IN THE SUPREME
COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL NO. 1606 OF
2008
Suresh Sakharam Nangare .... Appellant(s)
Versus
The State of Maharashtra
.... Respondent(s)
P.Sathasivam,J.
1) This appeal is directed against the judgment and order dated 04.08.2006
passed by the High Court of Bombay in Criminal Appeal No. 865 of 2001 whereby
the Division Bench of the High Court confirmed the order of conviction and
sentence dated 15.10.1998 passed by the Court of Additional Sessions Judge,
Greater Bombay in Sessions Case No. 816 of 1995 against the appellant herein.
2) Brief facts:
(a) Rajendra Mahadeo Lokhare (PW-1)-the complainant, Kishore Mahadeo
Lokhare-(original Accused No. 1) and Sanjay Mahadeo Lokhare @ Sanju (since
deceased) are brothers and were residing at Room No. 11, Gangabhaiya Chawl, near
K.V.K. High School, Sainath Nagar Road, Ghatkopar (W), Bombay. Suresh Sakharam
Nangare-(original Accused No. 3) is the friend of A-1 and Surekha Mahadeo
Lokhare (PW-2) is the wife of A-1.
(b) Kishore Mahadeo Lokhare (A-1) was addicted to ganja and liquor and used
to ill-treat his wife-Surekha (PW-2) and other members of the family including
his younger brother-Sanjay Mahadeo Lokhare-the deceased. Due to the said
behaviour, all the family members except Kishore Mahadeo Lokhare shifted to
Punjab Chawl, Near Tata Fission Pipe Line, Mulund (W), Bombay.
Surekha (PW-2) was very loving and affectionate to Sanjay-the deceased and
was used to take care of him as a mother as he was suffering from deformity due
to typhoid and had also lost his speech. Sanjay was also having love and
affection as a son towards Surekha (PW-2) and he used to intervene whenever his
elder brother assaulted his wife-Surekha and children. On this account, Kishore
developed enmity against Sanjay and wanted to get rid of him.
(c) On 02.03.1995, Kishore Mahadeo Lokhare came to the house of Rajendra
Mahadeo Lokhare (PW-1) and persuaded him to send Sanjay to his house at
Ghatkopar on the pretext of performing some Pooja. On the same day, in the
afternoon, Sanjay left for his elder brother’s home informing that he will
return the same night but he did not return. On 03.03.1995, at about 09:30 hrs,
Rajendra Mahadeo Lokhare (PW-1) visited his elder brother’s house in search of
Sanjay but he returned after finding that Kishore was present there.
(d) On the very same day, i.e., on 03.03.1995, between 10:30 pm. to 11:00
p.m., PW-1 was informed by two residents of Ghatkopar at his residence that his
younger brother-Sanjay has expired due to burn injuries. PW-1 lodged an FIR
against his elder brother-Kishore Mahadeo Lokhare at Ghatkopar Police Station
which was registered as CR No. 76/1995.
(e) After investigation, the police filed chargesheet against 3 persons,
namely, Kishore Mahadeo Lokhare, Shabbir Fariyad Khan and Suresh Sakharam
Nangare for their involvement in the death of Sanjay Mahadeo Lokhare. The case
was committed to the Court of Sessions and numbered as Sessions Case No. 816 of
1995 and charges were framed against the accused persons under Sections 302 and
201 read with Section 34 of the Indian Penal Code, 1860 (in short the
IPC).
(f) During trial before the Court of Sessions, Shabbir Fariyad Khan turned
approver and by impugned judgment and order dated 15.10.1998, the Additional
Sessions Judge convicted Kishore Mahadeo Lokhare and Suresh Sakharam Nangare
(original accused Nos. 1 and 3 respectively) under Section 302 read with Section
34 of IPC and sentenced them to suffer rigorous imprisonment (RI) for life. The
accused persons were also convicted under Section 201 read with Section 34 IPC
and sentenced to suffer rigorous imprisonment (RI) for 3 years each alongwith a
fine of Rs. 2,000/- each, in default, to further undergo RI for 6 months each
and the sentences were to run concurrently.
(g) Being aggrieved, Suresh Sakharam Nangare preferred Criminal Appeal No.
865 of 2001 before the High Court. By impugned judgment dated 04.08.2006, the
Division Bench of the High Court dismissed the appeal and confirmed the
conviction and sentence passed by the Additional Sessions Judge, Greater Bombay.
(h) Aggrieved by the said judgment, the appellant has preferred this appeal
by way of special leave before this Court.
3) Heard Ms. Aishwarya Bhati, learned amicus curiae for the appellant-
accused and Mr. Sushil Karanjkar, learned counsel for the respondent-State.
4) Ms. Aishwarya Bhati, learned amicus curiae appearing for the appellant
raised the following contentions:
i) There is no direct evidence showing the complicity of the appellant-
accused and he has been convicted on the sole evidence of Shabbir Fariyad Khan
(PW-7), the approver, as to his presence and participation in the crime.
ii) It will not be safe to rely on the sole testimony of PW-7 - the approver
which lacks corroboration.
iii) Even if the evidence of PW-7 - the approver is accepted, still it cannot
be said that the appellant-accused shared common intention with Kishore-
original accused No.1 to commit the murder of his younger brother-Sanjay Mahadeo
Lokhare.
iv) The medical evidence and the post mortem report (Exh.21) clearly
indicates that the victim did not die due to assault but the cause of death is
due to 100% burns which was confirmed after receipt of the C.A.’s report.
With these contentions, learned amicus curiae contended that the conviction
and sentence insofar as the appellant-original Accused No.3, deserves to be set
aside.
5) On the other hand, Mr. Sushil Karanjkar, learned counsel for the
respondent-State, submitted that on a conjoint reading of the statements of the
prosecution witnesses including that of PW-7-original accused No.2, (Approver)
by applying the provisions of Section 34 of IPC, the courts below were justified
in convicting the present appellant along with original accused No.1 under
Sections 302 and 201 read with Section 34 IPC.
6) We have carefully considered the rival contentions and perused all the
materials including oral and documentary evidence.
7) It is not in dispute that originally, 3 persons, viz., Kishore Mahadeo
Lokhare, Shabbir Fariyad Khan and Suresh Sakharam Nangare were implicated as A-1
to A-3 respectively for the cause of death of Sanjay.
During the course of trial, Shabbir Fariyad Khan (A-2) turned approver and he
was examined as PW-7. Based on the materials led in by the prosecution, the
trial Court convicted Kishore Mahadeo Lokhare (original Accused No.1) and Suresh
Sakharam Nangare (original Accused No. 3) - the appellant herein under Section
302 read with Section 34 IPC and sentenced them to suffer rigorous imprisonment
for life. In addition to the same, both were also convicted under Section 201
read with Section 34 IPC and sentenced to suffer R.I. for 3 years each along
with a fine of Rs. 2,000/- each, in default, to further undergo R.I. for 6
months each. Further, it is not in dispute that Kishore Mahadeo
Lokhare-(original Accused No.1) has not appealed against his conviction and
sentence, hence, we are concerned only with Suresh Sakharam Nangare (original
Accused No. 3) - the appellant herein.
8) The first witness examined by the prosecution was Rajendra Mahadeo Lokhare
(PW-1), who deposed that the appellant herein (original Accused No.
3) and Shabbir Fariyad Khan-Approver (original Accused No. 2) came to his
house and told him that Sanjay has committed suicide by setting himself on fire.
His evidence relating to the cause of death by suicide has been negatived by the
evidence of Dr. Balkrishna (PW-10) who conducted the post mortem. When a
specific question was put to the doctor by pointing out that whether a person
like Sanjay, who was having flexed fingers would be in a position to light a
match stick or lift a can containing Kerosene, he specifically negatived the
same and confirmed that all the injuries suffered by the victim were ante
mortem. He also pointed out that the death was due to 100% burns. We will
discuss the evidence of doctor and his report in the later part of our order.
The above deposition of PW-1 shows that he has not implicated the appellant
herein (original Accused No.
3) in the crime.
9) Surekha - wife of Kishore (original Accused No. 1) was examined as PW-
2. She narrated about the conduct of her husband as well as the disability of
the deceased. According to her, the deceased was unable to speak and both his
hands were disabled and he had flexed fingers. She further explained that when
Sanju was young, he had suffered from Typhoid and during that, he had an attack
due to which he lost his power of speech and became disabled. Since he was
unable to take bath and to wear his clothes etc., she used to hold him. She also
explained about the habits of her husband (original Accused No. 1) and
complained that he was addicted to Ganja and liquor and used to beat her and her
children because of which she used to go to her parents house. In the entire
evidence, she has not implicated the appellant herein (original Accused No. 3).
10) In addition to the same, the prosecution has also examined two neighbours
– Chandrakant as PW-3 and Durgavati Ashok Thakur as PW-4.
Though they explained about the conduct and character of Kishore Mahadeo
Lokhare (original Accused No. 1) and his brother, there is not even a whisper
about the role of the appellant herein in the commission of the crime.
11) The only person, who named the appellant herein (original Accused No.
3), is Kumari Subhadra Dhondibhau Tagad (PW-5). She deposed that she knows
all the accused persons. She narrated that on 03.03.1995, at about 6:45 p.m.,
when she was standing outside her house, she saw the deceased and Kishore
Mahadeo Lokhare (original Accused No. 1) in their house. At about 07:45 p.m., on
that day, when she was sitting near the door of her house, she noticed Suresh
Sakharam Nangare- appellant herein (original Accused No.
3) coming out of the house of Kishore Mahadeo Lokhare (original Accused No.
1) in a frightened state. He was looking here and there and, thereafter, he
left the place. She identified the present appellant in the Court. She further
deposed that she heard the shouts of Kishore Mahadeo Lokhare (original Accused
No. 1) as “Sanjune Jalun Ghetale†i.e., “Sanju has set himself on fireâ€.
She also deposed that she made a statement to the police. Like PWs 3 and 4, she
was also residing next to the house of A-1.
12) A perusal of the evidence of PW-5 shows that at the time of occurrence,
the appellant herein (original Accused No. 3) was coming out of the house of A-1
in a frightened state of mind. She has not stated anything further.
13) The only evidence, based on which the present appellant (original Accused
No. 3) was convicted under Section 34 IPC, is of approver (PW-7), who was
originally Accused No.2. In the examination, he has mentioned that Kishore (A-1)
has two brothers, viz., Rajendra Mahadeo Lokhare (PW-1) and Sanjay (deceased).
He also stated that Sanjay was dumb and had flexed fingers and he was unable to
lift anything. He further narrated that on 03.03.1995, at about 12 noon, Kishore
(original Accused No. 1) met him near K.V.K. School. At that time, Kishore was
under the influence of alcohol and requested him to come to his place in the
evening. At about 7.30-7.45 p.m., he went to his house. As soon as he reached
the house of A-1, Suresh Sakharam Nangre - the present appellant (original
Accused No. 3) also came there. There were 2 rooms in the house of A-1. At that
time, the deceased was present in the inner room. He along with Kishore (A-1)
and Suresh (appellant herein) was sitting in the first room. At that time, A-1
took out ganja and all of them smoked it. Thereafter, A-1 went inside the inner
room where Sanjay was sitting. After some time, he heard the sound of assault.
Then A-1 called him and the present appellant (original Accused No. 3) inside
the said room. As soon as they went inside, they noticed that Sanjay was lying
on the floor and A-1 was sitting on his abdomen and was holding his neck with
one hand and fisting with the other hand on his chest and both sides of the
stomach. A-1 asked him and the present appellant (original Accused No. 3) to
hold Sanjay. Accordingly, the appellant herein caught hold of the legs of
Sanjay. Thereafter, A-1 removed his hands from the throat of Sanjay and he
(PW-7) caught hold of the throat of Sanjay. When Sanjay had stopped his
movements, A-1 got down from his abdomen. Thereafter, A-1 abused them and told
them to go out.
However, PW-7 did not leave that place and saw A-1 lifting kerosene can and
pouring it on the person of Sanjay, who was lying on the floor. On seeing this,
he ran away from the place to his house. Even if we accept the evidence of PW-7
(original Accused No. 2), who turned approver, the role allotted to the present
appellant was that of only holding the legs of the deceased as directed by A-1.
It should be noted that A-1 was sitting on his abdomen and was holding his neck
with one hand and was also fisting his chest with the other hand and after
fulfilling the work, at the end, he directed the other two accused persons to
catch hold of the legs of the deceased. Beyond this, there is no role assigned
to the present appellant.
14) Since the conviction of the appellant is based only with the aid of
Section 34 of IPC, it is useful to refer the same:
“34. Acts done by several persons in furtherance of common intention –
When a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner
as if it were done by him alone.†A reading of the above provision makes it
clear that to apply Section 34, apart from the fact that there should be two or
more accused, two factors must be established: (i) common intention, and (ii)
participation of accused in the commission of an offence. It further makes clear
that if common intention is proved but no overt act is attributed to the
individual accused, Section 34 will be attracted as essentially it involves
vicarious liability but if participation of the accused in the crime is proved
and common intention is absent, Section 34 cannot be invoked. In other words, it
requires a pre-arranged plan and pre-supposes prior concert, therefore, there
must be prior meeting of minds.
15) We have already referred to the evidence of prosecution witnesses.
Nobody has implicated the present appellant except the statements made by
PW-5 and PW-7 (the approver). We are satisfied that absolutely there is no
material from the side of the prosecution to show that the present appellant had
any common intention to eliminate the deceased, who was physically disabled. The
only adverse thing against the present appellant is that he used to associate
with A-1 for smoking Ganja. In the absence of common intention, we are of the
view that convicting the appellant with the aid of Section 34 IPC cannot be
sustained.
16) The other important circumstance which is in favour of the appellant
herein is the evidence of the doctor (PW-10) who conducted the post mortem.
In his evidence, PW-10 has stated that on 04.03.1995, at about 08:15 a.m.,
the dead body of one Sanjay Mahadeo Lokhar was brought by the police for post
mortem. He started the examination at 2 p.m. and the same was concluded at 3
p.m. According to him, it was a burnt body, averagely nourished with presence of
rigor mortis in muscles. His tongue was protruding outside and surface wounds
and injuries were 100% superficial to deep burns. In his opinion, the cause of
the death was due to 100% burn injuries. He also issued the post mortem
certificate which is Exh. 21 wherein he opined that the death occurred due to
100% burns and not because of assault. The categorical evidence and the opinion
of PW-10 for the cause of the death of Sanjay make it clear that the appellant
herein – original Accused No. 3 has nothing to do with the same since the
evidence brought in shows that it was Kishore Mahadeo Lokhare – (original
Accused No. 1) who took Sanjay to the other room where he burnt him to death.
This important aspect has not been considered by the trial Court as well as by
the High Court.
17) On appreciation of the entire material, we have already concluded that
the present appellant had no role in the criminal conspiracy and no motive to
kill the deceased. On the other hand, the evidence led in clearly implicates
Kishore Mahadeo Lokhare – (original Accused No. 1) in all aspects including
motive and the manner of causing death by litting fire. Apart from all the
evidence led in by the prosecution, the above position is clear from the
evidence of the Doctor (PW-10) – who conducted the post mortem and his opinion
for the cause of the death. Merely because the approver (PW-7) has stated that
based on the direction of Kishore Mahadeo Lokhare (original Accused No. 1), the
present appellant (original Accused No. 3) caught hold of the legs of the
deceased, in the absence of any motive or intention, mere act of holding his
legs that too at the end of the event when original Accused No. 1 throttled his
neck by sitting on his abdomen, the appellant (original Accused No. 3) cannot be
mulcted with the offence of murder with the aid of Section 34 of IPC,
particularly, when the medical evidence for the cause of death is otherwise,
namely, due to 100% burns.
18) In the light of the above discussion, we hold that the prosecution failed
to establish the guilt insofar as the present appellant (original Accused No. 3)
is concerned and the trial Court committed an error in convicting him under
Sections 302 and 201 read with Section 34 of IPC and sentencing him to
imprisonment for life. For the same reasons, the High Court has also erroneously
confirmed the said conclusion. Accordingly, both the orders are set aside. The
appellant (original Accused No. 3) is ordered to be released forthwith if he is
not needed in any other case.
The appeal is allowed. We record our appreciation for the able assistance
rendered by Ms. Aishwarya Bhati, learned amicus curiae.
.............................................J.
(P. SATHASIVAM)
...........................................J.
(RANJAN GOGOI) NEW DELHI;
SEPTEMBER 21, 2012.
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