P L D 1959 Supreme Court (Ind (PLP)

"where a pardon has been tendered under section 337 or S. 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving 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 the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the same matter." The proviso to this subsection prohibits the trial of such person jointly with any of the other accused and that such person shall be entitled to plead at such trial that he had complied with the condition upon which such tender was made. The provisions of this section clearly pre‑suppose that the pardon which had been tendered to a person had been accepted by hint and that thereafter that person had wilfully concealed anything essential or had given false evidence and therefore had not com plied with the condition on which the tender was made to him. Section 337 of the Code, under which a pardon is tendered, shows that such tender is made on the condition that the person to whom it is tendered makes a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as a princi pal or an abettor to the commission thereof. Subsection (2) of this section requires that every person who has accepted a tender shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. It 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 Saba 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 Saba had been produced before him. On the other hand, when Bishnu Charan Saba 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 Saba may be made an approver in the case under S. 337 of this Code of Criminal Procedure. This would show that up to that time Bishnu Charan Saba had not accepted the tender of pardon made to him by the Sub‑Divisional Magistrate on June 22, 1957. On the prayer of the prosecutor made to Mr. Sinha on August 1, 1957, Bishnu Charan Saba flatly denied that he wished to be an approver and had stated that the con fessional statement made by him to Mr. Chaudhry was not a voluntary one. On the facts of the present case, therefore, all that is proved 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. 337 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 before commitment or to the trial of the appellants, because the provisions of S. 339 can only come into operation if there is in existence an effective pardon tinder S. 337 of the Code. In our opinion, can the facts of the present case, there is no foundation for the submission which had beer, made.

8. Coming now to the circumstantial evidence in the case upon which the High Court relied for upholding the conviction of the appellants, which may be summed up as follows (1) The evidence clearly established that the appellants were local men who lived or worked not far from Malchand's shop. They accordingly had the means and the opportunity of knowing the state of things obtaining at his shop at a particular date. (2) The association of the appellants and Sanatan Das immediately prior to the murder. (3) The evidence of their movements towards the direction of Malchand's shop. (4) The evidence concerning their presence in the shop of Malchand shortly before the latter was murdered. (5) The evidence concerning the appellant Bipin Bihari Sarkar hurrying away from the direction of Malchand's shop closely followed by the appellant Bishnu Charan Saba. (6) The evidence of injuries on the palms or fingers of the appellants found at the time of their arrest which took place within 24 hours, or shortly thereafter, of the murder. (7) The evidence of the presence of human blood‑stains on the shirt of Bishnu Charan Saba and blood‑stains on the wrap per of Bipin Bihari Sarkar with burnt holes at places where the stains were found. (8) The cash‑memos with the signatures of the appellant Bishnu Charan Saba.

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 appel lants had participated in the murder of Malchand. (9) Two findings of the High Court may be stated at this stage before the circumstantial evidence is referred to. One concerned the cash‑memos signed by Bishnu Chacan Saba and the other concerned the colour of the wrapper worn, by Bipin Bihari 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 memos before the date 11‑12‑1956 and not 18‑12‑1956. The High Court gave good reasons for holding that the date 11‑12‑1956 was wrongly entered in these cash memos after examining the account books of Malchand's shop and the other circumstances in the case as well as the admission of Bishnu Charan Saba that on December 18, 1956, between 1‑30 and 2 p.m., he bad caused three cash memos to be issued in the shop of Malchand. We find ourselves in complete agreement with the findings of the High Court in this respect. The wrap per worn by Bipin Bihari Sarkar at the time he was seen by Kali Mohan Sarkar was described by the witness as blue in colour whereas, in fact, the recovered wrapper from the house of this appellant was green in colour. The High Court thought and, in our opinion, rightly that what was in fact 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 not materially affect the evidence that Bipin Bihari Sarkar was wearing a wrapper at the time he was seen at a spot near Malchand's shop after the murder. Further reference to the wrapper will be made when we consider the case of this appellant.

10. Mohan Lai Sarma, P. W. 4 had stated that at about 8 p.m., on December 18, 1956 he had seen the appellants and Sanatan Das sitting in the latter's shop. Bishnu Charan Saba was the first to leave the shop. 10 or 15 minutes later, Bipin Bihari Sarkar and Sanatan Das left after padlocking Sanatan's shop. The evidence of this witness had been fully accepted by the High Court. Sudhir Ranjan De, P. W. 8 deposed that in the evening of December 18, 1956 at about 7‑30 p.m., he had seen Bishnu Charan Saba passing in front of Gostha's shop which was nearly opposite Malchand's shop. He had on his body a `Sujni Chaddar' 4 or 5 minutes later, Bipin Bihari Sarkar and Sanatan Das were seen going in the same direction. The High Court believed the evidence of this witness. It came to the conclusion that on the evidence of Mohan Lai Sharma and Sudhir Ranjan De it was established that at about 8 p.m., the appellants and Sanatan 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 witnesses were giving the time approximately and did not purport to give the exact time. Kumud Lai Saba, P. W. 2‑deposed that at about 8‑30 p.m., on December 18, 1956 he saw the appellants and Sanatan sitting with Malchand in the latter's shop. Malchand was at that time placing cloth for their 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 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 Khurn Chand Bothera, P. W. 3 proved that at about 8‑30 p.m. on the night of Malchand's murder he had called out "Malchand" "Malch and", 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 Bihari 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 Saba was seen coming behind Bipin Bihari Sarkar. Bipin Bihari Sarkar had on his person a blue coloured wrapper. The spot at which he had met the appellant Bipin Bihari 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 Saba calling out "Hei, Hei" to Bipin Bihari Sarkar. The evidence of these witnesses, which had been accepted by the High Court, established that the appellants were seen going in the direction of Malchand's shop. Thereafter, they were seen with Malchand at his shop. Subsequent to that, Bipin Bihari Sarkar was seen going away hurriedly at a place not far from Malchand's shop followed by Bisbnu Charan Saba 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‑memos, which were stained with human blood, with the signatures of Bishnu Charan Saba clearly established that at least Bishnu Charan Saba must have been present at the time of the murder because the cash‑memos were being made out for him and they were stained with human blood which shows that Malchand was murdered while he was handling the cash‑memos. It had been further proved that Bishnu Charan Saba had on him certain injuries of which one was an incised injury. The evidence of the doctor was that this injury could have been caused by the same instrument with which the neck injury of Malchand had been caused. It had been further established that the shirt of Bishnu Charan Saba was stained with human blood. The explanation offered by Bishnu Charan Saba for the injuries on his person was not accepted by the High Court and, in our opinion, rightly. Bishnu Charan Saba had stated to the doctor at the time of his examination that injury No. 1 was caused as the result of 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 un‑acceptable inasmuch as this appellant was not a left‑handed person‑a fact which appeared clear from his formation and development. When examined under S. 342 of the Code of Criminal Procedure, Bishnu Charan Saba told the Court that 2 days prior to his examination by the doctor he had been cutting straw for his cattle with his left hand when his daughter aged about 4 came up from behind and pushed him which resulted in the injury to his finger by its contact with the `dao' and that he had also received injuries on the back 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 arrest was concerned, Bishnu Charan Saba seriously disputed the identity of the shirt. The identity of the shirt, however, had been 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 Saba was concerned he was seen in the company of Bipin Bihari 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 Mal chand. 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 Bihari Sarkarr and calling out to him. The cash- memos 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 Saha established beyond any reasonable doubt that he had par ticipated in the murder of Malchand.

11. Coming now to the case of Bipin Bihari Sarkar the evi dence against him is the same as against Bishnu Charan Saha about the movements towards the shop of Malchand, presence at the shop of Malchand and being seen going away at a place near the shop of Malchand and the existence of injuries on his person. In addition there was the evidence that a wrapper was seized the next morning after his arrest with marks of burning round which there were traces of blood. Unlike the case of Bishnu Charan Saha no signatures of his were found on the cash‑memos. It is 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 Malchand. The existence of the injuries, therefore, was no additional incriminat ing 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 blood‑stains had been found on this wrapper it had not been established that they were human blood‑stains. The wrapper was also, therefore, no additional incriminating circumstance against this appellant. It is, however, to be remembered that this appellant was with Bishnu Charan Saha 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 remarkable 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 at 10‑30 p.m., on December 19, 1956. It would be a remarkable coincidence that both he and Bishnu Charan Saha should have injuries on their persons so shortly after the murder. Bipin Bihari Sarkar denied ownership of the wrapper. His explanation was not that the burnt marks on the wrapper were there before December

18. This wrapper had blood‑stains. They were too small in quantity to enable a Serologist to determine their origin, but it is remarkable that wherever the blood‑stains were found on the wrapper an attempt had been made to burn out those marks. Unfortunately, for the appellant, his attempt to burn out the blood‑stains on the wrapper was not entirely successful. This was, in our opinion, an incriminating circumstance against this appellant. The cir cumstantial evidence taken as a whole leaves no room for a reasonable doubt in our minds about the guilt of this appellant.

12. In our opinion, the High Court rightly found the appel lants guilty under Ss. 302/34 of the Indian 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 are accordingly dismissed. K. B. A. Appeals dismissed.