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The intention was not to commit the murder of the deceased but the same had occurred in an attempt to commit theft: High Court Of Bombay

The accused appellant Sunil Kharwar is convicted for offence punishable under section 397 of the Indian Penal Code and is sentenced to suffer 10 years R.I. Fine amount is maintained. The Accused Prasad Jadhav is acquitted of all the charges levelled against him was upheld by the HIGH COURT OF BOMBAY through the learned bench led by SMT. SADHANA S. JADHAV & PRITHVIRAJ K. CHAVAN, JJ. in the case of PRASAD PRABHAKAR JADHAV  Vs THE STATE OF MAHARASHTRA (CRIMINAL APPLICATION NO. 1109 OF 2018) and Sunil Gaurishankar Kharwar Vs THE STATE OF MAHARASHTRA (CRIMINAL APPEAL NO. 1037 OF 2019) on MARCH 4, 2022.

Brief facts of the case are that the appellants are convicted for the offence punishable under section 341, 397, 302 read with section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/- each. On 27/3/2010, one Mahendra Morya lodged a report at the police station alleging therein that he works as a wireman at Chembur. While returning home, he has to take bus from Ghatkopar to Oshiwara. He wanted to answer nature’s call, but found the toilet locked. He therefore, went behind the toilet on the open ground. He saw 3 persons coming from the right side. One of them was armed with wooden plank. The other two persons dragged him into darkness. He could not rescue himself. He was hit on his head by wooden plank. The other two persons tried to rescue him. One of them was Sachin who was assaulted by those three persons. The said miscreants snatched the cell phone and wrist watch of the complainant.

Crime No. 111 of 2010 was registered at Oshiwara Police Station for offence punishable under section 302, 397 read with 34 of the Indian Penal Code against unknown persons. In the course of investigation, accused Sunil Kharwar and Prasad Jadhav were arrested on 27/3/2010. The third accused happens to be a juvenile in conflict with law.

The cell phone was recovered from the slab of the bathroom where it was further concealed in a gunny bag. The said house from where the cell phone was recovered was not occupied by anyone. There is recovery of a wooden plank at the instance of accused No. 1 Sunil Kharwar. The accused had led the investigating machinery to the hut and the plank was recovered from below the roof of the hut. Blood stains clothes were recovered at the instance of accused Sunil Kharwar. There is a compound wall of Satpuda building. The clothes of the accused were recovered from a gap between stall and the compound wall.

Learned Counsel for the appellant stated that the prosecution has not proved the recovery of any of these above mentioned items as contemplated under section 27 of the Indian Evidence Act and hence, the conviction of the accused for the offence punishable under section 302, 341, 397 read with 34 of the Indian Penal Code is unjustified.

The court observed “it cannot be said that the recovery of the cell phone in the present case is proved by the prosecution beyond reasonable doubt. The same would apply to the recovery of clothes at the instance of accused No. 2 as well as the wooden plank at the instance of accused No. 1.

The court held that the accused Sunil Kharwar is acquitted of the offence punishable under section 341 and 302 of the Indian Penal Code. The accused appellant Sunil Kharwar is convicted for offence punishable under section 397 of the Indian Penal Code and is sentenced to suffer 10 years R.I. Fine amount is maintained. The Accused Prasad Jadhav is acquitted of all the charges levelled against him.

Click here to read the Judgement

Written by- Riya Singh, Legal Intern, Prime Legal

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