Sham @ Kishor Bhaskarrao Matkari vs State Of Maharshtra

2) Brief facts:

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.

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.

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-

(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.

(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-

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 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.

Conclusion:

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.