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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 = 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.=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.

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 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

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