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)

J U D G M E N T  

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.  

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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  

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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  

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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  

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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  

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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  

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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.

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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)  

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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  

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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  

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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  

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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  

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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,  

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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  

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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.  

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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.

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...…………………………………J.                   (P. SATHASIVAM)  

...…………………………………J.           (H.L. DATTU)  

NEW DELHI; MAY 10, 2010.                    

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