SHAM @ KISHOR BHASKARRAO MATKARIversusTHE STATE OF MAHARASHTRA

                      (2011] 11 S.C.R. 744


A         SHAM @ KISHOR BHASKARRAO MATKARI
                          v.
              THE STATE OF MAHARASHTRA
                (Criminal Appeal No. 868 of 2006)
B
                     SEPTEMBER 30, 2011
        [P. SATHASIVAM AND DR. B.S.CHAUHAN, JJ.)

       PENAL CODE, 1860:
c
       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
    premises adjoining to deceased 'MK' owned by PW-3, at
8
    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 the Code of Criminal Procedure, 1973. 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. There is no reason
E to disbelieve the version of PW-7 who witnessed the
    occurrence, neighbors and the landlord (PWs 1 and 3) as
    well as the confessional statement of the accused before
    the Executive Magistrate. Considering the opinion of the
    doctors, (PWs-6 and 11), cause of death and recovery of
F a stone inside the house of 'MK' where the dead bodies
    and the injured were lying, this Court is satisfied that the
    prosecution has established its case beyond reasonable
    doubt for an offence punishable u/s 302 IPC. [para 8] [754-
    C-D; 755-A-D]
G         1.2. When the matter was taken up before the High
    Court, both by the accused and the State, after thorough
    analysis, the High Court confirmed the conviction. As an
    appellate court, the High Court once again analysed the
    prosecution evidence and the defence taken by the
H
   SHAM@ KISHOR BHASKARRAO MATKARI v.                      747
        STATE OF MAHARASHTRA
accused and finally concurred with the conclusion                 A
arrived at by the trial court recording conviction u/ss. 302
and 307 IPC. On going through all the materials, this Court
upholds the said conclusion. [para 10) [756-F-G]
Sentence
                                                                  B
     2.1. It is pertinent to note that the trial court has
recorded the finding that the murders were neither pre-
meditated nor pre-planned on the part of the appellant,
and it was a simple case of land dispute which led to
altercation and murder of three persons. This Court, in           c
series of decisions has indicated various aggravating and
mitigating circumstances. Though the appellant caused
death of three persons, he had no pre-plan to do away
with the family of his brother. The quarrel started due to
the land dispute and, in fact, o.n the fateful night, he was      0
sleeping with the other victims in the same house. Only
on account of property dispute, the .appellant went to the
extent of committing murders. No weapon much less a
dangerous weapon was used in commission of offence.
In these circumstances and in view of the other materials         E.
placed, it is clearly evident that the accused had no pre-
plan or pre-determination to eliminate the family of his
brother. [para 8 and 14] [755-E; 760-C-D]
      2.2. At the time of the incident, i.e., in the year 2001,
the accused was 28 years old and was jobless. He is in            F
jail since 30.06.2001 and in the death cell since the date
of the judgment of the High Court, that is, 03.05.2006. It
is clear that he remained in jail for more than 10 years and
more than five years in death cell. The materials placed
on record show that the antecedents of the accused-               G
appellant are unblemished as nothing is shown by the
prosecution that prior to this incident, he indulged in
criminal activities. There is no reason to disbelieve that
the accused cannot be reformed or rehabilitated and that
 he is likely to continue criminal acts of violence as would      H
    748      SUPREME COURT REPORTS             [2011] 11 S.C.R.


A constitute a continued threat to the society. It cannot be
  said that the accused would be a menace to the society.
  It is relevant to point out that the trial court which had the
  opportunity of noting demeanour of all the witnesses and
  the accused thought it fit that life sentence would be
B appropriate. However, the High Court, while enhancing
  the sentence from life to death, has not assigned
  adequate and acceptable reasons. It is not a rarest of rare
  case where extreme penalty of death is called for.
  Therefore, while maintaining the conviction of the
c accused u/s. 302 IPC, award of extreme penalty of death
  by the High Court is set aside and the sentence of life
  imprisonment as directed by the trial court restored. [760-
  F-H]
      Ajitsingh Hamamsingh Gujral vs. State of Maharashtra,
D JT 2011 (10) SC 465 - distinguished.
       Bachan Singh vs. State of Pur_iab, (1980) 2 SCC 684,
  Machhi Singh and Others vs. State of Punjab, (1983) 3 SCC
  470, C. Muniappan and Others vs. State of Tamil Nadu, 2010
E (10) SCR 262 = (2010) 9 SCC 567 - referred to.
                        Case Law Reference:
          JT 2011 (10) SC 465   distinguished        Para 9
          (1980) 2 sec 684       referred to         Para 9
F         (1983) 3 sec 470       referred to         Para 9
          2010 (10) SCR 262      referred to         Para 9
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 868 of 2006.
G
        From the Judgment & Order dated 3.5.2006 of the High
    Court of Judicature of Bombay Bench at Aurangabad in
    Criminal Appeal No 183 of 2004.
      Tara Chand Sharma, Mahabir Singh Mangla, Uma Datta,
H Kishan Datta and Neelam Sharma for the Appellant.
    SHAM@ KISHOR BHASKARRAO MATKARI v.                       749
         STATE OF MAHARASHTRA
     Sushi! Karanjkar, Sachin Patil, Sanjay Kharde,. Sankar         A
Chillarge, Asha Gopalan Nair for the Respondent.

    The Judgment of the Court was delivered by

     P. SATHASIVAM, J. 1. This appeal is directed against the
common final judgment and order dated 03.05.2006 passed             B
by the High Court of Judicature of Bombay, Bench at
Aurangabad in Criminal Appeal Nos. 183 of 2004 and 391 of
2003 whereby the High Court dismissed the appeal preferred
by the appellant-accused and allowed the appeal preferred by
the State of Maharashtra, respondent herein and enhanced the        C
sentence of life imprisonment to death which was imposed by
the First Ad-hoc Additional Sessions Judge, Jalgaon in
Sessions Case No. 160 of 2001 .
         •
     2. Brief facts:                                                D
    (a) Sham @ Kishor Bhaskarrao Matkari, the appellant-
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          E
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.

     (b) On 28.06.2001, at about 9.00 to 9.15 p.m., when the        F
Complainant came out of his house for collecting the clothes
which were kept for drying, he noticed that some quarrel was
going on between the appellant-accused and his brother
Manohar in their house. He heard the accused saying to his
brother Manohar that you raised hands on me today, I will see       G
you later. Since it would be a dispute over the household matter,
he neglected and went inside the house. In the midnight, at
about 3.00 to 3.30 a.m., the Complainant heard some hue and
cry from the house of Manohar. He also heard the cries of
Meena, the wife of Manohar and the noise of beating and             H
    750     SUPREME COURT REPORTS                 [2011) 11 S.C.R.

A groaning of small child from the house. He also noticed the
  smell of leakage of gas and something burning from the house
  of Manohar. Immediately, he informed Pandurang Patil (PW-
  3) - the landlord and also one Pitamber Choudhary, who was
  residing on the upper floor. Thereafter, all of them proceeded
B to the house of the deceased-Manohar. When they were going
  towards the house of the deceased, they saw the accused
  coming out of the house and when they enquired, the accused
  told that three thieves entered into their house and assaulted
  them. Thereafter, the accused demanded water for drinking.
C They also noticed that the hands and clothes of the appellant-
  accused were stained with blood. 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.
                                                           ..
D        (c) On receipt of the information, the Inspector of Police,
    Dilip Shankarwar (PW-14) rushed to the place of occurrence
    immediately. He saw the appellant-accused sitting by the side
    of water tank and having suffered bleeding injury on his head.
    When enquired, the accused narrated the same story that 3 to
E   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
F   they entered into the house, they noticed smoke coming out of
    the room and Akhilesh, the son of Manohar, was lying in injured
    cQndition 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
G   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
H   for post-mortem. At the same time, spot Panchanama (Ex.24)
   SHAM@ KISHOR BHASKARRAO MATKARI v.                        751
  STATE OF MAHARASHTRA [P. SATHASIVAM, J.]
was drawn by PW-14 and he also seized the articles found lying      A
there including wooden rafter having stains of blood and a big
stone. Since the condition of injured Akhilesh was deteriorating,
he was shifted to Civil Hospital, Jalgaon and he expired on
29.06.2001. Injured Monika and Vishwesh were shifted to Civil
Hospital, Jalgaon. Later on, both were shifted to a private         B
hospital at Aurangabad.

      (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 lnvestiating Officer recorded the      C
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. PW-14 also recorded the statements of Monika and         D
Vishvesh, the injured children.

     (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 E
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-accused
for the offence punishable under Section 302 IPC and
sentenced him to imprisonment for life and to pay a fine of F
Rs.25,000/-, in default of payment of fine, to suffer rigorous
imprisonment for two years and also sentenced him to suffer
rigorous imprisonment for seven years for the offence under
Section 307 IPC, and to pay a fine of Rs.1,000/-, in default of
payment of fine, to suffer rigorous imprisonment for three G
months and acquitted him for the offence punishable under
Section 201 IPC.

    (f) Against the aforesaid judgment, the State of
Maharashtra, respondent herein filed an appeal being Criminal
Appeal No. 391 of 2003 before the High Court of Judicature          H
    752     SUPREME COURT REPORTS               [2011] 11 S.C.R.


A of Bombay, Bench at Aurangabad for enhancement of sentence
  from imprisonment for life to death and the appellant-accused
  also filed appeal being Criminal Appeal No. 183 of 2004. Both
  the appeals were heard together and by a common impugned
  judgment dated 03.05.2006, the High Court dismissed the
B appeal filed by the appellant-accused and allowed the appeal
  filed by the State and enhanced the sentence of life
  imprisonment to death. Aggrieved by the said judgment, the
  appellant-accused has filed this appeal before this Court by
  way of special leave petition.
c         3. Heard Mr. Tara Chand Sharma, learned counsel for the
    appellant-accused and Mr. Sushil Karanjkar, learned counsel
    for the respondent-State.

        4. Learned counsel for the appellant though canvassed the
D ultimate conviction imposed by the trial Court and affirmed by
  the High Court mainly contended before us with regard to the
  death sentence awarded by the High Court. According to him,
  in view of several mitigating circumstances highlighted before
  the High Court, without adverting to the same, the High Court
E awarded the extreme penalty of death sentence which is not
  warranted in the facts and circumstances of the case. On the
  other hand, learned counsel for the State, by taking us through
  the relevant materials, submitted that in view of death of three
  persons and causing injuries to two, all in one family, the High
F Court was justified in awarding capital punishment (death
  sentence) to the appellant-accused. 5. We have carefully perused
  all the relevant materials and considered the rival submissi
  ns.

       6. Very briefly, let us consider the prosecution case and
G the ultimate conviction under Sections 302 and 307 IPC. The
  appellant-accused was the real brother of Manohar Matkari-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 ~ook place
H in the night intervening 28/29.06.2001. Dipak Narayan Thakur
   SHAM @ KISHOR BHASKARRAO MATKARI v.                       753
  STATE OF MAHARASHTRA [P. SATHASIVAM, J.]
(PW-1) was the neighbour of Manohar in one of the premises          A
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            B
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 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        c
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          0
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    E
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 narrated
 the incident to the police which was reduced into writing and      F
 treated as FIR (Ex.P-22).

     7. When the appellant-accused was undergoing treatment
in the hospital, on 30.06.2001, the Police Officer, Zillapeth
Police· Station, Jalgaon thought that the accused may not           G
survive and sent a requisition to Muralidhar Sapkale, (PW-16)
who was the Executive Magistrate working in Treasury Office,
Jalgaon to record his statement. Pursuant to the same, PW-
16 visited the Civil Hospital, Jalgaon and recorded the
statement of the accused which is Ex. 73. All were under the        H
    754     SUPREME COURT REPORTS                 [2011) 11 S.C.R.


A impression that on the death of the accused, the said statement
  will be treated as dying declaration. The said statement, Ex.73,
  contains confession on the part of the accused. The prosecution
  also relied on the statement of Monika, (PW-7), daughter of
  Manohar, who has stated to have seen the part of the
B occurrence.

       8. Learned counsel for the appellant-accused has taken
  us through the evidence of PWs-1, 3, 7 and 16 and all other
  connected documents. We have already stated that Dipak
C Narayan Thakur, (PW-1) is residing in one of the premises
  adjoining to Manohar owned by one Pandurang Patil, (PW-3)
  as tenant, at the relevant time. PW-1 noticed the first
  occurrence, that is, between 9.00 to 9.15 p.m., namely, at the
  time of collecting his clothes which were kept for drying that
  some quarrel was going on between the accused and his
D brother Manohar. It was he who witnessed the second incident
  also, that is, in the mid-night, at about 3.00 to 3.30 a.m., in the
  house of Manohar. He not only heard the cries of Manohar but
  also heard noise of beating and groaning of small children from
  the house. He also noticed leakage of gas from the house of
E Manohar. It is further seen that on his informatio

       , PW-3, their landlord, and one Pitamber Choudhary, also
  joined and noticed the occurrence in the early morning. When
  PW-1 and PW-3 proceeded towards the house of Manohar, they
F saw the accused coming out of the house and when they
  enquired, the accused told that three thieves had entered into
  their house and they assaulted him, his brother, his brother's
  wife and their children. They also noticed blood stains in the
  hands and clothes of the accused. PW-1 also informed that
G 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 was burnt to some extent. Th
  y also noticed a square sized stone weighing roughly 25 kgs. n
  ar the dead body. The two injured boys and girl were also
  taken to the hospital. Dr. Sandip lngale (PW-6) and Dr.
H Sangram Narwade (PW-11), who conducted the post-mortem,
    SHAM @ KISHOR BHASKARRAO MATKARI v.                          755
   STATE OF MAHARASHTRA [P. SATHASIVAM, J.]
were also examined. They also noted the injuries of all the three       A
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          B
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. There is no reason to disbelieve the             c
version of Monika (PW-7) who witnessed the occurrence,
neigbours and landlord of Manohar (PWs 1 and 3) as well as
the confessional statement of the accused before the Executive
Magistrate. Considering the opinion of the doctors, (PWs-6 and
11 ), cause of death and recovery of a stone inside the house
                                                                        0
of Manohar where three different bodies were lying, we are
satisfied that the prosecution has established its case beyond
reasonable doubt for an offence under Section 302 IPC. The
trial Court considering the fact that the murders were neither
pre-meditated nor pre-planned on the part of the appellant, and
a simple case of land dispute which led to altercation and
                                                                        E
murdering of three persons, imposed life imprisonment under
 Section 302 IPC and rigorous imprisonment for seven years
under Section 307 IPC. The said conclusion is acceptable.

About Sentence                                                          F
     9. Learned counsel for the respondent-State, by drawing
our attention to the recent decision of this Court in Ajitsingh
Hamamsingh Gujral vs. State of Maharashtra, JT 2011 (10)
SC 465 submitted that the award of death sentence is                    G
appropriate in the facts and circumstances of this case. In that
case, the accused was charged under Section 302 IPC for
committing murders of his wife, his son and two daughters and
the trial Court, after finding that four members from the same
family were murdered and it was a rarest of rare case, imposed          H
    756      SUPREME COURT REPORTS                  [2011] 11 S.C.R.


A   penalty of death upon the accused. The death sentence was
    confirmed by the High Court and the matter was taken up
    before this Court by way of appeal. This Court, after adverting
    to the earlier decisions as regards to award of death sentence
    including the principles enunciated in Bachan Singh vs. State
B of Punjab, (1980) 2 SCC 684, Machhi Singh and Others vs.
    State of Punjab, (1983) 3 SCC 4 70, C. Muniappan and Others
    vs. State of Tamil Nadu, (2010) 9 sec 567 and various other
    judgments, agreeing with the conclusion arrived at by the trial
    Court and the High Court and finding that all the requisites for
c death penalty as discussed and noted in the various decisions
    are satisfied, confirmed the same. Absolutely, there is no
    quarrel as to the propositions of law and principles laid down
    in those decisions and the ultimate conclusion in Ajitsingh
    Hamamsingh Gujra/ (supra). In the case on hand, the appellant-
D ' accused had no pre-meditated plan or mind to eliminate the
    entire family of his brother, he himself slept with the victims on
    the fateful night, due to land dispute quarrel started and ended
    with murdering three persons. In those circumstances and the
    background and no bad antecedents of 1he accused, the above
E decision relied on by the State is distinguishable and not helpful
    to the claim for retaining the death penalty.

       10. When the matter was taken up before the High Court,
  both by the accused and the State, after thorough analysis, the
  High Court confirmed the conviction. As an appellate Court, the
F High Court once again analysed the prosecution evidence and
  the defence taken by the accused and finally concurred with the
  conclusion arrived at by the trial Court insofar as conviction
  under Sections 302 and 307 IPC are concerned. On going
  through all the materials, we are in entire agreement with the
G said conclusion.

         11. In the appeal filed by the State for enhancement of
    sentence from life imprisonment to death sentence, from the
    evidence on record and considering the materials, the High

H
   SHAM @ KISHOR BHASKARRAO MATKARI v.                         757
  STATE OF MAHARASHTRA [P. SATHASIVAM, J.]
Court identified the following circumstances for imposing             A
extreme penalty of death:

    ~(i) The date and place of incident not disputed.

    (ii) In the incident that occurred, admittedly, victim
    Manohar, his wife Meenabai and son Akhilesh lost their            B
    lives and as has been established on medical evidence,
    undoubtedly, these three victims died homicidal death. In
    that, victim Manohar and his wife Meenabai died on the
    spot having suffered head injuries and in addition to that,
    so far as Meenabai is concerned, she suffered burn                C
    injuries, indicating that the assailant i.e. the respondent
    (original accused) before the Court, caused burns by
    setting her on fire by leaking the gas from Gas Cylinder.

    (iii) The assault on victims by the respondent was aimed          0
    at midnight when the victims were fast asleep and as such
    they were defenceless, showing that the respondent acted
    dastardly and was completely depraved. The nature of the
    injuries, which were inflicted on the child, more particularly,
    the injuries on his head itself show that how the respondent      E
    acted brutally showing extreme depravity and ruthlessness.

    (iv) The respondent was alone in the house during the time
    the occurrence took place at midnight. This is, in the sense,
    that there was no third person in the house, much less,
    having entered the house.                                         F

    (v) As against this, the Respondent put forth a false story
    that 3 to 4 unknown persons entered the house and
    committed murders and murderous assault on the victims.
    This plea of the respondent (original accused) was found          G
    to be false and misguiding the investigating machinery.

    (vi) The respondent (original accused), in his statement
    Ex.-73, has clinchingly stated that the victims were done
    to death by him, so also the injured children at the time and
    place of incident.                                                H
    758       SUPREME COURT REPORTS                  [2011] 11 S.C.R.


A         (vii) In the early morning, witnesses Dipak Narayan Thakur
          and Pandurang Patil noticed the respondent coming out
          of his house having his hands and clothes on his person
          stained with blood.

          (viii) Though the respondent came up with the case that
B
          unknown persons assaulted the victims in the house, he
          remained silent in the house, though, in his presence, the
          victims were done to death and two small children suffered
          serious injuries.

C         (ix) The respondent did not raise hue and cry, though
          according to him, in his presence, unknown persons
          entered the house and assaulted the victims. He did not
          cause alarm to the persons in the vicinity, thereby exhibiting
          most queer and unnatural conduct.
D
          (x) The witnesses, particularly, witness Dipak Thakur, in the
          Midnight, heard cries of a woman groaning in pain and
          early in the morning, saw the respondent coming out of the
          house with blood on his clothes and hands.
E         (xi) Both these witnesses Dipak Thakur and Pandurang
          Patil stated in their evidence that on that night, no third
          person from outside came to the premises, much le
          s, entered in the house of the victims. (xii) The respo

F         dent, in his statement Ex.-73, which is accepted and found
          to be truthful, candidly admitted to have assaulted the
          victims acting in a brutal manner out of vengeance arising
          out of the dispute over the property.

          (xiii) The respondent did not deter, much less felt ashamed
G         even while assaulting small children of his real brother
          when they were caught helpless, as they were sleeping
          when one of them was done to death and other two were
          injured.

H         (xiv) Admittedly, the earlier incident took place at about
    SHAM @ KISHOR BHASKARRAO MATKARI v.                       759
   STATE OF MAHARASHTRA [P. SATHASIVAM, J.]
      08:30 p.m., which ended after quarrel and some beating          A
      by victim Manohar to the respondent. The later incident
      occurred at midnight when the victims were fast asleep.
      The respondent assaulted them one by one and what is
      shocking is that victim Monika had seen the ntspondent
      committing assault after assault on her father, mother and      B
      her brothers Akhilesh and Vishwesh.

      (xv) It is seen that the murders have been committed and
      three persons were done to death in ruthlessness, showing
      that the respondent was totally depraved of and acted most      Cl
      beastly.

     (xvi) Since the earlier incident took place at 08:30 p.m.,
     and the accused, after taking meals at night, remained in
     the house and then at midnight, surreptitiously killed one
     by one and also caused murderous assault on the victims          D
     showing extreme brutality. This shows that the attack by
     the accused was predetermined, so also premeditated.
     Therefore, it is a case of cold-blooded murders."

      12. With the above aggravating circumstances put forth
                                                                      E
 against· the accused, various mitigating circumstances were
 also pressed into service and pointed out that the extreme
 penalty of death is not warranted. It is pointed out that the
 accused is 38 years old and his antecedents are unblemished
 and not having any criminal tendency, there can be no
                                                                      F
 apprehension even of danger to the society, it cannot be ruled
 out that rehabilitation of the accused is impossible and it is not
 a rarest of rare case causing for extreme penalty of death.

       13. Taking into consideration of both aggravating and
  mitigating circumstances, the High Court, after finding that the    G
  accused having slept with the victims in the same house
  proceeded to assault one after another, it must be said that the
· assault was pre-meditated and the accused was determined
  to do the same, hence, it cannot be construed that the accused
  was on the spur of the moment, after having done to death his       H
    760      SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A brother, brother's wife, the accused also gave murderous
  assault on their children and noting that it is a case of extreme
  culpability concluded that the sentence awarded by the trial
  Court of imprisonment of life is inadequate and it is a rarest of
  rare case where extreme penalty of death is called for accepted
B the appeal preferred by the State and enhanced the penalty of
  death by hanging.

    Conclusion:

          14. Since this Court, in series of decisions starting from
C Bachan Singh (supra) indicated various aggravating and
   mitigating circumstances, there is no need.to refer to all those
   decisions. Though the appellant caused death of three persons,
   he had no pre-plan to done away with the family of his brother
   and the quarrel started due to the land dispute and, in fact, on
D the fateful night, he was sleeping with the other victims in the
   same house. In those circumstances and other materials placed
   clearly show that he has no pre-plan or pre-determination to
   eliminate the family of his brother. At the time of the incident,
   f.e., in the year 2001, the accused was 28 years old and was
E. jobless. He is in jail since 30.06.2001 and in the death cell since
   the date of the judgment of the High Court that is on 03.05.2006.
   It is clear that he remained in jail for more than 10 years and
   more than five years in death cell. The materials placed on
   record show that the antecedents of the accused-appellant are
F unblemished as nothing is shown by the prosecution that prior
   to thi.s incident, he was indulged in criminal activities. The
   appellant had no bad antecedents. We have already concluded
   that the murders were not pre-planned or pre-meditated. No
   weapon much less dangerous was used in commission of
G offence, As ·pointed out earlier, only on account of property
   dispute, the appellant went to the extent of committing murders.
   This is clear from the prosecution evidence and the conclusion
   of the trial Court. As rightly pointed out by the counsel for the
   appellant, there is no reason to disbelieve that the appellant
   cannot be reformed or rehabilitated and that he is likely to
H
   SHAM@ KISHOR BHASKARRAO MATKARI v.                         761
  STATE OF MAHARASHTRA [P. SATHASIVAM, J.]
continue criminal acts of violence as would constitute a             A
continued threat to the society. Considering the facts and
circumstances, it cannot be said that the appellant-accused
would be a menace to the society. We are satisfied that the
reasonings assigned by the High Court for awarding extreme
penalty of death sentence are not acceptable. It is relevant to      B
point out that the trial Court which had the opportunity of noting
demeanour of all the witnesses and the accused thought it fit
that life sentence would be appropriate. However, the High
Court while enhancing the same from life to death, in our view,
has not assigned adequate and acceptable reasons. In our             C,
opinion, it is not a rarest of rare case where extreme penalty           I
of death is called for instead sentence of imprisonment for life         ·
as ordered by the trial Court would be appropriate.

     15. In the light of the above discussion, while maintaining
the conviction of the appellant-accused for the offence under        DI
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.
                                                                     E
R.P.                                     Appeal partly allowed.