- (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: (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 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 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 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.;