{"id":31276,"date":"2011-09-30T00:00:00","date_gmt":"2011-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sham-kishor-bhaskarrao-matkari-vs-state-of-maharshtra-on-30-september-2011"},"modified":"2016-05-03T16:37:31","modified_gmt":"2016-05-03T11:07:31","slug":"sham-kishor-bhaskarrao-matkari-vs-state-of-maharshtra-on-30-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sham-kishor-bhaskarrao-matkari-vs-state-of-maharshtra-on-30-september-2011","title":{"rendered":"Sham @ Kishor Bhaskarrao Matkari vs State Of Maharshtra on 30 September, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sham @ Kishor Bhaskarrao Matkari vs State Of Maharshtra on 30 September, 2011<\/div>\n
Author: P Sathasivam<\/div>\n
Bench: P. Sathasivam, B.S. Chauhan<\/div>\n
                                                                       REPORTABLE\n\n\n                                                           \n\n               IN THE SUPREME COURT OF INDIA\n\n\n              CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n              CRIMINAL APPEAL NO. 868 OF 2006\n\n\n\n\n\nSham @ Kishor Bhaskarrao Matkari                      .... Appellant(s)\n\n\n\n            Versus\n\n\n\nThe State of Maharashtra                              .... Respondent(s)\n\n\n\n\n\n                            J U D G M E N T \n<\/pre>\n
P. Sathasivam, J.\n<\/p>\n
1)      This   appeal   is   directed   against   the   common   final <\/p>\n
judgment   and   order   dated   03.05.2006   passed   by   the   High <\/p>\n
Court   of   Judicature   of   Bombay,   Bench   at   Aurangabad   in <\/p>\n
Criminal   Appeal   Nos.   183   of   2004   and   391   of   2003   whereby  <\/p>\n
the   High   Court   dismissed   the   appeal   preferred   by   the <\/p>\n
appellant-accused   and   allowed   the   appeal   preferred   by   the <\/p>\n
State   of   Maharashtra,   respondent   herein   and   enhanced   the <\/p>\n
sentence of life imprisonment to death which was imposed by <\/p>\n
                                                                           1<\/span><\/p>\n
the   First   Ad-hoc   Additional   Sessions   Judge,   Jalgaon   in <\/p>\n
Sessions Case No. 160 of 2001.\n<\/p>\n
2)    Brief facts:\n\n\n\na)    Sham   @   Kishor   Bhaskarrao   Matkari,   the   appellant-\n\n\n\n<\/pre>\n
accused was residing with his brother Manohar Matkari (since <\/p>\n
deceased)   and   his   family   consisting   of   his   wife,   Meena   (since <\/p>\n
deceased)   and   three   children,   namely,   Akhilesh   (since <\/p>\n
deceased), Monika (PW-7) and Vishwesh in a rented premises <\/p>\n
owned by one Pandurang Patil (PW-3).  Manohar, the deceased <\/p>\n
was   serving   in   the   Railway   Mail   Service,   Bhusawal.     Dipak <\/p>\n
Narayan Thakur (the Complainant) was their neighbour.\n<\/p>\n
b)    On   28.06.2001,   at   about   9.00   to   9.15   p.m.,   when   the <\/p>\n
Complainant  came  out  of  his  house  for   collecting  the   clothes <\/p>\n
which were kept for drying, he noticed that some quarrel was <\/p>\n
going   on   between   the   appellant-accused   and   his   brother <\/p>\n
Manohar  in their house.   He heard the accused saying to his <\/p>\n
brother Manohar that you raised hands on me today, I will see <\/p>\n
you   later.     Since   it   would   be   a   dispute   over   the   household <\/p>\n
matter,   he   neglected   and   went   inside   the   house.     In   the  <\/p>\n
                                                                            2<\/span><\/p>\n
midnight, at about 3.00 to 3.30 a.m., the Complainant heard <\/p>\n
some hue and cry from the house of Manohar.  He also heard <\/p>\n
the   cries   of   Meena,   the   wife   of   Manohar   and   the   noise   of <\/p>\n
beating and groaning of small child from the house.   He also <\/p>\n
noticed   the   smell   of   leakage   of   gas   and   something   burning <\/p>\n
from   the   house   of   Manohar.     Immediately,   he   informed <\/p>\n
Pandurang Patil (PW-3) – the landlord and also one  Pitamber <\/p>\n
Choudhary, who was residing on the upper floor.   Thereafter, <\/p>\n
all of them proceeded to the house of the deceased-Manohar.\n<\/p>\n
When they were going towards the house of the deceased, they <\/p>\n
saw   the   accused   coming   out   of   the   house   and   when   they <\/p>\n
enquired, the accused told that three thieves entered into their <\/p>\n
house and assaulted them.  Thereafter, the accused demanded <\/p>\n
water   for   drinking.     They   also   noticed   that   the   hands   and <\/p>\n
clothes   of   the   appellant-accused   were   stained   with   blood.\n<\/p>\n
When   they   approached   near   the   house   of   the   deceased,   they <\/p>\n
noticed smoke  coming out  of the  house.   Immediately, PW-3, <\/p>\n
the landlord, telephoned the police.\n<\/p>\n
(c)    On   receipt   of   the   information,   the   Inspector   of   Police, <\/p>\n
Dilip   Shankarwar   (PW-14)   rushed   to   the   place   of   occurrence <\/p>\n
                                                                            3<\/span><\/p>\n
immediately.  He saw the appellant-accused sitting by the side <\/p>\n
of water tank and having suffered bleeding injury on his head.\n<\/p>\n
When enquired, the accused narrated the same story that 3 to <\/p>\n
4   persons   entered   into   their   house   and   assaulted   him,   his <\/p>\n
brother, his brother’s wife and children and they tried to burn <\/p>\n
his brother’s wife and after taking household articles, they fled <\/p>\n
away.   Since blood was oozing out from his head, PW-14 sent <\/p>\n
the   accused   to   the   hospital   for   treatment   in   a   police   jeep.\n<\/p>\n
When they entered into the house, they noticed smoke coming <\/p>\n
out of the room and Akhilesh, the son of Manohar, was lying <\/p>\n
in injured condition on the cot and blood was oozing from his  <\/p>\n
head.     They   also   noticed   that   Manohar,   his   wife   Meena, <\/p>\n
daughter   Monika   and   son   Vishwesh   were   lying   in   injured <\/p>\n
condition   on   the   floor   of   the   house.     They   also   noticed   that <\/p>\n
Meena   was   partially   burnt   and   a   stone   of   big   size   and   a   gas <\/p>\n
cylinder   with   tube   were   lying   near   her   body.     PW-14 <\/p>\n
immediately   sent   the   two   injured   boys   and   girl   to   the <\/p>\n
Municipal   Hospital,   Bhusawal   in   a   police   jeep.     As   Manohar <\/p>\n
and   his   wife   were   dead,   their   bodies   were   sent   for   post-\n<\/p>\n
mortem.     At   the   same   time,   spot   Panchanama   (Ex.24)   was <\/p>\n
                                                                                4<\/span><\/p>\n
drawn   by   PW-14   and   he   also   seized   the   articles   found   lying <\/p>\n
there including wooden rafter having stains of blood and a big <\/p>\n
stone.        Since   the   condition   of   injured   Akhilesh   was <\/p>\n
deteriorating, he was shifted to Civil Hospital, Jalgaon and he  <\/p>\n
expired   on   29.06.2001.     Injured   Monika   and   Vishwesh   were <\/p>\n
shifted to Civil Hospital, Jalgaon.   Later on, both were shifted <\/p>\n
to a private hospital at Aurangabad.\n<\/p>\n
(d)    A crime was registered being Crime No. 41 of 2001 for the <\/p>\n
offences   punishable   under   Sections   302,   307   and   201   of   the  <\/p>\n
Indian Penal Code, 1860 (in short “IPC”).  During the course of  <\/p>\n
investigation, the Investiating Officer recorded the statements <\/p>\n
of Pandurang Patil (PW-3) and others.   He also seized clothes  <\/p>\n
of   the   deceased,   Manohar,   Meena   and   Akhilesh.     Since   the <\/p>\n
accused   was   detected   as   perpetrator   of   the   crime,   he   was <\/p>\n
arrested.  His nail clippings and blood samples were collected.\n<\/p>\n
PW-14 also recorded the statements of Monika and Vishvesh, <\/p>\n
the injured children.\n<\/p>\n
(e)    After   necessary   investigation,   charge-sheet   was   laid   in <\/p>\n
the   Court   of   Judicial   Magistrate,   First   Class,   Bhusawal,   who <\/p>\n
committed the case to the Court of Sessions.  The First Ad-hoc <\/p>\n
                                                                            5<\/span><\/p>\n
Additional   Sessions   Judge,   Jalgaon,   after   examining   16 <\/p>\n
witnesses including Monika, an injured minor girl as PW-7, by <\/p>\n
judgment   dated   04\/05.03.2003   convicted   the   appellant-\n<\/p>\n
accused for the offence punishable under Section 302 IPC and  <\/p>\n
sentenced   him   to   imprisonment   for   life   and   to   pay   a   fine   of <\/p>\n
Rs.25,000\/-,   in   default   of   payment   of   fine,   to   suffer   rigorous <\/p>\n
imprisonment for  two years and also sentenced him to suffer <\/p>\n
rigorous   imprisonment   for   seven   years   for   the   offence   under  <\/p>\n
Section 307 IPC, and to pay a fine of Rs.1,000\/-, in default of <\/p>\n
payment   of   fine,   to   suffer   rigorous   imprisonment   for   three <\/p>\n
months   and   acquitted   him   for   the   offence   punishable   under <\/p>\n
Section 201 IPC.\n<\/p>\n
(f)    Against   the   aforesaid   judgment,   the   State   of <\/p>\n
Maharashtra,   respondent   herein   filed   an   appeal   being <\/p>\n
Criminal   Appeal   No.   391   of   2003   before   the   High   Court   of <\/p>\n
Judicature of Bombay, Bench at Aurangabad for enhancement <\/p>\n
of   sentence   from   imprisonment   for   life   to   death   and   the <\/p>\n
appellant-accused also filed appeal being Criminal Appeal No. <\/p>\n
183 of 2004.   Both the appeals were heard together and by a <\/p>\n
common   impugned   judgment   dated   03.05.2006,   the   High <\/p>\n
                                                                              6<\/span><\/p>\n
Court dismissed the appeal filed by the appellant-accused and <\/p>\n
allowed   the   appeal   filed   by   the   State   and   enhanced   the <\/p>\n
sentence of life imprisonment to death.   Aggrieved by the said <\/p>\n
judgment,   the   appellant-accused   has   filed   this   appeal   before <\/p>\n
this Court by way of special leave petition.\n<\/p>\n
3)    Heard   Mr.  Tara   Chand  Sharma,  learned   counsel   for   the <\/p>\n
appellant-accused and Mr. Sushil Karanjkar, learned counsel <\/p>\n
for the respondent-State.\n<\/p>\n
4)    Learned counsel for the appellant though canvassed the <\/p>\n
ultimate conviction imposed by the trial Court and affirmed by <\/p>\n
the High Court mainly contended before us with regard to the <\/p>\n
death sentence awarded by the High Court.  According to him, <\/p>\n
in view of several mitigating circumstances highlighted before <\/p>\n
the High Court, without adverting to the same, the High Court <\/p>\n
awarded   the   extreme   penalty   of   death   sentence   which   is   not <\/p>\n
warranted in the facts and circumstances of the case.  On the <\/p>\n
other   hand,   learned   counsel   for   the   State,   by   taking   us <\/p>\n
through the relevant materials, submitted that in view of death <\/p>\n
of three persons and causing injuries to two, all in one family, <\/p>\n
                                                                          7<\/span><\/p>\n
the   High  Court  was   justified  in   awarding  capital  punishment <\/p>\n
(death sentence) to the appellant-accused.\n<\/p>\n
5)    We have carefully perused all the relevant materials and  <\/p>\n
considered the rival submissions.\n<\/p>\n
6)    Very briefly, let us consider the prosecution case and the <\/p>\n
ultimate   conviction   under   Sections   302   and   307   IPC.     The <\/p>\n
appellant-accused   was   the   real   brother   of   Manohar   Matkari-\n<\/p>\n
the   deceased   and   was   residing   with   him   in   a   rented   premise <\/p>\n
owned by Pandurang Patil, (PW-3).  The said Manohar and his <\/p>\n
wife   Meena   were   having   three   children.     The   incident   took  <\/p>\n
place in the night intervening 28\/29.06.2001.  Dipak Narayan <\/p>\n
Thakur   (PW-1)   was   the   neighbour   of   Manohar   in   one   of   the  <\/p>\n
premises   owned   by   Pandurang   Patil,   (PW-3)   as   tenant   at   the <\/p>\n
relevant point of time.   According to PW-1, on the said night,  <\/p>\n
at about 9.00 to 9.15 p.m., when he came out of his house to <\/p>\n
collect the clothes which were kept for drying, he noticed that  <\/p>\n
some   quarrel   was   going   on   between   the   accused   and   his <\/p>\n
brother   Manohar   in   their   house.     In   the   mid-night,   at   about <\/p>\n
3.00 to  3.30 a.m., PW-1 again  heard  some  hue  and  cry from <\/p>\n
the   house   of   Manohar.     He   also   heard   cries   of   the   wife   of <\/p>\n
                                                                             8<\/span><\/p>\n
Manohar and the noise of beating and groaning of small child <\/p>\n
from  the   house.    He  also noticed smell  of leakage  of gas and <\/p>\n
something burning in the house of Manohar.   On noticing all  <\/p>\n
these   things,   PW-1   rushed   to   his   landlord,   Pandurang   Patil, <\/p>\n
(PW-3)   and   also   woke   up   one   Pitamber   Choudhary,   who   was <\/p>\n
residing   on   the   upper   floor.     It   is   further   seen   from   his <\/p>\n
evidence   that   he   then   along   with   those   persons   proceeded <\/p>\n
towards   the   house   of   Manohar   and   saw   the   accused   coming <\/p>\n
out   of   the   house   and   when   they   enquired   him,   the   accused <\/p>\n
told   that   three   thieves   had   entered   into   their   house   and <\/p>\n
assaulted   him,   his   brother,   his   brother’s   wife   and   their <\/p>\n
children.     On   hearing   this,   PW-3   informed   the   police   over <\/p>\n
phone.    The  police   arrived   there   within   10   minutes  and   took  <\/p>\n
the accused to the hospital as he had sustained head injury.\n<\/p>\n
The police also took all the three children to the hospital in a <\/p>\n
police   jeep.     Thereafter,   PW-1   entered   the   house   of   Manohar <\/p>\n
along with the police officers.  They noticed that Manohar and <\/p>\n
his wife Meena were lying dead and Meena was partially burnt.\n<\/p>\n
PW-1   narrated   the   incident   to   the   police   which   was   reduced <\/p>\n
into writing and treated as FIR (Ex.P-22).\n<\/p>\n
                                                                            9<\/span><\/p>\n
7)    When   the   appellant-accused   was   undergoing   treatment <\/p>\n
in   the   hospital,   on   30.06.2001,   the   Police   Officer,   Zillapeth <\/p>\n
Police   Station,   Jalgaon   thought   that   the   accused   may   not <\/p>\n
survive and sent a requisition to Muralidhar Sapkale, (PW-16) <\/p>\n
who was the Executive Magistrate working in Treasury Office, <\/p>\n
Jalgaon   to   record   his   statement.     Pursuant   to   the   same, <\/p>\n
PW-16   visited   the   Civil   Hospital,   Jalgaon   and   recorded   the  <\/p>\n
statement of the accused which is Ex.73.   All were under the <\/p>\n
impression   that   on   the   death   of   the   accused,   the   said <\/p>\n
statement   will   be   treated   as   dying   declaration.     The   said <\/p>\n
statement,   Ex.73,   contains   confession   on   the   part   of   the <\/p>\n
accused.     The   prosecution   also   relied   on   the   statement   of <\/p>\n
Monika, (PW-7), daughter of Manohar, who has stated to have <\/p>\n
seen the part of the occurrence.\n<\/p>\n
8)    Learned counsel for the appellant-accused has taken us <\/p>\n
through   the   evidence   of   PWs-1,   3,   7   and   16   and   all   other  <\/p>\n
connected   documents.     We   have   already   stated   that   Dipak <\/p>\n
Narayan   Thakur,   (PW-1)   is   residing   in   one   of   the   premises <\/p>\n
adjoining   to   Manohar   owned   by   one   Pandurang   Patil,   (PW-3) <\/p>\n
as   tenant,   at   the   relevant   time.     PW-1   noticed   the   first <\/p>\n
                                                                            10<\/span><\/p>\n
occurrence, that is, between 9.00 to 9.15 p.m., namely, at the <\/p>\n
time  of  collecting his  clothes  which  were kept  for  drying  that <\/p>\n
some   quarrel   was   going   on   between   the   accused   and   his <\/p>\n
brother   Manohar.     It   was   he   who   witnessed   the   second <\/p>\n
incident also, that is, in the mid-night, at about 3.00 to 3.30 <\/p>\n
a.m., in the house of Manohar.  He not only heard the cries of <\/p>\n
Manohar but also heard noise of beating and groaning of small  <\/p>\n
children from the house.   He also noticed leakage of gas from <\/p>\n
the   house   of   Manohar.     It   is   further   seen   that   on   his <\/p>\n
information,   PW-3,   their   landlord,   and   one   Pitamber <\/p>\n
Choudhary,   also   joined   and   noticed   the   occurrence   in   the <\/p>\n
early morning.   When PW-1 and PW-3 proceeded towards the <\/p>\n
house   of   Manohar,   they   saw   the   accused   coming   out   of   the <\/p>\n
house   and   when   they   enquired,   the   accused   told   that   three <\/p>\n
thieves had entered into their house and they assaulted him, <\/p>\n
his   brother,   his   brother’s   wife   and   their   children.     They   also <\/p>\n
noticed blood stains in the hands and clothes of the accused.\n<\/p>\n
PW-1 also  informed that  when they went inside  the  house  in <\/p>\n
the   morning   along   with   the   police   and   others,   they   noticed <\/p>\n
that Manohar and his wife Meena were lying dead and Meena <\/p>\n
                                                                              11<\/span><\/p>\n
was   burnt   to   some   extent.     They   also   noticed   a   square   sized <\/p>\n
stone weighing roughly 25 kgs. near the dead body.   The two <\/p>\n
injured   boys   and   girl   were   also   taken   to   the   hospital.     Dr. <\/p>\n
Sandip Ingale (PW-6) and Dr. Sangram Narwade (PW-11), who <\/p>\n
conducted   the   post-mortem,   were   also   examined.     They   also <\/p>\n
noted   the   injuries   of   all   the   three   persons.     We   have   already <\/p>\n
noted   the   statement   of   accused   himself   to   the   Executive <\/p>\n
Magistrate   (PW-16)   at   the   time   when   he   was   admitted   in   the <\/p>\n
hospital.     Since   he   was   alive,   the   statement   recorded   by   the <\/p>\n
Executive   Magistrate   had   been   treated   as   statement   under <\/p>\n
Section 164 of the Code of Criminal Procedure, 1973 (in short  <\/p>\n
“the Code”) and proceeded further.  Though the said statement <\/p>\n
is   not   a   dying   declaration,   however,   the   accused   knowing   all <\/p>\n
the seriousness confessed about the killing of his brother, his <\/p>\n
wife and their child and causing injuries to other two children.\n<\/p>\n
There is no reason to disbelieve the version of Monika (PW-7)  <\/p>\n
who   witnessed   the   occurrence,   neigbours   and   landlord   of <\/p>\n
Manohar (PWs 1 and 3) as well as the confessional statement <\/p>\n
of   the   accused   before   the   Executive   Magistrate.     Considering <\/p>\n
the opinion of the doctors, (PWs-6 and 11), cause of death and <\/p>\n
                                                                               12<\/span><\/p>\n
recovery  of a  stone  inside   the   house  of  Manohar  where   three <\/p>\n
different   bodies   were   lying,   we   are   satisfied   that   the <\/p>\n
prosecution has established its case beyond reasonable doubt <\/p>\n
for   an   offence   under   Section   302   IPC.     The   trial   Court <\/p>\n
considering   the   fact   that   the   murders   were   neither   pre-\n<\/p>\n
meditated nor pre-planned on the part of the appellant, and a  <\/p>\n
simple   case   of   land   dispute   which   led   to   altercation   and <\/p>\n
murdering of three persons, imposed life imprisonment under <\/p>\n
Section   302   IPC   and   rigorous   imprisonment   for   seven   years <\/p>\n
under Section 307 IPC.  The said conclusion is acceptable.\n<\/p>\n
About Sentence<\/p>\n
9)    Learned   counsel   for   the   respondent-State,   by   drawing <\/p>\n
our attention to the recent decision of this Court in Ajitsingh  <\/p>\n
Harnamsingh   Gujral  vs.  State   of   Maharashtra,   JT<\/a>   2011 <\/p>\n
(10)   SC   465   submitted   that   the   award   of   death   sentence   is <\/p>\n
appropriate   in   the   facts   and   circumstances   of   this   case.     In <\/p>\n
that case, the accused was charged under Section 302 IPC for <\/p>\n
committing   murders   of   his   wife,   his   son   and   two   daughters <\/p>\n
and the trial Court, after finding that four members from the <\/p>\n
same   family  were  murdered  and  it   was  a   rarest  of   rare  case, <\/p>\n
                                                                            13<\/span><\/p>\n
imposed   penalty   of   death   upon   the   accused.     The   death <\/p>\n
sentence was confirmed by the High Court and the matter was <\/p>\n
taken up before this Court by way of appeal.  This Court, after  <\/p>\n
adverting to the earlier decisions as regards to award of death  <\/p>\n
sentence   including   the   principles   enunciated   in  Bachan  <\/p>\n
Singh vs. State of Punjab, (1980) 2 SCC 684, Machhi Singh  <\/p>\n
and   Others  vs.  State   of   Punjab,<\/a>  (1983)   3   SCC   470, <\/p>\n
C. Muniappan and Others  vs.  State of Tamil Nadu,<\/a> (2010) <\/p>\n
9   SCC   567   and   various   other   judgments,   agreeing   with   the <\/p>\n
conclusion   arrived   at   by   the   trial   Court   and   the   High   Court  <\/p>\n
and   finding   that   all   the   requisites   for   death   penalty   as <\/p>\n
discussed   and   noted   in   the   various   decisions   are   satisfied, <\/p>\n
confirmed the same.   Absolutely, there is no quarrel as to the  <\/p>\n
propositions of law and principles laid down in those decisions <\/p>\n
and   the   ultimate   conclusion   in  Ajitsingh   Harnamsingh  <\/p>\n
Gujral   (supra).    In   the   case   on   hand,   the   appellant-accused <\/p>\n
had   no   pre-meditated   plan   or   mind   to   eliminate   the   entire <\/p>\n
family of his brother, he himself slept with the victims on the  <\/p>\n
fateful   night,   due   to   land   dispute   quarrel   started   and   ended <\/p>\n
with   murdering   three   persons.     In   those   circumstances   and <\/p>\n
                                                                             14<\/span><\/p>\n
the   background   and   no   bad   antecedents   of   the   accused,   the <\/p>\n
above   decision   relied   on   by   the   State   is   distinguishable   and <\/p>\n
not helpful to the claim for retaining the death penalty.\n<\/p>\n
10)    When   the   matter   was   taken   up   before   the   High   Court, <\/p>\n
both   by   the   accused   and   the   State,   after   thorough   analysis, <\/p>\n
the   High   Court   confirmed   the   conviction.     As   an   appellate <\/p>\n
Court,   the   High   Court   once   again   analysed   the   prosecution <\/p>\n
evidence   and   the   defence   taken   by   the   accused   and   finally <\/p>\n
concurred   with   the   conclusion   arrived   at   by   the   trial   Court <\/p>\n
insofar   as   conviction   under   Sections   302   and   307   IPC   are <\/p>\n
concerned.     On   going   through   all   the   materials,   we   are   in  <\/p>\n
entire agreement with the said conclusion.\n<\/p>\n
11)    In   the   appeal   filed   by   the   State   for   enhancement   of <\/p>\n
sentence   from   life   imprisonment   to   death   sentence,   from   the <\/p>\n
evidence   on   record   and   considering   the   materials,   the   High <\/p>\n
Court   identified   the   following   circumstances   for   imposing <\/p>\n
extreme penalty of death:\n<\/p>\n
       “(i)    The date and place of incident not disputed.<\/p>\n
       (ii)    In   the   incident   that   occurred,   admittedly,   victim <\/p>\n
       Manohar, his wife Meenabai and son Akhilesh lost their lives <\/p>\n
       and   as   has   been   established   on   medical   evidence, <\/p>\n
       undoubtedly,   these   three   victims   died   homicidal   death.     In <\/p>\n
       that, victim Manohar and his wife Meenabai died on the spot  <\/p>\n
                                                                                     15<\/span><\/p>\n
having suffered head injuries and in addition to that, so far  <\/p>\n
as   Meenabai   is   concerned,   she   suffered   burn   injuries, <\/p>\n
indicating   that   the   assailant   i.e.   the   respondent   (original <\/p>\n
accused)   before   the   Court,   caused   burns   by   setting   her   on <\/p>\n
fire by leaking the gas from Gas Cylinder.\n<\/p>\n
(iii)     The assault on victims by the respondent was aimed at <\/p>\n
midnight when the victims were fast asleep and as such they <\/p>\n
were   defenceless,   showing   that   the   respondent   acted <\/p>\n
dastardly   and   was  completely   depraved.     The   nature   of   the <\/p>\n
injuries, which were inflicted on the child, more particularly, <\/p>\n
the injuries on his head itself show that how the respondent  <\/p>\n
acted brutally showing extreme depravity and ruthlessness.\n<\/p>\n
(iv)      The   respondent   was   alone   in   the   house   during   the <\/p>\n
time the occurrence took place at midnight.   This is, in the <\/p>\n
sense,   that   there   was   no   third   person   in   the   house,   much  <\/p>\n
less, having entered the house.\n<\/p>\n
(v)       As against this, the Respondent put forth a false story <\/p>\n
that   3   to   4   unknown   persons   entered   the   house   and <\/p>\n
committed   murders   and  murderous  assault   on   the   victims.\n<\/p>\n
This  plea  of the respondent  (original accused)  was found to <\/p>\n
be false and misguiding the investigating machinery.\n<\/p>\n
(vi)      The   respondent   (original   accused),   in   his   statement <\/p>\n
Ex.-73, has clinchingly stated that the victims were done to <\/p>\n
death   by   him,   so   also   the   injured   children   at   the   time   and <\/p>\n
place of incident.\n<\/p>\n
(vii)     In the early morning, witnesses Dipak Narayan Thakur <\/p>\n
and   Pandurang   Patil   noticed   the   respondent   coming   out   of <\/p>\n
his   house   having   his   hands   and   clothes   on   his   person <\/p>\n
stained with blood.\n<\/p>\n
(viii)       Though  the   respondent  came  up with the  case  that <\/p>\n
unknown   persons   assaulted   the   victims   in   the   house,   he <\/p>\n
remained   silent   in   the   house,   though,   in   his   presence,   the <\/p>\n
victims were done  to death and two small children suffered <\/p>\n
serious injuries.\n<\/p>\n
(ix)      The   respondent   did   not   raise   hue   and   cry,   though <\/p>\n
according to him, in his presence, unknown persons entered <\/p>\n
the   house   and   assaulted   the   victims.     He   did   not   cause <\/p>\n
alarm to the persons in the vicinity, thereby exhibiting most <\/p>\n
queer and unnatural conduct.\n<\/p>\n
                                                                                     16<\/span><\/p>\n
(x)       The  witnesses, particularly, witness  Dipak Thakur,  in <\/p>\n
the Midnight, heard cries of a woman groaning  in pain and <\/p>\n
early in the morning, saw the respondent coming out of the <\/p>\n
house with blood on his clothes and hands.\n<\/p>\n
(xi)      Both   these   witnesses   Dipak   Thakur   and   Pandurang <\/p>\n
Patil   stated   in   their   evidence   that   on   that   night,   no   third <\/p>\n
person   from   outside   came   to   the   premises,   much   less, <\/p>\n
entered in the house of the victims.\n<\/p>\n
(xii)     The   respondent,   in   his   statement   Ex.-73,   which   is <\/p>\n
accepted and found to be truthful, candidly admitted to have <\/p>\n
assaulted   the   victims   acting   in   a   brutal   manner   out   of  <\/p>\n
vengeance arising out of the dispute over the property.\n<\/p>\n
(xiii)     The respondent did not deter, much less felt ashamed <\/p>\n
even while assaulting small children of his real brother when  <\/p>\n
they were caught helpless, as they were sleeping when one of  <\/p>\n
them was done to death and other two were injured.\n<\/p>\n
(xiv)       Admittedly,   the   earlier   incident   took   place   at   about <\/p>\n
08:30 p.m., which ended after quarrel and some beating by <\/p>\n
victim   Manohar   to   the   respondent.     The   later   incident <\/p>\n
occurred at midnight when the victims were fast asleep.  The  <\/p>\n
respondent assaulted them one by one and what is shocking <\/p>\n
is   that   victim   Monika   had   seen   the   respondent   committing <\/p>\n
assault after assault on her father, mother and her brothers <\/p>\n
Akhilesh and Vishwesh.\n<\/p>\n
(xv)      It is seen that the murders have been committed and <\/p>\n
three   persons   were   done   to   death   in   ruthlessness,   showing <\/p>\n
that the respondent was totally depraved of and acted most <\/p>\n
beastly.\n<\/p>\n
(xvi)       Since   the   earlier   incident   took   place   at   08:30   p.m., <\/p>\n
and   the   accused,   after   taking   meals   at   night,   remained   in <\/p>\n
the house and then at midnight, surreptitiously killed one by <\/p>\n
one   and   also   caused   murderous   assault   on   the   victims <\/p>\n
showing   extreme   brutality.     This   shows   that   the   attack   by  <\/p>\n
the   accused   was   predetermined,   so   also   premeditated.\n<\/p>\n
Therefore, it is a case of cold-blooded murders.”\n<\/p>\n
                                                                                     17<\/span><\/p>\n
12)    With   the   above   aggravating   circumstances   put   forth <\/p>\n
against   the   accused,   various   mitigating   circumstances   were <\/p>\n
also   pressed   into   service   and   pointed   out   that   the   extreme <\/p>\n
penalty  of  death  is  not   warranted.    It is  pointed out  that   the  <\/p>\n
accused is 38 years old and his antecedents are unblemished <\/p>\n
and   not   having   any   criminal   tendency,   there   can   be   no <\/p>\n
apprehension even of danger to the society, it cannot be ruled  <\/p>\n
out   that   rehabilitation   of   the   accused   is   impossible   and   it   is <\/p>\n
not a rarest of rare case causing for extreme penalty of death.\n<\/p>\n
13)    Taking   into   consideration   of   both   aggravating   and <\/p>\n
mitigating   circumstances,   the   High   Court,   after   finding   that <\/p>\n
the  accused  having  slept  with  the  victims  in  the   same  house <\/p>\n
proceeded   to   assault   one   after   another,   it   must   be   said   that <\/p>\n
the   assault   was   pre-meditated   and   the   accused   was <\/p>\n
determined to do the same, hence, it cannot be construed that <\/p>\n
the accused was on the spur of the moment, after having done <\/p>\n
to   death   his   brother,   brother’s   wife,   the   accused   also   gave <\/p>\n
murderous   assault   on   their   children   and   noting   that   it   is   a <\/p>\n
case   of   extreme   culpability   concluded   that   the   sentence <\/p>\n
awarded   by   the   trial   Court   of   imprisonment   of   life   is <\/p>\n
                                                                               18<\/span><\/p>\n
inadequate   and   it   is   a   rarest   of   rare   case   where   extreme <\/p>\n
penalty of death is called for accepted the appeal preferred by  <\/p>\n
the State and enhanced the penalty of death by hanging.\n<\/p>\n
Conclusion:\n<\/p>\n
14)    Since   this   Court,   in   series   of   decisions   starting   from <\/p>\n
Bachan   Singh   (supra)  indicated   various   aggravating   and <\/p>\n
mitigating circumstances, there is no need to refer to all those <\/p>\n
decisions.     Though   the   appellant   caused   death   of   three <\/p>\n
persons, he  had no  pre-plan  to  done  away with  the  family  of <\/p>\n
his   brother   and   the   quarrel   started   due   to   the   land   dispute <\/p>\n
and,   in   fact,   on   the   fateful   night,   he   was   sleeping   with   the <\/p>\n
other victims in the same house.  In those circumstances and <\/p>\n
other materials placed clearly show that he has no pre-plan or <\/p>\n
pre-determination   to   eliminate   the   family   of   his   brother.     At <\/p>\n
the time of the incident, i.e., in the year 2001, the accused was  <\/p>\n
28 years  old and  was jobless.   He is in  jail  since  30.06.2001 <\/p>\n
and   in   the   death   cell   since   the   date   of   the   judgment   of   the <\/p>\n
High Court that is on 03.05.2006.  It is clear that he remained <\/p>\n
in   jail   for   more   than   10   years   and   more   than   five   years   in <\/p>\n
death   cell.     The   materials   placed   on   record   show   that   the  <\/p>\n
                                                                                19<\/span><\/p>\n
antecedents   of   the   accused-appellant   are   unblemished   as <\/p>\n
nothing   is   shown   by   the   prosecution   that   prior   to   this <\/p>\n
incident, he was indulged in criminal activities.  The appellant <\/p>\n
had no bad antecedents.  We have already concluded that the <\/p>\n
murders   were   not  pre-planned   or   pre-meditated.     No   weapon <\/p>\n
much less dangerous was used in commission of offence.   As  <\/p>\n
pointed   out   earlier,   only   on   account   of   property   dispute,   the <\/p>\n
appellant   went   to  the  extent   of   committing  murders.     This   is <\/p>\n
clear from the prosecution evidence and the conclusion of the <\/p>\n
trial   Court.     As   rightly   pointed   out   by   the   counsel   for   the <\/p>\n
appellant,   there   is   no   reason   to   disbelieve   that   the   appellant <\/p>\n
cannot   be   reformed   or   rehabilitated   and   that   he   is   likely   to <\/p>\n
continue   criminal   acts   of   violence   as   would   constitute   a <\/p>\n
continued   threat   to   the   society.     Considering   the   facts   and <\/p>\n
circumstances,   it   cannot   be   said   that   the   appellant-accused <\/p>\n
would   be   a   menace   to   the   society.     We   are   satisfied   that   the <\/p>\n
reasonings   assigned   by   the   High   Court   for   awarding   extreme <\/p>\n
penalty of death sentence are not acceptable.   It is relevant to  <\/p>\n
point   out   that   the   trial   Court   which   had   the   opportunity   of <\/p>\n
noting   demeanour   of   all   the   witnesses   and   the   accused <\/p>\n
                                                                                20<\/span><\/p>\n
thought   it   fit   that   life   sentence   would   be   appropriate.\n<\/p>\n
However, the High Court while enhancing the same from life to <\/p>\n
death, in our view, has not assigned adequate and acceptable <\/p>\n
reasons.   In our opinion, it is not a rarest of rare case where <\/p>\n
extreme   penalty   of   death   is   called   for   instead   sentence   of <\/p>\n
imprisonment   for   life   as   ordered   by   the   trial   Court   would   be <\/p>\n
appropriate.\n<\/p>\n
15)    In   the   light   of   the   above   discussion,   while   maintaining <\/p>\n
the   conviction   of   the   appellant-accused   for   the   offence   under <\/p>\n
Section   302   IPC,   award   of   extreme   penalty   of   death   by   the  <\/p>\n
High   Court   is   set   aside   and   we   restore   the   sentence   of   life  <\/p>\n
imprisonment   as   directed   by   the   trial   Court.   The   appeal   is <\/p>\n
allowed in part to the extent mentioned above.\n<\/p>\n
                                            ……………………………………J.\n<\/p>\n
                                            (P. SATHASIVAM) <\/p>\n
                                            ……………………………………J.\n<\/p>\n
NEW DELHI;                                    (DR. B.S. CHAUHAN) \n\nSEPTEMBER 30, 2011.                     \n\n\n\n\n\n                                                                               21<\/span>\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sham @ Kishor Bhaskarrao Matkari vs State Of Maharshtra on 30 September, 2011 Author: P Sathasivam Bench: P. Sathasivam, B.S. Chauhan 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-31276","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSham @ Kishor Bhaskarrao Matkari vs State Of Maharshtra on 30 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sham-kishor-bhaskarrao-matkari-vs-state-of-maharshtra-on-30-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sham @ Kishor Bhaskarrao Matkari vs State Of Maharshtra on 30 September, 2011 - 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