IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Debangsu Basak

And

The Hon’ble Justice Md. Shabbar Rashidi

CRA 367 of 2018

Krishna Kanta Dhar & Others

Vs.

The State of West Bengal

With

CRA 303 of 2018

Biplab Saha @ Buro

Vs.

The State of West Bengal

With

CRA 47 of 2021

With

CRAN 3 of 2025

Rajesh Hazra @ Bapi

Vs.

The State of West Bengal

For the appellants in : Ms. Suchismita Dutta, Adv.

CRA 367 of 2018

For the appellant in : Ms. Sibangi Chattopadhyay, Adv.

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CRA 303 of 2018 Ms. Momotaj Begam, Adv.

For the appellant in : Mr. Dipanjan Chatterjee, Adv.

CRA 47 of 2021 Mr. Kalayan Kumar Bhattacharjee, Adv.

Mr. S.G. Chowdhury, Adv.

Ms. Rimpa Adhikari, Adv.

Ms. Kakan Das, Adv.

Mr. Y. Rakshit, Adv.

For the State : Mr. Debasish Roy, Ld. P.P.

Mr. Partha Pratim Das, Adv.

Ms. Manasi Roy, Adv.

Hearing concluded on : 10.12.2025

Judgment on : 04.02.2026

Md. Shabbar Rashidi, J.:-

1. The three appeals are taken up for analogous consideration

as these have emanated out of a common judgment of conviction

dated April 26, 2018 and order of sentence dated April 30, 2018

passed by learned Additional Sessions Judge, Katwa, Burdwan in

Sessions Trial No. 07 of 2012 arising out of Sessions Case No. 03 of

2012.

2. By the impugned judgment and order the appellants were

convicted of the offences punishable under Sections

448/396/302/412/34 of the Indian Penal Code, 1860. By the

impugned order of sentence, the appellants were sentenced to

simple imprisonment for one year for the offence punishable under

Sections 448/34 of the Indian Penal Code. The appellants were

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further sentenced to imprisonment for life with fine of ₹10,000/- for

committing the offence punishable under Section 396/34 of the

Indian Penal Code, 1860. In default of payment of fine, the

appellants were directed to undergo Simple Imprisonment for a

further period of one year. The appellants were further sentenced to

suffer Simple Imprisonment for 5 years with fine of ₹ 5, 000/- for

the offence under Section 412/34 of the Indian Penal Code. In

default of payment of fine the appellants were directed to undergo

Simple Imprisonment for a further period of 6 months. No separate

punishment for the offence punishable under Section 302 of the

Indian Penal Code was imposed by learned trial Court in view of the

conviction of the appellants for the offence under Section 396/34 of

the Code. All the sentences were directed to run concurrently. One

accused Soumitra Pal charged under Section 120B of the Indian

Penal Code was acquitted.

3. Learned advocate for the appellants submitted that the

learned trial Court failed to appreciate the evidence adduced on

behalf of the prosecution and proceeded to convict the appellant

without application of mind. Learned advocate for the appellant

further submitted that according to the case made out by the

prosecution, one of the two victims was landlady at whose house,

alleged dacoity was committed. The other victim was living in the

same premises as tenant with her paramour. The second victim had

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broken her marriage with her husband and the said husband of the

second victim used to threaten to kill her. Such facts were not taken

into consideration by the learned trial Judge.

4. It was further contended by learned advocate for the

appellants that the prosecution failed to establish a clear motive

behind the alleged incident of dacoity. It was further argued that the

alleged ornaments recovered from the possession of the convicts

were purchased and put on test identification parade, which were

identified by the married daughter of the victim who used to reside

separately. There was no specific identification mark on such

ornaments. Therefore, alleged identification of the ornaments does

not establish the charges leveled against the appellants. In support

of such contention, learned advocate for the appellants relied upon

the authority reported in (2012) 2 Supreme Court Cases 399

(Madhu Vs. State of Kerala).

5. Learned advocate for the appellants further submitted that

the case is based on circumstantial evidence. Prosecution has not

been able to prove the chain of circumstances which exclusively

point to the guilt of the appellants to the exclusion of all others. In

that view of the facts it can be said that the prosecution has not

been able to substantiate the charges leveled against the accused

persons beyond all reasonable doubts. It was also contended by

learned advocate for the appellants that the examination of the

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accused persons under Section 313 of the Code of Criminal

Procedure, 1973 was not conducted properly in accordance with

law.

6. It is further contended by learned advocate for the

appellants that there are material contradictions in the testimony of

the prosecution witnesses. Not only that, the case made out in the

First Information Report is contradictory to the evidence led at the

trial. Learned advocate for the appellant submits that, the First

Information Report contained an allegation against one Suraj Majhi,

however, the said Suraj Majhi was not sent up for trial. The

appellants were entangled in the case without any evidence against

them. There were no independent witnesses to the seizure made by

the police. The place of seizure of the articles was not identified in

evidence. There was no endeavor on the part of the investigating

officer to ascertain the articles taken away by the alleged dacoits.

7. On the other hand, learned Public Prosecutor for the State

stood by the impugned judgment of conviction and order of

sentence. It was submitted by learned Public Prosecutor that the

prosecution sufficiently establish the charges levelled against the

appellants with the help of cogent and convincing evidence.

8. Learned Public Prosecutor further submits that initially the

husband of the second victim Gouri Majhi was a suspect and

accordingly an FIR was lodged. However, in course of investigation,

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involvement of the appellants in the alleged incident was unearthed

and accordingly the investigation ended in a charge sheet against

the present appellants. Evidence were led at the trial by the

prosecution and the prosecution successfully established the

charges levelled against the appellants.

9. The mother of the second victim Gouri Majhi namely Tulsi

Majhi lodged a written complaint with the inspector in charge

Ketugram police station on October 2, 2011. In such written

complaint she stated that on October 1, 2011 at 9:30 PM she heard

that her daughter Gouri Majhi was lying dead in the house of

Sadhan Gopal Roy at Kandra. Going there, she saw her daughter

aged about 22 years and her landlady namely Rekha Rani Roy, wife

of late Sadhan Gopal Rai aged about 67 years lying dead on the first

floor of landlord Sadhan Roy. She further stated that the marriage

of her daughter was solemnized five years ago with one Suraj Majhi

and they had a daughter aged about four years out of such wedlock.

Her daughter started residing with one Rupak Bairagya in a rented

residence due to matrimonial discord with her husband. The written

complaint also stated that on September 27, 2011, the husband of

the daughter of the de facto complainant came to her house and

threatened the second victim. He also gave out to kill her. The de

facto complainant expressed her suspicion in the written complaint

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that the landlady might have created an obstruction for which she

was also killed by the said Suraj Majhi.

10. On the basis of such written complaint Ketugram PS Case

No. 259/2011 dated October 2, 2011 under Sections 448/302/34 of

the Indian Penal Code, 1860 was started against Suraj Majhi. The

police took up investigation and on conclusion of investigation,

submitted charge sheet against the present appellants as well as

other accused persons. Accordingly, on the basis of materials in the

case diary, charges under Sections 448/396/302/120B/34/412 of

the Indian Penal Code, 1860 were framed against the appellants on

March 23, 2012. A separate charge under Section 120B of the

Indian Penal Code, 1860 was framed against another accused

Soumitra Pal. The accused persons pleaded not guilty to the charges

and claimed to be tried.

11. In order to substantiate the charges, prosecution examined

20 ocular witnesses. In addition, prosecution also relied upon

various documentary as well as material evidence.

12. The de facto complainant herself deposed as PW1. She

although stated that she lodged a written complaint with the police

but owing to her illiteracy, she put her left thumb impression on

such complaint. She could not also state the name of the scribe of

such written complaint. She further stated that she lodged the

written complaint over the incident of murder of her daughter and

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the landlady of her daughter. Her daughter was married to one

Suraj Majhi. Later on, her daughter had matrimonial discord with

her husband and developed a relationship with Rupak Bairagya. PW

1 further stated that she came to know about the mother of a

daughter and her landlady at about 9.30 p.m. from Rupak. She

came to the place of occurrence with one Shibani Majhi by the

motorcycle of one Ashim Saha at about 10/10.30 p.m. Reaching

there she found the dead body of her daughter on the first floor of

the house in the Thakurghar and that of the landlady lying in the

kitchen. She further stated that the neck of her daughter was slit

open and her wearing apparels were stained with blood. The body of

the landlady was also found with her neck slit and blood was

dripping from the side of her ear.

13. PW 1 stayed there till the arrival of police when she handed

over a written complaint. The police personnel conducted inquest

over the dead bodies. PW 1 and Shibani Majhi put their left thumb

impression upon the writings prepared by police. She also stated

that in the morning the dead bodies were brought to the police

station where from those were sent to Katwa S. D. Hospital. Later on

she received the dead body of her daughter for cremation. She also

stated that after five days, she went to police station when she was

informed by the police officer that some persons were arrested in

connection with the incident. The arrested persons were shown to

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her in the police station. She identified them in Court. She however

could not identify the accused Soumitra Pal.

14. The daughter of the victim landlady Rekha Rani Roy

deposed as PW 2. She stated that her mother was murdered on

October 1, 2011 in the evening at her house at Kandra. She also

knew the tenant Gouri Majhi who used to recide with one Rupak

Bairagya. Gouri Majhi was also murdered on the same date and

time. PW 2 also stated that she was informed about the incident by

her cousin Ashok Roy at about 9/9.30 p.m. Being so informed, she

arranged for a Maruti Omni car and arrived at Kandra at about 1.00

a.m. In the morning, she along with her husband and son entered

the house and met with the de facto complainant, another woman

Shibani Majhi and Rupak Bairagya along with the police personnel.

She saw the dead body of Gouri Majhi in the rented room whereas

the dead body of her mother was in the kitchen with her neck. There

were several injuries on her head and shoulders. The floor was full

of blood. The wearing apparels of her mother were also stained with

blood. She saw the dead body of her mother lying upside down.

There was a cooker stained with blood.

15. PW 2 also stated that all the gold ornaments worn by her

mother except the earrings were missing. The cell phone and

wristwatch of her mother were also missing. She further stated that

the dead body of Gouri Majhi was also lying upside down and her

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wearing apparels i.e. green printed saree, green petticoat and a pink

blouse were stained with blood. The elder sister of PW 2 arrived the

place of occurrence after about 15 minutes of the arrival of PW 2.

Police conducted inquest over the two dead bodies. Tulsi Majhi,

Shibani Majhi put their left thumb impression on the inquest report

of Gouri Majhi as witnesses whereas inquest report of the Rekha

Rani Roy, the mother of PW2 was signed by PW2 and her sister.

Rupak Bairagya signed on both the inquest reports. PW2 proved her

signature on such inquest report.

16. In her deposition, PW2 further stated that she was informed

by Rupak that Buro, Krishna Dhar, Bimal Saha and some other

persons had a talk with her mother regarding letting out of her

premises. Previously, Buro used to reside as tenant in the house of

her mother with his wife and she left the tenancy sometimes in

January, 2011. Later at about 5.00 a.m. police seized controlled

cotton, bloodstained cotton, pressure cooker and a bottle under a

seizure list. PW2 along with her brother Chandra Shekhar Roy and

Ratna Roy signed on such seizure list. She identified her signature

on the seizure list. Thereafter, police took away the dead bodies for

post mortem examination. PW2 identified the appellants in court.

PW2 also identified 11 gold ornaments of her mother which she

identified in a test identification parade in the court premises

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together with mobile phone and wrist watch. The said articles were

marked as material exhibits at the trial.

17. Another daughter of the victim Rekha Rani Roy was

examined as PW3. She stated that her mother was murdered on

October 1, 2011 in her house at Kandra. She also knew Gouri Majhi

who used to reside in the house of her mother with one Rupak

Bairagya. She was also murdered. Both the victims were murdered

in the evening. She further stated that she got the information of the

incident from her cousin brother Ashok Roy over telephone and

after arranging a vehicle she reached her mother’s house at about

1.10/1.15 A.M. She saw her sister PW2, her husband and son. She

saw her mother lying dead in the kitchen and the entire room was

full of blood. The gold ornaments on the dead body were noticed

missing except the ear rings. She saw the neck of her mother slit

and an injury over her head. She was wearing Khairy coloured sari

and petticoat without blouse.

18. PW3 further stated that she also saw the dead body of

Gouri Majhi in the next room having her neck slit. She was lying

upside down and the room was full of blood. Her wearing apparels

were described by PW3 as green sari, green petticoat and pink

blouse. Police conducted inquest over the two dead bodies and

prepared reports. She signed on the inquest report of her mother

with others which she proved. She also described the witnesses to

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the inquest over the dead body of Gouri Majhi. PW3 further stated

that she was informed by Rupak who was reported by victim Gouri,

that in the evening of the fateful day, Buro, Krishna Dhar and 2/3

other persons had come to talk to mother of PW3 for letting out the

premises. Police seized controlled cotton soaked with blood of the

two victims, a bottle and blood stained cooker under a seizure list.

PW3 proved her signature on such seizure list. The wrist watch and

mobile phone used by the mother of PW3 was also missing. Later

on, the dead bodies were sent for post mortem examination.

19. PW3 further stated that on October 5, police came to her

mother’s house with six accused persons when they confessed to

have committed dacoity and murder of the two victims. On October

6, PW3 came to know that some gold ornaments belonging to her

mother were recovered. She also identified the gold ornaments,

mobile phone of her mother in the test identification parade. She

proved her signature on the test identification report. She also

identified the recovered articles in court. She also identified the

appellants in Court.

20. The live-in partner of victim Gouri Majhi namely Rupak

Bairagya deposed as PW4. He used to reside as a tenant in the

house of Rekha Rani Roy. He further stated that both the victims

were murdered in the house where he used to reside as a tenant at

about 8.00/8.30 p.m. He further stated that he used work in a cloth

13

shop which he closed at about 9.15/9.30 p.m. He returned home

and found the main door closed from inside. He entered the house

by scaling the wall, opened the gate and put the lights on. He found

the dead body of Rekha Rani Roy with her neck slit lying in the

kitchen and that of Gouri Majhi in the Thakurghar. The necks of

both the victims were slit and the places they were lying at were full

of blood. He came down shouting and called his mother-in-law Tulsi

Majhi. She came along with Shibani and another person at about

10.30 p.m.

21. PW4 further stated that thereafter police arrived there. His

mother-in-law handed over a complaint to the police written by

someone. Police also conducted inquest over the dead bodies. He

signed on the inquest reports which he proved. PW4 also stated that

on October 1, 2011 he came back to his house to fetch water. At

that time he saw two persons Krishna and Buro were talking to

Rekha Rani Roy over letting out of her premises. PW4 was called by

Rekha Rani Roy upstairs. He identified the appellants Krishnakanta

Dhar and Buro in Court. PW 4 also stated that on October 5, 2011

he made a statement under Section 164 of the Code of Criminal

Procedure. He proved his signature on such statement. He also

identified the appellants in Court except accused Soumitra Pal.

22. The son-in-law of the victim Rekha Rani Roy was examined

as PW 5. He stated that Rupak Bairagya and Gouri Majhi used to

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recite as tenant in the house of his mother-in-law. His mother-in-

law and the tenant Gouri Majhi were murdered on October 1, 2011

at about 8/8.30 p.m. and dacoity took place in her house. The

incident was reported over telephone to the wife of PW 5. He

accompanied his wife to his in-laws house and saw police personnel

present there. He further stated that he went to the first floor of the

house and noticed that his mother-in-law was lying dead with slit

throat in the kitchen whereas Gouri Majhi was found lying in

Thakurghar with her throat slit open. He also saw the mother of

Gouri Majhi, another woman called Shibani Majhi, Rupak and some

dispersal. His sister in law also came there with her husband.

23. PW 5 also stated that police conducted inquest over the

dead bodies and prepared a report. Thereafter the dead body was

taken by the police in the following morning. He further stated that

on October 5, 2011 police brought all the accused persons namely

Krishna, Biplab @Buro, Rajesh Hajra, Bimal Saha, Narayan

Thandar and Astam to his in-laws house when the scene of crime

was recreated. He further stated that on October 6, 2011 at about

8.30 a.m. he along with others accompanied the police personnel

and the accused persons to the house of accused Krishna Kanta

Dhar. Such accused led the police personnel and others to his

bedroom from where one blue jeans and a shirt was recovered. A

gold chain fixed with a locket and Motar Bala was recovered from

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one pocket and from the other pocket wristwatch was brought out

by accused Krishna. One sharp cutting weapon (Da) was recovered

from below the cot. The recovered articles were seized by police

under a seizure list to which PW 5 signed.

24. Thereafter, the police party along with the witnesses went

to the house of Rajesh Hazra. At his house accused Rajesh Hazra

brought out gold ornaments and a knife which was seized by police

under a seizure list. PW 5 and his brother-in-law signed on such

seizure list. He also identified the seized articles in Court. Thereafter

the police team accompanied by the witnesses proceeded to the

house of Biplab Saha @ Buro. The appellant produced one pair of

gold plated bangle and one ring embossed with the name ‘Rekha’

from over a shelf as well as one knife about 8/9 inches long from

under his bed. The said articles were also seized by police under a

seizure list which PW 5 signed. After that, the team went to the

house of Narayan. Accused Narayan handed over gold plated iron

bangle from a shelf of his bedroom and one knife under his bed.

Such articles were also seized under a seizure list. Similarly one

gold ring, one mobile phone of Motorola Company and a 12 inch

knife were brought out by accused Bimal Saha from his bedroom. A

silver ring plated with gold and studded with pearls, one copper

made ring and a 3 inch iron rod were produced by accused Astam.

The aforesaid recovered articles were seized by police under

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separate seizure lists to which PW 5 and his brother-in-law signed.

He proved his signatures. He also identified the articles recovered as

shown by the appellants. PW 5 also identified the appellants in

Court.

25. The scribe of the written complaint was examined as PW6.

He stated that he scribed the written complaint at the instructions

of PW1 about two years from the date of his deposition, at about

10.30 a.m. at village Kandra sitting in the house of one Sadhan Roy.

He further stated that the written complaint was in respect of the

death of the daughter of the de facto complainant and her landlady.

PW6 read over and explained the contents of the written complaint

and after being satisfied, PW1 put her left thumb impression on

such complaint. PW6 also signed on the written complaint. He

proved the written complaint and his signature thereon.

26. PW6 also stated that he was a goldsmith by profession

having a jewellery shop under the name and style of ‘Rudra

Jewellers’ at Ketugram. He was called upon by the police to

Ketugram Police Station to identify the metal of 11 ornaments. He

examined the ornaments and submitted a report to that effect which

he proved (Exhibit 13). He also identified the ornaments examined

by him in Court.

27. A police constable deposed as PW7. He stated that on

October 2, 2011, he accompanied the police officer and other force

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to the house of Rekha Rani Roy at about 12.30/1.00 a.m. in respect

of murder of two ladies. The officer conducted inquest over the dead

bodies which were lying in separate rooms on the first floor in the

house of Rekha Rani Roy. PW 7 brought the dead bodies to Katwa

Subdivisional Hospital. He proved the dead body Challans bearing

his signature. He identified the dead bodies before the autopsy

surgeon. He further stated that after the post-mortem examination,

he was handed over the dead bodies which he in turn handed over

to their relatives. The wearing apparels of the victims were handed

over to a police officer which were seized under a seizure list. PW 7

proved his signature on such seizure list. He also identified the

wearing apparels of the victims.

28. A sub- inspector of police was examined as PW 8. He stated

that on October 1, 2011 he along with police force had been to

Kandra village in pursuance of an information regarding mother of

two ladies. Going there, he saw some persons assembled there. On

the first floor in the Thakurghar, he found the dead body of Gouri

Majhi. The dead body of Rekha Rani Roy was found in the kitchen.

PW 8 also stated that PW 1 handed over a written complaint to the

Inspector in charge who directed PW 8 to hand over the same to the

duty officer which he did. He further stated that on the following day

at about 6 PM one police constable handed over some wearing

apparels of the deceased women to SI Joyjit Lodh who seized the

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same under a seizure list. He signed on the seizure list along with a

police constable. PW8 proved his signature on such seizure list. He

also identified the seized articles i.e. wearing apparels of Rekha Rani

Roy and Gouri Majhi.

29. A police constable deposed as PW 9. He stated that on

October 2, 2011, he signed on a seizure list in the evening. At that

time another constable of police namely Golam Bakkar brought

some wearing apparels namely Sari, Saya and blouse of the victims

after post-mortem examination and handed over the same to SI

Joyjit Lodh. PW9 proved his signature on the seizure list. He also

identified the seized wearing apparels of the victims.

30. An ASI of police was examined as PW 10. He stated that on

October 3, 2011, he accompanied SI Joyjit Lodh and other police

force to Kandra village at about 5.30/5.40 5 PM in connection with

the two murders. The accused Krishna Kanta Dhar was also with

them. PW 10 also stated that as per the statement of Krishna Kanta

Dhar, the police party went to the bank of a tank on the back side of

PWD office. As shown and identified by the accused, two

handkerchiefs were recovered which were seized under a seizure list

prepared by SI Joyjit Lodh. PW 10 signed on such seizure list

(Exhibit 17/1). He further stated that the accused made a statement

that after committing murder, he along with others washed their

hands in the tank and then wiped their hands with the two

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handkerchiefs. PW 10 also identified the seized handkerchiefs (Mat.

Exhibit IX).

31. Another sub- inspector of police deposed as PW 11. He

stated that on October 3, 2011 he went to Kandra PWD office in

connection with Ketugram PS Case No. 259 of 2011 with SI Joyjit

Lodh and ASI Swapan Hazra accompanied by the accused Krishna

Kanta Dhar at about 5.30 p.m. As shown and identified by the

accused two handkerchiefs were the recovered from the bank of a

tank situated on the back side of the said PWD office. One of the

handkerchiefs was whitish in colour and the other was blue. He

further stated that the accused confessed that he along with others

committed murder of two women and washed their hands in the

tank and thereafter wiped their hands and faces with the said

handkerchiefs. On such recovery, SI Joyjit Lodh seized the

handkerchiefs under a seizure list to which PW 11 signed. He

proved his signature on the seizure list and also identified the

recovered articles.

32. Learned Judicial Magistrate was examined as PW 12. He

stated that on November 5, 2011 he recorded the statement of

Rupak Bairagya in his Court chamber. He proved the statement

recorded in his pen and signature. Rupak Bairagya also signed on

such statement. PW 12 further stated that on November 16, 2011

he held a property Test Identification Parade in connection with

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Ketugram PS Case No. 259 of 2011 dated October 2, 2011 in his

Court chamber. He prepared a report in this regard. PW 12 proved

the said report (Exhibit 3). He further stated that during such test

identification Parade, Ranu Bhattacharya and Ratna Roy were

present and signed on such report in his presence. The test

identification parade was in respect of some jewellery.

33. The autopsy surgeon was examined as PW 13. He stated

that on October 2, 2011 he held post-mortem examination over the

dead body of Rekha Rani Roy in connection with Ketugram PS UD

Case No. 39 (A) of 2011 dated October 2, 2011 and Ketugram PS

Case No. 259 of 2011 dated October 2, 2011. He further stated that

on such post-mortem examination, he found cut throat injury in

front and on either side of neck, transverse at the lower level

exposing muscles, vessels with injury to trachea, larynx, thyroid

and cricoid cartilages, another cut injury on right side of her scalp,

cut injury on right side of her face, lacerated injury on right

shoulder. He opined that the cause of death was due to the above-

mentioned injuries which were ante-mortem and homicidal in

nature. He proved the post-mortem report prepared in his pen and

signature (Exhibit 18). He further stated that the injury found by

him were sufficient in normal course to cause death of a major

woman. PW 13 was also shown the seized weapons like knives, Daw

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etc. He opined that the injuries found by him on the dead body

might be caused by such weapon.

34. PW 13 further stated that on the same day he held post-

mortem examination over the dead body of Gouri Majhi in

connection with Ketugram PS UD Case No. 39 of 2011 dated

October 2, 2011 and Ketugram PS Case No. 259 of 2011 dated

October 2, 2011. On such examination, he found cut throat injury

in front and on either side of neck, exposing muscles, vessels with

injury to trachea, larynx, thyroid and cricoid cartilages and injury to

sub-cutaneous tissues. In respect of the victim Gouri Majhi, PW 13

opined that the cause of death was due to the above-mentioned

injuries which were ante-mortem in nature. He also proved the post-

mortem examination report prepared in his pen and signature

(Exhibit 19). He further opined that the injuries that were found on

the dead body of Gouri Majhi were sufficient in normal course to

cause death of a major woman. Being confronted with the seized

weapons, PW 13 opined that the injuries found on the dead body of

Gouri Majhi might be caused by such weapon.

35. A local person was examined as PW 14. He stated that he

had a shop at Kandra village. Rupak Bairagya used to work in his

shop on October 1, 2011. He also stated that Rupak Bairagya used

to take break for lunch at 2 PM every day and used to come back

within 3 PM. On October 1, 2011 he went to his house at about 6

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PM to bring water and came back within 10 minutes. He went back

home after closing the shop at 9 PM. PW 14 also stated that after 10

minutes of the closing of the shop, Rupak Bairagya rushed to him

and informed that his wife and her landlady had been brutally

murdered in the house where he used to live on rent.

36. Another co-villager deposed as PW 15. He stated that he

heard some hue and cry in front of his house. He came down from

the first floor and heard that Rekha Rani Roy and her tenant Gouri

Majhi had been murdered. He however stated that he did not know

who killed them. He identified the appellants in Court as his co-

villagers.

37. PW 16 is another co-villager of the victim. He stated that he

knew Rekha Rani Roy of his village. He further stated that on the

date of incident he was not at his house and on the following day he

heard that Rekha Rani Roy and her tenant Gouri Majhi had been

murdered. He however could not say as to who killed them and why.

He also identified the appellants in Court as his co-villager.

38. A photographer deposed as PW 17. He stated that he was a

professional photographer having a photography shop under the

name and style of Jagadhatri studio at village Kandra. About three

years from the date of his deposition, as instructed by the police of

Ketugram PS, on October 2, 2011, he went to the house of Sadhan

Gopal Roy at Kandra village and took photographs of the dead

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bodies of two women, one of whom was the wife of Sadhan Gopal

Roy and the other was a resident of the same house. PW 17 proved

the photographs taken and printed from a digital camera recorded

on a memory card (Mat. Exhibit X collectively).

39. The inspector in charge of Ketugram PS deposed as PW 18.

He stated that on October 1, 2011 at about 23.35 hours he received

a written complaint from PW 1 at the house of Rekha Rani Roy at

village Kandra. After receiving the same he sent the complainant

through ASI Dinabandhu Ghosh to the PS for starting a case under

Sections 448/302/34 of the Indian Penal Code. He further stated

that SI Joyjit Lodh was present at the place of occurrence with him

and he endorsed SI Joyjit Lodh with the investigation of the case.

PW 18 also stated that he instructed the duty officer SI Joydeb

Sannyasi to start a formal First Information Report. He proved his

endorsement on the written complaint and his signature on the

formal FIR.

40. A Sub-Inspector of police, i.e. the duty officer was examined

as PW 19. He stated that on October 1, 2011 he received a written

complaint sent by PW 18 through PW 8 as the duty officer of

Ketugram PS at 12.15 a.m. PW 19 proved the endorsement of

receipt as well as his signature on such complaint (exhibit 12/2). He

also stated that he was instructed over phone that SI Joyjit Lodh

was endorsed with the investigation of the case. Upon receipt of the

24

written complaint, PW 19 drew up the Formal FIR which he proved

in his evidence (exhibit 20).

41. The investigating officer of the case deposed as PW 20. In

his deposition, he described the various steps taken by him during

investigation of the case. He visited the place of occurrence and

prepared rough sketch map thereof with index. He also examined

the dead bodies of Rekha Rani Roy and Gouri Majhi and prepared

inquest reports. He proved the reports. He sent the dead bodies for

post-mortem examination under dead body Challans. He also seized

certain articles from the place of occurrence under a seizure list

which he proved. He also examined the available witnesses under

Section 161 of the Code of Criminal Procedure. On his return to the

police station, wearing apparels of the two victims were handed over

to him which he sees and a seizure list.

42. PW 20 also arrested the appellants. He further stated that

on the leading statement of Krishna Kanta Dhar, he recovered and

seized two handkerchiefs from the bank of a tank beside the BDO

office of village Kandra. PW 20 also stated that the appellants were

taken to the place of occurrence for the reconstruction of the scene

of crime. On October 3, 2011 and October 4, 2011, the appellants

made separate statements in respect of recovery of offending

weapons and looted articles. Such statements were reduced into

writing. On October 6, 2011 PW 20 accompanied by all the six

25

appellants together with witnesses namely Subroto Bhattacharya

and Chandrashekar Roy went to the house of accused Krishna

Kanta Dhar, Rajesh Hazra, Biplab Saha @ Buro, Narayan @ Babu

Thandar, Bimal Saha and Astam Ghosh one by one. As per the

leading statement of respective appellants, several looted articles

belonging to the victim as well as the offending weapons were

recovered from the houses of the appellants. The recovered articles

were seized by PW 20 under separate seizure lists. He proved the

said seizure lists. PW 20 also identified the recovered articles in

Court which were admitted in evidence and marked as Mat exhibits.

He also proved the statements of the appellants recorded by him

under Section 161 of the Code of Criminal Procedure on the basis of

which, recovery of the looted articles together with the offending

weapons was made. Such leading statements were admitted in

evidence and marked as Exhibit 33 to Exhibit 38.

43. PW 20 also stated that as per his instructions photographs

of the dead bodies at the place of occurrence were taken by the

photographer. He collected such photographs (Mat exhibit X). He

also collected the report of the Goldsmith. He also arranged for

recording statement of Rupak Bairagya under Section 164 of the

Code of Criminal Procedure. He sent the recovered articles for

forensic examination to FSL, Kolkata. He also applied for holding

this identification parade in respect of the seized ornaments mixed

26

with dummy ornaments in the ratio of 1:5. He collected the report of

this identification parade as well as the post-mortem reports.

Ultimately, upon conclusion of the investigation, PW 20 submitted

charge sheet against seven accused persons including the

appellants under Sections 448/302/34/396/412/120B of the

Indian Penal Code, 1860.

44. Upon conclusion of the evidence on behalf of the

prosecution, the appellants were examined under Section 313 of the

Code of Criminal Procedure, 1973. In such examination, the

appellants pleaded innocence. They however, declined to adduce

any defense witness.

45. According to the case made out by the prosecution, the two

victims were murdered. The victim Gouri Majhi used to reside in the

house of the victim Rekha Rani Roy as a tenant with one Rupak

Bairaya. The said Rupak Bairagya used to work in a shop room and

used to return to his house in the evening. On the date of incident,

when she returned after closing the shop room, he found the doors

of the house closed unusually. He however managed to enter into

the house and discovered that the bodies of the two victims lying in

the Thakurghar and kitchen. The said Rupak Bairagya deposed as

PW 4. In his deposition he has described as to how he discovered

the dead bodies lying in the house. Upon such the discovery, he

informed his mother-in-law i.e. the mother of the victim. Thereafter,

27

his mother-in-law, PW 1 came to the place of occurrence with

another lady. The matter was reported to the police. PW 1 also

found the dead bodies in the condition narrated by PW 4.

46. Upon information, police arrived at the place of occurrence

in the night itself. The police personnel who visited the place of

occurrence on the date of incident have also corroborated the

version of PW 1 and PW 4 so far as the condition of the dead body is

concerned. The police conducted inquest over the dead bodies and

prepared reports in this regard which have been proved by the

police officer as well as the witnesses to such inquest. According to

the narration of the prosecution witnesses and contents of the

inquest report, the two victims were murdered by sliting their

throats. They had other injuries on their person.

47. After such inquests, the dead bodies were sent for post-

mortem examination was conducted over the dead bodies. The

autopsy surgeon deposed as PW 13. In his deposition, PW 13 has

stated that he found a cut throat injury in front and on either side

of neck, transverse at the lower level exposing muscles, vessels with

injury to trachea, larynx, thyroid and cricoid cartilages on the dead

body of the victim Rekha Rani Roy. PW 13 also conducted post

mortem examination over the dead body of another victim Gouri

Majhi and found the injuries like cut throat injury on front and on

either side of neck, exposing muscles, vessels with injury to trachea,

28

larynx, thyroid and cricoid cartilages with injury to subcutaneous

tissues. Given the nature of injuries, PW 13 opined that the death of

the two victims was caused due to the injuries found on their

person as noted by him in his report Exhibit 19. He further opined

that such injuries found on the dead body of the two victims were

sufficient in the ordinary course of nature to cause death of a major

woman.

48. Therefore, considering the case made out by the

prosecution supported by the evidence of PW 13 together with the

testimony of Exhibit 18 & 19, we have no hesitation to hold that the

two victims namely Rekha Rani Roy and Gouri Majhi died of the

injuries inflicted upon them as noted in Exhibit 18 & 19 which were

sufficient in the ordinary course of nature to cause death of a major

woman. According to the testimony of PW 13, such deaths were

homicidal in nature. In that view of the facts, it is quite established

that the two victims died unnatural death and were murdered.

49. So far as the persons responsible for the death are

concerned, the First Information Report named the previous

husband of victim Gouri Majhi as the suspected assailant.

According to the suspicion raised in the written complaint, the

victim Gouri Majhi was previously married to one Suraj Majhi five

years ago and they had a daughter out of the aforesaid wedlock. It

was also disclosed in the written complaint that due to matrimonial

29

discord with her husband, the victim Gouri money started residing

with one Rupak Bairagya in a rented house under the other victim

Rekha Rani Roy. The previous husband of Gouri Majhi allegedly had

altercation with her previous husband whereupon she was allegedly

threatened by her previous husband.

50. Be that as it may, the police took up investigation of the

case and on completion of investigation it was unearthed that the

present appellants committed dacoity at the house of the landlady

i.e. the first victim Rekha Rani Roy. The investigation also exposed

that in course of committing dacoity, the appellants committed

murder of the two victims. Admittedly, there are no eyewitnesses to

the incident of murder or dacoity and the case is entirely based on

circumstantial evidence. We have gone through the evidence led at

the trial on behalf of the prosecution to find out as to how far, the

prosecution has been able to establish the circumstances in support

of the proposition of the guilt of the present appellants to the

exclusion of all others.

51. The incident was instantly intimated to the police at 00.15

hours on October 2, 2011 whereas the alleged incident is said to

have occurred in the evening of October 1, 2011. In her deposition,

PW 2 i.e. the daughter of victim Rekha Rani Roy had stated that

when she got information of the murder of her mother and came to

her mother’s house, she found the dead body of her mother. She

30

however stated that astonishingly the gold ornaments worn by her

mother were found missing from the dead body except an earring.

She also found that the mobile phone and wristwatch used by her

mother were also not found. She had further stated that she was

informed by Rupak Bairagya that in the evening preceeding the date

of incident, he had seen appellant Buro, Krishna Dhar, Bimal Saha

and some to other persons talking to the mother of PW 2 with

regard to letting out her premises.

52. PW 2 also stated in her deposition that on October 5, 2011

police came to her house accompanied by the appellants and told

her that they were the persons responsible for the dacoity at her

house and murder of the two victims. The investigating officer, PW

20 has stated that in course of investigation he took the appellants

to the house of the victim for the purpose of reconstruction of the

scene of crime. Later on, PW 2 was summoned in the Court

premises of learned judicial magistrate were she participated as a

witness in test identification parade for the purpose of identifying

the lost ornaments belonging to her mother. In such parade, PW 2

and PW3 identified 11 jewelleries and other articles belonging to her

mother out of some 70 dummy jewelleries. She identified such

articles in Court as well. The defense could not imprint any dent

upon the testimony of PW 2 in her cross-examination. PW 3 has

also corroborated the testimony of PW 2. She also participated in

31

the Test Identification Parade conducted over the recovered articles

and identified the jewellery and other articles belonging to her

deceased mother.

53. PW 20 stated in his deposition that the appellants made

statements which he recorded under Section 161 of the Code of

Criminal Procedure. In such statement, the accused persons not

only confessed having committed the offence of dacoity at the house

of the Rekha Rani Roy and murder of the two victims but also gave

out to lead recovery of the looted articles and offending weapons. On

the basis of such statements, the police recovered the looted articles

from the houses of the appellants as shown by such appellants.

Relevant statements leading to recovery were admitted in evidence

and marked as exhibits. The recovery of the looted articles and

offending weapons were recorded by drawing up of respective

seizure lists, which were also proved at the trial. The testimony of

PW 20 was corroborated by PW 5. He testified that the looted

articles including ornaments belonging to her mother were

recovered by police, kept concealed and as shown by the appellants

from their respective houses.

54. The recovered looted articles were identified in a test

identification parade by PW 2 and PW 3 as that belonging to the

victim Rekha Rani Roy. Such articles were also identified and

proved at the trial as belonging to the victim and recovered on the

32

basis of leading statements by the appellants. The evidence

regarding recovery of the seized articles on the leading statement of

the appellant and its identification by PW 2 and PW 3 in the test

identification parade, were specifically confronted to each of the

appellant at the time of their examination under Section 313 of the

Code of Criminal Procedure which visited with an answer ‘I am

innocent’. The appellants did not chose to offer a positive

explanation as to under what circumstances, the ornaments and

personal articles belonging to the victim Rekha Rani Roy came into

their possession and were recovered from their houses. A necessary

fallout of such omission on the part of the appellant gives rise to a

strong and unimpeachable proposition that the appellants

committed dacoity at the house of Rekha Rani Roy and in doing so,

being resisted, they committed murder of the landlady and one of

her tenant who came in the way. Such proposition is further

bolstered by the evidence of PW 4 who had seen some of the

appellants talking to the victim Rekha Rani Roy in the evening

preceding the incident.

55. From the trend of cross examination of the prosecution

witnesses it transpired that the defense had taken a plea that if the

appellants perpetrated the incident with the motive of committing

dacoity, they would not have left the earrings of the first victim

33

which she was wearing. In Madhu (supra), the Hon’ble Supreme

Court noted that,

“70. The motive for the accused in committing the murder of

Padmini Devi is stated to be theft of her gold ornaments.

Madhu Accused 1 is a labourer, and Sibi Accused 2 is a

toddy tapper. If the motive had been theft, so as to snatch

away the jewellery of Padmini Devi, it is difficult to

understand why the accused only took away the gold chain

around the neck of the deceased, and the six bangles on

her right arm, and forsook the earrings on the person of the

deceased. It is relevant to mention, that the factum of the

earrings found on the person of the deceased has been

explained in a wishy-washy manner. P.J. Thomas PW 21,

Circle Inspector of Police, has specifically deposed on the

recovery, retention and return of the earrings to the family

of the deceased. The statement of PW 21 reveals a sorry

state of affairs in handling the investigation of the case in

hand. According to the statement of PW 21, the earrings

were removed from the dead body of Padmini Devi, by one

of the policemen who was assisting him in the preparation

of inquest report on 9-5-1998. There is no documentary

record of this. The earrings were then (according to PW 21)

retained by the writer at the police station. This again,

without maintaining any record. On 11-6-1998, the said

earrings are stated to have been returned to Ayyappa

Kurup PW 2, husband of deceased Padmini Devi. It was

also deposed by PW 21, that Ayyappa Kurup PW 2 had

visited the police station to take back the earrings.

Accordingly, the earrings were returned to him. Yet again,

without maintaining any record.”

34

56. However, such observations by the Supreme Court in

Madhu (supra) were premised on the fact that the factum of the

earrings found on the person of the deceased had been explained in

a wishy-washy manner. Moreover, the Hon’ble Supreme Court had

also taken into consideration the circumstances under which the

recovery was shown to have been made under Section 27 of the

Indian Evidence Act, 1872. It noted that,

“54. The statements of PW 7, PW 11, PW 13 and PW 15,

narrated (and relevant portions extracted) hereinabove,

clearly lead to the positive conclusion that the fact that the

stolen articles would be recovered from the premises of the

accused was known before the accused were brought to the

recovery site. These witnesses, as also the crowd present,

were aware of the said factual position at around “noon”

(as per the statement of Gopinathan, PW 13) but definitely

before 2.30 p.m. (as per the statement of Madhu PW 7). But

according to P.J. Thomas (PW 21), the confessional

statements were recorded between 2 and 2.45 p.m.”

Thereafter, the Supreme Court further held that,

“72. For the reasons recorded by us hereinabove, we are of

the view, that the evidence produced by the prosecution

does not, in any way, establish the guilt of the accused. The

prosecution had endeavoured to prove the allegations

levelled against the accused on the basis of circumstantial

evidence. As noticed above, the mainstay of the prosecution

evidence is the recovery of the gold ornaments belonging to

the deceased Padmini Devi at the instance of the accused

Madhu and Sibi. We have concluded that the statements

35

made by the accused Madhu and Sibi (vide Exts. P-10 and

P-9 respectively) cannot be proved against the accused, or

to their detriment. This by itself removes the most vital link

in the chain of events sought to be established by the

prosecution against the accused. Evidence produced to

establish the presence of the accused near the place of

occurrence, at or about the time of the commission of the

crime has also been found to be irrelevant. This is because,

the accused were in any case neighbours of the deceased

Padmini Devi. We have also found, that the theft of the gold

ornaments worn by the deceased Padmini Devi was also

doubtful. The explanation tendered by the prosecution of

the earrings worn by the deceased Padmini Devi when her

body was recovered, is also far from satisfactory. From the

statement of Dr. Radhakrishnan PW 20, and the

surrounding facts, it cannot be positively inferred that the

deceased Padmini Devi was first smothered and then

drowned as has been alleged by the prosecution. We have

also found serious contradictions in the deposition of the

prosecution witnesses. The prosecution has failed to

establish an unbroken chain of events lending (sic leading)

to the determination, that the inference being drawn from

the evidence is the only inescapable conclusion. In fact in

our view the prosecution has not been able to connect the

accused with the alleged crime in any manner whatsoever.”

57. In the case at hand, however, no such discrepancy was

demonstrated. The confessional statements of the appellants were

recorded well before hand. There is no evidence on record that the

witnesses to such recovery knew of such statement or recovery at

the behest of the appellants. There is no incongruity shown in the

36

evidence inconsistent with the manner of commission of crime or

infliction of death. Moreover, the handkerchiefs used by the

appellants after committing murder were also recovered at their

statement from a different place. It is well settled position of law

that in criminal proceedings, each case has to be considered on the

basis of specific facts obtained in that case. There are

comprehensible dissimilarities between the facts of Madhu (supra)

and that obtaining in the present case. In fact, no explanation,

whatsoever, has been put forward by the appellants as to how they

came into possession of the stolen articles belonging to the victim

Rekha Rani Roy.

58. Therefore, on the basis of discussion made hereinabove, we

find no reason to interfere with the impugned judgment of

conviction and order of sentence. We affirm the same.

59. Consequently, all the three appeals being CRA 367 of

2018, CRA 303 of 2018 and CRA 47 of 2021 are hereby

dismissed. Connected applications, if any, shall also stand disposed

of accordingly.

60. Period of detention already undergone by the appellants

during enquiry, investigation or trial shall be set off against the

substantial punishment in accordance with the provisions of

Section 428 of the Code of Criminal Procedure.

37

61. Urgent Photostat Certified copy of this judgment, if applied

for, be supplied expeditiously after complying with all necessary

legal formalities.

[MD. SHABBAR RASHIDI, J.]

62. I agree.

[DEBANGSU BASAK, J.]