05.03.2025 P.A IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI Death Reference 3 of 2023 in C.R.A. (DB) 1 of 2024 Krishna Pradhan @ Tanka Vs.

The State of West Bengal Dr. Arjun Chowdhury, Adv.

Ms. P. Dutta Chowdhury, Adv.

Ms. Riya Agarwal, Adv.

Ms. Tulip Saha, Adv.

Mr. Koushik Kumar Kanu, Adv.

……. For the appellant Mr. Aditi Shankar Chakraborty, Ld. A.P.P.

Mr. Ujjwal Luksum, Adv.

Mr. Aniruddha Biswas, Adv.

.......... For the State

1. Pursuant to divergence of opinion between two Hon’ble Judges while deciding the death reference and criminal appeal, the matter has been assigned under section 392 Cr.P.C.

2. Facts giving rise to the death reference and the appeal are as follows:-

Factual Matrix :-

3. On 28.12.2021 around 9:55 am one Roshan Chhetri (PW 1) lodged written complaint at Kalimpong Police Station alleging around 9:10 am one Rajen Giri (PW 5) informed him that his godfather Kharka Bahadur Kharka @ Sambhu Chhetri and his godmother Bishnu Maya Chhetri were found dead at their residence. Hearing the news he came to their residence and found pritam roypritam roy Date: 2025.03.05 18:05:53 +05'30'

the elderly couple lying dead on the floor; the floor was covered with blood. Suspecting the heinous act was committed by some unknown miscreants he lodged FIR. Kalimpong Police Station Case No. 318/21 dated 28.12.2021 under section 302 IPC was registered for investigation against unknown miscreants.

4. Investigation was taken up by PW 18, S.I. Ongchuk Lepcha. During investigation the appellant was arrested. Pursuant to his disclosure statement jewellery, currency notes and weapon of offence i.e. Khukuri were seized. In course of investigation, seized jewellery was identified by PWs 8 and 13. In conclusion of investigation charge sheet was submitted against appellant under section 302 IPC.

5. Charge was framed and prosecution examined 18 witnesses and exhibited a number of documents to prove its case.

6. Defence of the appellant was one of innocence and false implication. After examination of the appellant under section 313 CrP.C., trial Judge directed the investigating agency to produce Call Detail Records (for short ‘CDRs’) and Consumer Application Forms (for short ‘CAFs’) in respect of the mobile phones of the appellant and P.W. 14 for a just decision of the case. P.Ws. 19 and 20 were examined to prove the documents as well as the purported certificate under section 65-B of the Evidence Act.

7. In conclusion of trial, the trial Judge convicted the appellant under section 302 and sentenced him to death. 8. The death reference and the appeal were heard by an Hon’ble Division Bench. One of the Hon’ble Judges, namely, Justice Soumen Sen upheld the conviction but altered the sentence from one of death sentence whereas Justice Partha Sarathi Sen acquitted the appellant of the charge. This has given rise to a reference under section

392 Cr.P.C.

Role of the referring Judge:-

9. Section 392 Cr.P.C. postulates in the event of difference of opinion between two Judges, the matter shall be referred to a third Judge and the said Judge after hearing on such points as he deems fit and proper shall deliver an opinion and the matter shall be disposed of in terms of his opinion.

10. The third Judge may also, in an appropriate case, direct the appeal be re-heard and decided by a Larger Bench of Judges.

11. Interpreting the aforesaid provision, the Apex Court in Sajjan Singh vs. State of Madhya Pradesh1, inter alia, held while dealing with a reference under Section 392 Cr.P.C. the third Judge is required to examine the whole case independently and cannot be said to be bound even by that part of the judgment where the two

1 AIR 1998 SC 2756

Judges comprising the Division Bench were in agreement. The Bench held as follows:-

“Statement of law is now quite explicit. It is the third Judge whose opinion matters; against the judgment that follows therefrom that an appeal lies to this Court by way of special leave petition under Article 136 of the Constitution or under Artic