SURESH SAKHARAM NANGAREversusTHE STATE OF MAHARASHTRA

                       [2012] 7 S.C.R. 1186


A               SURESH SAKHARAM NANGARE
                                 V.
                 THE STATE OF MAHARASHTRA
                (Criminal Appeal No. 1606 of 2008)

                      SEPTEMBER 21, 2012
B
          [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

        PENAL CODE, 1860:

c      ss.302134 and 201134 - A-1 alongwith A-2 and A-3 stated
  to have committed the· murder of his younger brother by
  setting him on fire - A-2 turned approver - Trial court
  convicting A-1and A-3 - Appeal by A-3 only - Conviction and
  sentence of life imprisonment affirmed by High Court -- Held:
  Except the evidence of approver, there is nothing on record
0
  to inculpate the appellant - Even if the evidence of approver
  is accepted, the role attributed to appel/ant is that he caught
  hold of the legs of the deceased as directed by A-1, after the
  latter had finished his work of assaulting the deceased -
E Besides, the doctor, who conducted the post mortem, opined
  that the death occurred due to 100% burns and not because
  of assault - This categorical evidence makes it clear that the
  appellant had nothing to do with the same since the evidence
  brought in shows that it was A-1 who took the deceased to the
  other room where he burnt him to death - This important
F aspect has not been considered by trial court as well as by
  High Court - Prosecution failed to establish the guilt insofar
  as appellant is concerned - Both the courts below committed
  an error in convicting him u/ss 302 and 201 read with s.34 of
  /PC and sentencing him to imprisonment for life -
G Accordingly, both the orders are set aside, and appellant is
  acquitted.

        s. 34 - Common intention - Explained.

H                              1186
   SURESH SAKHARAM NANGARE v. STATE OF                 1187
              MAHARASHTRA

      The appellant (original A-3) was charged alongwith       A
original A-1 for committing the murder of latter's younger
brother. The prosecution case was that A-1 was addicted
to ganja and liquor and used to ill-treat his wife (PW-2)
and other members of the family including the deceased
because of which all the family members except A-1             B
shifted to a different locality. The deceased, who was
suffering from deformity and loss of speech used to
intervene whenever A-1 assaulted his wife and children,
and due to this, A-1 wanted to get rid of the deceased.
On 2.3.1995, A-1 came to his other brother (PW-1) and          c
took the deceased to his house on the pretext of
performing 'pooja'. On 3.3.1995 between 10.30 A.M. and
11.00 P.M., PW-1 was informed that his younger brother
had expired of burn injuries. PW-1 lodged an FIR against
A-1. After investigation, the police filed charge-sheet
                                                               0
against three accused, namely, A-1, A-2 and A-3. During
the trial A-2 turned approver and was examined as PW
7. The trial court convicted A-1 and A-3 u/ss 302/34 and
201/34 and sentenced both of them to imprisonment for
life. A-3 filed an appeal which was dismissed by the High
Court.                                                         E

    Allowing the appeal filed by A-3, the Court

    HELD: 1.1 The first witness examined by the
prosecution was PW-1, who deposed that A-3 and A-2             F
came to his house and told him that the deceased had
committed suicide by setting himself on fire. This
deposition of PW-1 shows that he has not implicated the
appellant (A-3) in the crime. PW-2, the wife of A-1 narrated
about the conduct of her husband as well as the                G
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 also explained
about the habits of her husband (A-1) and complained
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    1188   SUPREME COURT REPORTS               [2012] 7 S.C.R.

A 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. PW-3 and PW-4, the neighbours,
  though explained about the conduct and character of A-
B 1 and his brother, there is not even a whisper about the
  role of the appellant in the commission of the crime. [para
  8-10] [1194-F-G; 1195-B-F]

       1.2 The only person, who named the appellant is PW-
  5, who was also residing next to the house of A-1. She
C deposed that she knew all the accused persons. On the
  day of incident, at about 07:45 p.m., she noticed the
  appellant coming out of the house of A-1 in a frightened
  state. She identified the appellant in the court. She further
  deposed that she heard the shouts of A-1 that the
D deceased had set himself on fire. Thus, a perusal of the
  evidence of PW-5 shows that at the time of occurrence,
  the appellant was coming out of the house of A-1 in a
  frightened state of mind. She has not stated anything
  further. [para 11-12] [1195-G-H; 1196-A-D]
E
       1.3 The· only evidence, based on which the appellant
  was convicted with the aid of s. 34 IPC, is of approver
  (PW-7), who was originally A-2. Even if the evidence of
  PW-7 is accepted, the role allotted to the appellant was
F that of only holding the legs of the deceased as directed
  by A-1. It should be noted that, according to PW-7, A-1
  was sitting on the abdomen of the deceased and was
  holding his neck with one hand and was also fisting his
  chest with the other hand and after fulfilling the work, at
G the end, he directed the other two accused persons to
  catch hold of the legs of the deceased. Beyond this, there
  is no role assigned to the appellant. PW-7 further stated
  that when the deceased had stopped his movements, A-
  1 got down from his abdomen. Thereafter, A-1 told them
H
   SURESH SAKHARAM NANGARE v. STATE OF              1189
              MAHARASHTRA

to go out. However, PW-7 did not leave that place and saw A
A-1 lifting kerosene can and pouring it on the person of
the deceased. On seeing this, he rushed to his house.
[para 13] [1196-E; 1197-C-F]
     1.4 A reading of s. 34 IPC makes it clear that to apply
the section, apart from the fact that there should be two 8
or more accused, two factors must be established: (i)
common intention, and (ii) participation of accused in the
commission of an offence. Thus, it requires a pre-arranged
plan and pre-supposes prior concert; therefore, there
must be prior meeting of minds. This Court is satisfied C
that there is absolutely no material from the side of the
prosecution to show that the appellant had any common
intention to eliminate the deceased, who was physicaHy
disabled. The only adverse thing against the appellant is
that he used to associate with A-1 for smoking Ganja. In D
the absence of common intention, convicting the
appetlant with the aid of s.34 IPC cannot be sustained.
[para 14-15] [1198-A-C, D-E]
    1.5 The other important circumstance which is in         E
favour of the appellant is the evidence of the doctor (PW-
10) who conducted the post mortem. In his evidence, PW-
10 has stated that the injuries on the dead body were
100% superficial to deep burns. In his opinion, the cause
of the death was due to 100% burn injuries. He also
issued the post mortem certificate which is Ext. 21          F
wherein he opined that the death occurred due to 100%
burns and not because of assault. The categorical
evidence and the opinion of PW-10 for the cause of the
death of the deceased makes it clear that the appellant
has nothing to do with the same since the evidence           G
brought in shows that it was A-1 who took the deceased
to the other room where he burnt him to death. This
important aspect has not been considered by the trial
court as well as by the High Court. [para 16] [1198-F-H;
1199-A-B]                                                    H
    1190    SUPREME COURT REPORTS               [2012] 7 S.C.R.


A      1.6 On appreciation of the entire material, it is evident
  that the appellant had no role in the criminal conspiracy
  and no motive to kill the deceased. Therefore, this Court
  holds that the prosecution failed to establish the guilt
  insofar as the appellant (A-3) is concerned and the trial
B court committed an error in convicting him u/ss 302 and
  201 read with s. 34 of IPC and sentencing him to
  imprisonment for life, and the High Court has also
  erroneously confirmed the said conclusion. Accordingly,
  both the orders are set aside, and the appellant is
c acquitted. [para 17-18] [1199-C; G-H; 1200-A]
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1606 of 2008.

      From the Judgment & Order dated 04.08.2006 of the
D Hon'ble High Court of Judicature at Bombay in Crl. Appeal No.
  865 of 2001.

        Aishwarya Bhati (AC), GP. Capt. Karan Singh Bhati,
    Sanjoli Mittal, Karmender Singh, Jyoti Upadhyay, Karan
E   Sharma for the Appellant.

         Sushil Karanjkar, Sanjay Kharde, Asha Gopalan Nair for
    the Respondent.

        The Judgment of the Court was delivered by
F
        P. SATHASIVAM, J. 1. This appeal is directed.against the
    judg~ent and order dated 04.08.2006 passed by the High
  Court of Bombay in Criminal Appeal No. 865 of 2001 whereby
  the Division Bench of the High Court confirmed the order of
G conviction and sentence dated 15.10.1998 passed by the Court
  of Additional Sessions JuJge, Greater Bombay in Sessions
  Case No. 816 of 1995 against the appellant herein.

        2. Brief facts:

H
   SURESH SAKHARAM NANGARE v. STATE OF                     1191
      MAHARASHTRA [P. SATHASIVAM, J.)

     (a) Rajendra Mahadeo Lokhare (PW-1 )-the complainant,         A
Kish ore Mahadeo Lokhare-(original Accused No. 1) and
Sanjay Mahadeo Lokhare @ Sanju (since deceased) are
brothers and were residing at Room No. 11, Gangabhaiya
Chawl, near K.V.K. High School, Sainath Nagar Road,
Ghatkopar (W), Bombay. Suresh Sakharam Nangare-(original           B
Accused No. 3) is the friend of A-1 and Surekha Mahadeo
Lokhare (PW-2) is the wife of A-1.

     (b) Kishore Mahadeo Lokhare (A-1) was addicted to ganja
and liquor and used to ill-treat his wife-Surekha (PW-2) and       C
other members of the family including his younger brother-
Sanjay Mahadeo Lokhare-the deceased. 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. Surekha (PW-2) was very loving and
affectionate to Sanjay-the deceased and was used to take care      D
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           E
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        F
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      G
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
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    1192    SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A   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
B 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
C with Section 34 of the Indian Penal Code, 1860 (in short 'the
  IPC').

       (f) During trial before the Court of Sessions, Shabbir
  Fariyad Khan turned approver and by impugned judgment and
D order dated 15.10.1998, the Additional Sessions Judge
  convicted Kishore Mahadeo Lokhare and Suresh Sakharam
  Nangare (original accused Nos. 1 and 3 respectively) under
  Section 302 read with Section 34 of IPC and sentenced them
  to suffer rigorous imprisonment (RI) for life. The accused
E persons were also convicted under Section 201 read with
  Section 34 IPC and sentenced to suffer rigorous imprisonment
  (RI) for 3 years each alongwith a fine of Rs. 2,000/- each, in
  default, to further undergo RI for 6 months each and the
  sentences were to run concurrently.
F     (g) Being aggrieved, Suresh Sakharam Nangare preferred
  Criminal Appeal No. 865 of 2001 before the High Court. By
  impugned judgment dated 04.08.2006, the Division Bench of
  the High Court dismissed the appeal and confirmed the
  conviction and sentence passed by the Additional Sessions
G Judge, Greater Bombay.

         (h) Aggrieved by the said judgment, the appellant has
    preferred this appeal by way of special leave before this Court.

H
   SURESH SAKHARAM NANGARE v. STATE OF                        1193
      MAHARASHTRA [P. SATHASIVAM, J.]

    3. Heard Ms. Aishwarya Bhati, learned amicus curiae for            A
the appellant-accused and Mr. Sushil Karanjkar, learned
counsel for the respondent-State.

      4. Ms. Aishwarya Bhati, learned amicus curiae appearing
for the appellant raised the following contentions:
                                                                       B
      (i)     There is no direct evidence showing the complicity
              of the appellant-accused and he has been
              convicted on the sole evidence of Shabbir Fariyad
              Khan (PW-7), the approver, as to his presence and
              participation in the crime.                              C

      (ii)    It will not be safe to rely on the sole testimony of
              PW-7 - the approver which lacks corroboration.

      (iii)   Even if the evidence of PW-7 - the approver is
              accepted, still it cannot be said that the appellant-    D
              accused shared common intention with Kishore-
              original accused No.1 to commit the murder of his
              younger brother-Sanjay Mahadeo Lokhare.

      (iv)    The medical evidence and the post mortem report          E
              (Exh.21) clearly indicates that the victim did not die
              due to assault but the cause of death is due to
              100% burns which was confirmed after receipt of
              the C.A.'s report.
                                                                       F
With these contentions, learned amicus curiae contended that
the conviction and sentence insofar as the appellant-original
Accused No.3, deserves to be set aside.

      5. On the other hand, Mr. Sushil Karanjkar, learned counsel
for the respondent-State, submitted that on a conjoint reading         G
of the statements of the prosecution witnesses including that
of PW-7-original accused No.2, (Approver) by applying the
provisions of Section 34 of IPC, the courts below were justified
in convicting the present appellant along with original accused
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    1194     SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A   No.1 under Sections 302 and 201 read with Section 34 IPC.

        6. We have carefully considered the rival contentions and
    perused all the materials including oral and documentary
    evidence.
B      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
C 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
D suffer rigorous imprisonment for life. In addition to the same,
  both wete 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
E 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.

        8. The first witness examined by the prosecution was
F Rajendra Mahadeo Lokhare (PW-1), who deposed that the
  appellant herein (original Accused No. 3) and Shabbir Fariyad
  Khan-Approver (original Accused No. 2) came to his house and
  told him that Sanjay has committed suicide by setting himself
  on fire. His evidence relating to the cause of death by suicide
G has been negatived by the evidence of Dr. Balkrishna (PW-10)
  who conducted the post mortem. 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 containing Kerosene, he
H
    SURESH SAKHARAM NANGARE v. STATE OF                   1195
       MAHARASHTRA [P. SATHASIVAM, J.]

specifically negatived the same and confirmed that all the         A
injuries suffered by the victim were ante mortem. He also
pointed out that the death was due to 100% burns. We will
discuss the evidence of doctor and his report in the later part
of our order. The above deposition of PW-1 shows that he has
not implicated the appellant herein (original Accused No. 3) in    B
the crime.

     9. Surekha - wife of Kishore (original Accused No. 1) was
examined as PW-2. She narrated about the conduct of her
husband as well as the disability of the deceased. According       C
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       D
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    E
Accused No. 3).

      10. In addition to the same, the prosecution has also
examined two neighbours - Chandrakant as PW-3 and
Durgavati Ashok Thakur as PW-4. Though they explained about        F
the conduct and character of Kishore Mahadeo Lokhare
(original Accused No. 1) and his brother, there is not even a
whisper about the role of the appellant herein in the commission
of the crime.

     11. The only person, who named the appellant herein           G
(original Accused No. 3), is Kumari Subhadra Dhondibhau
Tagad (PW-5). She deposed that she knows all the accused
persons. She narrated that on 03.03.1995, at about 6:45 p.m.,

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    1196    SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A when she was standing outside her house, she saw the
  deceased and Kishore Mahadeo Lokhare (original Accused
  No. 1) in their house. At about 07:45 p.m., on that day, when
  she was sitting near the door of her house, she noticed Suresh
  Sakharam Nangare- appellant herein (original Accused No. 3)
B coming out of the house of Kishore Mahadeo Lokhare (original
  Accused No. 1) in a frightened state. He was looking here and
  there and, thereafter, he left the place. She identified the
  present appellant in the Court. She further deposed that she
  heard the shouts of Kishore Mahadeo Lokhare (original
C Accused !'-Jo. 1) as "Sanjune Jalun Ghetale" i.e., "Sanju has set
  himself on fire". She also deposed that she made a statement
  to the police. Like PWs 3 and 4, she was also residing next to
  the house of A-1.

         12. A perusal of the evidence of PW-5 shows that at the
D   time of occurrence, the appellant herein (original Accused No.
    3) was coming out of the house of A-1 in a frightened state of
    mind. She has not stated anything further.

       13. The only evidence, based on which the present
E appellant (original Accused No. 3) was convicted under Section
  34 IPC, is of approver (PW-7), who was originally Accused
  No.2. In the examination, he has mentioned that Kishore (A-1)
  has two brothers, viz., Rajendra Mahadeo Lokhare (PW-1) and
  Sanjay (deceased). He also stated that Sanjay was dumb and
F had flexed fingers and he was unable to lift anything. He further
  narrated that on 03.03.1995, at about 12 noon, Kishore (original
  Accused No. 1) met him near K.V.K. School. At that time,
  Kishore was under the influence of alcohol and requested him
  to come to his place in the evening. At about 7.30-7.45 p.m.,
  he went to his house. As soon as he reached the house of A-
G 1, Suresh Sakharam Nangre - the present appellant (original
  Accused No. 3) also cctme there. There were 2 rooms in the
  house of A-1. At that time, the deceased was present in the
  inner room. He along with Kishore (A-1) and Suresh (appellant
  herein) was sitting in the first room. At that time, A-1 took out
H
    SURESH SAKHARAM NANGARE v. STATE OF                     1197
       MAHARASHTRA [P. SATHASIVAM, J.]

ganja and all of them smoked it. Thereafter, A-1 went inside         A
the inner room where Sanjay was sitting. After some time, he
heard the sound of assault. Then A-1 called him and the present
appellant (original Accused No. 3) inside the said room. As
soon as they went inside, they noticed that Sanjay was lying
on the floor and A-1 was sitting on his abdomen and was              B
holding his neck with one hand and fisting with the other hand
on his chest and both sides of the stomach. A-1 asked him and
the present appellant (original Accused No. 3) to hold Sanjay.
Accordingly, the appellant herein caught hold of the legs of
Sanjay. Thereafter, A-1 removed his hands from the throat of         c
Sanjay and he (PW-7) caught hold of the throat of Sanjay. When
Sanjay had stopped his movements, A-1 got down from his
abdomen. Thereafter, A-1 abused them and told them to go out.
However, PW-7 did not leave that place and saw A-1 lifting
kerosene can and pouring it on the person of Sanjay, who was
                                                                     0
lying on the floor. On seeing this, he ran away from the place
to his house. Even if we accept the evidence of PW-7 (original
Accused No. 2), who turned approver, the role allotted to the
present appellant was that of only holding the legs of the
deceased as directed by A-1. It should be noted that A-1 was
sitting on his abdomen and was holding his neck with one hand        E
and was also fisting his chest with the other hand and after
fulfilling the work, at the end, he directed the other two accused
persons to catch hold of the legs of the deceased. Beyond this,
there is no role assigned to the present appellant.
                                                                     F
     14. Since the conviction of the appellant is based only with
the aid of Section 34 of IPC, it is useful to refer the same:

     "34. Acts done by several persons in furtherance of
     common intention - When a criminal act is done by several       G
     persons in furtherance of the common intention of all, each
     of such persons is liable for that act in the same manner
     as if it were done by him alone."


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    1198     SUPREME COURT REPORTS                   (2012] 7 S.C.R.


A   A reading of the above provision makes it clear that to apply
    Section 34, apart from the fact that there should be two or more
    accused, two factors must be established: (i) common intention,
    and (ii) participation of accused in the commission of an
    offence. It further makes clear that if common intention is proved
8   but no overt act is attributed to the individual accused, Section
    34 will be attracted as essentially it involves vicarious liability
    but if participation of the accused in the crime is proved and
    common intention is absent, Section 34 cannot be invoked. In
    other words, it requires a pre-arranged plan and pre-supposes
C   prior concert, therefore, there must be prior meeting of minds.

         15. We have already referred to the evidence of
    prosecution witnesses. 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
D   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
E   of the view that convicting the appellant with the aid of Section
    34 IPC cannot be sustained.

        16. The other important circumstance which is in favour of
  the appellant herein is the evidence of the doctor (PW-10) who
F conducted the post mortem. In his evidence, PW-10 has stated
  that on 04.03.1995, at about 08:15 a.m., the dead body of one
  Sanjay Mahadeo Lokhar was brought by the police for post
  mortem. He started the examination at 2 p.m. and the same
  was concluded at 3 p.m. According to him, it was a burnt body,
  averagely nourished with presence of rigor mortis in muscles.
G His tongue was protruding outside and surface wounds and
  injuries were 100% superficial to deep burns. In his opinion, the
  cause of the death was due to 100% burn injuries. He also
  issued the post mortem certificate which is Exh. 21 wherein he
  opined that the death occurred due to 100% burns and not
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   SURESH SAKHARAM NA;-.JGARE v. STATE OF                  1199
      MAHARASHTRA [P. SATHASIVAM, J.]

because of assault. The categorical evidence and the opinion        A
of PW-10 for the cause of the death of Sanjay make it clear
that the appellant herein - original Accused No. 3 has nothing
to do with the same since the evidence brought in shows that
it was Kishore Mahadeo Lokhare - (original Accused No. 1)
who took Sanjay to the other room where he burnt him to death.      B
This important aspect has not been considered by the trial Court
as well as by the High Court.

     17. On appreciation of the entire material, we have already
concluded that the present appellant had no role in the criminal    C
conspiracy and no motive to kill the deceased. On the other
hand, the evidence led in clearly implicates Kishore Mahadeo
Lokhare - (original Accused No. 1) in all aspects including
motive and the manner of causing death by litting fire. Apart
from all the evidence led in by the prosecution, the above
position is clear from the evidence of the Doctor (PW-10) - who     D
conducted the post mortem and his opinion for the cause of
the death. Merely because the approver (PW-7) has stated that
based on the direction of Kishore Mahadeo Lokhare (original
Accused No. 1), the present appellant (original Accused No.
3) caught hold of the legs of the deceased, in the absence of       E
any motive or intention, mere act of holding his legs that too at
the end of the event when original Accused No. 1 throttled his
neck by sitting on his abdomen, the appellant (original Accused
No. 3) cannot be mulcted with the offence of murder with the
aid of Section 34 of IPC, particularly, when the medical            F
evidence for the cause of death is otherwise, namely, due to
100% burns.

     18. In the light of the above discussion, we hold that the
prosecution failed to establish the guilt insofar as the present    G
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

                                                                    H
    1200   SUPREME COURT REPORTS                [2012] 7 S.C.R.


A 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.
B Aishwarya Bhati, learned amicus curiae.

    R.P.                                       Appeal allowed.