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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1606     OF     2008   

Suresh Sakharam Nangare                    .... Appellant(s)

Versus

The State of Maharashtra                   .... Respondent(s)

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) This appeal is directed against the judgment 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 conviction and  

sentence dated 15.10.1998 passed by the Court of Additional  

Sessions Judge, Greater Bombay in Sessions Case No. 816 of  

1995 against the appellant herein.

2) Brief facts:

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(a) Rajendra Mahadeo Lokhare (PW-1)-the complainant,  

Kishore 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 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  

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  

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  

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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  

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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’).   

(f) 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 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 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.

(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  

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conviction and sentence passed by the Additional Sessions  

Judge, Greater Bombay.

(h) Aggrieved by the said judgment, the appellant has  

preferred this appeal by way of special leave before this Court.

3) Heard Ms. Aishwarya Bhati, learned amicus curiae for 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:

(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.

(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-

accused shared common intention with Kishore-  

original accused No.1 to commit the murder of his  

younger brother-Sanjay Mahadeo Lokhare.

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(iv) The medical evidence and the post mortem report  

(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.

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  

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  

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.

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  

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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.

8) The first witness examined by the prosecution was  

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  

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on fire.  His evidence relating to the cause of death by suicide  

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  

specifically negatived the same and confirmed that all the  

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  

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 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  

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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).

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 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  

(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., 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  

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was sitting near the door of her house, she noticed Suresh  

Sakharam Nangare- appellant herein (original Accused No. 3)  

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  

Accused No. 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 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 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 had  

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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-1, Suresh Sakharam Nangre - the present appellant  

(original Accused No. 3) also came 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 ganja and all of them smoked it.  Thereafter, A-1  

went inside 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 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  

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herein caught hold of the legs of Sanjay.  Thereafter, A-1  

removed his hands from the throat of 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 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 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.   

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  persons in furtherance of the common intention of all, each  

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of such persons is liable for that act in the same manner as  if it were done by him alone.”

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 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 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 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  

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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.

16) The other important circumstance which is in favour of  

the appellant herein is the evidence of the doctor (PW-10) who  

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.  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 because of assault.  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. 3 has nothing to do with the same since the  

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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.  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 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 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 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  

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(original Accused No. 3) cannot be mulcted with the offence of  

murder with the aid of Section 34 of IPC, particularly, when  

the medical 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  

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.   

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (RANJAN GOGOI)  

NEW DELHI;

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SEPTEMBER 21, 2012.

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