Trimbak Vs. State of Maharashtra  INSC 381 (10 May 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1978
OF 2008 Balraje @ Trimbak .... Appellant(s) Versus State of Maharashtra ....
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:
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
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.
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.
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.
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.
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.
on the dead body was conducted by Dr.
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.
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.
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
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.
by the said judgment, the appellant has filed this appeal by way of special
leave petition before this Court.
Mr. U.U. Lalit, learned senior counsel for the appellant and Mr. Sankar
Chillarge, learned counsel for the respondent-State.
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
witnesses. He further pointed out that certain discrepancies even, if any, are
minimal and it had not affected the prosecution case.
have perused the relevant materials and considered the rival contentions.
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.
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.
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.
According to Kausalyabai (PW-2), she was at the house at the relevant time with
her husband and at about 11.30 p.m.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
..........................................J. (P. SATHASIVAM)
..........................................J. (H.L. DATTU)
MAY 10, 2010.