# 9 S.C.R. 759 KHOKAN GIRI @ MADHAB v. STATE OF WEST BENGAL

- **Citation:** [2016] 9 S.C.R. 759
- **Court:** Supreme Court of India
- **Decided:** 2016-12-01
- **Case number:** Criminal Appeal No. 1399 of2007
- **Bench:** A. K. Sikri, Abhay Manohar Sapre
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/9-s-c-r-759-khokan-giri-madhab-v-state-of-west-bengal-31369
- **Pages:** 12

## Headnote

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
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 of practice, the
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
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
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
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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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
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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
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.
G
2014 (~) sec 340
Case Law Reference
referred to
Para 16

## Text

[2016) 9 S.C.R. 759
KHOKAN GIRI @ MADHAB
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 1399 of2007)
DECEMBER 01, 2016
[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
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 of practice, the
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
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
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
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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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]
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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
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.
G
2014 (~) sec 340
Case Law Reference
referred to
Para 16
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
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
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Appellant.
KHOKAN GIRI@ MADHAB v. STATE OF WEST BENGAL
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Mrinal Kanti Manda], Parijat Sinha, Ad vs. for the Respondent.
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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
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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
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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
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 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
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.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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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
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 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
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
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.
KHOKAN GIRI @ MADHAB v. STATE OF WEST BENGAL
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. Khetwatjoined 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 ofLalbazar
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 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
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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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.
3. 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 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
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
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possession;
KHOKAN GIRI @ MADHAB v. STATE OF WEST BENGAL
765
(b) That an accomplice is unworthy of credit, unless he is
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corroborated in material pa1ticulars;
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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
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.
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
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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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
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 N avalkha 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 9"Criminal Appeal No. 1399/2007
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
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
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
KHOKAN GIRI @ MADHAB v. STATE OF WEST BENGAL
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 ofNavalkha 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 behalfofthe 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 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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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.
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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 ofMr.Khetwat at 10th floor and P. W.
16 was categorical in his asse1tion 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
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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
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KHOKAN GIRI @ MADHAB v. STATE OF WEST BENGAL
Khokan Giri. Mr. Dastoor raised several points challenging
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.
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
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."
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
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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
taken thereupon either way.
Divya Pandey
Appeal dismissed.