REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1978 OF 2008
Balraje @ Trimbak .... Appellant(s)
Versus
State of Maharashtra .... Respondent(s)
JUDGMENT
P. Sathasivam, J.
1) This appeal is directed against the final judgment and
order dated 17.04.2008 passed by the High Court of
Judicature at Bombay, Bench at Aurangabad in Criminal
Appeal No. 310 of 1997 whereby the High Court dismissed
the appeal of the appellant confirming his conviction and
sentence awarded by the Sessions Judge, Beed in
Sessions Case No. 131 of 1996 on 11.09.1997.
1
2) The case of the prosecution is as under:
a) The deceased-Kailas was residing in Bedre Galli at
Georai along with his family. The house of appellant-
accused is opposite to the house of the deceased. There
was enmity between the family of the appellant-accused
and the family of the deceased. It is said that they were
on inimical terms with each other. On 21.07.1996, at
about 11.30 p.m., when Kailas was sleeping in the front
room of his house, his wife Kausalyabai (PW-2) and their
children were sleeping in the rear side of the room, Balraje
– the appellant had called the deceased to open the door.
On hearing the noise of opening the door by Kailas, his
wife followed him. When Kailas opened the door, Balraje
pulled him out by holding his banian, as a result the
banian was torn and came into the hands of Balraje which
he threw away and then he gave a knife blow on the chest
of Kailas. Thereafter, Kailas started running towards
upstairs and called Rameshwar Burande (PW-1), who was
residing on the first floor of the building. On hearing the
2
commotion, Rameshwar (PW-1) started coming down.
Balraje inflicted a knife blow on the leg of PW-1 and made
him to fall on the ground. Sherya Mote (A-4) also
inflicted blow on the chest of Kailas and he was thrown on
the ground from the steps. The other three persons beat
Kailas with wooden pieces. On hearing shouts, people
gathered and the appellant along with three persons ran
away in a jeep which was brought by them. The
neighbours had taken Kailas and Rameshwar (PW-1) to
the hospital at Georai in a Auto Rickshaw. Dr. Talwadkar,
(PW-17), after giving first aid, referred them to the Civil
Hospital at Beed as he found that the condition of the
injured was critical. Then they were carried to the Civil
Hospital, Beed in a jeep. Kailas died in the Civil Hospital
between 3.00 to 3.30 a.m
b) The complaint of PW-1 was recorded in the Civil
Hospital, Beed which is Ex. 35. On the basis of the said
complaint, FIR was registered with the Police Station,
Beed, for the offences punishable under Sections 147, 148
3
and 307 read with Section 149 of the Indian Penal Code.
The said complaint was then forwarded to the Police
Station, Georai. P.I. Kendre, PW-19, had received the
complaint filed by PW-1 at about 9.30 a.m. on
22.07.1997. On the basis of the said complaint, P.S.I.
Gajare registered Crime No. 132/96 and handed over the
investigation to P.I. Kendre (PW-19). PW-19 went to the
place of incident and had drawn a panchnama of place of
offence (Ex.54). During the Panchanama, he noticed
blood stained mattress, pillow, bed sheet, torn piece of
banian, one chappal and a piece of wood were lying on the
spot. He then went to the house of Balraje – the appellant
herein in his search but he was not there. During his visit
to the house, he found that one jeep was parked in the
premises and there were blood stains in the jeep. He then
attached the said jeep under panchanama as Ex.55. In
the said jeep, he found a piece of plank used in the
assault and one slipper. He had also seized a piece of
stepney and pieces of seat covers which were stained with
4
blood in order to send it to the chemical analyzer.
c) Initially the crime was registered for an offence
punishable under Section 307 of the IPC but later on it
was converted to Section 302 of the IPC. After the death
of Kailas, the panchanama of the inquest of the dead body
was prepared which was filed as Ex.29. The clothes which
were on the dead body were seized and placed as Ex.30.
The postmortem on the dead body was conducted by Dr.
Sudam Mogale (PW-3). The clothes of PW-1 were also
seized. On 25.07.1996, Balraje – the appellant herein and
Suresh Mote A-2 were arrested while they were traveling
in a car. The said car was also attached under
panchanama Ex. 43. The Investigating Officer found one
receipt of Hotel Manor, Aurangabad from the car which
shows that accused had stayed in the said hotel in the
night of 22.07.1996. On 26.07.1996, during the
interrogation, the appellant made a statement that the
weapon used by him in the assault was concealed by him
at a particular place and he would take it out if the panch
5
witnesses and police accompany him. Thereafter, they
went in a police jeep and the appellant took out one knife
which was kept beneath Ashoka tree. There were blood
stains on the said knife. On 31.07.1996, police
interrogated Kailas (A-4) also and during the said
interrogation he made a statement that he concealed the
knife in the field. Thereafter, the police got the knife from
that place. On 05.08.1996, P.I. Kendre (PW-19) then
requested the Naib Tehsildar for preparing the sketch
map of the place of incident and the map was prepared
which is filed as Ex.61.
d) On 13.02.1997, charges were framed against the
accused persons for the offences punishable under
Sections 147, 148, 324, 302 read with Section 149 I.P.C.
The prosecution had examined 19 witnesses and recorded
their evidence. The Sessions Judge, Beed, by order dated
11.09.1997 convicted the appellant and three other
accused, namely, Suresh Mote, Dutta Kale and Kailas @
Shreya Bhagwan Mote guilty for the offence punishable
6
under Section 302/34 IPC and sentenced them to suffer
imprisonment for life and to pay a fine of Rs.1000/- each,
in default, to undergo R.I. for one month under Section
235(2) of the Code of Criminal Procedure.
e) Challenging the said judgment and order of
conviction and sentence, the appellant and the other three
accused filed Criminal Appeal No. 310 of 1997 before the
High Court. The High Court by the impugned judgment
and order dated 17.04.2008 dismissed the appeal in
respect of appellant thereby confirming the conviction and
sentence of the appellant and allowed the appeal in
respect of the other three accused acquitting them from
the charge of offence under Section 302/34 IPC.
Aggrieved by the said judgment, the appellant has filed
this appeal by way of special leave petition before this
Court.
3) Heard Mr. U.U. Lalit, learned senior counsel for the
appellant and Mr. Sankar Chillarge, learned counsel for the
respondent-State.
7
4) Learned senior counsel for the appellant after taking us
through all the relevant materials contended that the High
Court has committed an error in upholding the conviction of
the appellant when on the same set of evidence the other
accused were acquitted by the High Court. He also submitted
that when the alleged eye-witnesses Rameshwar Burandi,
(complainant) PW-1 and Rekha Gire PW-4 narrated about the
prosecution story, the High Court having disbelieved their
version in respect of others, erroneously relied the same in the
case of the appellant while upholding the conviction and
sentence. He further pointed out that PW-1, PW-2 and PW-4
are not eye-witnesses considering the spot panchnama. He
also submitted that in view of material contradiction and
omissions in the alleged prosecution witnesses, the Courts
below are not justified in confirming the conviction of the
sentence of the appellant alone. On the other hand, learned
counsel appearing for the respondent-State by taking us
through the prosecution witnesses and documents submitted
that the Courts below were justified in relying on the evidence
of Rekha Gire (PW-4), Raghunath (PW-12), and Bharat (PW-10)
8
who are residing in the adjacent houses in addition to PW-1 &
PW-2, eye witnesses. He further pointed out that certain
discrepancies even, if any, are minimal and it had not affected
the prosecution case.
5) We have perused the relevant materials and considered
the rival contentions.
6) Among the witnesses examined on the side of the
prosecution, Rameshwar Burande (PW-1), son of the deceased,
Kausalyabai (PW-2) and Rekha Gire (PW-4) are material eye-
witnesses proving the involvement of the appellant. According
to PW-1, on the fateful night between 11:30 to 12:00, on
hearing cries of PW-2, he woke up and noticed the appellant-
Balraje dragging Kailas from the house and inflicted blow with
knife on the abdomen. He also explained that in order to
escape from the accused, he started running towards upstairs.
In order to help the deceased while he was climbing down the
staircase, two persons pulled him down by holding his legs
and gave one blow with some sharp weapon on his legs, as a
result, he fell injured at the bottom of the staircase. The
presence of Rameshwar Burande (PW-1) at the place of
9
incident cannot be disbelieved. Added to it, he also sustained
injuries in the incident.
7) One Raghunath Bedre, step-brother of the deceased Kailas
and neighbor was examined as PW-12. He explained that the
father and grand-father of the appellant were residing in the
opposite house till 1990. He further deposed that on the date
of the incident, he heard cries around 11:30 p.m. and
immediately he woke up. He opened the door of his house and
came out and saw the appellant and three others standing on
the road holding knives and sticks in their hands.
8) According to Kausalyabai (PW-2), she was at the house at
the relevant time with her husband and at about 11.30 p.m.
when they were asleep there was a call from outside, “Kailas
open the door” and, thereafter, Kailas went and opened the
door and she followed him. At that time, the accused asked
him to come out, but Kailas was not ready and, therefore,
accused caught hold of baniyan of Kailas and dragged him out
of the house and inflicted blow with knife on the abdomen.
She also explained that in order to escape from the accused
her husband started running towards upper storey by the
10
staircase and called PW-1 for help and while he (PW-1) was
climbing down the staircase to help the deceased, two persons
pulled him down by holding his legs and gave one blow on his
legs, as a result, he fell injured at the bottom of the staircase.
9) The evidence of PW-2 is supported by the evidence of
Rekha Gire (PW-4). In her evidence, PW-4 explained that she
was residing with her husband Dilip Dire in the house
adjacent to the house of the deceased. She asserted that she
knew the appellant since childhood. According to her, on the
night, since her husband had gone to his native place while
she was sleeping, she heard a noise of jeep at about 11:00-
11:30 p.m. and she opened the door on the belief that her
husband had arrived. But, appellant and four others alighted
from the jeep, entered the house of the deceased and asked
him to open the door. She further narrated that the appellant
pulled out the deceased by holding his baniyan and stabbed
Kailas, the deceased, with knife. Kailas was running towards
upstairs by calling Rameshwar Burande PW-1. She further
explained that though other four accused also ran along with
the appellant, it was appellant-Balaraje who inflicted one more
11
knife blow on the person of Kailas while he was lying on the
ground and thereafter, all the assailants went away in the
jeep. Moreover, Rekha Gire (PW-4), among the persons who
alighted from the jeep, identified only the appellant. She also
explained how the deceased being thrown on the ground while
he was trying to climb the staircase, appellant giving blow with
knife on the abdomen and the other accused giving blow with
knife on the chest.
10) The analysis of evidences of PW-1, PW-2 and PW-4 clearly
prove the involvement of the appellant-Balraje. Though some
of the witnesses turned hostile it had not affected the
prosecution case because of the clear and categorical
statements of PWs 1, 2 and 4. Since all the three identified
the appellant and his name find place in the First Information
Report itself lodged by PW-1, the High Court has rightly
confirmed his conviction and sentence.
11) It is true that the prosecution has implicated four persons
in the commission of offence. The material witnesses PW-1,
PW-2 and PW-4 specifically asserted and identified the role of
the appellant alone. Taking note of the fact that his name was
12
mentioned in the earliest report i.e. FIR and evidence of PW-1,
PW-2 and PW-4, we are of the view that the High Court is fully
justified in accepting the case of the prosecution in so far as
the appellant is concerned.
12) Mr. Lalit, learned senior counsel for the appellant
submitted that in view of the fact that there was only one
injury on the deceased alleged to have been caused by the
appellant, the Court is not justified in convicting and
sentencing him under Section 302. In other words, according
to him, even if the prosecution case is accepted, conviction
and proper sentence would be only under Section 325 for
which he relied on decision of this Court Baul vs. State of
U.P. reported in 1968 (2) SCR 450. On the other hand,
Mr. Sankar Chillarge, learned counsel for the State submitted
that in view of categorical statements of PWs-1, 2, 4 and 11
coupled with the post-mortem report, conviction under Section
302 is appropriate and sentence awarded is maintainable for
which he relied on Radha Mohan Singh @ Lal Saheb & Ors.
vs. State of U.P. (2006) 2 SCC 450 and Dinesh Kumar vs.
State of Rajasthan (2008) 8 SCC 270. As discussed above,
13
and in view of the fact that one blow is on the vital part i.e.
chest and the deceased died due to the said injury, the Court
is fully justified in convicting him under Section 302 and
imposing life sentence. Since we have already discussed the
evidence of those persons in the earlier part of our order, there
is no need to refer the same once again. In view of the factual
details, the decision relied on by Mr. Lalit is distinguishable
and not applicable to the case on hand.
13) Learned senior counsel for the appellant submitted that
having framed charges against all the accused and after
acquittal of all the accused except the appellant, the same
cannot be sustained. We are unable to accept the said
contention. As observed in Radha Mohan Singh @ Lal
Saheb & Others vs. State of U.P. (2006) 2 SCC 450, in view
of Section 464 Cr.P.C. it is possible for the appellate or
revisional court to convict an accused for an offence for which
no charge was framed unless the court is of the opinion that
failure of justice would in fact occasion. In the present case,
the witnesses examined on behalf of the prosecution, whose
testimony has been relied upon, clearly deposed that appellant
14
has assaulted the deceased with a knife. In his examination
under Section under Section 313 Cr.P.C. a specific question
was put to the appellant and he was made aware of the basic
ingredients of the offence and the main facts sought to be
established against him were explained to him. Thus, he can
be convicted under Section 302 IPC for having committed the
murder.
14) Law is fairly well settled that even if acquittal is
recorded in respect of the co-accused on the ground that
there were exaggerations and embellishments, yet
conviction can be recorded if the evidence is found cogent,
credible and truthful in respect of another accused. The
mere fact that the witnesses were related to the deceased
cannot be a ground to discard their evidence. In law,
testimony of an injured witness is given importance.
When the eyewitnesses are stated to be interested and
inimically disposed towards the accused, it has to be
noted that it would not be proper to conclude that they
would shield the real culprit and rope in innocent persons.
15
The truth or otherwise of the evidence has to be weighed
pragmatically. The court would be required to analyse the
evidence of related witnesses and those witnesses who are
inimically disposed towards the accused. But if after
careful analysis and scrutiny of their evidence, the version
given by the witnesses appears to be clear, cogent and
credible, there is no reason to discard the same.
Conviction can be made on the basis of such evidence. In
our case, as observed earlier, the Trial Court and the High
Court have analysed the testimony of PWs 1, 2 and 4 in
great detail. It is revealed that the appellant had inflicted
the first blow on the deceased in his chest and he fell on
the ground. The High Court found that the role ascribed
to the others was not fully satisfied.
15) In the light of the discussion we do not find any merit
in the appeal, on the other hand, we are in agreement with
the conclusion arrived at by the High Court, consequently,
the appeal fails and the same is dismissed.
16
……………………………………J.
(P. SATHASIVAM)
……………………………………J.
(H.L. DATTU)
NEW DELHI;
MAY 10, 2010.
17