Suresh Sakharam Nangre vs State Of Maharashtra

2) Brief facts:

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’).

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.

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).

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.

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.

SEPTEMBER 21, 2012.