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TMI Blog1958 (9) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... death imposed on the appellants by the Sessions Judge. According to the prosecution, one Tarachand Bhadani had a cloth shop at Mathabhanga in the district of Cooch Bihar. He was joint in business and mess with his two sons, Prithiraj and the deceased Malchand. The annual turn-over of the shop was between ₹ 50,000 to ₹ 60,000. On December 18, 1956, Tarachand had gone to Rajasthan and Prithiraj had gone to Falakata Hat. Accordingly at the shop on that day 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 in the iron safe in an anteroom of the shop when the appellants with one Sanatan Das, who was acquitted -at the trial, called at the shop. Malchand came out of the anteroom into the shop to attend to these late customers. He had left open the safe and one of its drawers on the floor. The appellants purported to make certain purchases and examined various pieces of cloth. After selection of the cloth they were put into packets. Cash memoes in duplicate were prepared and signed by Malcliand and the appellant Bishnu Charan Saha. The cash memoes had been completely filled in. Two of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 recorded by the Magistrate Mr. S. C. Chaudhury on December 20, 1956. A charge-sheet against the appellants and Sanatan Das was submitted by the police on June 20, 1957. On June 22, 1957, a prayer was made to the Sub-divisional Magistrate on behalf of the prosecution that Bishnu Charan Saba may be tendered a pardon under s. 337 of the Code of Criminal Procedure and the Magistrate recorded an order to the effect that this appellant was tendered pardon under 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 offence and to every other person concerned whether as principal or abettor in the commission thereof. The Sub-divisional Magistrate bad already reported on June 20, 1957, to the District Magistrate that both he and the other Magistrate of Mathabhanga should not hold the commitment proceedings as they had had something to do with the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is clear, therefore, that a mere tender of pardon does not attract the provisions of s. 339. There must be an acceptance of it and the person who has accepted 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 may 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 Magistrate 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 Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrapper of Bipin Behari 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 the nature of the injuries on Malchand showed that probably he was overpowered by someone first and then another person pressed the weapon against his neck. The matter for consideration is whether the circumstantial evidence, as stated above, is sufficient to prove that the appellants had participated in the murder of Malchand. Two findings of the High Court may be stated at, this stage before the circumstantial evidence is referred to. One concerned the cash-memoes signed by Bishnu Charan Saha and the other concerned the colour of the wrapper worn by Bipin Behari Sarkar when he was seen by Kali 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 Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of this witness and after dealing with them came to the conclusion that the witness was a truthful witness and that his evidence established that the appellants were at the shop of Malchand at about 8-30 p.m. and that Malchand was last seen alive with them. The evidence of Khum Chand Bothers, P.W. 3 proved that at about 8-30 p.m. on the night of Malchand s murder he had called out Malchand Malchand , but had received no reply. Kali Mohan Sarkar, P. W. 7 proved that at about 8 p.m. on the night in question when he was going home he met the appellant Bipin Behari Sarkar who was going away hurriedly from the direction of the Bazar. On some enquiry made by the witness this appellant stated that he had been pressed by a call of nature. Thereafter, the appellant Bishnu Charan Saha was seen coming behind Bipin Behari Sarkar. Bipin Behari Sarkar had on his person a blue coloured wrapper. The spot at which he had met the appellant Bipin Behari Sarkar was at a distance of about 100 cubits to the south of the passage meant for sweepers of Malchand s house. He had heard Bishnu Charan Saha calling out Hei, Hei to Bipin Behari Sarkar-. The evidence of these witnesses, which had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een clearly established. His explanation to the Court was that some of the stains 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 the time he had sustained his injuries. This explanation was also not accepted by the High Court and, we think, rightly. The evidence therefore established that so far as Bishnu Charan Saha was concerned he was seen in the company of Bipin Behari Sarkar and Sanatan 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 Malchand. He was seen along with the other two persons at the shop of Malchand at about 8-30 p.m. Thereafter, he was seen not far from the shop of Malchand going in the same direction as Bipin Behari Sarkar and calling out to him. The cash-memoes at Malchand 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 stained with human blood for which he gave no reasonable explanation. In our opinion, the sum total of the evidence against Bishnu Charan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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