19 September 1958
Supreme Court
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BIPIN BEHARI SARKAR AND ANOTHER Vs THE STATE OF WEST BENGAL

Case number: Appeal (crl.) 102 of 1958


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PETITIONER: BIPIN BEHARI SARKAR AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT: 19/09/1958

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER DAS, S.K. KAPUR, J.L.

CITATION:  1959 AIR   13            1959 SCR 1324

ACT: Criminal  Trial - Pardon, tender of - Refusal by accused  to turn  approver  - Trial of such accused jointly  with  other accused  Legality  of  - Code of Criminal  Procedure  (V  of 1898), ss. 337 and 339.

HEADNOTE: The  two  appellants and one other person  were  accused  of committing a murder.  The second appellant made a confession before  a Magistrate.  The police submitted a  charge  sheet against the three accused.  Thereafter the prosecution  made a  prayer to the sub-divisional Magistrate that  the  second appellant  may  be tendered a pardon under s. 337,  Code  of Criminal  Procedure and the Magistrate recorded an order  to the  effect  that 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 voluntary and that he did not wish  to become an approver.  The appellants were  committed to  the Court of Sessions 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  second  appellant  having   been tendered  a  pardon the joint trial of  the  appellants  was vitiated as it was barred by the proviso to s. 339(I) Of the Code. Held, that there was no effective pardon under 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  into  play  if the accomplice who  has  accepted  the pardon  fails  to comply with the conditions  on  which  the pardon was tendered.  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 and as such it could not be said that  there  was in existence an effective pardon  under  S. 337.

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JUDGMENT: CRIMINAL APPELLATE, JURISDICTION: Criminal Appeals Nos.  102 and 103 of 1958. Appeals  by special leave from the judgment and order  dated March  28,  1958,  of the Calcutta High  Court  in  Criminal Appeal No. 428 of 1957 and reference u/s. 374 Cr.  P. C. No. 8 of 1957 arising out of the 1325 judgment and order dated September 21, 1957, of the Court of the Sessions Judge of Cooch Behar in Sessions Trial No. 2 of 1957 (Sept.  Sessions) (Sessions Case No. 18 of 1957). S.   K. Kapur, for the appellants. B.   Sen, P. K. Ghosh for P. K. Bose, for the respondent. 1958.   September  19.   The  Judgment  of  the  Court   was delivered by IMAM  J.-In these appeals the appellants were convicted  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 appellants  appealed  to the  Calcutta  High Court while the Sessions  Judge  made  a reference for the confirmation 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 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 Rs. 50,000  to  Rs.  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  ante- room  of the shop when the appellants with one Sanatan  Das, who was acquitted -at the trial, 1326 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 them had been separated from the cash-memo book,  but before  the 3rd cash-memo could be detached from  the  book, Malchand  was  struck down by the appellants  with  a  heavy cutting instrument which they had carried.  The neck was  so severely  cut  that  the head was nearly  severed  from  the trunk.  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 money in  the  open safe was left untouched.  The motive  for  the murder was to steal the money from the safe. On  December  25, 1956, the police seized  a  sharp  cutting

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weapon  variously described as a sword or a dagger.  It  was found  lying close to some shrubbery near  Malchand’s  shop. It was stained with human blood. 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.   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.  As Bhowrilal was not  able to supply him the Hundi the cash remained  in  the shop.  The contents of the safe showed that on December  18, 1956,  before Malchand was murdered there was a sum  of  Rs. 3,913  in  cash  and  8-1/4  tolas  of  gold.   There   was, therefore,  a  substantial amount in the safe  at  the  shop which would have been stolen were it not that the miscreants fled after murdering Malchand because of a neighbour calling out to him. The conviction of the appellants, as pointed out by the High Court, depended entirely on circumstantial 1327 evidence.  The High Court did not rely upon the confessional statement  made  by the appellant Bishnu Charan  Saha  to  a Magistrate,  as,  in  its opinion, it was  not  a  voluntary statement.   Reference  will be made to  the  circumstantial evidence,  upon which the High Court relied, in due  course. Before we deal with that aspect of the case it is  necessary to  refer to a submission made on behalf of  the  appellants concerning the tender of pardon under s. 337 of the Code  of Criminal Procedure to Bishnu Charan Saha and, the failure of the  prosecution to comply with the provisions of s. 339  of the Code of Criminal Procedure. It  was urged that the provisions of s. 339 of the Code  not having  been  complied with the trial ",as vitiated  as  the appellant  Bishnu Charan Saha 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  investigation.  On August 1, 1957, the  Magistrate  Mr. 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 Court 1328 Inspector’s petition praying that the accused Bishnu be made an approver in the case under s. 337 of the Code of Criminal Procedure.   This accused had, however, stated that he  made the   confessional  statement  before  the   Magistrate   at Mathabhanga as he had been assaulted by the police and  that he did not wish to become an approver.  After the completion

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of the enquiry before commitment, the appellants and Sanatan Das  were committed to the Court of Session to  stand  their trial for the murder of Malchand. Section  339(1) of the Code provides that " where  a  pardon has  been  tendered under s. 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  lie appears  to  have been guilty in connection  with  the  same matter  ".  The proviso to this  sub-section  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 him and  that  thereafter that person had wilfully concealed anything essential or had given false evidence and therefore bad not complied 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 principal  or  an abettor to the commission  thereof.   Sub- section  (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. 1329  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  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 Procedure.  This would  show  that upto  that  time  Bishnu Charan Saha had  not  accepted  the tender  of pardon made to him by the  Sub-divisional  Magis- trate 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 confessional statement made by him to Mr. Chaudhury  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

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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 1330 provisions  of s. 339 can only come into operation if  there is  in  existence an effective pardon under s.  337  of  the Code.   In  our opinion, on the facts of the  present  case, there  is  no foundation for the submission which  had  been made. 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 Saha. (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  bloodstains  on the  shirt  of  Bishnu Charan Saha and  bloodstains  on  the 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 1331 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  Charan Saha that on December 18, 1956, between  1-30 and 2 p. m. be had caused three cash memoes 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  wrapper worn by Bipin Behari 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

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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 Behari 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. Mohan Lal 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  Saha  was the  first to leave the shop. 10 or 15 minutes later,  Bipin Behari   Sarkar  and  Sanatan  Das  left  after   padlocking Sanatan’s shop.  The evidence of this witness had been fully accepted 169 169 1332 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 Saha 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 Behari 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 Lal Sarma 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 Lal Saha, 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  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.  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 1333 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 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 Behari  Sarkar was seen going away hurriedly at a place  not far from Malchand’s shop followed by Bishnu Charan Saha  who

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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-memoes,  which  were stained  with  human blood, with the  signatures  of  Bishnu Charan Saha clearly established that at least Bishnu Cliaran Saha  must  have  been present at the  time  of  the  murder because the cash memoes 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-memoes.  It had been further  proved that Bishnu Charan Saha 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 Bishinu Charan Saha 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 Saha 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  unacceptable 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 Saha told the Court that  2 days  prior  to his examination by the doctor lie  had  been cutting  straw  for his cattle with his left hand  when  his daughter aged about 1334 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  Saha 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 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 Saha  established  beyond any reasonable doubt that  he  had participated in the murder of Malchand. Coming  now to the case of Bipin Behari Sarkar the  evidence 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

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person.   In addition there was the evidence that a  wrapper was seized the next morning after his arrest with marks of 1335 burning round which there were traces of blood.  Unlike  the case  of Bishnu Charan Saba no signatures of his were  found on  the  cash-memoes.   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 incriminating  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, n0  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  bad  been murdered  and  that he was found to have  injuries  oil  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  Behari  Sarkar  denied ownership of the wrapper.  His explanation was not that  the burnt marks on the wrapper were there before December 18. 1336 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  bloodstains  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 bloodstains on the wrapper was not  entirely successful.   This  was  in our  opinion,  an  incriminating circumstance  against  this appellant.   The  circumstantial evidence  taken as a whole leaves no room for  a  reasonable doubt in our minds -about the guilt of this appellant. In our opinion, the High Court rightly found the  appellants guilty  under s. 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. Appeals dismissed.