LexBIPIN BEHARI SARKAR AND ANOTHER versus THE STATE OF WEST BENGAL
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Septtmb1r 19. I • • • 1 • ' 1324 1 SUPREME COURT REPORTS [1959) BIPIN BEHAR! SARKAR AND 0 AXOTHER (JAFER hIA:Y, S. K. DAs and J. L. KAPUR JJ.) Crimii<al Trial - l'ard-On, lender of - Refusal by ac"rnsed to t11m approver - Trial of such accused jointly witli other accused - Legality of - Code of Cr11ni11al Procedure (V of i.198), ss. 337 and 339. The two appellants and one other person were accused of committing a murder. The second appellant made a confession before a ~!agistrate. The police submitted a charge sheet against the three accused. Thereafter the prosecution made a prayer to the sub-divisional ~lagistrate that the sec-Jnd appellant may be tendered a pardon under s. 337, Code of Criminal Pro- cedure and the Magistrate recorded an order to the effect thai he was tendered a pardon under s. 337 on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge. Before the Committing Magistrate the second appellant stated that the confession made by him was not volun- tary and that he did not \\•ish to become an approver. The appellants were committed to the Court of S<issions and were convicted of the murder and were sentenced to death. 'On. appeal the High Court confirmed the conviction and sentence. It was contended by the appellants that the secJnd appellant having been tendered a pardon the joint trial of fae appell~nts was vitiated as it was barred by the proviso to s. 339(1) of the Code. • Held, that !here was no effecti\'e pardon unde: s. 337 of the Code and consequently the provisions of s. 339 did not come into operation in this case. A mere tender of pardon does not attract the provisions of s. 339; there must be an acceptance of the pardon by the accomplice and he must be examined as a witness. It is only after this that s. 339 comes in\o play if the accomplice who has accepted the pardon fails to comply with ll!e conditions on which the pardon was ten<lt:red,. In the present case though a tender of pardon was made to the second appellant there was no proof that it was accepted by him anrl as such it could not be said that there was in existence an effec- tive pardon under s. 337. CRIMI!fAL APPELLATE JURISDICTION: Criminal Appeals Nos. 102 and 103 of 1958. • Appeals by Apeciftl leave from the judgment a:nd "rder daiiecl March 28, 1958, of tho Calcutta High Court in Criminal Appeal No. 428 of 1957 and refer- ence u/s. 374 Cr. P. C. No. 8of1957 arising° out of tho • • • •• • •• I ' • S.C.R. SUPREME COURT REPORTS' 1325 judgment and Qrder dated September 21, 1957, of the z958 Court of the Sessions Judge.of Cooch Behar in Sessions B' . B h . Trial No. 2 of 1957 (Sept. Sessions) (Sessions Case Sark'!,'~ ~::;her No. 18 of 1957). v~ The Stata of S. K. Kapur, for the appellants. B. Sen, P. K. Ghosh for P. K. Bose, dent. • West Bengal for the respon- 1958. September 19. was delivered by The Judgment of the Court IMAM J.-ln these appeals the appellants were con- victed 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 appel- lants 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. According to the prosecutiOn, one Tarachand Bha- dani had a" 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 busi- ness, Malchand was counting the cash jn th~ iron
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