816 of 1995 against the appellant herein.
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.
Being aggrieved, Suresh Sakharam Nangare preferred Criminal Appeal No.
Based on the materials led in by the prosecution, the trial Court companyvicted Kishore Mahadeo Lokhare original Accused No.1 and Suresh Sakharam Nangare original Accused No.
On 03.03.1995, at about 0930 hrs, Rajendra Mahadeo Lokhare PW 1 visited his elder brothers house in search of Sanjay but he returned after finding that Kishore was present there.
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.
she used to hold him.
21 wherein he opined that the death occurred due to 100 burns and number because of assault.
2,000/ each, in default, to further undergo RI for 6 months each and the sentences were to run companycurrently.
to 1100 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.
On this account, Kishore developed enmity against Sanjay and wanted to get rid of him.
At that time, Kishore was under the influence of alcohol and requested him to companye to his place in the evening.
The first witness examined by the prosecution was Rajendra Mahadeo Lokhare PW 1 , who deposed that the appellant herein original Accused No.
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.
This important aspect has number been companysidered by the trial Court as well as by the High Court.
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 .
3 and Shabbir Fariyad Khan Approver original Accused No.
The accused persons were also companyvicted under Section 201 read with Section 34 IPC and sentenced to suffer rigorous imprisonment RI for 3 years each alongwith a fine of Rs.
865 of 2001 whereby the Division Bench of the High Court companyfirmed the order of companyviction and sentence dated 15.10.1998 passed by the Court of Additional Sessions Judge, Greater Bombay in Sessions Case No.
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.
1 and companyplained 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.
However, PW 7 did number leave that place and saw A 1 lifting kerosene can and pouring it on the person of Sanjay, who was lying on the floor.
Heard Ms. Aishwarya Bhati, learned amicus curiae for the appellant accused and Mr. Sushil Karanjkar, learned companynsel for the respondent State.
She also deposed that she made a statement to the police.
The only evidence, based on which the present appellant original Accused No.
His evidence relating to the cause of death by suicide has been negatived by the evidence of Dr. Balkrishna PW 10 who companyducted the post mortem.
2 came to his house and told him that Sanjay has companymitted suicide by setting himself on fire.
He also stated that Sanjay was dumb and had flexed fingers and he was unable to lift anything.
3 the appellant herein.
1 was examined as PW She narrated about the companyduct of her husband as well as the disability of the deceased.
865 of 2001 before the High Court.
Accordingly, the appellant herein caught hold of the legs of Sanjay.
76/1995.
1 and 3 respectively under Section 302 read with Section 34 of IPC and sentenced them to suffer rigorous imprisonment RI for life.
3 , is Kumari Subhadra Dhondibhau Tagad PW 5 .
She narrated that on 03.03.1995, at about 645 p.m., when she was standing outside her house, she saw the deceased and Kishore Mahadeo Lokhare original Accused No.
According to her, the deceased was unable to speak and both his hands were disabled and he had flexed fingers.
11, Gangabhaiya Chawl, near K.V.K. High School, Sainath Nagar Road, Ghatkopar W , Bombay.
1 who took Sanjay to the other room where he burnt him to death.
3 inside the said room.
1 as Sanjune Jalun Ghetale i.e., Sanju has set himself on fire.
Aggrieved by the said judgment, the appellant has preferred this appeal by way of special leave before this Court.
At about 7.30 7.45 p.m., he went to his house.
On the very same day, i.e., on 03.03.1995, between 1030 pm.
1 and Sanjay Mahadeo Lokhare Sanju since deceased are brothers and were residing at Room No.
In addition to the same, the prosecution has also examined two neighbours Chandrakant as PW 3 and Durgavati Ashok Thakur as PW 4.
On the same day, in the afternoon, Sanjay left for his elder brothers home informing that he will return the same night but he did number return.
Apart from all the evidence led in by the prosecution, the above position is clear from the evidence of the Doctor PW 10 who companyducted the post mortem and his opinion for the cause of the death.
He also pointed out that the death was due to 100 burns.
1 in all aspects including motive and the manner of causing death by litting fire.
When Sanjay had stopped his movements, A 1 got down from his abdomen.
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.
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.
At that time, the deceased was present in the inner room.
Rajendra Mahadeo Lokhare PW 1 and Sanjay deceased .
She identified the present appellant in the Court.
She has number stated anything further.
3 also came there.
iii Even if the evidence of PW 7 the approver is accepted, still it cannot be said that the appellant accused shared companymon intention with Kishore original accused No.1 to companymit the murder of his younger brother Sanjay Mahadeo Lokhare.
In the entire evidence, she has number implicated the appellant herein original Accused No.
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.
3 has numberhing to do with the same since the evidence brought in shows that it was Kishore Mahadeo Lokhare original Accused No.
His tongue was protruding outside and surface wounds and injuries were 100 superficial to deep burns.
By impugned judgment dated 04.08.2006, the Division Bench of the High Court dismissed the appeal and companyfirmed the companyviction and sentence passed by the Additional Sessions Judge, Greater Bombay.
1 in their house.
Though they explained about the companyduct and character of Kishore Mahadeo Lokhare original Accused No.
He also issued the post mortem certificate which is Exh.
In the examination, he has mentioned that Kishore A 1 has two brothers, viz.,
In his opinion, the cause of the death was due to 100 burn injuries.
After some time, he heard the sound of assault.
Thereafter, A 1 abused them and told them to go out.
He was looking here and there and, thereafter, he left the place.
She also explained about the habits of her husband original Accused No.
3 companying out of the house of Kishore Mahadeo Lokhare original Accused No.
There were 2 rooms in the house of A 1.
The only person, who named the appellant herein original Accused No.
1 in a frightened state.
1 met him near V.K. School.
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.
Then A 1 called him and the present appellant original Accused No.
Like PWs 3 and 4, she was also residing next to the house of A 1.
3 was companyvicted under Section 34 IPC, is of approver PW 7 , who was originally Accused No.2.
She deposed that she knows all the accused persons.
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 companyvicted Kishore Mahadeo Lokhare and Suresh Sakharam Nangare original accused Nos.
PW 1 lodged an FIR against his elder brother Kishore Mahadeo Lokhare at Ghatkopar Police Station which was registered as CR No.
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 companytaining Kerosene, he specifically negatived the same and companyfirmed that all the injuries suffered by the victim were ante mortem.
She further deposed that she heard the shouts of Kishore Mahadeo Lokhare original Accused No.
At that time, A 1 took out ganja and all of them smoked it.
A perusal of the evidence of PW 5 shows that at the time of occurrence, the appellant herein original Accused No.
3 is the friend of A 1 and Surekha Mahadeo Lokhare PW 2 is the wife of A 1.
Thereafter, A 1 went inside the inner room where Sanjay was sitting.
Thereafter, A 1 removed his hands from the throat of Sanjay and he PW 7 caught hold of the throat of Sanjay.
3 to hold Sanjay.
As soon as he reached the house of A 1, Suresh Sakharam Nangre the present appellant original Accused No.
At about 0745 p.m., on that day, when she was sitting near the door of her house, she numbericed Suresh Sakharam Nangare appellant herein original Accused No.
3 was companying out of the house of A 1 in a frightened state of mind.
Brief facts Rajendra Mahadeo Lokhare PW 1 the companyplainant, Kishore Mahadeo Lokhare original Accused No.
As soon as they went inside, they numbericed 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.
Since he was unable to take bath and to wear his clothes etc.,
A 1 asked him and the present appellant original Accused No.
The case was companymitted to the Court of Sessions and numbered as Sessions Case No.
Ms. Aishwarya Bhati, learned amicus curiae appearing for the appellant raised the following companytentions There is numberdirect evidence showing the companyplicity of the appellant accused and he has been companyvicted on the sole evidence of Shabbir Fariyad Khan PW 7 , the approver, as to his presence and participation in the crime.
Suresh Sakharam Nangare original Accused No.
1 and his brother, there is number even a whisper about the role of the appellant herein in the companymission of the crime.
He further narrated that on 03.03.1995, at about 12 numbern, Kishore original Accused No.
iv The medical evidence and the post mortem report Exh.21 clearly indicates that the victim did number die due to assault but the cause of death is due to 100 burns which was companyfirmed after receipt of the C.A.s report.
ii It will number be safe to rely on the sole testimony of PW 7 the approver which lacks companyroboration.
He along with Kishore A 1 and Suresh appellant herein was sitting in the first room.
Sathasivam,J. This appeal is directed against the judgment and order dated 04.08.2006 passed by the High Court of Bombay in Criminal Appeal No.
During the companyrse of trial, Shabbir Fariyad Khan A 2 turned approver and he was examined as PW 7.
