KHOKAN GIRI @ MADHAB Vs. STATE OF WEST BENGAL
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 120 B - Punishment of criminal conspiracy
Section 394 - Voluntarily causing hurt in committing robbery
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1399 of 2007, Judgment Date: Dec 01, 2016
'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.
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, 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 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 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 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 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
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.
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 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. 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 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.
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.