BALRAJE @ TRIMBAKversusSTATE OF MAHARASHTRA

                        [2010] 6 S.C.R. 764


A                     BALRAJE@ TRIMBAK
                                 v.
                    STATE OF MAHARASHTRA
                (Criminal Appeal No.1978 of 2008)
                           MAY 10, 2010
8
            [P. SATHASIVAM AND H.L. DATIU, JJ.)

        Penal Code, 1860: s.302- Single knife blow on vital part
  i.e. chest of the deceased caused by appellant resulting in
C death of deceased - Conviction of appellant under s.302 by
  courts below - Interference with - Held: Not called for - There
  were categorical statements of eye-witnesses pro11ing the
  involvement of appellant in the offence - Acquittal of other
  co-accused would not affect the conviction of appellant as
o there was cogent, credible and truthful evidence of witnesses
  against him - Evidence.

         Evidence: Testimony of related/interested/injured
    witnesses - Evidentiary value of.

E      Prosecution case was that there was enmity between
  the family of the appellant-accused and the family of the
  deceased. On the fateful day, at 11.30 p.m. when
  deceased was sleeping in his house, appellant called the
  deceased to open the door. When the deceased opened
F the door, his wife PW-2 also followed him. Appellant
  pulled deceased out and gave knife blow on his chest.
  On hearing the commotion, PW-1 residing on the first
  floor of the same building came down. Appellant inflicted
  a knife blow on his leg. A-4 also inflicted blow on the
G chest of the deceased. The three other accused beat the
  deceased with wooden pieces. Thereafter appellant and
  the other accused persons ran away in a jeep. The
  deceased and PW-1 were taken to the hospital. Deceased
  died at 3.30 a.m. The Trial Court convicted the appellant
H                               764
BALRAJE @ TRIMBAK v. STATE OF MAHARAS~HTRA 765


and the three other accused under Sections 302134 IPC.        A
High Court dismissed the appeal in respect of the
appellant and allowed the appeal of the other three
accused persons. Hence the appeal.

    Dismissing the appeal, the Court                          B
     HELD: 1. The evidences of PW-1, PW-2 and PW-4
clearly proved the involvement of the appellant. Though
some of the witnesses turned hostile, it did not affect the
prosecution case because of the clear and categorical
statements of PWs 1, 2 and 4. Taking note of the fact that    C
the name of the appellant was mentioned in the earliest
report i.e. FIR and evidence of PW-1, PW-2 and PW-4, the
High Court was fully justified in accepting the case of the
prosecution in so far as the appellant was concerned.
[Paras 10, 11] [773-8-D]                                      D

    Baul v. State of UP. 1968 (2) SCR 450, distinguished.

    Radha Mohan Singh@ Lal Saheb & Ors. v. State of UP.
(2006) 2 SCC 450; Dinesh Kumar v. State of Rajasthan
(2008) 8 SCC 270, referred to.                                E

     2. In view of the fact that one blow was on the vital
part i.e. chest and the deceased died due to the said
injury, the courts below were fully justified in convicting
him under Section 302 and imposing life sentence. [Para       F
12] [744-A-B]

    3. The witnesses examined on behalf of the
prosecution, whose testimony was relied upon, clearly
deposed that appellant assaulted the deceased with a
knife. In .his examination under Section 313 Cr.P.C. a        G
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
~ection 302 IPC for having committed the murder. Law          H
    766      SUPREME COURT REPORTS              [201 O] 6 S.C.R.


A 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
B 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
c   would not be proper to conclude that they would shield
    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 the accused. But if after
0
    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. The High Court found that the role ascribed to
E the others was not fully satisfied. The conclusion arrived
    at by the High Court is upheld. [Paras 13, 14) [774-C-H;
    775-A-C]

       Radha Mohan Singh @ Lal Saheb & Others vs. State of
F U.P. (2006) 2 sec 450, relied on.

                        Case Law Reference:
          1968 (2) SCR 450        distinguished       Para 12

G
          (2006) 2 sec 450        referred to         Para 12
          (2008) 8 sec 210        referred to         Para 12
          (2006) 2 sec 450        relied on           Para 13
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
H No. 1978 of 2008.
BALRAJE @ TRIMBAK v. STATE OF MAHARASHTRA 767


    From the Judgment & Order dated 17.04.2008 of the High        A
Court of Judicature at Bombay bench at Aurangabad in
Criminal Appeal No. 310 of 1997.

   U.U. Lalit, Nitin Sangra, Chinmay A. Khalakkar, Chandan
Ramamurthi for the Appellant.
                                                                  B
    Sankar Chillarge, Asha Gopalan Nair for the Respondent.

    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
Sessions Case No. 131 of 1996 on 11.09.1997.                      0

    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
    768      SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A         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
B         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,
c         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
D         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
E         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
F         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
G         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
H         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.


A         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,
B         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
c         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
D         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.]   .
                                                 1
 [ustified in confirming the conviction of the sentence of the         A
                                                1
 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) 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.

       5. We have perused the relevant materials and considered
                                                                       c
  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
    772     SUPREME COURT REPORTS                  [2010] 6 S.C.R.


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
  open the door'' and, thereafter, Kailas went and opened the door
8
  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.
D
          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
                                                                     F
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
H
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