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'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 Navalkha and Bina Navalkha at their Flat No. 10C, 10th floor 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 Jugal Kishore Khetwat at Bhabanjpur Police Station on 25th

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 stated that on 24th 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.

It is stated by Mr. Khetwat that in the morning of 25th

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 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 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 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 the proposal of killing Navalkha couple and on 24th 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 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 help and support of Kamini and Jagadish and on 24th 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 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;

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 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 accord  joined  with  them  and  on  24th 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.  

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 another security guard deposed that on 24th 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

25th December, 1991 and on 26th 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 of water along with two buttons of a shirt and on 27th 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 P.W. 49 deposed that on 24th 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 could be made with the flat of Mr.Khetwat at 10th floor and  P.W.  16  was  categorical  in  his  assertion  that there was access from pantry room to the office room.

xx       xx       xx We  find  from  the  statement  of  P.W.  55  who

seized Chappals and water bottle on 25th 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 we find that the chappals recovered on 25th 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.”  

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.

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