Full Judgment Text
'REPORTABLE'
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1399 OF 2007
KHOKAN GIRI @ MADHAB ... Appellant
VERSUS
STATE OF WEST BENGAL ... Respondent
J U D G M E N T
The appellant herein, along with three other accused
persons, was convicted under Sections 302, 34, 120B and 394
of the Indian Penal Code (IPC) by the Trial Court and was
sentenced to suffer imprisonment for life for the offences
punishable under Sections 302, 34 and 120B IPC and for 10
years rigorous imprisonment and in default to suffer rigorous
imprisonment for six months for the offence punishable under
Section 394 IPC, for the murder of an elderly couple Girish
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Navalkha and Bina Navalkha at their Flat No. 10C, 10 floor
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of Rameshwar Apartment at 19A Sarat Bose Road, Kolkata-20.
Brief facts involved in the instant appeal are as
follows: -
A case was registered under Section 302/34 IPC against
some unknown miscreants on the basis of the statement of one
th
Jugal Kishore Khetwat at Bhabanjpur Police Station on 25
December, 1991.
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As per his statement, Mr. Khetwat was a family friend
of the couple and used to visit their flat regularly in the
morning and used to have his tea with them. It is further
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stated that on 24 December, 1991, at night both the husband
and wife were to accompany him to a party at New Kelinworth
Hotel, but due to indisposition of Girish Navalkha, the
couple did not join him and he alone attended the party and
returned to his flat at 10A, Rameshwar Apartment at dead
hours of night.
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It is stated by Mr. Khetwat that in the morning of 25
December, 1991, as per his regular routine, when he came to
the flat of Mr. Navalkha, he found the same locked and in
spite of pushing the doorbell, no response came. Thereafter,
when he found the servants of Navalkha family entering into
the flat, he followed them and being attracted with the
shouting of the servants and to his utter surprise, he found
Bina Navalkha lying almost in naked condition on the bed with
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a sari tied around her neck by one end and the other end of
the sari was tied with the rod of the ceiling fan.
Mr.Khetwat also found Girish Navalkha lying dead on his chair
in the study room with a shawl tied around his neck.
Mr.Khetwat also noticed ransacking of the rooms of Navalkha
family and, in his statement, he apprehended that the couple
were killed, perhaps, for robbery.
At the early stage of investigation, the appellant,
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Khokan Giri, who happened to be a servant at the office of
Mr. Khetwat located at the ground floor of the apartment, was
taken into custody and, thereafter, one Raju Rao was arrested
followed by the arrest of Bimala Khetwat, who was none else
than the wife of Mr. Jugal Kishore Khetwat and, thereafter,
Kamini Dey was arrested and lastly, one Jagadish Jadav was
arrested from his Bihar residence.
According to prosecution, in the course of the
investigation and soon after the arrest of Khokan and Raju,
articles alleged to have been stolen from the flat of
Navalkha family were recovered from the possession of Raju
Rao and some incriminating articles were also recovered from
the possession of Khokan.
Raju Rao, soon after his arrest, gave a confessional
statement, which was recorded by a Magistrate and following
that confessional statement of Raju Rao and at the instance
of Raju Rao and Khokan, two Yashica cameras were also
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recovered.
Raju Rao, along with other accused persons, was
chargesheeted after the completion of investigation and after
commitment of the case before the Court of Sessions, Raju
Rao, by filing an application, expressed his desire to become
an approver and to give evidence disclosing the full
particulars behind the murder of the Navalkha couple and from
the evidence of Raju Rao along with his earlier confessional
statement, the real mystery behind the murder of Nvalkha
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couple was revealed as per the prosecution.
From the confessional statement of Raju Rao, it was
found that Mr. Khetwat, husband of Bimala Devi Khetwat, had
an alleged illicit relationship with Bina Navalkha, wife of
Girish Navalkha, and both Bina and Girish, exploiting the
said relation prevailing between Mr. Khetwat and Bina
Navalkha, allegedly plundered money from Mr.Khetwat. Bimala
Devi Khetwat did not like this intimacy of Mr.Khetwat with
Bina Navalkha and for that reason, sometime before murder of
the Nvalkha couple, Bimala Khetwat engaged Khokan and Raju to
kill both Girish and Bina Navalkha at some appropriate time
in lieu of monetary consideration and, in fact, it was
settled that Rs.1,00,000/- would be paid for the operation
and as an advance Rs.40,000/- was paid and with that money
Khokan and Raju purchased two Yashica cameras and Raju was
also given Rs.5,000/- in cash.
Raju, to facilitate their operation as desired by
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Bimala Khetwat, made contact with Kamini Dey who was also a
driver by profession like Raju and resided in the same
locality of Raju, to help them in the operation and
subsequently Jagadish Jadav who was a sweeper at the office
of Mr. Khetwat joined with them.
Raju also met Bimala personally along with Khokan over
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the proposal of killing Navalkha couple and on 24 December,
1991 all the four persons met at the office of Mr. Khetwat
sometime after evening and getting the last time clearance
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from Bimala Khetwat over intercom, all the four persons
allegedly proceeded towards the flat of Navalkha after their
servants had left the flat and, thereafter, pushing the
doorbell, Khokan being an old acquaintance had his entry
followed by the other three persons and, thereafter, all of
them overpowered the Navalkha couple and killed them by
manual strangulation. All the four, after killing the
couple, also took away cash, ornaments and other valuable
articles from the flat.
The investigating team of the Detective Department of
Lalbazar after recording the statement of several witnesses,
including several occupants of the different flats of the
apartment, security guards and owners of the shop wherefrom
cameras were purchased and where Khokan deposited his camera
for servicing, persons with whom Jagadish Jadav deposited two
table clocks allegedly stolen from the flat of Navalkha,
different witnesses who were present at the time of search
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and seizure of different places shown by Raju and wherefrom
recovery was made regarding the allegedly stolen articles of
the flat and one camera allegedly purchased by Raju with the
money given by Bimala Khetwat, witnesses who were present at
the time of the seizure of chappals and bottle of water with
finger impression from the flat, doctor who conducted post
mortem examination, servants and maidservants of Navalkha
family, son and daughter-in-law of Navalkha couple, doctor
who examined Kamini Dey, hand writing expert and fingerprint
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expert and other police officers taking part in the
investigation, ultimately found a prima facie case to support
prosecution case that Bimala Khetwat hatched a conspiracy to
kill the couple at an opportune moment and for that purpose,
she hired the service of Khokan and Raju in lieu of monetary
consideration and Khokan and Raju in their turn, took active
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help and support of Kamini and Jagadish and on 24 December,
1991 finding the elderly couple alone in their flat at
Rameswar Apartment, killed the couple and also removed cash
and valuable articles from the flat and on such establishment
of prosecution allegation from the available evidence
collected during investigation, charge sheet was submitted
against the appellant and other accused persons for their
trial.
The High Court upheld the conviction of the appellant
and the other accused persons involved in the crime and the
sentence awarded by the Trial Court. The appellant herein
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has challenged the aforesaid order in the instant appeal.
From the aforesaid facts, it is clear that the
prosecution heavily relied upon the confessional statement of
Raju Rao which was given soon after his arrest. It has also
come on record that Raju Rao became approver. Though the
manner in which he became approver was challenged before the
Trial Court as well as the High Court, this contention of the
appellant and other accused persons was negatived by the High
Court. We may record that this aspect is not under challenge
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before us. In such circumstances, the statement of Raju Rao
becomes admissible in evidence in view of the provisions
contained in Section 133 and Section 114 of the Indian
Evidence Act, 1872, (hereinafter referred to as 'Act') which
reads as under:
“133. Accomplice.—An accomplice shall be a competent
witness against an accused person; and a conviction is
not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.
xx xx xx
114. Court may presume existence of certain facts. —
The Court may presume the existence of any fact which
it thinks likely to have happened, regard being had to
the common course of natural events, human conduct and
public and private business, in their relation to the
facts of the particular case.
Illustrations
The Court may presume—
(a) That a man who is in possession of stolen goods
soon after the theft is either the thief or has
received the goods knowing them to be stolen, unless
he can account for his possession;
(b) That an accomplice is unworthy of credit, unless
he is corroborated in material particulars;
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xx xx xx”
It was, however, argued by learned counsel appearing
for the appellant that the High Court went wrong in giving
undue importance to the testimony of Raju Rao and basing the
conviction of the appellant thereupon in the absence of
independent corroborative evidence in material particulars.
He submitted that law in this respect is well trenched in
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series of judgments. He referred to the judgment of this
Court in ' Chandra Prakash v. State of Rajasthan' [2014 (8)
SCC 340] wherein this Court had occasion to revisit the
entire case law on the subject and the principle has been
succintly and lucidly stated therein. It is stated by the
learned counsel for the appellant that Section 114
illustration (b) has to be read along with Section 133 of the
Act, which deals with the statement of accomplice. It was
his submission that, no doubt, as per the said provisions, an
accomplice can be a competent witness against an accused
person and the conviction also would not be treated as
illegal merely because it proceeds upon the incorroborative
testimony of the accomplice. However, at the same time,
Section 114 illustration (b) also lays down that an
accomplice is unworthy of credit unless he is corroborative
in material particulars. It is for this reason, the Court
restated the principle to the effect that though the
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accomplice would be competent to give evidence, it is a rule
of practice that it would almost always be unsafe to convict
upon his testimony alone. What is required is that, as a
matter of practice, the evidence of the accomplice should not
be accepted without corroboration in material particulars.
Further, such corroboration must connect the accused with
crime and also that this corroboration must be from an
independent source, meaning thereby, one accomplice cannot
corroborate another.
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There cannot be any dispute about the aforesaid
principle of law. We have, therefore, examined the present
case keeping in view the aforesaid legal principle, viz.,
whether there is corroborative evidence in material
particulars substantiating the aforesaid confessional
statement of Raju Rao and other material connecting the
appellant with the crime. On going through the impugned
judgment, we find that the Trial Court convicted the
appellant along with other accused persons after finding that
there was sufficient corroborative material on record as
well.
The High Court has done this exercise all over again
discussing the said corroborative material. Instead of
discussing the said material, our purpose will be served by
reproducing certain portions of the judgment of the High
Court which has done this very exercise: -
“From the charge sheet submitted against the
appellants and from the trend of prosecution evidence
placed during trial we find that according to
prosecution case the allegations against the
appellants can be broadly divided into two parts,
first part being the hatching of conspiracy by Bimala
Khetwat with the sole purpose of annihilating Girish
and Bina Navalkha on her cherishing a suspicion of
illicit relationship between her husband Mr. Khetwat
and deceased Bina Navalkha and also for the reason of
her belief of plundering Mr. Khetwat by both Girish
and Bina Navalkha taking advantage of the unusual
weakness developed by her husband towards Bina
Navalkha and such conspiracy according to prosecution
took place in between Bimala Khetwat at one hand and
Khokan Giri and Raju Rao on the other hand and, in
fact, Khokan Giri and Raju Rao were given charge of
commission of murder in lieu of monetary consideration
for which Rs.40,000/- was already paid and the balance
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60,000/- was to be paid after execution of the murder
and the second part of the prosecution allegation was
that pursuant to the conspiracy hatched by Bimala
Khetwat, Raju Rao engaged Kamini Dey also for
consideration of money and Jagadish Jadav of his own
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accord joined with them and on 24 December, 1991
finding Bina and Girish Navalkha alone in the flat and
one the last minute instruction of Bimala Khetwat, all
the four namely Raju Rao, Khokan Giri, Jagadish Jadav
and Kamini Dey entering into the flat through Khokan
Giri after overpowering the elderly couple committed
their murder by strangulation and thereafter the
valuable articles including gold ornaments and also
cash were taken away by all the four appellants.
From the trend of prosecution evidence both
oral and documentary and also from the materials
exhibited during trial we find that the sheet-anchor
for the prosecution case was approver Raju Rao since
Raju Rao after grant of pardon and during his
examination as P.W. 3 gave a full account of the
entire occurrence including the conspiracy hatched by
Bimala Khetwat and in such disclosure Raju Rao gave in
detail the part played by each of the four persons who
committed murder of Navalkha couple. We also find
from the trend of prosecution evidence and different
documents exhibited during trial that prosecution to
corroborate the testimony of Raju Rao examined several
witnesses of the flat which included different flat
owners, servants and maidservants of Navalkha family,
security guards of the apartment, different witnesses
to the seizure of different incriminating articles at
different stage of investigation, post mortem report,
report of medical examination of Kamini Dey,
handwriting expert's report, fingerprint expert's
report, one diary of Girish Navalkha and other
seizures etc.
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xx xx xx
We find from the statement of P.W. 44 that
Khokan Giri and Raju Rao purchased two cameras. It
has been argued on behalf of the appellants that Raju
Rao disclosed in his statement that he purchased the
camera along with Khokan Giri from Fancy Market, but,
the camera was actually purchased from Bijoy Market as
it was evident from the testimony of P.W. 44 and this
was a serious contradiction, but, in our view Bijoy
Market being in the vicinity of Fancy Market, this
discrepancy was not very serious so as to make
statement of Raju Rao and P.W. 44 totally false. P.W.
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45 son of Mr. Girish Navalkha and P.W. 46
daughter-in-law of Mr. Girish Navalkha during their
evidence identified all the ornaments of Bina Navalkha
and also other valuable household articles which were
seized from the possession of Raju Rao. From P.W.23,
we get that seven to ten days before the murder he
found Khokan Giri, Jagadish Jadav and Raju Rao along
with an unknown person present at the office of Mr.
Khetwat where Khokan Giri was office peon and that
unknown person was identified as Kamini Dey during
T.I. parade participated by P.W. 23 and P.W. 49
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another security guard deposed that on 24 December,
1991, at about 10.30 P.M. he found all the four above
named persons to proceed towards the servant's lift of
the apartment.
xx xx xx
We find from record that FIR was recorded on
th th
25 December, 1991 and on 26 December, 1991 itself
officer of Bhabanipur P.S. who was in temporary charge
of investigation before taking over by the Detective
Department made several seizures from the place of
occurrence including one pair of chappal, one bottle
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of water along with two buttons of a shirt and on 27
December, 1991 Khokan Giri was arrested and soon after
his arrest one wooden planner and some keys were
seized from the office of Mr. Khetwat and from P.W.16
an employee of Rameswar Transport, we find that Khokan
Giri was office peon of Mr. Khetwat and he used to
reside in the office room. From P.W. 23 we get that
Raju Rao along with Jagadish Jadav and Kamini Dey was
found present in the office of Mr. Khetwat along with
Khokan Giri seven to ten days before the murder and
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P.W. 49 deposed that on 24 December, 1991, he found
all the four to proceeded towards the servants' lift
at the apartment at about 10.30 P.M. P.W. 16 in his
statement disclosed that there was intercom in the
office room of Mr. Khetwat at the ground floor of the
apartment and from that intercom necessary contact
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could be made with the flat of Mr.Khetwat at 10 floor
and P.W. 16 was categorical in his assertion that
there was access from pantry room to the office room.
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xx xx xx
We find from the statement of P.W. 55 who
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seized Chappals and water bottle on 25 December, 1991
itself along with P.W. 43 the fingerprint expert and
P.W. 54 that the bottle bore the mark of fingerprint
impression which tallied with the fingerprint
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impression of Khokan Giri and from P.W. 40 and P.W. 47
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we find that the chappals recovered on 25 December,
1991 itself belonged to Khokan Giri. Mr. Dastoor
raised several points challenging the seizure of
chappals and water bottle, but, on careful
consideration of the statement of the witnesses over
these seizures, we are not inclined to hold that
investigating team in order to create evidence planted
the chappals and the water bottle.
From the report of doctor Marjit P.W. 36 who as
forensic expert examined the place of occurrence we
find that there was no mark of violence on the
entrance door of the flat of Navalkha couple which
lends support to the prosecution case that only a
known person pushing the door bell got entry into the
flat and Mr. Navalkha opened the door and only
thereafter following Khokan Giri all the three others
entered into the room and thereafter overpowered Mr.
Navalkha and killed him by strangulation with the
shawl twisting around his neck.
P.W. 25 and P.W. 27 deposed about recovery of
camera which was deposited by Khokan Giri for
servicing and it was argued that the story of recovery
of the camera and the purchase of camera itself was
highly improbable, but, having regard to the receipt
produced by prosecution and having regard to the
evidence of P.W. 25 and P.W. 27, we do not find any
reason to disbelieve the prosecution evidence in this
regard.
Thus, when we consider evidence of P.W. 4 Mr.
Khetwat, P.W. 16, P.W.23 and P.W. 49 along with
seizure of chappals, water bottle, wooden planner and
also consider the report of the fingerprint expert,
report of the footprint expert, report of the forensic
expert along with report of the autopsy surgeon, we
find that Khokan Giri took part in the commission of
murder and also in the burglary and thus, the
statement of Raju Rao as P.W. 3 gets full
corroboration from different independent witnesses
along with the circumstances established by those
witnesses.”
JUDGMENT
We, thus, do not find any error in the impugned
judgment of the High Court affirming the conviction of the
appellant herein. This appeal is, accordingly, dismissed.
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At this stage, learned counsel for the appellant
submits that the appellant has already suffered incarceration
for more than 25 years and, therefore, there should be
remission in his further sentence. This is a power which can
be exercised by the State. It would always be open to the
appellant to make a necessary representation in this behalf
before the competent authority which can be considered by it.
We make it clear that as far as this Court is concerned, no
view is taken thereupon either way.
......................., J.
[ A.K. SIKRI ]
......................., J.
[ ABHAY MANOHAR SAPRE ]
New Delhi;
December 01, 2016.
JUDGMENT
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