C T RAGHUNANDAN@RAGHUNANDAN vs State of West Bengal
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CIRCUIT BENCH AT JALPAIGURI
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
CRA/22/2021
C T RAGHUNANDAN @ RAGHUNANDAN
VS
STATE OF WEST BENGAL
Before: The Hon’ble Justice Arijit Banerjee
The Hon’ble Justice Chaitali Chatterjee (Das)
: Mr. Abhishek Sarkar, Adv.,
For the petitioner
Ms. Debopriya Ghosh, Adv.
: Mr. Jagriti Mishra, Ld. AAAG,
For the State
Mr. Uday Bhattacharjee, Adv.
For Judgment on : 13.11.2026
Arijit Banerjee, J. :-
1. This appeal is directed against a judgement of conviction and order of
sentence dated April 30, 2021, passed by the learned Additional Sessions
Judge, Dinhata, District: Cooch Behar in Sessions Trial No. 04(03)/2019
arising out of Sessions Case No. 85 of 2018. By the impugned judgment and
order, the appellant was held to be guilty for commission of offences
punishable under Sections 302/201 of the Indian Penal Code. He was
acquitted of the charge under Sections 25(i)(a)/27 of the Arms Act. For
commission of offence under Section 302 of the IPC, the appellant was
2
sentenced to suffer rigorous imprisonment for life which was explained by
the learned Judge to mean imprisonment for the remainder of the
appellant’s natural life. For commission of offence under Section 201 of the
IPC, the appellant was sentenced to suffer rigorous imprisonment for 7
years and also to pay fine of Rupees One Lakh, in default to undergo further
rigorous imprisonment for 1 year. The sentences were directed to run
concurrently.
2. The victim (Arbind Kumar) and the appellant (C T Raghunandan) both
belonged to the Border Security Force. They were constables in the force.
3. The prosecution case is that on the eventful night, i.e., January 24,
2018, the victim (hereinafter referred to as ‘Arbind’) was on duty at point
Alpha – 9. Jitamitra Sahu (in short, ‘Sahu’) was on duty at point Alpha – 15.
Other BSF personnel were also on duty at nearby points under Durga Nagar
BOP. Between 10 and 10:30 pm, Sahu heard a sound of bomb coming from
somewhere between Alpha – 9 point and Alpha - 15 point. Another constable
by the name of Srisile Sangoppa Chincholli (in short, ‘Chincholli’) who was
on duty at a nearby post contacted Sahu through radio set inquiring about
whether he had heard a sound. Sahu said that it may be the sound of a
bomb. Then Sahu called Alpha – 9, i.e., Arbind through radio set but there
was no reply. He also tried to draw Arbind’s attention by torch light, but in
vain. Then Sahu told Chincholli over radio set that Arbind was not
responding. Chincholli asked Sahu to go to Alpha – 9 point. Sahu’s
commandant also told him to go to that spot. Sahu called constable
Mahendra Chaudhury (in short, ‘Mahendra’) and after keeping him at
Sahu’s post, Sahu went to Alpha – 9. He did not find Arbind there. He
3
started searching for Arbind. He found Arbind’s body in a jungle. His hands
and legs were tied. His eyes were open. Mahendra also appeared at that spot
and saw Arbind’s body.
4. The superiors of the aforesaid constables were informed about the
dead body of Arbind. They came to the place of occurrence. Inquest was
held. A First Information Report was lodged at around midnight on that
date, by Murar Tukaram Patil (in short, ‘Patil’) who was in charge of the
concerned BOP. Initially the FIR was against unknown miscreants.
5. Investigation followed. That led the investigating officer to Dasami
Modak (in short, ‘Dasami’). Dasami recorded her statement under Section
164 of the CrPC implicating Raghunandan as the assailant of Arbind. She
claims to be an eye-witness to the incident. In a nutshell what she said was
that she was in physical relationship with both Arbind and Raghunandan.
On the night of the event, as had been planned between her and Arbind, she
left her home and met Arbind at a little distance from her home. While they
were engaged in having physical relationship, Raghunandan suddenly
appeared at the spot and shot Arbind on his chest with Arbind’s service rifle
which was lying next to Arbind.
6. On the basis of the investigation report, charges were framed under
Sections 25 (i) (a)/ 27 of the Arms Act and Sections 302/201 of the IPC.
Upon the charges being read out to Raghunandan, he pleaded not guilty and
claimed to be tried. Hence, the Sessions trial.
7. The prosecution examined 12 witnesses. PW-1 to PW-7 were all BSF
personnels. PW-8 was a local person whose evidence is of no use. PW-9 was
the doctor who conducted post-mortem on Arbind’s dead body. PW-10 is
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Dasami, the lady, on whose statement Raghunandan was apprehended. PW-
11 is Dasami’s husband, viz , Dulal Modak. PW-12 is the investigating
officer, S.I. Mrityunjay Chakraborty.
8. The evidence of PW-1 to PW-7 is not of much significance. It was PW-4
(Chincholli) who first discovered Arbind’s body and he was soon thereafter
joined by PW-6 (Mahendra). The other BSF personnel witnesses have no
direct knowledge of the incident.
9. As rightly noted by the learned Trial Judge and in fact admitted before
us in course of argument by learned State Advocate, the entire prosecution
case rests on the evidence of PW-10 and PW-12. It would be helpful to
reproduce the deposition of PW-10 (Dasami), which runs as follows:-
“ I know accused Raghunandan. Today Raghunandan is present in
court room and identified by P.W-10 on dock.
The incident took place about 2 years ago. Raghunandan and Arbind
Kumar used to contact with me over phone before Durga Puja about 2
years ago. I had physical relationship with Raghunandan. Thereafter I
had the physical relationship with Arbind Kumar. Some days before the
date of incident, I came at Mahamaya Cinema Hall at Dinhata with
Arbind Kumar and took meal in a hotel at Dinhata. Thereafter Arbind
returned to his camp and I returned my home. About 1/2 days ago of
the incident I met with Arbind in a “Shaani Mandir” (God Shaani
Temple) beside barbed wire fencing and talked with him and he told me
that I had to go to him when he will give signal of a torch at night. On
the date of incident at about 8:30 P.M, I finished my dinner and went to
Arbind by bolting the door from outside when I noticed the signal of the
5
torch of Arbind. There, I started physical relationship with Arbind
kumar. Suddenly, Raghunandan reached there and at that time I was
in a sitting position upon Arbind Kumar. I stood up then and there and
Raghunandan shot on the chest of Arbind by the gun of Arbind Kumar.
I ran away from the spot but Raghunandan followed me and asked me
to stop. Then Raghunandan threatened me with dire consequences to
kill myself and my children and deterred me not to disclose anything to
anybody about the incident whatever I have seen. Then I returned to
my house.
Police interrogated me in connection with case.
Subsequently, I made statement before the Ld. Magistrate. The Ld.
Magistrate read over and explained the contents of the statement to me
and after understanding the same as correct, I put my six signatures
on the statement. (Statement of the witness recorded u/s 164 of the
Cr.P.C is tendered to the witness)- These are my signatures on this
statement. (Signatures of the witness on the statement are marked as
exhibits-12/1 to 12/6 respectively). (Statement of the witness recorded
u/s 164 of the Cr.P.C is marked as exhibit-12).
(Cross-examination by the defence)
I have one son and one daughter. My husband is a farmer. We have
3/4 bighas of cultivated land. BSF camp is 1½ mile away from my
house. Border is 5/6 bighas away at the northern side from my house.
The alleged place of occurrence is 5/6 bighas away from my house
which is the planted field of Nalani Barman. I cannot say the exact date
6
but one year before the last Durga Puja I had acquaintance with
Raghunandan and Arbind Kumar.
I did not tell the police that the name of Raghunandan and Arbind
Kumar but they used their names used as Sonu.
Police interrogated me just after 2/3 days of the incident and at that
time my husband was not at home and I made statement before the Ld.
Magistrate after 2 months from the death of Arbind Kumar. At that time
BSF personnel went to my house but I had not been at my home.
The alleged incident took place in between 9:30/10 P.M and after the
incident within 15 minutes I returned to my house. I entered into my
room after opening the door and at that time my husband was sleeping.
On the next day many people gathered there and I also went to see
Arbind Kumar at about 7/8 A.M. I noticed BSF personnel there. I told
nothing to the BSF personnel and local people. I went to BSF camp as
their senior officer came there.
When I came out from my house, my husband was sleeping. I am
leading conjugal life with my husband for the last 11 years.
Not a fact that I met with several BSF personnel during 11 years.
Not a fact that Raghunanda and Arbind did not contact with me over
phone before Durga Puja about 2 years ago or that I had no physical
relationship with Raghunandan or that Raghunandan never contacted
with me or that on the date of incident I did not go to Arbind Kumar
after getting the signal by the torch of Arbind at night or that I had no
physical relationship with Arbind Kumar or that Raghunandan did not
threaten me with dire consequences to kill myself and my children or
7
that Raghunandan did not deter me not to disclose anything to
anybody about the incident whatever I have seen.
Not a fact that I have deposed falsely or that BSF personnel
threatened me or that as per instructions of BSF personnel I made
statement before the Ld. Magistrate or that whatever I deposed is
false. ”
10. PW-11, i.e., Dasami’s husband, deposed that he had told the police
that he had heard that his wife ‘made an illicit relationship with a BSF
personnel of Durga Nagar camp.’ He also deposed that on the date of the
incident, he saw a BSF personnel behind his home. At that time, he found
that his wife was absent from the room and the door was locked from
outside. He called his wife and she opened the door. Then he deposed:
“ I asked my wife and also assaulted her. She replied that she went to
nature’s call. Thereafter we went asleep. ”
11. PW-12, i.e., the investigating officer, in his deposition, narrated the
articles that he seized from the place of occurrence. Thereafter, he went on
to depose as follows:
“ As per statement of Dasami Modak, I arrested the accused CT
Raghunandan and forwarded him before the Ld. ACJM, Dinhata. He
was taken into remand. During remand period one broken mobile
NOKIA without battery, black cover and another black coloured NOKIA
mobile were recovered from Raghunandan. Through the mobile phone
record it was established that there was relation in between deceased
Arbind Kumar, Raghunandan and Dasami Modak.
8
I collected the CFSL so forwarded to the Court on 02-05-2018 and
CFSL so forwarded to the Court on 10-05-2018. (CFSL so forwarded to
the Court on 02-05-2018 is marked as Exhibit-14 and CFSL so
forwarded to the Court on 10-05-2018 is marked as Exhibit-15).
I also collected the call details report along with authentication
certificate issued by Bharti Airtel Limited containing 13 sheets.
Company and call register duly certified by Airtel Authority (Call details
report along with Authentication certificate issued by Bharti Airtel
Limited is marked as Exhibit- 16 collectively).
……… ”
12. The defence examined two witnesses. They were both BSF personnel.
Their depositions are very short and may be reproduced hereunder. DW-1,
Vinod Kumar Yadav, deposed as follows:
“ I am constable no. 124521162 of 42, Bn. BSF.
I know CT Raghunandan. Today he is absent before this Court. ( Due to
non availability of police escort with vehicle, the accused Raghunandan
is not produced before this Court today ) Report of Supdt. Of Coochbehar
.
Dist Correctional Home is kept with the record
On 24-01-2018 I had been posted at Durganagar BOP, CoochBehar.
On that day CT Raghunandan was at Durganagar BOP, CoochBehar.
On that day I was on duty on and from 12:00 A.M to 06:00 A.M and CT
Raghunandan was on duty on and from 12:00 Λ.Μ to 06:00 Λ.M. On
that day CT Raghunandan was at camp of Durganagar BOP,
CoochBehar and he was taking rest in barrack. He was just adjacent to
my bed.
9
(Cross-examination by the prosecution)
Now, I am posted at Jammu and Kashmir. On 24-01-2018 I had been
posted at BOP Chowdhurihat of 42, Bn. BSF, Head Quarter, Sonari
Cooch Behar. Today, I have said about the date and time of duty
without going through any duty register. CT Raghunandan is my senior
and he is my colleague.
Not a fact that what ever I deposed today at the instruction of CT
Raghunandan being senior.
To Court: Today I have come to depose in civil dress not in our proper
uniform. ”
13. DW-2, Vasim Ali, deposed as follows:
“ I am constable no. 12450983 of 42, Bn. BSF.
I know CT Raghunandan. He is my senior. Today he is absent before
this Court. ( Due to non availability of police escort with vehicle, the
accused Raghunandan is not produced before this Court today ) Report of
Supdt. Of Coochbehar Dist Correctional Home is kept with the record .
On 24-01-2018, I had been posted at Durganagar camp, BOP
Durganagar, CoochBehar. On that day CT Raghunandan was at BOP
camp, Durganagar, CoochBehar. On that day I was on duty on and
from 12:00 A.M to 06:00 A.M and CT Raghunandan was also on duty
on and from 12:00 A.M to 06:00 Α.Μ. On that day before 12:00 A.M, CT
Raghunandan was at the camp of Durganagar BOP and he was taking
rest in barrack. Today, I come here to depose with movement order:
(Cross-examination by the prosecution)
10
On 24-01-2018, I had been posted at Durganagar BOP of 42, Bn. BSF.
I cannot say the pillar number where I was on duty on 24-01-2018.
Not a fact that on 24-01-2018 CT Raghunandan was not on duty on
and from 12:00 A.M to 06:00 A.M or that on that day before 12:00 А.М
СТ Raghunandan was not at camp of Durganagar BOP or that he was
not taking rest in barrack or that whatever I deposed today at the
instruction of CT Raghunandan being my senior.
To Court: Today I have come to depose in civil dress not in our proper
uniform. ”
14. The accused Raghunandan was examined under Section 313 of the
Code of Criminal Procedure. As many as 106 questions were put to him. The
entire facts and circumstances of the case were put to him. His consistent
answer to all the questions was: “I am innocent.”
15. The learned Trial Judge meticulously analysed the evidence on record.
On a meaningful assimilation of the evidence, the learned Judge disbelieved
the defence witnesses. He rejected the defence of alibi. He came to the
conclusion that it could only be the present appellant who could murder
Arbind. The appellant also had clear motive for eliminating Arbind. Being
satisfied that the prosecution had been able to bring home the charges
framed against the accused, the learned Judge convicted the accused under
Sections 302/201 of the IPC. However, the learned Judge acquitted the
accused of the charges framed under the Arms Act. Certain portions of the
impugned judgment and order may be noticed:
“ ………. On meticulous scrutiny of the entire materials on record and
the FIR which is the genesis of the instant case, it appears that there is
11
direct evidence to link the accused which hinges on the evidence of
Dasami Modak who is the sole eye-witness. Prosecution heavily placed
reliance upon the testimony of PW-10 Dasami Modak who is the sole
eye-witness to the incident. It is well settled that conviction can be
based on the evidence of a single eye-witness if the testimony of witness
is found to be reliable and trustworthy. It is the quality of the evidence
of the solitary witness whose testimony has to be tested on the
touchstone of credibility and reliability. In the case in hand, the sole
eye-witness of the incident is PW-10, Dasami Modak, the paramour of
deceased who vividly in this case deposed implicating herself and stated
that she knows the accused Raghunandan and identified him during
trial. She has also stated that the incident took place about 2 years
ago. Raghunandan and Arbind Kumar used to contact with her over
phone before Durga Puja about 2 years ago and she had physical
relationship with Raghunandan. Afterwards, she made physical
relationship with Arbind Kumar prior to the date of incident, she came
at Mahamaya Cinema Hall at Dinhata with Arbind Kumar where they
together took meal in a hotel at Dinhata and thereafter Arbind returned
to his camp and she also returned to her home. PW-10 has also stated
that about 1 or 2 days prior to the incident, she met with Arbind
Kumar (since deceased) in a ‘Shaani Mandir’ (Temple of God Saturn)
beside barbed wire fencing and talked with him and he told her that
she had to go to him when he would give signal of a torch at night. On
the date of incident at about 8:30 pm, after finishing her dinner she
went to Arbind Kumar by bolting the door from outside when she
12
noticed the signal of the torch of Arbind Kumar and there, she started
physical relationship with Arbind Kumar. Suddenly, Raghunandan
reached there and at that time she was in a sitting position upon
Arbind Kumar and when she stood up then and there and
Raghunandan shot on the chest of Arbind Kumar by the gun of Arbind
Kumar. Thereafter, she ran away from the spot but Raghunandan
followed her and asked her to stop and Raghunandan threatened her
with dire consequences to kill her and her children and deterred her
not to disclose anything to anybody about the incident whatever she
had seen and then she returned to her house. From Exhibit-12, i.e., the
statement of PW-10 recorded under Section 164 of the CrPC, 1973, it
appears that she has also corroborated the prosecution story whatever
she deposed on dock. During cross-examination she has categorically
stated that police interrogated her in connection with case. She has
further deposed that the alleged incident took place in between 9:30/10
pm and after the incident within 15 minutes she returned to her house
and entered into her room after opening the door and at that time her
husband was sleeping, the complexity of the accused in the alleged
crime is thereby corroborated from the evidence of PW-10.
…..……………..
The prosecution has able to prove the fact that the alleged weapon, i.e.,
INSAS rifle was the same which was used in the incident.
…………………..
There are no such contradictions or discrepancies in the oral testimony
of PW-10 which render her statement untrustworthy. The testimony of
13
PW-10 describes the detailed role of accused. PW-10 is a natural
witness for the reason that she is a village rustic woman and her
financial condition is very poor and impecunious. Even, there was no
history of animosity between the accused and PW-10. It is hardly
believable that PW-10 will reap some benefit by implicating the accused
falsely rather her evidence appears natural and trustworthy. In the
evidence of witnesses there will always be some discrepancies, however
honest or truthful he or she may be. These discrepancies are quite
normal. Even if there are some discrepancies which have come in the
cross-examination of the witness, her entire testimony cannot be
thrown out. A witness cannot be expected to possess a photographic
memory and to recall the details of an incident in toto . Ordinarily, it so
happens that a witness is overtaken by events. A witness could not
have anticipated the occurrence which very often has an element of
surprise. The mental faculties cannot, therefore, be expected to be
attuned to absorb all the details. Thus, minor discrepancies were
bound to occur in the statement of witnesses [ State of U.P. v. M.K.
Anthony, (1985) 1 SCC 505 ].
………………..
PW-9 Doctor Manosh Kumar Sinha opined that the death of CT Arbind
Kumar was due to gunshot injury (point blank range) causing
perforation and laceration of heart, laceration of left lungs with huge
blood loss. The post-mortem examination report prepared and signed
by Doctor Manosh Kumar Sinha with office seal was entirely marked as
Exhibit- 11.
14
………………..
On scanning the evidence of prosecution, it can be held that the
prosecution has been able to prove its case barring some minor
discrepancies which have no effective bearing on this case. Nothing
could be elicited in the cross-examination of PW-10 to demolish her
evidence. No motive could be attributed to the witness for deposing
falsely against the accused. The evidence of PW-10 appears to be
natural, spontaneous and without any exaggeration and found credible
and trustworthy, thus, there is no reason to disbelief the evidence of
PW-10.
…………..
Besides this, the evidence of the prosecution collectively leads to the
only irresistible conclusion that the accused alone is the perpetrator of
a crime and the same is of conclusive in nature consistent only with the
hypothesis of the guilt of the accused. Learned Advocate for the defence
has submitted that the evidence PW-10 is full of material contradiction
and material improvements. The evidence of PW-10 is not reliable and
she is not a trustworthy witness. During trial, the defence in order to
the innocence of accused, cross-examined PW-3 Ravi Kumar, PW-4
Srisile Sangoppa Chincholli, PW-6 Mahendra Chaudhury and PW-8
Ranjith Burman respectively and tried to establish a new story as of his
defence and also put suggestions to that effect. The story of the defence
is that the area is a smuggling prone area and duty to activity of
smuggler and bombing in the border area, CT Arbind Kumar died. But
the plea of the defence has no leg to stand upon as, on the particular
15
date, time and place of incident when the murder was committed, no
specific information of cross-border firing or bombing were reported
either by BSF or by local police. Not a single scrap of paper was
produced were from it would be evident that near to the place of
occurrence remanence of bombs or ammunitions were collected by the
BSF personnel or local police where the brutal murder of BSF
personnel has been committed in support of plea taken by the defence
to show that the story of defence happens to be genuine. Particularly,
on the date of occurrence, when a tragic murder of a JAWAN (BSF) took
place, it is quite natural that the entire Force would obviously take
massive steps to trace out the culprit or cause of death of their
colleague to unearth the truth behind the incident. But no report has
yet been furnished from the side of defence to that effect. The accused
has also tried to controvert the story of prosecution and produced D.Ws
but the evidence of defence witnesses is found baseless and of no use.
Therefore, no reliance could be placed on the stray evidence of defence
side. Moreover, this particular incident which is based on a peculiar
fact which should always be a sequester and nobody would pierce the
veil. In this case, all the BSF personnels deposed nothing against the
accused person rather they remained mum about the incident during
trial.
…………………….
It is pertinent to mention that the INSAS-1B with body number
16534414 (MAT Exhibit- I) used in the commission of the offence
[Ballistic FSL report (Exhibit-16)] by the accused CT Raghunandan has
16
been recovered from the place of occurrence that is the land of Noloni
Barman (Exhibit-3).
…………………..
Learned Advocate for the accused has submitted that the prosecution
has failed to prove the motive behind the murder. But this Court is not
accorded with the agreement of the defence in this regard. It is
pertinent to mention here that the weapon used by the accused in the
commission of murder is a INSAS rifle (service arm of the deceased),
which is exclusively a sophisticated arm, and ordinary person cannot
fire or handle or deal with the arm as special technical knowledge, skill
and training is required to operate the arm. The immediate cause and
motive of committing murder were amply proved by the prosecution
evidence.
…………………….
Learned Advocate for the accused has submitted that the prosecution
failed to explain as to why the accused was arrested at belated stage,
i.e., after 2 months from the date of incident and the statement of
witness was recorded after 2 months. In support of his argument, from
the side of accused, learned Advocate has cited the decisions reported
in AIR 1979 SC 135 and 1991 Cri.L.J 356. Against the argument of
defence, it would be appropriate to mention that apparently from
Exhibit- 8 (Seizure – List of mobile of Raghunandan), Exhibit- 18 ‘Call
Details Record’ and after seizure of mobile of PW-10, Dasami Modak
that is number ‘8597216908’ (Exhibit – 13) it is explicit that the
Investigating Officer masterly rummaged and traced out the culprit
17
behind the murder who is none other than the accused. The entire
episode of investigation though long drawn but result of skilled
investigation of the I.O. that9 came to light after examination of PW-10
and through Exhibit- 8 and 13. It is needless to mention that
Investigating Officer being an independent and disinterested person,
his evidence cannot be discarded simply because he is a police or
officer-in-charge of investigation
…………………………..
It is pertinent to mention here that as of ‘Defence Protocol’ both the
accused and the deceased never used their official mobile phone during
conversation with PW-10 rather they secretly used their personal
mobiles all along, i.e., through Exhibit- 8 mobile number ‘7076077139’
(CT Raghunandan) and ‘7551824173’ (CT Arbind Kumar) to talk with
PW-10.
………………………….
From the evidence of prosecution witnesses including the exhibits, it is
established that the accused after the murder of CT Arbind Kumar
concealed the corpus in the bushes which is a thick plantation land of
Noloni Barman (Exhibit- 15) in such a manner to show that CT Arbind
Kumar died due to bombing or cross-border firing. It is very unlikely
that the victim would be tied by ropes by the miscreants after his death
if there was any incident of cross-border firing or bombing. The conduct
of accused together with the circumstances clearly indicates that he
had the intention to screen himself by causing evidence of murder to
18
disappear and concealing the dead body of his colleague CT Arbind
Kumar in order to save him from the crime.
…………………..
In judging the culpability of an accused, the circumstances when
collectively considered must lead to the only irresistible conclusion that
the accused alone is the perpetrator of a crime in question which is of
conclusive in nature consistent with the hypothesis of the guilt of the
accused person. On careful scanning of the materials in evidence it
appears that the perforated dead body of CT Arbind Kumar coupled
with brutal wounds on the chest was found on the P.O. Evidence of
prosecution witnesses including medical evidence and ballistic FSL
report (Exhibit- 16) only point towards the accused so there was no
scope but to draw conclusion within all human probability that the
murder was committed by accused and none else. The incriminating
evidence and circumstances were put to the accused during his
examination under Section 313 CrPC and the accused denied all
questions and pleaded that he has been falsely implicated. The
evidence of doctor, seizure witnesses to the articles and ballistic expert
report are credit worthy and inspire confidence to made the basis to
draw the conclusion against the accused CT Raghunandan on the
charge so framed against him.
Though the evidence of prosecution are infested with some minor
discrepancies, there can be no doubt that the prosecution was able to
adduce enough substantive evidences during the trial, which were not
only credible but clinching as well. The substantive evidences could not
19
be impeached so as to creep in any reasonable doubt with regard to the
allegations and proofs thereof.
The accused person actually got infatuated towards the lady and
entered into an illicit relation which led to the extramarital affairs with
PW-10 (the paramour of both the accused and victim) and this was the
reason why, he designed and hatched a plan to remove his impediment
for all times to come, which ultimately yielded in the ghastly murder of
his own colleague.
…………………………… ”
Argument advanced on behalf of the Appellant
16. Learned Advocate for the appellant argued that the trial, conviction
and sentence are void ab-initio as the same are contrary to the provisions
led down in Section 475 (1) of the Code of Criminal Procedure. The
appellant/accused was a member of an Armed Force to which proceedings
under a Court-Martial applies. Hence, it was the duty of the learned
Magistrate to transfer the trial to the Court-Martial. Since the trial was not
transferred to the Court-Martial nor the learned Trial Court recorded any
reason to proceed with the trial and proceeded to conclude the trial and
convicted the accused, the appellant/accused is entitled to raise such
jurisdictional point even at the appellate stage.
17. It was then argued that from the evidence of PW-1 to PW-6 who are all
BSF personnel, the possibility of the deceased being attacked by cattle
smugglers who hurled bomb at him and thereafter tied his hands and feet
and then shot him on his chest by his rifle, cannot be ruled out. The
20
prosecution witnesses have admitted in evidence that the area in question is
prone to smuggling activities. It is a border between India and Bangladesh
without any fencing. Hence, benefit of doubt should have been given to the
appellant.
18. It was submitted that the evidence of PW-10 is murky and in
contradiction with other circumstantial evidence. There are several
discrepancies in the evidence of PW-10 including those relating to the
wearing apparel of the deceased, articles seized from the place of
occurrence, etc. Further, there is no explanation as to why there was a delay
of 63 days in recording the statement of the most vital witness of the
prosecution case, i.e., PW-10. Therefore, the said witness is completely
unreliable and her statements lose credibility completely.
19. It was then argued that the dead body of the victim was recovered in a
condition which is absolutely contradictory to the statement of the eye-
witness (PW-10). The prosecution has failed to explain the situation as to
how a person was shot dead while he was engaging physically with PW-10
but his dead body was recovered with hands and legs tied. The eye-witness
never deposed or stated before the investigating officer or the learned
Magistrate that after shooting the victim, the accused tied the hands and
legs of the victim. The so-called eye-witness (PW-10) is the table work of the
investigating officer and she was not at all present at the spot.
20. It was then argued that to cover up the aforesaid loopholes, the
prosecution got the post-mortem of the dead body conducted by an ENT
specialist. The prosecution left no stone unturned to shield the actual
21
offender. An ENT specialist had no authority to conduct the post-mortem
examination nor he had the requisite expertise.
21. It was then submitted that the investigation was done in a most
lackadaisical manner and the entire effort of the prosecution was to shield
the actual offender. The circumstances show that the quality of the sole eye-
witness was not of sterling nature. No reliance could be placed on the
evidence of the so-called eye-witness.
22. On the basis of the aforesaid argument, learned Counsel submitted
that the prosecution of unable to prove its case. In any event, benefit of
doubt should have been given to the appellant.
23. In this connection it may be noted that learned Counsel for the
appellant had filed copies of two judgements, namely, Kali Ram v. State of
H.P., reported at (1973) 2 SCC 808 and Raja Khan v. State of
Chhattisgarh, reported at (2025) 3 SCC 314 . Reliance was placed on the
first decision in support of the contention that an eye-witness who kept
silent for over 2 months after the date of the alleged incident, loses his/her
credibility to a great extent. In the second decision, the Hon’ble Supreme
Court discussed the actual scope and effect of Section 27 of the Evidence
Act.
Submission made on behalf of the State
24. Learned Advocate for the State submitted as follows:-
(i) The prosecution case hinged on the sole eye-witness PW-10 (Dasami
Modak), who testified that she was in physical relationship with the
deceased as well as the accused. On the night of the incident, PW-10
22
went to meet the deceased at his duty point. While she was physically
intimate with him, the accused arrived and shot the deceased on the
chest using the rifle of the deceased. After the murder, the accused
threatened PW-10 with dire consequences including killing her children
if she disclosed the incident to anyone. The Investigating Officer traced
the accused through Call Detail Records and seized the mobile phones
of the accused as well as PW-10, leading to the arrest of the accused.
(ii) On April 8, 2018, the Investigating Officer seized one Vodafone Sim
bearing cell number ‘7076077139’ which belonged to the accused was
used by him to contact PW-10. Earlier on March 30, 2018, the I.O. had
seized a black coloured mobile phone belonging to PW-10. Through the
records of those mobile phones, the I.O. established a clear connection
between the accused, the deceased and PW-10. The accused using his
mobile phone with number ‘7076077139’ and the deceased used his
mobile phone having number ‘7551824173’, being their personal
mobile phones, took secretly contact PW-10 whose mobile number was
‘8597216908’.
The Call Detail Records corroborated the testimony of PW-10 to
the effect that both the accused and the deceased used to contact her
over phone before the incident. The defence did not object to the
admissibility of the Call Detail Records when it was tendered as
evidence during the trial. Hence the same was marked as Exhibit.
(iii) The circumstances surrounding the inquest on the deceased strongly
suggest the presence of PW-10 (Dasami Modak) at the scene while
simultaneously pointing to the absence of any unknown miscreant. The
23
fact that no valuables were taken from the deceased, indicates that the
incident was not a robbery but a targeted killing, as the deceased’s
personal weapon (INSAS rifle), stun grenade, magazines and other
service articles were all found at the scene, with only one round of
ammunition having been fired. The inquest report further notes the
discharge of urine and ‘probably semen’ from the private parts of the
deceased, which corroborates the testimony of PW-10 that she was
engaged in physical act with the deceased at the time when the accused
arrived and shot him. This finding of semen, coupled with the fact that
both the hands and leg of the deceased were tied with blue-colour nylon
net-type rope, point to a deliberate pre-planned act of murder rather
than a random cross-border firing or smuggling incident. This was an
act committed upon a BSF personnel by another trained BSF
personnel. The INSAS rifle used in the commission of offence is a
sophisticated weapon requiring special technical knowledge, skill and
training to operate, making it impossible for an ordinary person or an
unknown miscreant to have fired it; the ballistic report conclusively
proved that the empty cartridge found at the scene was fired from the
INSAS rifle of the deceased, which could only have been handled by
someone with military training. The inquest report also reveals that the
deceased was on duty from 18:00 hours to 00:00 hours (midnight) on
January 24, 2018. At about 22:30 hours he went missing from his
post. He was later found dead with a gunshot injury on his chest. The
absence of any sign of a struggle with unknown assailants, the
presence of the paramour of the accused at the scene, the intact nature
24
of the valuables of the deceased, the discharge of semen and the fact
that only a trained BSF personnel could have operated the INSAS rifle,
all align perfectly with the prosecution case that the accused,
Raghunandan, committed the murder of the victim out of jealousy and
to eliminate his rival in the illicit relationship with PW-10 being the sole
eye-witness and corroborated by the medical evidence, ballistic report
and call detail records.
(iv) The testimonies of DW-1 and DW-2 do not inspire confidence for
several reasons. Both witnesses are constables in the same BSF
battalion as the accused. They admitted during cross-examination that
the accused is their senior colleague, creating a strong likelihood of
bias and a natural inclination to protect a fellow officer, which is
consistent with the Trial Court’s observation that “all the BSF
personnels deposed nothing against the accused person rather they
remained mum about the incident during trial.”
Critically, DW-1 admitted that he deposed about the date and time of
duty “without going through any duty register”, a significant flaw that
renders his testimony unreliable and susceptible to manipulation.
Similarly, DW-2 was unable to provide basic details about his duty stating
that he “cannot say the pillar number where he was on duty on January
24, 2018.” Additionally, both witnesses appeared before the Court in civil
dress rather than their uniform, which is unusual for serving BSF
personnel and suggests a casual approach to the proceedings, also
indicating that they were appearing as personal witnesses for the accused
25
rather than in their official capacity. No reliance can be placed on the
testimonies of the two defence witnesses particularly when the alibi that
the accused was taking rest in the barracks before his 00:00 hours duty
(midnight), is directly contradicted by the prosecution’s overwhelming
evidence, especially the credible and trustworthy testimony of the sole
eye-witness PW-10.
Furthermore, neither DW-1 nor DW-2 produced any documentary
evidence such as the duty roster, attendance register or movement order
to corroborate their claim. While DW-2 mentioned that he came with a
movement order, no such document was exhibited during the trial. In
short, the evidence of DW-1 and DW-2 lacks credibility due to their bias
as colleagues of the accused, their failure to rely on official records, their
vague and inconsistent statements, their casual appearance in civil dress
and the absence of any corroborative evidence.
Court’s View
25. I have given my anxious consideration to the rival contentions of the
parties.
26. As regards the point of lack of jurisdiction of the learned Trial Court to
conduct the trial of the accused, this point was never urged before the
learned Trial Court. Even at the hearing before us, this point was not
argued. This point emerges from the written notes of argument filed on
behalf of the appellant. Hence, we should not be entertaining this point at
all. However, since a question of jurisdiction has been raised relying on
Section 475(1) of the Code of Criminal Procedure, let me address that issue.
26
27. Section 475 (1) of the CrPC reads as follows:
“ 475. Delivery to commanding officers of persons liable to be tried
by Court-martial.—(1) The Central Government may make rules
consistent with this Code and the Army Act, 1950, the Navy Act,
1957, and the Air Force Act, 1950, and any other law, relating to
the Armed Forces of the Union, for the time being in force, as to
cases in which persons subject to military, naval or air-force law,
or such other law, shall be tried by a Court to which this Code
applies, or by a Court-martial; and when any person is brought
before a Magistrate and charged with an offence for which he is
liable to be tried either by a Court to which this Code applies or by
a Court-martial, such Magistrate shall have regard to such rules,
and shall in proper cases deliver him, together with a statement of
the offence of which he is accused, to the commanding officer of
the unit to which he belongs, or to the commanding officer of the
nearest military, naval or air-force station, as the case may be, for
the purpose of being tried by a Court-martial.
Explanation: —In this section—
(a) “Unit” includes a regiment, corps, ship, detachment, group,
battalion or Company,
(b) “Court-martial” includes any Tribunal with the powers similar
to those of a Court-martial constituted under the relevant law
applicable to the Armed Forces of the Union. ”
27
28. Firstly, the appellant’s learned Counsel has not placed before us, or
pointed out that the Central Government has made relevant rules pertaining
to the Court which should try accused persons like the appellant herein.
29. Secondly, in my opinion, even if there was any such rule, the same
would only be directory in nature. The Section contemplates that the
Magistrate before whom the accused person is brought, shall consider such
rule and in appropriate cases send him to the Court contemplated by such
rule. Any such rule would not touch the jurisdiction of the Trial Court if it
otherwise has jurisdiction. Hence, I find absolutely no merit in the
contention of learned Advocate for the appellant that the trial, conviction
and sentence are null and void and non-est in the eye of law for lack of
jurisdiction of the learned Trial Court.
30. Coming to the merits of the case, the learned Trial Court has rightly
observed that the evidence of a sole eye-witness may well be the basis for
convicting an accused person. If the testimony of such witness is found to
be reliable and trustworthy, his / her evidence would not require any
corroboration. It is the quality of evidence available in a criminal trial that is
important and not the quantity of evidence.
31. In the present case, PW-10 (Dasami Modak) recorded her statement
before the concerned Magistrate under Section 164 of the Code of Criminal
Procedure. In such statement she clearly narrated that she was in physical
relationship with both the deceased and the accused person. On the day of
the incident, she went out of her house upon seeing the indication sent by
the deceased through his torchlight and met the deceased at or around his
post. Then they engaged in physical relationship. At that time, the appellant
28
suddenly appeared at the scene and shot the deceased on his chest with the
service rifle of the deceased. When Dasami became afraid and tried to run
away, the accused followed her for some distance warning her not to
disclose the incident to anybody or else he would kill Dasami’s children. In
her statement, Dasami also confessed that she was very poor and engaged
in physical relationship with others for money.
32. The deposition that Dasami recorded before the learned Trial Court is
very much in tune with her statement recorded under Section 164 of the
Code of Criminal Procedure. Hence, the argument of the appellant’s Counsel
that the prosecution witnesses improved their versions, has no merit.
33. Now the question is did the learned Trial Court fall in error in
concluding that Dasami’s evidence is completely trustworthy? I think not. I
am of the considered view that the learned Trial Court rightly came to the
conclusion that Dasami’s evidence was quite credible or reliable and could
be acted upon. There could be no reason for a poor rustic lady having little
or no education, to falsely implicate the appellant, particularly when
admittedly she was in physical relationship with the appellant also. No
motive could be suggested by appellant’s Counsel as to why Dasami would
make a false allegation against the appellant. Dasami has recorded her
statement before the learned Magistrate and deposed before the learned
Trial Court implicating herself. This lends even more credibility to her
testimony. It is generally inconceivable that a lady who is a mother of two
children, would implicate herself in not such an honorable incident only to
falsely implicate another person. By admitting that she was in physical
29
relationship with both the accused and the deceased, she has definitely
compromised her honor.
34. Dasami also withstood her cross-examination like a rock. There are
minor discrepancies in her evidence. However, the basic testimony that she
was eye-witness to murder of the victim by the appellant, remains
unshaken. As rightly held by learned Trial Judge, a witness cannot be
expected to have a photographic memory. Each and all the details of
occurrence of a crime cannot be expected to be narrated correctly by an eye-
witness.
35. In view of the aforesaid, I find no reason to disbelieve Dasami’s
testimony. Her evidence is corroborated by the ballistic report and the
inquest report which recorded urine and semen in the private parts of the
deceased. The call detail records also support Dasami’s version that she was
in relationship with both the accused and the deceased.
36. The appellant’s Counsel argued that no motive could be attributed by
the prosecution to the accused for killing Arbind. This contention is also
meritless. The obvious motive for Raghunandan to kill Arbind was to
eliminate Arbind from the triangular illicit relationship between Arbind,
Raghunandan and Dasami. This was kind of a revenge taken by
Raghunandan against Arbind. His murderous act was obviously prompted
by jealousy and urge to enjoy exclusive physical relationship with Dasami by
annihilating Arbind.
37. In so far as the defence witnesses are concerned, their evidence does
not inspire confidence. Learned Trial Court has rightly held that their
evidence is baseless. There is high degree of possibility of the two defence
30
witnesses trying to shield their fellow senior colleague by deposing falsely.
No records were produced in support of their version that on the eventful
night, Raghunandan was resting at the barracks till his duty hours which
were to start from midnight. The fact that the two defence witnesses
appeared in casual clothes to depose also detract somewhat from their
credibility. This is unusual in the Armed Force. The quality of evidence
recorded by the two defence witnesses is also poor. I have found the
testimony of P.W. 10 to be reliable and credible. The evidence of DW -1 and
DW- 2 is directly in conflict with Dasami’s evidence. In my opinion, learned
Trial Court rightly rejected the evidence of the two defence witnesses.
38. In a nutshell therefore, I find the evidence of the sole eye-witness to
the killing of Arbind to be completely trustworthy. She clearly narrates the
manner in which the appellant killed the victim. The appellant’s Counsel
has not been able to come up with any possible reason as to why PW - 10
would falsely implicate the appellant. The evidence of PW -10 alone is
sufficient to sustain the conviction of the appellant. Her evidence has found
support from the inquest report, ballistic report, FSL report and call detail
records.
39. I am also of the opinion that the appellate forum should not lightly
interfere with the learned Trial Judge’s appreciation of the facts and
circumstances of the case and assimilation of the evidence on record. One
must keep in the mind that the learned Trial Court actually saw the
witnesses adducing oral evidence and therefore had the advantage of
watching their demeanor. The demeanor of a witness surely goes a long way
to assess his/her credibility. Hence, unless the Appellate Court finds that
31
the Trial Court’s appreciation / appraisal of the facts of the case and the
testimonies of the witnesses, is clearly wrong or perverse, the Appellate
Court, in my view, should not interfere. In the present case, I find no such
infirmity in the judgment of conviction of the appellant under Sections 302
and 201 of the IPC, as would persuade me to interfere. There is ample
evidence on record to demonstrate that the appellant committed cold
blooded murder of the victim. Once the conviction under Section 302 of the
IPC is upheld, there is no scope to interfere with the sentence of life
imprisonment imposed on the appellant by learned Trial Judge.
40. The appeal accordingly stands dismissed. A copy of the judgment be
made available to the appellant. The appellant should be informed that he
has a right to prefer appeal against this judgment and order before the
Hon’ble Supreme Court.
41. CRA/22/2021 is accordingly stands dismissed. There will be no order
as to costs.
42. Urgent Photostat certified copies of this judgment and order, if applied
for, be supplied to the parties on compliance of all necessary formalities.
I agree.
[Chaitali Chatterjee (Das), J.] (Arijit Banerjee, J.)