KHOKAN GIRI @ MADHABversusSTATE OF WEST BENGAL

                        [2016) 9 S.C.R. 759



                  KHOKAN GIRI @ MADHAB                                 A
                                v.
                   STATE OF WEST BENGAL
                (Criminal Appeal No. 1399 of2007)
                      DECEMBER 01, 2016                                B

     [A. K. SIKRI AND ABHAY MANOHAR SAPRE, JJ.)
       Evidence Act, 1872 - ss.1331114 - Confessional statement of
accomplice - Admissibility and appreciation of - Murder of elderly
couple at their flat - Robbery - Conviction of appellant and three
others u/ss.3021341120B and s.394, !PC based upon the confessional
                                                                       c
statement of an accomplice (PW3) - PW3 gave confession soon
after his arrest - Plea of appellant that High Court wrongly gave
undue importance to the testimony of PW3 and based the conviction
of appellant thereupon, in absence of independent corroborative
evidence in material particulars - Held: As a matter ofpractice, the   D
evidence of accomplice should not be accepted without
corroboration in material particulars - Furthe1; such corroboration
must connect the accused with the crime and also this corroboration
must be from an independent source - On facts, it is found that the
trial court convicted the appellant along with other accused persons
                                                                       E
after finding that there was sufficient corroborative material 011
record - High Court did this exercise all over again discussing the
said corroborative material and found that the statement of PW3
got fi1ll corroboration jiwn different independent witnesses along
with the circumstances established by those witnesses - Thus, no
error found in the impugned judgment of High Court affirming the       F
conviction of appellant - Penal code, 1860 - ss.302/34/120B and
394.
      Dismissing the appeal, the Court
      HELD: 1.1 The prosecution heavily relied upon the
confessional statement of PW3 (the accomplice) which was given         G
soon after his arrest. It had also come on record that PW3 became
approver. Though the manne.r 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
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                              759
760            SUPREME COURT REPORTS                      [2016) 9 S.C.R.


A     negatived by the High Court. This aspect is not under challenge
      before this Court. In such circumstances, the statement of the
      accomplice becomes admissible in evidence in view of the
      provisions contained in Section 133 and Section 114 of the Indian
      Evidence Act, 1872. [Para 3)[764-C-D]
B           1.2 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 accomplice should
      not be accepted without corroboration in material particulars.
      Further, such corroboration must connect the accused with crillle
c     and also that this corroboration must be from an independent
      source, meaning thereby, one accomplice cannot corroborate
      another. [Para 4)[765-E, F)
          1.3 The present case is examined keeping in view the
  aforesaid legal principle, viz., whether there is corroborative
D evidence in material particulars substantiating the confessional
  .statement of the accomplice and other material connecting the
  appellant with the crime. On going through the impugned
   judgment, it is found that the Trial Court convicted the appellant
  along with other accused persons after finding that there was
E sufficient corroborative material on record as well. The High
   Court did this exercise all over again discussing the said
   corroborative material. No error found in the impugned judgment
   of the High Court affirming the conviction of the appellant. [Paras
  5, 6 and 7][765-G-H; 766-A; 769-H]
p           Chandra Prakash v. State of Rajasthan (2014)' 8 SCC
            340 - referred to.
                            Case Law Reference
      2014 (~) sec 340               referred to            Para 16
            CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
G
      1399 of2007.
            From the Judgment and Order dated 25.09.2006 of the High Court
      of Calcutta in Criminal Appeal No. l 00of1999.
            Dushyant Parashar (Amicus Curiae), Surya Kant, Advs. for the
H     Appellant.
  KHOKAN GIRI@ MADHAB v. STATE OF WEST BENGAL                                  761



      Mrinal Kanti Manda], Parijat Sinha, Ad vs. for the Respondent.            A
      The following Judgment of the Court was delivered
                           JUDGMENT
        I. The appellant herein, along with three other accused persons,
was convicted under Sections 302, 34, 120B and 394 of the Indian Penal          B
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. I OC, I 0th floor of Rameshwar              C
Apartment at I 9A Sarat Bose Road, Kolkata-20.
      2. 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 Ki shore
                                                                                 D
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
                                                                                 E
New Kelinworth Hotel, but due to indisposition ofGirish Navalkha, the
couple did not join him and he alone attended the party and returned to
his flat at I OA, Ramesh war Apa1tment 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       F
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           G
 the ceiling fan. Mr.Khetwatalso 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.                                        .
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762             SUPREME COURT REPORTS                          [2016] 9 S.C.R.


A            At the early stage of in.vestigation, 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
B
      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
c     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.
D
              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
E     evidence of Raju Rao along with his earlier confessional statement, the
      real mystery behind the murder ofNvalkha 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
F relationship with Bina Navalkha, wife ofGirish 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
G 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.
H
  KHOKAN GIRI @ MADHAB v. STATE OF WEST BENGAL                                  763


      Raju, to facilitate their operation as desired by. Bimala Khetwat,         A
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. Khetwatjoined with them.
       Raju also met Bimala personally along with Khokan over the                B
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             c
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 ofLalbazar             D
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               E
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         F
who conducted post mortem examination, servants and maidservants of
Navalkha family, son and daughter-in-law ofNavalkha 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               G
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 ofKamini and Jagadish and on 24th December, 1991 finding the
elderly couple alone in their flat at Rameswar Apartment, killed the couple
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764             SUPREME COURT REPORTS                             [2016] 9 S.C.R.



A     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
B     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.
             3. From the aforesaid facts, it is clear that the prosecution heavily
      relied upon the confessional statement of Raju Rao which was given
c     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 we! I as the High Court, this contention
      of the appellant and other accused persons was negatived by the High
      Court. We may record that th is aspect is not under challenge before us.
      In such circumstances, the statement of Raju Rao becomes admissible
D     in evidence in view ofthe 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
E            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
F
            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
G
            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
H           possession;
   KHOKAN GIRI @ MADHAB v. STATE OF WEST BENGAL                                    765



       (b) That an accomplice is unworthy of credit, unless he is                   A
       corroborated in material pa1ticulars;
                  xx                xx                 xx"
       4. 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                8
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           c
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              D
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            E
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                  F
cannot corroborate another.
       5. 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            G
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.
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766             SUPREME COURT REPORTS                           [2016] 9 S.C.R


A            6. The High Court has done this exercise all over again discussing
      the said corroborative material. Instead of discussing the said material,
      our purpose wi II 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
B           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
c           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 N avalkha and such
D           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 9"Criminal Appeal No. 1399/2007
E           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
 F          them and on 24th December, 1991 finding Bina and Girish
            Navalkha alone in the flat and one the last minute instruction
            ofBimala 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
G           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
H
KHOKAN GIRI @ MADHAB v. STATE OF WEST BENGAL                    767



  was approver Raju Rao since Raju Rao after grant of            A
  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 ofNavalkha couple. We
                                                                 B
  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    c
  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.
                                                                 D
            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 behalfofthe appellants that Raju Rao disclosed
  in his statement that he purchased the camera along with       E
  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        F
  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           G
  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 K,hokan
  Giri was office peon and that unknown person was identified
  as Kamini Dey during T.I. parade participated by P.W. 23
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768      SUPREME COURT REPORTS                          [2016] 9 S.C.R.


A     and P.W. 49 another security guard deposed that on 24th
      December, 1991, at about I 0.30 P.M. he found all the four
      above named persons to proceed towards the servant's lift
      of the apartment.
                xx               xx               xx
B           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
c     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
D     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
 E    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 ofMr.Khetwat at 10th floor and P. W.
 F    16 was categorical in his asse1tion 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
 G    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 ofKhokan Giri and
      from P.W. 40 and P.W. 47 we find that the chappals
      recovered on 25th December, 1991 itself belonged to
 H
  KHOKAN GIRI @ MADHAB v. STATE OF WEST BENGAL                                 769


      Khokan Giri. Mr. Dastoor raised several points challenging                A
      the seizure of chappals and water bottle, but, on careful
      consideration ofthe statement of the witnesses over these
      seizures, we are not inclined to hold that investigating team
      in order to create evidence planted the chappals an.d the
      water bottle.
                                                                                B
             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
      pl'oS'ecution case that only a known person pushing the door
      bell got entry into the flat and Mr. Navalkha opened the                  c
      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                      D
      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,                 E
      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               F
      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                       G
      circumstances established by those witnesses."
        7. 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
                                                                                H
770             SUPREME COURT REPORTS                       [2016] 9 S.C.R.



A     submits that the appellant has already suffered incarceration for more
      than 25 years and, therefore, there should be remission in his furtner
      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
B
      taken thereupon either way.
      Divya Pandey                                             Appeal dismissed.