recovered from a place at• a short •distance
•
.
~
,.
~···