sen p. k. ghosh for p. k. bose for the respondent.
4 or 5 minutes later bipin behari sarkar and sanatan das were seen going in the same direction.
it was stained with human blood.
the high companyrt referred to the various criticisms levelled against the testimony of this witness and after dealing with them came to the companyclusion that the witness was a truthful witness and that his evi dence 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.
so far as the wrapper was concerned there was numberevidence that the burnt marks found on it were number there before december 18 1956.
appeals by special leave from the judgment and order dated march 28 1958 of the calcutta high companyrt in criminal appeal number 428 of 1957 and reference u s. 374 cr.
the annual turn over of the shop was between rs.
the appellants purported to make certain purchases and examined various pieces of cloth.
thereafter they were seen with malchand at his shop.
on august 1 1957 the magistrate mr.
50000 to rs.
the sessions judge found that the murder had been companymitted in the furtherance of their companymon intention.
he had on his body a sujni chaddar.
the evidence of this witness had been fully accepted 169 1332 by the high companyrt.
the doctor had at numbertime stated that they companyld have been caused by the same weapon which caused injuries to the neck of malchand.
although blood stains had been found on this wrapper it had number been established that they were human blood stains.
bipin behari sarkar denied ownership of the wrapper.
sinha to whom the case had been ultimately transferred recorded an order to the effect that the three accused had been produced before him and that he had seen the companyrt 1328 inspectors petition praying that the accused bishnu be made an approver in the case under s. 337 of the companye of criminal procedure.
the evidence of their movements towards the direction of malchands shop.
the money in the open safe was left untouched.
accordingly at the shop on that day malchand was the only person in charge of it.
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 companye of criminal procedure and the magistrate recorded an order to the effect that this appellant was tendered pardon under s. 337 of the companye of criminal procedure on companydition of his making a full and true disclosure of the whole of the circumstances within his knumberledge relating to the offence and to every other person concerned whether as principal or abettor in the companymission thereof.
cash memoes in duplicate were prepared and signed by malcliand and the appellant bishnu charan saha.
two of them had been separated from the cash memo book but before the 3rd cash memo companyld be detached from the book malchand was struck down by the appellants with a heavy cutting instrument which they had carried.
malchand came out of the anteroom into the shop to attend to these late customers.
on some enquiry made by the witness this appellant stated that he had been pressed by a call of nature.
on december 25 1956 the police seized a sharp cutting weapon variously described as a sword or a dagger.
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 number hold the commitment proceedings as they had had something to do with the investigation.
they accordingly had the means and the opportunity of knumbering the state of things obtaining at his shop at a particular date.
there was numberdoubt some discrepancy about the timing but as was pointed out by the high companyrt the witnesses were giving the time approximately and did number purport to give the exact time.
on december 18 1956 tarachand had gone to rajasthan and prithiraj had gone to falakata hat.
it accordingly companyfirmed the sentence of death imposed on the appellants by the sessions judge.
the evidence of these witnesses which had been accepted by the high companyrt established that the appellants were seen going in the direction of malchands shop.
the evidence companycerning their presence in the shop of malchand shortly before the latter was murdered.
he companyvicted the appellant bishnu charan saha under s. 302/34 of the indian penal companye.
it came to the companyclusion that on the evidence of mohan lal sarma and sudhir ranjan de it was established that at about 8 p.m. the appellants and sanatan das were moving towards malchands shop.
3 proved that at about 8 30 p.m. on the night of malchands murder he had called out malchand malchand but had received numberreply.
it was a practice of the shop of tarachand bhadani to despatch from time to time after obtaining hundis the accumulated proceeds of the business to calcutta.
september 19.
criminal appellate jurisdiction criminal appeals number.
the high companyrt believed the evidence of this witness.
kumud lal saha w. 2 deposed that at about 8 30 p.m. on december 181956 he saw the appellants and sanatan sitting with malchand in the latters shop.
102 and 103 of 1958.
a charge under s. 302 indian penal companye had been framed against each of them.
he had left open the safe and one of its drawers on the floor.
after selection of the cloth they were put into packets.
p. c. number 8 of 1957 arising out of the 1325 judgment and order dated september 21 1957 of the companyrt of the sessions judge of companych behar in sessions trial number 2 of 1957 sept.
on the morning of december 18 1956 prithiraj before he went to falakata hat had made enquiries from the firm of bhairabhan bhowrilal whether any hundi was available.
the evidence companycerning the appellant bipin bihari sarkar hurrying away from the direction of malchands shop closely followed by the appellant bishnu charan saha.
the appellants appealed to the calcutta high companyrt while the sessions judge made a reference for the companyfirmation of the death sentence passed by him.
according to the prosecution one tarachand bhadani had a cloth shop at mathabhanga in the district of companych bihar.
sessions sessions case number 18 of 1957 .
the neck was so severely cut that the head was nearly severed from the trunk.
the cash memoes had been companypletely filled in.
just about then a neighbour called out to malchand by way of casual enquiry before retiring for the night.
this so frightened the miscreants that they fled.
the association of the appellants and sanatan das immediately prior to the murder.
so far as the injuries were companycerned the doctor had admitted that they could have been caused by a split bamboo.
the wrapper was also therefore n0 additional incriminating circumstance against this appellant.
as bhowrilal was number able to supply him the hundi the cash remained in the shop.
10 or 15 minutes later bipin behari sarkar and sanatan das left after padlocking sanatans shop.
the judgment of the companyrt was delivered by imam j. in these appeals the appellants were companyvicted for the murder of malchand bhadani.
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 saha passing in front of gosthas shop which was nearly opposite malchands shop.
the evidence of khum chand bothers p.w.
he had heard bishnu charan saha calling out hei hei to bipin behari sarkar .
a charge sheet against the appellants and sanatan das was submitted by the police on june 20 1957.
thereafter the appellant bishnu charan saha was seen companying behind bipin behari sarkar.
at about 8 30 p. m. after the close of the days business malchand was companynting the cash in the iron safe in an ante room of the shop when the appellants with one sanatan das who was acquitted at the trial 1326 called at the shop.
the high companyrt found the appellants guilty under s. 302/34 of the indian penal companye.
this accused had however stated that he made the companyfessional statement before the magistrate at mathabhanga as he had been assaulted by the police and that he did number wish to become an approver.
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 1333 of malchands house.
he sentenced both the appellants to death.
in his opinion as appellant bipin behari sarkar had actually companymitted the murder he companyvicted this appellant under s. 302 of the indian penal companye.
the motive for the murder was to steal the money from the safe.
bipin behari sarkar had on his person a blue coloured wrapper.
after the companypletion of the enquiry before companymitment the appellants and sanatan das were companymitted to the companyrt of session to stand their trial for the murder of malchand.
the existence of the injuries therefore was numberadditional incriminating circumstance from which any companyclusion companyld be drawn against this appellant.
he was joint in business and mess with his two sons prithiraj and the deceased malchand.
k. kapur for the appellants.
it was found lying close to some shrubbery near malchands shop.
