Bipin Behari Sarkar And Another vs The State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 102 and 103 of 1958

Decision Date: 19 September, 1958

Coram: Syed Jaffer Imam, S.K. Das, J.L. Kapur

In this case the petitioners, identified as Bipin Behari Sarkar and another accused, challenged the judgment of the State of West Bengal rendered on 19 September 1958. The appeal was heard by a three‑judge bench of the Supreme Court of India consisting of Justice Syed Jaffer Imam, Justice S. K. Das and Justice J. L. Kapur. The judgment was authored by Justice Syed Jaffer Imam. The parties are styled as petitioner Bipin Behari Sarkar and another versus respondent the State of West Bengal. The decision was pronounced on the same date, 19 September 1958, and is reported in the law reports as 1959 AIR 13 and 1959 SCR 1324.

The dispute arose under the provisions of the Code of Criminal Procedure, 1898, specifically sections 337 and 339, relating to the tender of pardon to an accomplice and the consequences of a refusal to become an approver. The factual backdrop was that two appellants together with a third individual were charged with the murder of a person named Malchand Bhadani. The second appellant had earlier made a confession before a magistrate, and the police subsequently filed a charge‑sheet against all three accused. The prosecution then moved before the sub‑divisional magistrate for the second appellant to be tendered a pardon pursuant to section 337 of the Code, on the condition that he would make a full and true disclosure of all circumstances within his knowledge.

The magistrate recorded an order indicating that the pardon was tendered on the stipulated condition. However, before the committing magistrate the second appellant asserted that his confession was not voluntary and expressly declined to become an approver. The two appellants were thereafter committed to the Court of Sessions, where they were found guilty of murder and sentenced to death. The High Court of Calcutta affirmed both the conviction and the death sentence on appeal.

Before the Supreme Court the appellants contended that the joint trial of the three accused was nullified because the second appellant had been tendered a pardon, thereby invoking the proviso to section 339(1) of the Code, which they argued barred the combined prosecution. The Court examined the operation of sections 337 and 339 and held that a mere tender of pardon does not activate the provisions of section 339. An effective pardon requires the accomplice’s acceptance of the pardon and his examination as a witness. Only after such acceptance and subsequent non‑compliance with the prescribed conditions does section 339 become applicable. In the present matter, although a pardon was tendered, there was no proof that the second appellant accepted it; consequently, no effective pardon existed under section 337, and the provisions of section 339 did not arise. The Supreme Court accordingly held that the joint trial was not vitiated by the tender of pardon.

On September 21, 1957, the Sessions Judge of Cooch Behar delivered a judgment and order in Sessions Trial No. 2 of 1957, which was also identified as Sessions Case No. 18 of 1957. The appellants were represented by counsel, while the respondent’s side was also assisted by counsel. The final judgment was pronounced on September 19, 1958, by the judge identified as Imam J. In the appeals before the Court, both appellants were found guilty of the murder of Malchand Bhadani. A charge under section 302 of the Indian Penal Code had been framed against each accused. The Sessions Judge concluded that the murder had been carried out in furtherance of a common intention shared by the accused. Accordingly, the judge held that the appellant Bipin Behari Sarkar had actually performed the killing and convicted him under section 302 of the Indian Penal Code. The judge also convicted the appellant Bishnu Charan Saha under sections 302 and 34 of the Indian Penal Code. Both were sentenced to death. After the conviction, the appellants appealed to the Calcutta High Court, and the Sessions Judge referred the matter for confirmation of the death sentence. The High Court examined the case, found the appellants guilty under sections 302 and 34 of the Indian Penal Code, and upheld the death sentences originally imposed by the Sessions Judge.

The prosecution described the background of the incident. Tarachand Bhadani owned a cloth shop in Mathabhanga, Cooch Bihar, and conducted business together with his two sons, Prithiraj and the deceased Malchand. The shop generated an annual turnover of approximately Rs 50,000 to Rs 60,000. On December 18, 1956, Tarachand traveled to Rajasthan while Prithiraj went to Falakata Hat, leaving Malchand as the sole person in charge of the shop that day. At about 8:30 p.m., after the day’s trade had ended, Malchand was counting cash inside the iron safe located in an anteroom of the shop. At that moment, the appellants arrived at the shop accompanied by Sanatan Das, who was later acquitted at trial. Malchand stepped out of the anteroom to attend to these late‑arriving customers, leaving the safe open with one drawer on the floor. The appellants pretended to make purchases, examined various pieces of cloth, selected items, and placed them in packets. They prepared duplicate cash memoranda, each signed by Malchand and by the appellant Bishnu Charan Saha, and filled the memoranda completely. Two memoranda were detached from the cash‑memo book, but before a third could be removed, the appellants attacked Malchand with a heavy cutting instrument they had brought. The assault severed Malchand’s neck so badly that his head was nearly detached from his body. At that instant, a neighbour called out to Malchand in a casual inquiry as the night was drawing to a close. The sudden call frightened the assailants, causing them to flee the scene, leaving the money in the open safe untouched.

In this matter, the Court observed that the killing of Malchand had been committed for the purpose of obtaining the cash and gold kept in the shop’s safe. On 25 December 1956, the police recovered a sharp cutting instrument described in the report as either a sword or a dagger; the weapon lay near some shrubbery close to the shop and bore stains of human blood. The shop of Tarachand Bhadani customarily dispatched, after securing hundi receipts, the accumulated business proceeds to Calcutta. On the morning of 18 December 1956, before proceeding to Falakata Hat, Prithiraj made enquiries with the firm of Bhairabhan Bhowrilal as to whether any hundi was available; because Bhowrilal could not provide a hundi, the cash remained in the shop. The contents of the safe on that day, prior to Malchand’s murder, consisted of a cash sum of Rs 3,913 and eight and one‑quarter tolas of gold, indicating a substantial amount that would have been stolen if the assailants had not fled after a neighbour’s casual call frightened them. The High Court’s conviction of the appellants rested entirely on circumstantial evidence; it expressly declined to rely upon the confessional statement made by appellant Bishnu Charan Saha to a magistrate, holding that the statement was not made voluntarily. The Court noted that it would later refer to the circumstantial material on which the High Court based its judgment. Before addressing that evidence, the Court found it necessary to consider a contention raised by the appellants concerning the tender of pardon under section 337 of the Code of Criminal Procedure to Bishnu Charan Saha and the alleged non‑compliance with the provisions of section 339 of the same Code. The appellants argued that because section 339 had not been observed, the trial was vitiated, asserting that Bishnu Charan Saha could not be tried together with appellant Bipin Behari Sarkar. To understand this submission, the Court recorded certain factual details: Bishnu Charan Saha was arrested at about three in the afternoon on 19 December 1956; his confession was recorded by Magistrate S C Chaudhury on 20 December 1956. The police filed a charge‑sheet against the appellants and Sanatan Das on 20 June 1957. On 22 June 1957, the prosecution prayed before the Sub‑divisional Magistrate that Bishnu Charan Saha be granted a pardon under section 337, and the magistrate issued an order that the pardon would be given on the condition that the appellant made a full and true disclosure of all circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor.

In this matter, the Sub‑divisional Magistrate had already, on 20 June 1957, informed the District Magistrate that neither he nor the other Magistrate of Mathabhanga should conduct the commitment proceedings because they had been involved in the investigation. Later, on 1 August 1957, the case, which had been transferred, came before Magistrate Mr Sinha. He recorded an order stating that the three accused persons had been produced before him and that he had examined a petition from the Court Inspector requesting that the accused Bishnu be appointed as an approver under section 337 of the Code of Criminal Procedure. Bishnu, however, asserted that he had given his confessional statement before the Magistrate at Mathabhanga after being assaulted by police and that he did not wish to become an approver. After the enquiry concerning commitment was concluded, the appellants together with Sanatan Das were committed to the Court of Session for trial on the murder of Malchand. Section 339(1) of the Code provides that “where a pardon has been tendered under section 337 or section 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 sub‑section further bars the trial of such a person jointly with any other accused and allows that person to plead at the trial that he had complied with the condition on which the tender was made. The language of section 339 clearly assumes that a pardon which has been tendered has been accepted by the person, and that thereafter the person has either wilfully concealed essential facts or given false evidence, thereby violating the condition of the tender. Section 337, the provision under which a pardon is offered, makes the tender conditional upon the person making a full and true disclosure of all circumstances within his knowledge relating to the offence and to every other person involved, whether as principal or abettor, in the commission thereof. Sub‑section (2) of section 337 further mandates that every person who has accepted such a tender must be examined as a witness by the Magistrate taking cognizance of the offence and again in any subsequent trial, if any. Consequently, a mere tender of pardon does not invoke the provisions of section 339; there must first be an acceptance of the pardon, and the individual who accepts it must be examined as a witness.

It was explained that the provisions of section 339 of the Code of Criminal Procedure became operative only after a person who had been offered a pardon under section 337 actually accepted that pardon and was then examined as a witness. Once the acceptance occurred, the public prosecutor could certify that the person had either wilfully concealed essential facts or had given false evidence, thereby breaching the condition on which the pardon had been tendered, and only then could the individual be tried for the offence for which the pardon had been made. In the present matter, the record showed no evidence that on 22 July 1957 Bishnu Charan Saha had accepted the pardon that had been tendered to him. The order‑sheet of the Sub‑divisional Magistrate dated that day did not even mention that Saha had been produced before the magistrate, and consequently there was no indication of acceptance. Later, when Saha and his co‑accused were brought before Magistrate Sinha, to whom the case had been transferred, the prosecution prayed that Saha be made an approver under section 337. This request demonstrated that up to that time Saha had not accepted the earlier tender of pardon issued by the Sub‑divisional Magistrate on 22 June 1957. On 1 August 1957, when the prosecutor made the prayer before Magistrate Sinha, Saha expressly refused to become an approver and asserted that the confessional statement he had given to Mr Chaudhury was not voluntary. Thus, the facts established only that a tender of pardon had at some stage been made to Saha, but there was no proof that he had ever accepted it. Because an effective pardon under section 337 was absent, the court held that the provisions of section 339 could not be said to apply to the proceedings, whether they concerned an enquiry before commitment or the trial of the appellants. Accordingly, the submission that section 339 should govern the case had no foundation. The court then turned to the circumstantial evidence on which the High Court had relied in upholding the convictions. This evidence could be summarised as follows: (1) the appellants were local men who lived or worked near the shop of the deceased, Malchand, giving them both the means and the opportunity to know the condition of affairs in the shop on the relevant date; (2) the appellants had been associated with Sanatan Das immediately before the murder; (3) the evidence showed that they moved in the direction of Malchand’s shop; and (4) further details of their presence in the shop shortly before the murder were also presented. The court considered whether these points, taken together, were sufficient to prove the participation of the appellants in the murder of Malchand.

The Court examined the circumstantial evidence that the High Court had relied upon to uphold the conviction, and it summarised the material as follows: first, the evidence showed that the appellants were present in Malchand’s shop shortly before he was murdered; second, the testimony indicated that the appellant Bipin Bihari Sarkar hurried away from the vicinity of Malchand’s shop and was closely followed by the appellant Bishnu Charan Saha; third, injuries on the palms or fingers of the appellants were discovered at the time of their arrest, which occurred within twenty‑four hours, or shortly thereafter, of the murder; fourth, the shirt of Bishnu Charan Saha bore human bloodstains and the wrapper worn by Bipin Behari Sarkar contained bloodstains with burnt holes at the spots where the stains had been found; fifth, cash‑memoes signed by Bishnu Charan Saha were produced; sixth, a medical expert opined that the nature of the injuries on Malchand suggested that he had first been overpowered by one person and then a second person had pressed the weapon against his neck. The Court then asked whether these circumstances, taken together, were sufficient to prove that the appellants had participated in Malchand’s murder. Before addressing the substance of the circumstantial evidence, the Court noted two specific findings of the High Court. The first related to the cash‑memoes signed by Bishnu Charan Saha, which bore the date 11‑12‑56 rather than 18‑12‑56. After examining Malchand’s shop account books, considering other case facts, and relying on the appellant’s own admission that three cash‑memoes had been issued on 18 December 1956 between 1:30 p.m. and 2 p.m., the High Court concluded, with good reason, that the date 11‑12‑56 had been entered mistakenly; this Court fully agreed with that finding. The second finding concerned the colour of the wrapper worn by Bipin Behari Sarkar when observed by the witness Kali Mohan Sarkar. The witness described the wrapper as blue, whereas the recovered wrapper from the appellant’s house was green. The High Court, and this Court as well, held that a blue appearance could have been perceived by a witness viewing the garment at night, and that such a mis‑description did not materially affect the evidence that the appellant was indeed wearing a wrapper near Malchand’s shop after the murder. The Court indicated that further reference to the wrapper would be made when considering the appellant’s case. Finally, the testimony of the witness Mohan Lal Sarma placed the appellants and Sanatan Das sitting in Sanatan’s shop at about 8 p.m. on 18 December 1956, establishing their presence in the vicinity at that time.

Bishnu Charan Saha left the shop first. Ten or fifteen minutes later Bipin Behari Sarkar and Sanatan Das left after padlocking Sanatan’s shop. The High Court had fully accepted the testimony of this witness, recorded as P. W. 10. Sudhir Ranjan De, identified as P. W. 8, testified that on the evening of 18 December 1956 at about 7:30 p.m. he saw Bishnu Charan Saha passing in front of Gostha’s shop, which stood nearly opposite Malchand’s shop. He observed that Bishnu Charan Saha was carrying a Sujni Chaddar. Four or five minutes later Sudhir Ranjan De reported that he saw Bipin Behari Sarkar and Sanatan Das proceeding in the same direction. The High Court gave credence to Sudhir Ranjan De’s evidence. Relying on the statements of Mohan Lal Sarma and Sudhir Ranjan De, the High Court concluded that, at about 8 p.m., the appellants and Sanatan Das were moving toward Malchand’s shop. The Court noted a minor discrepancy in the exact timing, but observed that both witnesses were providing approximate times rather than precise clock readings.

Kumud Lal Saha, recorded as P. W. 2, testified that at about 8:30 p.m. on 18 December 1956 he saw the appellants together with Sanatan Das sitting inside Malchand’s shop. He added that Malchand was at that moment laying out cloth for their inspection. The High Court examined the various criticisms raised against Kumud Lal Saha’s testimony, addressed each objection, and finally held that he was a truthful witness. The Court therefore accepted that his evidence placed the appellants in Malchand’s shop at roughly 8:30 p.m., and that Malchand was last seen alive in the company of the appellants. The testimony of Khum Chand Bothers, P. W. 3, showed that at about 8:30 p.m. on the night of Malchand’s murder he called out “Malchand… Malchand…” but received no answer. Kali Mohan Sarkar, P. W. 7, stated that at about 8 p.m. on the same night, while he was on his way home, he encountered the appellant Bipin Behari Sarkar who was hurrying away from the direction of the bazar. When asked for an explanation, the appellant said he had been pressed by a call of nature. Shortly thereafter, the witness saw Bishnu Charan Saha following closely behind Bipin Behari Sarkar. The appellant was observed to be wearing a blue‑coloured wrapper. The encounter occurred approximately one hundred cubits south of the passage used by the sweepers of Malchand’s house. Kali Mohan Sarkar also heard Bishnu Charan Saha calling out “Hei, Hei” to Bipin Behari Sarkar. The High Court accepted the evidence of these witnesses, finding that it demonstrated that the appellants were first seen moving toward Malchand’s shop, then seen together with Malchand inside his shop, and thereafter that Bipin Behari Sarkar was observed leaving the vicinity in a hurried manner, followed closely by Bishnu Charan Saha.

Bishnu Charan Saha was heard calling out “Hei, Hei” to Bipin Behari Sarkar. The final occasion on which Malchand was observed alive occurred while he was in the company of the appellants. The cash‑memos discovered at the scene were stained with human blood and bore the signatures of Bishnu Charan Saha. These facts demonstrated that Bishnu Charan Saha must have been present at the time of the murder, because the cash‑memos were being prepared for him and the blood stains indicated that Malchand was killed while handling those documents. Further proof showed that Bishnu Charan Saha sustained several injuries, one of which was an incised wound. The medical examiner testified that this wound could have been inflicted by the same instrument that produced the neck injury to Malchand. In addition, Bishnu Charan Saha’s shirt was found to be stained with human blood. The High Court rejected the explanation offered by Bishnu Charan Saha for the injuries on his body, and the present judgment concurred with that rejection. Bishnu Charan Saha told the doctor, at the time of his examination, that the first injury resulted from contact with a grass‑cutting dao, while the second and third injuries were caused by drawing his hand over a rough piece of wood. The doctor found this account implausible because Bishnu Charan Saha was not left‑handed, a fact evident from his physical development. When examined under section 342 of the Code of Criminal Procedure, Bishnu Charan Saha narrated that two days earlier he had been cutting straw for his cattle with his left hand when his four‑year‑old daughter approached from behind and pushed him, causing the finger injury through 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. Regarding the blood‑stained shirt found on his person at arrest, Bishnu Charan Saha contested the identification of the garment. Nevertheless, the identity of the shirt had been clearly established by the investigating authorities. He further explained that some of the stains were due to betel spit and that one or two drops of blood might have fallen on the shirt when he sustained his injuries. The High Court again rejected this explanation, a view shared by the present judgment. Consequently, the evidence established that Bishnu Charan Saha was seen together with Bipin Behari Sarkar and Sanatan Das at approximately eight o’clock in the evening, that the three were subsequently observed moving toward Malchand’s shop, and that Bishnu Charan Saha continued to be present at the shop later in the night.

In the course of the investigation the police observed Bishnu Charan Saha together with the two other accused at the shop owned by Malchand at approximately eight‑thirty in the evening. After that observation, the witnesses saw Bishnu Charan Saha not far from the same shop proceeding in the same direction as Bipin Behari Sarkar and calling out to him. The cash‑memo entries at Malchand’s shop bore the signature of Bishnu Charan Saha, indicating that he had handled the shop’s records. Medical examination disclosed that he bore injuries on his body that were consistent with wounds that could have been inflicted at the time of the murder of the deceased. The shirt he wore at the moment of his arrest was stained with human blood, and he offered no reasonable explanation for that staining. In the view of the Court the totality of the evidence, when considered together, proved beyond a reasonable doubt that Bishnu Charan Saha had taken part in the murder of Malchand.

Turning to the case of Bipin Behari Sarkar, the Court noted that the evidential material against him was substantially the same as that against Bishnu Charan Saha with respect to his movements toward the shop of Malchand, his presence inside the shop, and his being observed afterwards moving away from a location close to the shop while sustaining injuries on his person. In addition, a wrapper was recovered the next morning after his arrest; the wrapper displayed circular burn marks and bore traces of blood. Unlike Bishnu Charan Saha, however, no signatures of Bipin Behari Sarkar were found on the cash‑memo entries. The defence contended that mere presence at the shop and the observed movements could not, by themselves, constitute sufficient circumstantial proof for conviction. Regarding the injuries, the attending doctor testified that they might have been caused by a split bamboo and never said that the same weapon that injured Malchand’s neck had caused Bipin’s wounds; consequently, the Court found that the injuries did not add any incriminating value. Concerning the wrapper, the prosecution had not shown that the burn marks were created after December 18 1956, nor had it established that the blood‑stains on the wrapper were of human origin; therefore, the wrapper, on its own, did not constitute an additional incriminating circumstance. Nonetheless, the Court emphasized that Bipin Behari Sarkar was together with Bishnu Charan Saha, and that the victim, Malchand, had been last seen alive in the company of the appellants. The murder was already completed when the two accused were observed hurriedly leaving a spot near the shop, with Bishnu Charan Saha shouting “Hei, Hei” to Bipin. It was striking that Bipin Behari Sarkar was seen not only inside Malchand’s shop but also close to the shop after the murder had been committed.

The appellant was discovered to have injuries on his body when he was taken into custody at ten thirty p.m. on the nineteenth of December, 1956. It was noted that both the appellant and the other accused, Bishnu Charan Saha, bore injuries shortly after the homicide had occurred, a circumstance the Court found highly improbable to be mere coincidence. The appellant, Bipin Behari Sarkar, expressly denied that he possessed the wrapped material that had been presented as evidence. He also refused to accept the suggestion that the charred marks on the wrapper had existed prior to the eighteenth of December, thereby leaving the timing of the damage unresolved. Laboratory examination revealed that the wrapper contained blood‑stains, although the quantity was insufficient for a forensic serologist to identify the source of the blood. The Court observed that wherever the blood‑stains appeared on the wrapper, an effort had been made to burn them out, indicating a deliberate attempt to conceal evidence. However, the appellant’s attempt to eradicate the blood‑stains was incomplete, as the burning did not fully eliminate the marks, and the Court considered this incomplete destruction to be incriminating. When the totality of the circumstantial evidence was examined, the Court found that no reasonable doubt remained regarding the appellant’s participation in the homicide. Accordingly, the Court affirmed the trial court’s judgment that the appellant and his co‑accused were guilty of murder under sections 302 and 34 of the Indian Penal Code. The death penalty imposed on the appellant was deemed appropriate given the nature of the crime, and the appellate petitions were consequently rejected.