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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.

REPORTABLE

Map of Mumbai city district and Mumbai suburba...

Map of Mumbai city district and Mumbai suburban district, with major roads, railways and water bodies. (Photo credit: Wikipedia)

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)
2

J U D G M E N T
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 fire”. 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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