Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 appellant alone. On the other hand, learned 1counsel 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 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 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 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 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 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 appellpnt 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 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 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 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 (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 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 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 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.