Calcutta HC Upholds BSF Constable’s Life Sentence for Murder [Read Order]

Jalpaiguri: The Calcutta High Court (Circuit Bench at Jalpaiguri) has dismissed the appeal of a Border Security Force constable convicted of murdering a fellow constable, holding that the testimony of a sole eyewitness, if reliable and trustworthy, needs no corroboration, and that Section 475(1) of the Code of Criminal Procedure does not oust the jurisdiction of a criminal court to try a member of the armed forces.

A Division Bench of Justice Arijit Banerjee and Justice Chaitali Chatterjee (Das) was hearing CRA/22/2021 filed by C.T. Raghunandan against the judgment of 30.04.2021 of the Additional Sessions Judge, Dinhata, Cooch Behar. He had been convicted under Sections 302 and 201 of the IPC and sentenced to rigorous imprisonment for life, to mean the remainder of his natural life, and to seven years’ rigorous imprisonment with a fine of ₹1 lakh for the latter offence, the sentences to run concurrently. He was acquitted of the Arms Act charges.

The prosecution case was that on 24.01.2018, Constable Arbind Kumar, posted at point Alpha-9 of Durga Nagar BOP, was found dead in a jungle with his hands and legs tied, after a sound resembling a bomb was heard between 10 and 10:30 pm. The FIR was initially lodged against unknown miscreants. The investigation led to a local woman, PW-10 Dasami Modak, who stated under Section 164 CrPC that she was in a relationship with both men, and that while she was with Arbind that night, Raghunandan appeared and shot him in the chest with Arbind’s own service rifle and then threatened her and her children if she disclosed it. The Court noted that the entire prosecution case rested on PW-10 and the investigating officer, PW-12, as the State itself accepted.

It was argued, for the first time in written notes, that the trial was void since the accused was subject to Court-martial and the Magistrate should have transferred the case. Justice Banerjee, who authored the judgment, noted that the point was neither raised before the trial court nor argued orally, but addressed it. He held that the appellant’s counsel had not shown that the Central Government had framed any relevant rules and that, even if such rules existed, they would be only directory, since the Magistrate is only required to “have regard” to them. Such a rule “would not touch the jurisdiction of the Trial Court if it otherwise has jurisdiction”.

The appellant, through counsel Mr. Abhishek Sarkar, relied on Kali Ram v. State of H.P.(1973) 2 SCC 808, to argue that a witness who stays silent for two months loses credibility, and pointed to a 63-day delay in recording PW-10’s statement, discrepancies on the deceased’s clothing and seized articles, and the absence of any account of how the victim’s hands and legs came to be tied. The Bench held:

“The evidence of a sole eye-witness may well be the basis for convicting an accused person. If the testimony of such witness is found to be reliable and trustworthy, his / her evidence would not require any corroboration. It is the quality of evidence available in a criminal trial that is important and not the quantity of evidence.”

It found PW-10’s deposition consistent with her Section 164 statement, so there was no improvement. It noted that she had no reason to implicate the appellant, particularly as she implicated herself, and that she had “withstood her cross-examination like a rock”, with only minor discrepancies. Her account found support in the inquest report, which recorded urine and probably semen on the deceased, the ballistic report showing that the cartridge found had been fired from the deceased’s own INSAS rifle, and call detail records, tendered without objection, showing contact between PW-10 and both men.

The Court accepted the motive as jealousy, to eliminate the deceased from the relationship. The alibi was supported by two BSF constables, DW-1 Vinod Kumar Yadav and DW-2 Vasim Ali, who said the appellant was resting in the barracks before his midnight duty. The Court found their evidence unreliable as they were his juniors with a likelihood of bias, produced no duty roster, register or movement order, and DW-1 deposed without consulting any duty register while DW-2 could not name his duty pillar. It also noted that both appeared in civil dress, which it described as unusual in an armed force.

On the scope of appellate review, the Bench held that the trial court had the advantage of watching the demeanour of witnesses and that an appellate court should not interfere unless the appraisal of evidence is “clearly wrong or perverse”. Finding no such infirmity, it upheld the conviction and the life sentence, and directed that the appellant be informed of his right to appeal to the Supreme Court.

Appearances:

For the Appellant: Mr. Abhishek Sarkar and Ms. Debopriya Ghosh, Advocates.

For the State: Ms. Jagriti Mishra, Ld. AAAG, with Mr. Uday Bhattacharjee, Advocate.

Case Title: C T Raghunandan @ Raghunandan vs. State of West Bengal, CRA/22/2021

[Read Order]