REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 868 OF 2006
Sham @ Kishor Bhaskarrao Matkari .... Appellant(s)
Versus
The State of Maharashtra .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) This appeal is directed against the common final
judgment and order dated 03.05.2006 passed by the High
Court of Judicature of Bombay, Bench at Aurangabad in
Criminal Appeal Nos. 183 of 2004 and 391 of 2003 whereby
the High Court dismissed the appeal preferred by the
appellant-accused and allowed the appeal preferred by the
State of Maharashtra, respondent herein and enhanced the
sentence of life imprisonment to death which was imposed by
1
the First Ad-hoc Additional Sessions Judge, Jalgaon in
Sessions Case No. 160 of 2001.
2) Brief facts:
a) Sham @ Kishor Bhaskarrao Matkari, the appellant-
accused was residing with his brother Manohar Matkari (since
deceased) and his family consisting of his wife, Meena (since
deceased) and three children, namely, Akhilesh (since
deceased), Monika (PW-7) and Vishwesh in a rented premises
owned by one Pandurang Patil (PW-3). Manohar, the deceased
was serving in the Railway Mail Service, Bhusawal. Dipak
Narayan Thakur (the Complainant) was their neighbour.
b) On 28.06.2001, at about 9.00 to 9.15 p.m., when the
Complainant came out of his house for collecting the clothes
which were kept for drying, he noticed that some quarrel was
going on between the appellant-accused and his brother
Manohar in their house. He heard the accused saying to his
brother Manohar that you raised hands on me today, I will see
you later. Since it would be a dispute over the household
matter, he neglected and went inside the house. In the
2
midnight, at about 3.00 to 3.30 a.m., the Complainant heard
some hue and cry from the house of Manohar. He also heard
the cries of Meena, the wife of Manohar and the noise of
beating and groaning of small child from the house. He also
noticed the smell of leakage of gas and something burning
from the house of Manohar. Immediately, he informed
Pandurang Patil (PW-3) - the landlord and also one Pitamber
Choudhary, who was residing on the upper floor. Thereafter,
all of them proceeded to the house of the deceased-Manohar.
When they were going towards the house of the deceased, they
saw the accused coming out of the house and when they
enquired, the accused told that three thieves entered into their
house and assaulted them. Thereafter, the accused demanded
water for drinking. They also noticed that the hands and
clothes of the appellant-accused were stained with blood.
When they approached near the house of the deceased, they
noticed smoke coming out of the house. Immediately, PW-3,
the landlord, telephoned the police.
(c) On receipt of the information, the Inspector of Police,
Dilip Shankarwar (PW-14) rushed to the place of occurrence
3
immediately. He saw the appellant-accused sitting by the side
of water tank and having suffered bleeding injury on his head.
When enquired, the accused narrated the same story that 3 to
4 persons entered into their house and assaulted him, his
brother, his brother's wife and children and they tried to burn
his brother's wife and after taking household articles, they fled
away. Since blood was oozing out from his head, PW-14 sent
the accused to the hospital for treatment in a police jeep.
When they entered into the house, they noticed smoke coming
out of the room and Akhilesh, the son of Manohar, was lying
in injured condition on the cot and blood was oozing from his
head. They also noticed that Manohar, his wife Meena,
daughter Monika and son Vishwesh were lying in injured
condition on the floor of the house. They also noticed that
Meena was partially burnt and a stone of big size and a gas
cylinder with tube were lying near her body. PW-14
immediately sent the two injured boys and girl to the
Municipal Hospital, Bhusawal in a police jeep. As Manohar
and his wife were dead, their bodies were sent for post-
mortem. At the same time, spot Panchanama (Ex.24) was
4
drawn by PW-14 and he also seized the articles found lying
there including wooden rafter having stains of blood and a big
stone. Since the condition of injured Akhilesh was
deteriorating, he was shifted to Civil Hospital, Jalgaon and he
expired on 29.06.2001. Injured Monika and Vishwesh were
shifted to Civil Hospital, Jalgaon. Later on, both were shifted
to a private hospital at Aurangabad.
(d) A crime was registered being Crime No. 41 of 2001 for the
offences punishable under Sections 302, 307 and 201 of the
Indian Penal Code, 1860 (in short "IPC"). During the course of
investigation, the Investiating Officer recorded the statements
of Pandurang Patil (PW-3) and others. He also seized clothes
of the deceased, Manohar, Meena and Akhilesh. Since the
accused was detected as perpetrator of the crime, he was
arrested. His nail clippings and blood samples were collected.
PW-14 also recorded the statements of Monika and Vishvesh,
the injured children.
(e) After necessary investigation, charge-sheet was laid in
the Court of Judicial Magistrate, First Class, Bhusawal, who
committed the case to the Court of Sessions. The First Ad-hoc
5
Additional Sessions Judge, Jalgaon, after examining 16
witnesses including Monika, an injured minor girl as PW-7, by
judgment dated 04/05.03.2003 convicted the appellant-
accused for the offence punishable under Section 302 IPC and
sentenced him to imprisonment for life and to pay a fine of
Rs.25,000/-, in default of payment of fine, to suffer rigorous
imprisonment for two years and also sentenced him to suffer
rigorous imprisonment for seven years for the offence under
Section 307 IPC, and to pay a fine of Rs.1,000/-, in default of
payment of fine, to suffer rigorous imprisonment for three
months and acquitted him for the offence punishable under
Section 201 IPC.
(f) Against the aforesaid judgment, the State of
Maharashtra, respondent herein filed an appeal being
Criminal Appeal No. 391 of 2003 before the High Court of
Judicature of Bombay, Bench at Aurangabad for enhancement
of sentence from imprisonment for life to death and the
appellant-accused also filed appeal being Criminal Appeal No.
183 of 2004. Both the appeals were heard together and by a
common impugned judgment dated 03.05.2006, the High
6
Court dismissed the appeal filed by the appellant-accused and
allowed the appeal filed by the State and enhanced the
sentence of life imprisonment to death. Aggrieved by the said
judgment, the appellant-accused has filed this appeal before
this Court by way of special leave petition.
3) Heard Mr. Tara Chand Sharma, learned counsel for the
appellant-accused and Mr. Sushil Karanjkar, learned counsel
for the respondent-State.
4) Learned counsel for the appellant though canvassed the
ultimate conviction imposed by the trial Court and affirmed by
the High Court mainly contended before us with regard to the
death sentence awarded by the High Court. According to him,
in view of several mitigating circumstances highlighted before
the High Court, without adverting to the same, the High Court
awarded the extreme penalty of death sentence which is not
warranted in the facts and circumstances of the case. On the
other hand, learned counsel for the State, by taking us
through the relevant materials, submitted that in view of death
of three persons and causing injuries to two, all in one family,
7
the High Court was justified in awarding capital punishment
(death sentence) to the appellant-accused.
5) We have carefully perused all the relevant materials and
considered the rival submissions.
6) Very briefly, let us consider the prosecution case and the
ultimate conviction under Sections 302 and 307 IPC. The
appellant-accused was the real brother of Manohar Matkari-
the deceased and was residing with him in a rented premise
owned by Pandurang Patil, (PW-3). The said Manohar and his
wife Meena were having three children. The incident took
place in the night intervening 28/29.06.2001. Dipak Narayan
Thakur (PW-1) was the neighbour of Manohar in one of the
premises owned by Pandurang Patil, (PW-3) as tenant at the
relevant point of time. According to PW-1, on the said night,
at about 9.00 to 9.15 p.m., when he came out of his house to
collect the clothes which were kept for drying, he noticed that
some quarrel was going on between the accused and his
brother Manohar in their house. In the mid-night, at about
3.00 to 3.30 a.m., PW-1 again heard some hue and cry from
the house of Manohar. He also heard cries of the wife of
8
Manohar and the noise of beating and groaning of small child
from the house. He also noticed smell of leakage of gas and
something burning in the house of Manohar. On noticing all
these things, PW-1 rushed to his landlord, Pandurang Patil,
(PW-3) and also woke up one Pitamber Choudhary, who was
residing on the upper floor. It is further seen from his
evidence that he then along with those persons proceeded
towards the house of Manohar and saw the accused coming
out of the house and when they enquired him, the accused
told that three thieves had entered into their house and
assaulted him, his brother, his brother's wife and their
children. On hearing this, PW-3 informed the police over
phone. The police arrived there within 10 minutes and took
the accused to the hospital as he had sustained head injury.
The police also took all the three children to the hospital in a
police jeep. Thereafter, PW-1 entered the house of Manohar
along with the police officers. They noticed that Manohar and
his wife Meena were lying dead and Meena was partially burnt.
PW-1 narrated the incident to the police which was reduced
into writing and treated as FIR (Ex.P-22).
9
7) When the appellant-accused was undergoing treatment
in the hospital, on 30.06.2001, the Police Officer, Zillapeth
Police Station, Jalgaon thought that the accused may not
survive and sent a requisition to Muralidhar Sapkale, (PW-16)
who was the Executive Magistrate working in Treasury Office,
Jalgaon to record his statement. Pursuant to the same,
PW-16 visited the Civil Hospital, Jalgaon and recorded the
statement of the accused which is Ex.73. All were under the
impression that on the death of the accused, the said
statement will be treated as dying declaration. The said
statement, Ex.73, contains confession on the part of the
accused. The prosecution also relied on the statement of
Monika, (PW-7), daughter of Manohar, who has stated to have
seen the part of the occurrence.
8) Learned counsel for the appellant-accused has taken us
through the evidence of PWs-1, 3, 7 and 16 and all other
connected documents. We have already stated that Dipak
Narayan Thakur, (PW-1) is residing in one of the premises
adjoining to Manohar owned by one Pandurang Patil, (PW-3)
as tenant, at the relevant time. PW-1 noticed the first
10
occurrence, that is, between 9.00 to 9.15 p.m., namely, at the
time of collecting his clothes which were kept for drying that
some quarrel was going on between the accused and his
brother Manohar. It was he who witnessed the second
incident also, that is, in the mid-night, at about 3.00 to 3.30
a.m., in the house of Manohar. He not only heard the cries of
Manohar but also heard noise of beating and groaning of small
children from the house. He also noticed leakage of gas from
the house of Manohar. It is further seen that on his
information, PW-3, their landlord, and one Pitamber
Choudhary, also joined and noticed the occurrence in the
early morning. When PW-1 and PW-3 proceeded towards the
house of Manohar, they saw the accused coming out of the
house and when they enquired, the accused told that three
thieves had entered into their house and they assaulted him,
his brother, his brother's wife and their children. They also
noticed blood stains in the hands and clothes of the accused.
PW-1 also informed that when they went inside the house in
the morning along with the police and others, they noticed
that Manohar and his wife Meena were lying dead and Meena
11
was burnt to some extent. They also noticed a square sized
stone weighing roughly 25 kgs. near the dead body. The two
injured boys and girl were also taken to the hospital. Dr.
Sandip Ingale (PW-6) and Dr. Sangram Narwade (PW-11), who
conducted the post-mortem, were also examined. They also
noted the injuries of all the three persons. We have already
noted the statement of accused himself to the Executive
Magistrate (PW-16) at the time when he was admitted in the
hospital. Since he was alive, the statement recorded by the
Executive Magistrate had been treated as statement under
Section 164 of the Code of Criminal Procedure, 1973 (in short
"the Code") and proceeded further. Though the said statement
is not a dying declaration, however, the accused knowing all
the seriousness confessed about the killing of his brother, his
wife and their child and causing injuries to other two children.
There is no reason to disbelieve the version of Monika (PW-7)
who witnessed the occurrence, neigbours and landlord of
Manohar (PWs 1 and 3) as well as the confessional statement
of the accused before the Executive Magistrate. Considering
the opinion of the doctors, (PWs-6 and 11), cause of death and
12
recovery of a stone inside the house of Manohar where three
different bodies were lying, we are satisfied that the
prosecution has established its case beyond reasonable doubt
for an offence under Section 302 IPC. The trial Court
considering the fact that the murders were neither pre-
meditated nor pre-planned on the part of the appellant, and a
simple case of land dispute which led to altercation and
murdering of three persons, imposed life imprisonment under
Section 302 IPC and rigorous imprisonment for seven years
under Section 307 IPC. The said conclusion is acceptable.
About Sentence
9) Learned counsel for the respondent-State, by drawing
our attention to the recent decision of this Court in Ajitsingh
Harnamsingh Gujral vs. State of Maharashtra, JT 2011
(10) SC 465 submitted that the award of death sentence is
appropriate in the facts and circumstances of this case. In
that case, the accused was charged under Section 302 IPC for
committing murders of his wife, his son and two daughters
and the trial Court, after finding that four members from the
same family were murdered and it was a rarest of rare case,
13
imposed penalty of death upon the accused. The death
sentence was confirmed by the High Court and the matter was
taken up before this Court by way of appeal. This Court, after
adverting to the earlier decisions as regards to award of death
sentence including the principles enunciated in Bachan
Singh vs. State of Punjab, (1980) 2 SCC 684, Machhi Singh
and Others vs. State of Punjab, (1983) 3 SCC 470,
C. Muniappan and Others vs. State of Tamil Nadu, (2010)
9 SCC 567 and various other judgments, agreeing with the
conclusion arrived at by the trial Court and the High Court
and finding that all the requisites for death penalty as
discussed and noted in the various decisions are satisfied,
confirmed the same. Absolutely, there is no quarrel as to the
propositions of law and principles laid down in those decisions
and the ultimate conclusion in Ajitsingh Harnamsingh
Gujral (supra). In the case on hand, the appellant-accused
had no pre-meditated plan or mind to eliminate the entire
family of his brother, he himself slept with the victims on the
fateful night, due to land dispute quarrel started and ended
with murdering three persons. In those circumstances and
14
the background and no bad antecedents of the accused, the
above decision relied on by the State is distinguishable and
not helpful to the claim for retaining the death penalty.
10) When the matter was taken up before the High Court,
both by the accused and the State, after thorough analysis,
the High Court confirmed the conviction. As an appellate
Court, the High Court once again analysed the prosecution
evidence and the defence taken by the accused and finally
concurred with the conclusion arrived at by the trial Court
insofar as conviction under Sections 302 and 307 IPC are
concerned. On going through all the materials, we are in
entire agreement with the said conclusion.
11) In the appeal filed by the State for enhancement of
sentence from life imprisonment to death sentence, from the
evidence on record and considering the materials, the High
Court identified the following circumstances for imposing
extreme penalty of death:
"(i) The date and place of incident not disputed.
(ii) In the incident that occurred, admittedly, victim
Manohar, his wife Meenabai and son Akhilesh lost their lives
and as has been established on medical evidence,
undoubtedly, these three victims died homicidal death. In
that, victim Manohar and his wife Meenabai died on the spot
15
having suffered head injuries and in addition to that, so far
as Meenabai is concerned, she suffered burn injuries,
indicating that the assailant i.e. the respondent (original
accused) before the Court, caused burns by setting her on
fire by leaking the gas from Gas Cylinder.
(iii) The assault on victims by the respondent was aimed at
midnight when the victims were fast asleep and as such they
were defenceless, showing that the respondent acted
dastardly and was completely depraved. The nature of the
injuries, which were inflicted on the child, more particularly,
the injuries on his head itself show that how the respondent
acted brutally showing extreme depravity and ruthlessness.
(iv) The respondent was alone in the house during the
time the occurrence took place at midnight. This is, in the
sense, that there was no third person in the house, much
less, having entered the house.
(v) As against this, the Respondent put forth a false story
that 3 to 4 unknown persons entered the house and
committed murders and murderous assault on the victims.
This plea of the respondent (original accused) was found to
be false and misguiding the investigating machinery.
(vi) The respondent (original accused), in his statement
Ex.-73, has clinchingly stated that the victims were done to
death by him, so also the injured children at the time and
place of incident.
(vii) In the early morning, witnesses Dipak Narayan Thakur
and Pandurang Patil noticed the respondent coming out of
his house having his hands and clothes on his person
stained with blood.
(viii) Though the respondent came up with the case that
unknown persons assaulted the victims in the house, he
remained silent in the house, though, in his presence, the
victims were done to death and two small children suffered
serious injuries.
(ix) The respondent did not raise hue and cry, though
according to him, in his presence, unknown persons entered
the house and assaulted the victims. He did not cause
alarm to the persons in the vicinity, thereby exhibiting most
queer and unnatural conduct.
16
(x) The witnesses, particularly, witness Dipak Thakur, in
the Midnight, heard cries of a woman groaning in pain and
early in the morning, saw the respondent coming out of the
house with blood on his clothes and hands.
(xi) Both these witnesses Dipak Thakur and Pandurang
Patil stated in their evidence that on that night, no third
person from outside came to the premises, much less,
entered in the house of the victims.
(xii) The respondent, in his statement Ex.-73, which is
accepted and found to be truthful, candidly admitted to have
assaulted the victims acting in a brutal manner out of
vengeance arising out of the dispute over the property.
(xiii) The respondent did not deter, much less felt ashamed
even while assaulting small children of his real brother when
they were caught helpless, as they were sleeping when one of
them was done to death and other two were injured.
(xiv) Admittedly, the earlier incident took place at about
08:30 p.m., which ended after quarrel and some beating by
victim Manohar to the respondent. The later incident
occurred at midnight when the victims were fast asleep. The
respondent assaulted them one by one and what is shocking
is that victim Monika had seen the respondent committing
assault after assault on her father, mother and her brothers
Akhilesh and Vishwesh.
(xv) It is seen that the murders have been committed and
three persons were done to death in ruthlessness, showing
that the respondent was totally depraved of and acted most
beastly.
(xvi) Since the earlier incident took place at 08:30 p.m.,
and the accused, after taking meals at night, remained in
the house and then at midnight, surreptitiously killed one by
one and also caused murderous assault on the victims
showing extreme brutality. This shows that the attack by
the accused was predetermined, so also premeditated.
Therefore, it is a case of cold-blooded murders."
17
12) With the above aggravating circumstances put forth
against the accused, various mitigating circumstances were
also pressed into service and pointed out that the extreme
penalty of death is not warranted. It is pointed out that the
accused is 38 years old and his antecedents are unblemished
and not having any criminal tendency, there can be no
apprehension even of danger to the society, it cannot be ruled
out that rehabilitation of the accused is impossible and it is
not a rarest of rare case causing for extreme penalty of death.
13) Taking into consideration of both aggravating and
mitigating circumstances, the High Court, after finding that
the accused having slept with the victims in the same house
proceeded to assault one after another, it must be said that
the assault was pre-meditated and the accused was
determined to do the same, hence, it cannot be construed that
the accused was on the spur of the moment, after having done
to death his brother, brother's wife, the accused also gave
murderous assault on their children and noting that it is a
case of extreme culpability concluded that the sentence
awarded by the trial Court of imprisonment of life is
18
inadequate and it is a rarest of rare case where extreme
penalty of death is called for accepted the appeal preferred by
the State and enhanced the penalty of death by hanging.
Conclusion:
14) Since this Court, in series of decisions starting from
Bachan Singh (supra) indicated various aggravating and
mitigating circumstances, there is no need to refer to all those
decisions. Though the appellant caused death of three
persons, he had no pre-plan to done away with the family of
his brother and the quarrel started due to the land dispute
and, in fact, on the fateful night, he was sleeping with the
other victims in the same house. In those circumstances and
other materials placed clearly show that he has no pre-plan or
pre-determination to eliminate the family of his brother. At
the time of the incident, i.e., in the year 2001, the accused was
28 years old and was jobless. He is in jail since 30.06.2001
and in the death cell since the date of the judgment of the
High Court that is on 03.05.2006. It is clear that he remained
in jail for more than 10 years and more than five years in
death cell. The materials placed on record show that the
19
antecedents of the accused-appellant are unblemished as
nothing is shown by the prosecution that prior to this
incident, he was indulged in criminal activities. The appellant
had no bad antecedents. We have already concluded that the
murders were not pre-planned or pre-meditated. No weapon
much less dangerous was used in commission of offence. As
pointed out earlier, only on account of property dispute, the
appellant went to the extent of committing murders. This is
clear from the prosecution evidence and the conclusion of the
trial Court. As rightly pointed out by the counsel for the
appellant, there is no reason to disbelieve that the appellant
cannot be reformed or rehabilitated and that he is likely to
continue criminal acts of violence as would constitute a
continued threat to the society. Considering the facts and
circumstances, it cannot be said that the appellant-accused
would be a menace to the society. We are satisfied that the
reasonings assigned by the High Court for awarding extreme
penalty of death sentence are not acceptable. It is relevant to
point out that the trial Court which had the opportunity of
noting demeanour of all the witnesses and the accused
20
thought it fit that life sentence would be appropriate.
However, the High Court while enhancing the same from life to
death, in our view, has not assigned adequate and acceptable
reasons. In our opinion, it is not a rarest of rare case where
extreme penalty of death is called for instead sentence of
imprisonment for life as ordered by the trial Court would be
appropriate.
15) In the light of the above discussion, while maintaining
the conviction of the appellant-accused for the offence under
Section 302 IPC, award of extreme penalty of death by the
High Court is set aside and we restore the sentence of life
imprisonment as directed by the trial Court. The appeal is
allowed in part to the extent mentioned above.
..........................................J.
(P. SATHASIVAM)
..........................................J.
NEW DELHI; (DR. B.S. CHAUHAN)
SEPTEMBER 30, 2011.
21
