Balraje @ Trimbak v. State of Maharashtra
The Judgment of the was delivered by
P. SATHASIVAM, J. 1. This appeal is directed against the C
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 .ludge, Beed in 0 Sessions Case No. 131 of 1996 on 11.09.1997.
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- E
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 F
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 liis banian, as a result the banian G
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 commotion, H
Rameshwar (PW-1) started coming down. Balraje inflicted
a knife blow on theoleg 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
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
BALRAJE @ TRIMBAK v. STATE OF MAHARASHTRA 769
[P. SATHASIVAM, J.]
of seat covers which were stained with blood in order to A
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 8
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 C
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 D
night of 22.07.1996. pn 26.07.1996, during the
interrogation, the appellant made a stat~ment that the
weapon used by him in the assault was cpncealed by him
at a particular place and he would tai<e it out if the panch
witnesses and police accompany him. Thereafter, they E
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. F
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.
G (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 l.P.C.
The prosecution had examined 19 witnesses and recorded
their evidence. The Sessions Judge, Beed, by order dated H
770
SUPREME COURT REPORTS [201 OJ 6 S.C.R.
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
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
E appellant and Mr. Sankar Chillarge, learned counsel for the
respondent-State.
4. Learned senior counsel for the appellant after taking us
through all the relevant materials contended that the High Court
F 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
G 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
H alleged prosecution witnesses, the Courts below are not
BALRAJE @ TRIMBAK v. STATE OF MAHARASHTRA 771
[P. SATHASIVAM, J.] .
[ustified in confirming the conviction of the
1
sentence of the A
appellant alone. On the other hand, learned
1
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) who are residing in B
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.
c 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 D
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 E
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. F
The presence of Rameshwar Burande (PW-1) at the place of
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 G
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 H
A 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
8 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
C started running towards upper storey by the 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
E 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,
F 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
G though other four accused also ran along with the appellant, it
was appellant-Balaraje who inflicted one more 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
H jeep, identified only the appellant. She also explained how the
BALRAJE @ TRIMBAK v. STATE OF MAHARASHTRA 773
[P. SATHASIVAM, J.]
deceased being thrown on the ground while he was trying to A
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 8
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
appellpnt and his name find place in the First Information Report C
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 D
role of the appellant alone. Taking note of the fact that his name
was 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. E
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 UP. 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 G
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 Raiasthan (2008) 8 SCC H
774 SUPREME COURT REPORTS (2010] 6 S.C.R.
A 270. As discussed above, 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
B 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
C 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 UP. (2006) 2 SCC 450, in view of
Section 464 Cr.P.C. it is possible for the appellate or revisional
D 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
E has assaulted the deceased with a knife. In his examination
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
F 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
G 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
BALRAJE@ TRIMBAK v. STATE OF MAHARASHTRA 775
[P. SATHASIVAM, J.]
that it would not be proper to conclude that they would shield A
the real culprit and rope in innocent persons. 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 th~ accused. But if after careful analysis and scrutiny B
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 c
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 D
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.
D.G. Appeal dismissed. E