BIPIN BEHARI SARKAR AND ANOTHER versus THE STATE OF WEST BENGAL

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.

p. 1325

According to the prosecutiOn, one Tarachand Bhadani had 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, • called at the shop. Ma.Icha.nd cam~ i;iut of the anteroom into the shop to sttand to these late customers. H I d 1 . f . .

pp. 1325–1326

1a e t open the s~fe and one of its drawers on the floor. The appellants purported to make certain purchases and examined various pieces of doth. After selection of the cloth they were put into pe.ckcts. 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 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.

p. 1326, margin E

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.

p. 1326, margin E

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.

p. 1326, margin E

The conviction of the appellants, as pointed out by • the High Court, .depended entirely'on circumstantial ·evidence. Tjl!! High Court did not rely upon the confessional statement ~ade 8y t~e _appel!a~t Bishnu Charan Saha to a Magistrate: as, m its opm1011, it was not a voluntary statement. Reference will be made to the circumstantial evidence, upon which the High Cou~t relied, in due course. Before we deal wi~h that 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.

pp. 1326–1327, margin E

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 Inspector's petition praying that the ac~u.qed Bishnu be mad~ .an. approver in the ~asr UQ.dcr s. 337 of the Code of Crumnal Procedure.• Tins accused had, however, stated that he miide the confessional statement before the :IIagistratc at !\lathabhanga as he had been assaulted by the police a.nd that he did not wish k be~ome 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.

pp. 1327–1328

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 . It is clear, tli.erefore, that. a mere tender of pardon does not attract the prov.isioos of s. 339. Ther¢ must

pp. 1328–1329

. d h h t e an acceptance o f it an tu" person w o as accep ed the pardon must be examined as a witness. It is only thereafter that the provisions of s. 339 come into play and the person who accepted the pardon '!!lay be 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;

p. 1329

1330 ~PRE:ME COURT REPORTS (1959) provisions of s. 339 can only come into. operation if there is in existence an effective pardon under s. 337 of the Code. In our opil'lion, on the facts of the present case, there is no foundation for the submission which had been made.

p. 1330

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:

p. 1330

(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 a particular date.

p. 1330

(2) The association of the appellants and Sana.tart Das immediately prior to the murder.

p. 1330

(3) Tho evidence of their movement£ towards tho direction of ;\lalchand's shop.

p. 1330

(4) The evidence concerning their presence in the shop of Malehand short.ly before the latt<!r was mur-· dered.

p. 1330

(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.

p. 1330

(6) The e-vidence of InJUries on the palms or fingers of the appellants found at the time of their arrest which took place within 24 hours, or Hhortly thereafter, of the murder.

p. 1330

(7) The e\'idence of the presence of huma.n blood- Ht1Li11s 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.

p. 1330

(8) The cash-memoes with the signatures of the appellant Bishnu Charan Saha.

p. 1330

(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 that the appell~nts had participated in the murder of Malchand. . • '

pp. 1330–1331

Two findings of the ~igh C6urt. may . be sta~ed at this stage before the mrcumstantial evidence is referred to. One concerned the cash-memoes signed by Bishna Charan Saha and the other concerned' the 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 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.

p. 1331

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 . .

p. 1331

1332 ' SUPREME COURT .REPORTS [1959) by the High Court. Sudhir Ra.nj~ De, P. W. 8 deposed that in the evening of December 18, 1956, at h h I B' a out 7 · 0 p.m. 3 e seen 1shnu Charan Sa.ha passing in front of Gostha's shop which was nearly opposite i\lalchand's shop. He had on his body a

p. 1332

Chaddar. 4 or 5 minutes later, Bipin .Behari 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

p. 1332, margin B

Bipin Beha.ri Sarkar was a.t a. distance of a.bout 100 • cubits to the south of the passage 'meant ior sweepers . . of Malchand's Jiouse. He had heard Bishnu Charan Saha calling out " Hei, Hei•" tl> Bipin Behari Sarkar.

pp. 1332–1333, margin B

"d f th "t h' h h d b Th e ev1 ence o ese w1 ne •• es, w a een accepted by the High Court, established that the "' appellants were seen going in the direction of Mal· chandls shop. Thereafter, they were seen •with 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 his left hand when his daughter aged about

p. 1333

4 came up from behind and pushed biin which result- . ed in the injury to his 'finger by its contact with the da d I h h d r . d . . . h b k

p. 1334

o ~n t 1at c a a so receive lllJUl'leS on t e ac of his finger by striking it against a piece of wood. So far as the shirt stained with human blood, which was found on his person at the time of his ~rrcst, was 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.

p. 1334

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 :lfal-

p. 1334

chand 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 . .

p. 1334

. . burning rouI!Jl 'which there were traces of blood. Uillike the case of Bishnu CJ:iam.n Saha no signatures of . h I . his were found on the cas -memoes. t a matter for consideration whether in the case of this appellant any reasonable doubt could arise as to his guilt. It was. urged that mere movements towards the .shop of 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:

pp. 1334–1335

This wrapper had blood-stains. They (l;itre too sma.11 in quantity to enable a. S@rologist to determine their

p. 1336

b • • k Ll h h h bl d Or11pn, Ut It IS rema.r a .. e t at ere\·er t sta.ms were found on the wrapper a.n a.tternpt had been ma.de t-0 burn out those ma.rks. Unfortunately, for the a.ppella.nt, his attempt to burn out th•3 bl<iodstains 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.

p. 1336

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!.

p. 1336

Appeals dismi8sed . RATAN GOND

p. 1336

v.

p. 1336

THE STATE 01'' BIHAR (JAFER IMAM, S. K. DAS and J. L. KAPUR JJ.)

p. 1336

in

p. 1336

puso" death- Admis~ibility-Co,.fession-Perso" in authority- (/

p. 1336

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 the Gram Panchayat the appellant mad< an extra-

p. 1336

."'c~pon covered fronra room the appellant. At mslance some at•

p. 1336