JUDGMENT

P. Sathasivam, J.

1) This appeal is directed against the common final judgment and order dated 03.05.2006 passed 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 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.

Brief facts:

2. 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 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.

3. On 28.06.2001, at about 9.00 to 9.15 p.m., when the 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 you later. Since it would be a dispute over the household matter, he neglected and went inside the house.

4. 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 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 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. 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.

5. 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 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 they entered into the house, they noticed smoke coming out of the room and Akhilesh, the son of Manohar, was lying in injured condition 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 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 for post- mortem. At the same time, spot Panchanama (Ex.24) was drawn by PW-14 and he also seized the articles found lying there including wooden rafter having stains of blood and a big stone. Since the condition of injured Akhilesh was d