Khokan Giri @ Madhab vs State Of West Bengal

'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, 10 th 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 Signature Not Verified

Jugal Kishore Khetwat at Bhabanjpur Police Station on 25 th Digitally signed by ASHWANI KUMAR Date: 2016.12.24 13:44:26 IST Reason:

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 25 th

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

5 Criminal Appeal No. 1399/2007

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

6 Criminal Appeal No. 1399/2007

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.

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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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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

7 Criminal Appeal No. 1399/2007

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.

8 Criminal Appeal No. 1399/2007

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.

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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.

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We find from record that FIR was recorded on 25 th 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 27 th 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 10 th 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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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

11 Criminal Appeal No. 1399/2007

impression of Khokan Giri and from P.W. 40 and P.W. 47 we find that the chappals recovered on 25 th 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.

13 Criminal Appeal No. 1399/2007

ITEM NO.102 COURT NO.8 SECTION IIB

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No. 1399/2007

KHOKAN GIRI @ MADHAB Appellant(s)

VERSUS

STATE OF WEST BENGAL Respondent(s)

(With appln. (s) for bail and office report)

Date : 01/12/2016 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE

For Appellant(s) Mr. Dushyant Parashar, Adv.(Amicus Curiae) Mr. Surya Kant, Adv.(NP)

For Respondent(s) Mr. Mrinal Kanti Mandal, Adv.

Mr. Parijat Sinha, Adv.

UPON hearing the counsel the Court made the following O R D E R

It is stated by Mr. Dushyant Parashar, learned counsel, that Mr. Surya Kant, Amicus Curiae in the instant matter, is not well and, therefore, not in a position to assist the Court. Mr. Dushyant Prashar is permitted to argue the matter and is appointed as Amicus Curiae in place of Mr. Surya Kant.

The appeal is dismissed in terms of the signed order. In view thereof, pending application stands disposed of.

(Nidhi Ahuja) (Mala Kumari Sharma) Court Master Court Master

[Signed reportable judgment is placed on the file.]

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