SHAM @ KISHOR BHASKARRAO MATKARI versus THE STATE OF MAHARASHTRA

Citation: [2011] 11 S.C.R. 744 · Decided: 30-09-2011 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Case Partly allowed

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Judgment (excerpt)

(2011] 11 S.C.R. 744 
A 
SHAM @ KISHOR BHASKARRAO MATKARI 
B 
c 
v. 
THE STATE OF MAHARASHTRA 
(Criminal Appeal No. 868 of 2006) 
SEPTEMBER 30, 2011 
[P. SATHASIVAM AND DR. B.S.CHAUHAN, JJ.) 
PENAL CODE, 1860: 
ss .. 302 and 307 - Accused causing death of his brother, 
sister-in-law and his nephew and attempting to murder two 
other children - Conviction by trial court - Upheld by High 
Court, but sentence of life imprisonment enhanced by it to 
o death - Held: The evidence and the other material on record 
clearly establish the guilt of the accused and, as such, his 
conviction is upheld - As regards the sentence, though the 
accused caused three murders, he had no pre-plan or pre-
meditation to eliminate the family of his brother - The qua"el 
E started due to land dispute - Accused has unblemished 
antecedents - This is not a rarest of rare case - For the . 
reasons stated in the judgment, the death penalty imposed 
by High Court is set aside and the life imprisonment awarded 
by trial court restored - Sentence. 
F 
The appellant-accused was prosecuted for 
committing murders of his brother, sister-in-law, and his 
nephew and attempting to murder his other nephew and 
the niece (PW 7). The accused was residing with his 
brother 'MK' (deceased) and his family consisting of MK's 
G wife, 'M' (deceased) and their three children in a rented 
premises owned by PW-3. The prosecution case, as 
narrated by the complainant (PW 1) was that on 
28.06.2001, at about 9.00 to 9.15 p.m., he noticed that 
some quarrel was going on between the accused and his 
H 
744 
SHAM@ KISHOR BHASKARRAO MATKARI v. 
745 
STATE OF MAHARASHTRA 
brother in their house. He heard the accused saying to 
A 
his brother that as the latter raised hands on him, he 
would see him later. At about 3.00 to 3.30 a.m., the 
Complainant heard some hue and cry from the house of 
'MK'. He also noticed the smell of leakage of gas and 
something burning from the house of 'MK'. Immediately, 
B 
he informed PW-3 and also one 'PC', who was residing 
on the upper floor. Thereafter, all of them proceeded to 
the house of the deceased-'MK'. In the way they met the 
accused coming out of the house who told them that 
three thieves entered into their house and assaulted c 
them. His hands and clothes were stained with blood. 
When they approached near the house of the deceased, 
they noticed smoke coming out of the house. The 
landlord (PW-3), telephoned the police. On receipt of the 
information, the Inspector of Police, (PW-14) reached the 
0 
place of occurrence. He 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 
found that 'MK', his wife 'M' and their both sons and the 
daughter (PW 7) were lying injured; 'M' 'was partially 
E 
burnt and a stone of big size and a gas cylinder with tube 
were lying near her body. The two injured boys and the 
girl were sent to the Municipal Hospital. As 'MK' and his 
wife were dead, their bodies were sent for post-mortem. 
One of the sons of the deceased couple died in the 
hospital. The trial court convicted the accused u/ss 302 
F 
and 307 IPC and sentenced him to imprisonment for life 
and 7 years RI under the two counts respectively. The 
High Court dismissed the appeal of the accused and 
allowed that of the State for enhancement of sentence 
and while confirming the conviction, awarded the death 
G 
sentence to the accused. 
In the instant appeal filed by the accused, it was 
mainly contended for the appellant that in view of several 
mitigating circumstances, the extreme penalty of death 
H 
746 
SUPREME COURT REPORTS 
[2011] 11 S.C.R. 
A sentence was not warranted in the facts and 
circumstances of the case. Partly allowing the appeal, the 
Court 
HELD: 1.1. PW-1 was residing as tenant in one of the 
8 premises adjoining to deceased 'MK' owned by PW-3, at 
the relevant time. He deposed about both the incidents, 
i.e., the first occurrence between 9.00 to 9.15 p.m., when 
some quarrel was going on between the accused and his 
brother 'MK' as also the second and the main incident 
C which took place in the mid-night, at about 3.00 to 3.30 
a.m., in the house of 'MK'. The doctors (PW-6) and (PW-
. 11 ), who conducted the post-mortem, noted the injuries 
of all the three persons. There is also the statement of the 
accused made to the Executive Magistrate (PW-16) in the 
hospital, which has been treated as statement u/s. 164 of 
D th

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