Partly allowed

Sunil Gourishankar Kharwar v. the State of Maharashtra

Bombay HC4 Mar 2022IA/1783/2021

Case brief

AI extract

What is this about?

Convictions arising from a fatal assault during theft were partly overturned. One appellant was acquitted of wrongful restraint and murder but convicted under section 397 IPC and sentenced to ten years’ rigorous imprisonment, with immediate release directed after sentence completion. The other appellant was acquitted of all charges.

What did the court decide?

First appellant acquitted under sections 341 and 302 IPC; section 397 sentence fixed at ten years, with release unless otherwise required. Second appellant acquitted of all charges; fine refund direct

Sunil Gourishankar Kharwar Vs the State of… — Murder and Culpable Homicide | Bombay HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 1037 OF 2019 WITH

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INTERIM APPLICATION NO. 1783 OF 2021

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Sunil Gaurishankar Kharwar.
Aged about 29 yearsm
R/o. Om Sai Chawl, R. No. 533,
Ganesh Nagar, Jogeshwari(W),
Mumbai 400102.

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...Appellant.

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v/s.

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The State of Maharashtra.
(through Oshiwara Police Station)…Respondent.

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WITH

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CRIMINAL APPEAL NO. 648 OF 2012 WITH

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CRIMINAL APPLICATION NO. 1109 OF 2018

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Prasad Prabhakar Jadhav,
Age about 21 years, Occ: Service,
R/o. Renuka Chawl, Room No. 13,
Ganesh Nagar, Link Road,
Jogeshwari(W), Mumbai 400102.
(Presently in judicial custody of … Appellant.
Kolhapur Jail.)

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V/s.

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The State of Maharashtra.
(At the instance of Oshiwara Police …Respondent.
Station)

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Ms. Payoshi Roy i/b. Dr. Yug Mohit Chaudhry, advocate for appellant
in Appeal No. 1037/2019.
Mr. Mihir Joshi, advocate appointed for appellant in Cr. Appeal No.
648/2012.
Ms. S.V. Sonawane, APP for State.

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Talwalkar

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Digitally signed by ARUNA S ARUNA S TALWALKAR TALWALKAR Date: 2022.03.07 10:51:42 +0530

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CORAM:SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.

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RESERVED ON :FEBRUARY 4, 2022.

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PRONOUNCED ON :MARCH 4, 2022.

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JUDGMENT (PER SMT. SADHANA S. JADHAV, J)

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1The appellants are convicted for the offence punishable

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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 i.d. to suffer further R.I. for 30 days by the learned
Sessions Judge, Gr. Bombay vide Judgment and Order dated 2nd
February, 2012 in Sessions Case No. 440 of 2010. Hence, this appeal.

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2Such of the facts necessary for decision of these appeals are

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as follows:

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(i)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. On 26/3/2010, he reached Oshiwara at about 9.45 p.m. He
wanted to answer nature’s call, but found the toilet locked. He
therefore, went behind the toilet on the open ground. There were two

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more persons standing there.

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(ii)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.

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(iii)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. They also assaulted other persons present there.
Someone at the bus stop had called the police. All the 3 injured were
taken to Cooper hospital.

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(iv)The police had learnt that the other 2 injured were Sachin
Nandgavale and Arun Yadav. Sachin had succumbed to the injuries.
On the basis of his report, 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.

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3At the trial, the prosecution examined as many as 25

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witnesses to bring home the guilt of the accused. Since this is a case of
direct evidence, it would be necessary to scrutinize the oral testimony
of the complainant and the eye witnesses. P.W. 1 Mahendra Morya is
the complainant. P.W.11 Pappu Shaikh is an eye witness and P.W. 15
Arun Yadav happens to be the injured eye witness.

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4P.W.1 Mahendra Morya has deposed in consonance with his

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first information report. According to him, his narration has been
rightly recorded in the FIR, which is marked at Exh. 18. The
complainant had stated that his cell phone was also snatched from
him. He had given the description of his black coloured Nokia 5030
handset. On 22nd April, 2010, he had been to Arthur Road Jail for test
identification parade. He had identified the accused persons and

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mentioned the role played by each of them. He has denied the
proposition that there is no possibility of noticing the incident behind
wall when he was at bus stop or in the toilet. There is a clear
admission that he had gone to answer nature’s call behind the wall. It

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is admitted that the height of the wall is little more than his height and
his height is 5 ft. He further admitted that there is a distance of about

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10 ft. between the bus stop and the door of the toilet. In any case,
neither the accused nor the deceased and the witnesses had used the
toilet. The witness has further stated that he was assaulted by wooden
plank on his head and he fell down on the same place, but within 10 to
15 minutes he reached the road and had spoken to unknown person
who did not accompany him in the hospital. He did not know the
names of the assailants when he was taken to the hospital. He was
discharged on 4th day, but he had not reported to the police station.
The police had sent a letter to him to which he responded by going to
the police station. There are material omissions in the evidence of P.W.
1.

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5On being confronted by his previous statement, it is

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admitted that he had not disclosed to the police that out of the 3
assailants only one of them had caught hold of him, pressed his mouth
and dragged him towards darkness. But he claims that, that is what
exactly happened. It is also admitted that he had not disclosed the
name of the injured as “Sachin”, neither that Sachin had come to
rescue him. It is categorically admitted that a stick and the plank are
not one and the same thing. He has denied that one of the accused was

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carrying a long wooden stick. The same is marked as a contradiction
and further marked “A” for identification of the contradiction.
According to the witness, the wooden plank was having two nails, but
the same was not mentioned in the FIR. That Exh. 35 would show
that there was a blood stain at the edge of the plank.

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6Pappu Shaikh (P.W.11) has stated before the court that on
26/3/2010 he had closed his motor garage and went behind the

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garage with his friend Amjad. They saw three persons defecating
there. Three persons came running and mounted assault upon one of
the person with hands. One of them was having a wooden plank and
assaulted one person who was already present on the spot. The injured
started running towards the road. Upon query made by the public, the
injured informed that two persons were lying behind in injured
condition. Police was informed by one of the members of the public.
The police took cognizance and rushed to the spot and carried the
injured to the hospital. A month after the incident, the witness was
called for identification parade in Arthur Road Jail and he claims to
have identified the accused No. 1 as one of the assailant. It is admitted
in the cross-examination that the said area is mostly visited by people

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consuming drugs who sit near the garage and inside the compound
wall. The witness feigns ignorance as to whether he had knowledge
that the said area is mostly visited and used by drug addicts who under
the influence of drugs and liquor. sometime assault each other and
commit theft. However, they are ignored due to fear that they would
cause damage to the vehicles visiting the garage and parked in the
garage and also assault people who cause hindrance to their activities.
The said portion is marked as “Portion-A”. The said contention is
admitted in the cross-examination. In fact, according to the witness,
Oshiwara police station is at a distance of 5 minutes from the place of
incidence.

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7P.W. 15 Arun Yadav claims to be an eye witness to the

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incident. According to him, on 26/3/2010 till 9.30 p.m. he was doing
his work in flat No. 602 in Evershine building. He wanted to answer
nature’s call and since the public toilets were locked he went to the
open ground. There was another person on the open ground
answering nature’s call. In the meanwhile, 3 persons came to the spot.
They were scuffling with the third person who visited the open
ground. P.W. 15 objected to their conduct. At that juncture, he had

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noticed that one of those 3 persons was having a wooden plank. One
amongst them started snatching his purse and cell phone from pocket
of P.W. 15 as well as the other two persons. The person armed with the
wooden plank assaulted PW.15 on his head, he sustained injury and
fell unconscious. He regained consciousness after 15 to 20 days. A
statement was recorded on 6/4/2010. In the court, he identified
accused No. 1 as a person having wooden article in his hand. It is
admitted that he had not identified the said assailants previously i.e. at
the test identification parade.

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8P.W.12 Sunil Jadhav claims to have conducted the test

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identification parade as per provisions of the High Court Manual after
one month of the incidence.

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9Since a purshis was filed by APP, P.W. 12 was called for
cross-examination since the memorandum of test identification parade
was admitted in evidence under section 291-A of the Code of Criminal
Procedure, 1973. It is admitted that he had been briefed when he
reached near the prison for holding test identification parade and he
had prepared a brief note about the same. It is further admitted that
the witnesses had not spelt out the role of the identified accused while

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pointing out to them and the same is true in respect of all the three
accused. He had conducted the test identification parade of all the
three accused at the same time, rather simultaneously. It is further
admitted that P.W.12 had himself selected and brought the panchas.
The panchanama was written after the test identification parade was
over and the same was written by the office of the jail superintendent.

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10P.W. 24 Chandrashekhar Gaikwad happens to be the
Investigating Officer. According to him, a wooden plank was recovered
at the instance of Sunil Kharwar. The memorandum and recovery
panchanama are at Exh. 33 and 34. On the same day, i.e. on
30/3/2010 a cell phone was recovered from a play ground at the
instance of the accused Prasad Jadhav. On 2/4/2010 a cell phone and
clothes were recovered at the instance of Punit Gaud a juvenile in
conflict with law. According to him, the accused were in police custody
remand till 9/4/2010. He had arrested the accused on 27/3/2010 and
was interrogating them till 30/3/2010. But they had not disclosed
about the concealment of the wooden plank. The investigation was
entrusted to him on 28/3/2010 as it is a matter of record that upon
receiving the phone call informing the police about an injured lying in

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Oshiwara Park P.W. 25 had intimated mobile van No. 1 to visit the said
spot immediately. Thereafter, P.W. 24 and 25 had proceeded to the
spot. P.W. 24 had recorded the statement of injured Mahendra More
and conducted inquest panchanama of the dead body of deceased
Sachin. P.W. 24 and 25 visited the scene of offence and prepared the
scene of offence panchanama. Thereafter, further investigation was
handed over to P.I. Gaikwad i.e. P.W. 24.

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11It is admitted in the cross-examination that the arrest
panchanama was not prepared at the place where the accused were
apprehended. He had not recorded the statements of eye witnesses. It
is admitted that the weapon of assault as mentioned in the FIR is a
stick. During the first four days of police custody the accused had
shown no willingness for recovery of the weapon of assault. That the
area from which the cell phone was recovered is a play ground and
there is slum on both sides of the play ground. The said play ground is
used by persons in the hutment for answering nature’s call.

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12P.W. 25 Nilkanth Bagale was attached to Oshiwara Police

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Station as station house officer. By the time, they reached the scene of offence, the injured were taken to the hospital in a mobile van. P.W. 24 Talwalkar 10 of 25

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had accompanied to the injured to the hospital. It is admitted that P.W.
24 had not recorded the statement of the injured. According to P.W. 25
he had recorded the statement of injured Mahendra More between
11.45 p.m. to 12.20 midnight in the presence of the doctor. However,
he had not obtained any endorsement from the doctor on the
statement of Mahendra More. He had informed P.W. 24 that the scene
of offence was not verified by taking the injured to the spot. P.W. 25
has proved the omissions and the marked contradictions of the
complainant as well as witness Pappu Shaikh.

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13It is pertinent to note that the recovery panchanama of
accused Prasad Jadhav would show that the accused had led the
investigating agency to Pilliya garden. He further led them to the
bathroom in a house. The cell phone was recovered from the slab of
the bathroom where it was further concealed in a gunny bag. Upon
perusal of Exh. 31, it appears that they had entered the premises of a
play ground. They went to a room full of garbage and scrap material.
They proceeded further to a bathroom and on the slab, there was a
bedding consisting of a gunny bag sheet, a bed sheet and a pillow and
the cell phone was concealed in the said bedding. The IMEI number of

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the said cell phone was 351527/04/14873611 and there was SIM card
bearig No. 050809142990597. It is pertinent to note that the
prosecution has examined P.W. 7 Dinesh Jadhav in order to prove the
recovery. P.W. 7 has stated in the cross-examination that the police
had called him from his house and informed him that a panchanama of
cell phone is to be prepared and that he should accompany them. He
had put 3 signatures at the police station. On the memorandum at Exh.
30 he has identified two signatures on page 2 to have been signed by
him. After having obtained the signatures, the panchanama was read
over to him. That the said house from where the cell phone was
recovered was not occupied by anyone. It was an open place. People
were residing on both the side. There is no verification of IMEI
number.

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14There is recovery of a wooden plank at the instance of
accused No. 1 Sunil Kharwar. The memorandum of recovery is at Exh.
33 and the recovery panchanama is at Exh. 34. The recitals of the
panchanama at Exh. 34 would show that it was recovered from a place
behind Afifa Glass Center. The glass pieces were kept on wooden
plank and some planks were lying down. The accused had led the

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investigating machinery to the hut and the plank was recovered from
below the roof of the hut. The said plank was admeasuring 74 cm.
long 9.5 cm. width and 2 cm. thick. That P.W.3 Gopal Mahawal has
proved Exh. 34. According to him, the door of the hut from where the
recovery was made was not occupied and was open on all four sides.
The witness was known to the police and he had been summoned from
his house.

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15The injury certificate of Arun Yadav is at Exh. 56 whereas
the injury certificate of Mahendra Maurya is at Exh. 55. That blood
stains clothes were recovered at the instance of accused Sunil Kharwar.
The memorandum is at Exh. 44 and the recovery panchanama is at
Exh. 45. The clothes were recovered from behind Unique Glass shop.
There is a compound wall of Satpuda building. The clothes of the
accused were recovered from a gap between stall and the compound
wall. Upon perusal of Exh. 45, it shows that there were some blood
stains on the undergarment but there were no bloodstains on the pant.
P.W. 13 Pankaj Mishra has been examined to prove the contents of Exh.
44 and 45. It is admitted by P.W. 13 that at the police station, he had
the knowledge that some clothes are to be recovered from a heap of

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mud. It is further admitted that P.W. 13 had not entered into the
compound rather none of the members of the investigating team had
entered the compound. It is a footpath used by people. It is further
stated as follows : “It is not true to say that in my presence accused
made voluntary statement in pursuant to which we went to the spot
and recovered the clothes.” The panch had not seen whether the
clothes had been kept on a heap of mud.

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16Learned Counsel for the appellant in Criminal Appeal No.
1037 of 2019 has submitted that according to the prosecution the

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incriminating circumstances against the accused are as follows :

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(i) Recovery of a cell phone at the instance of accused No. 2.

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(ii) Recovery of a bloodstained underwear at the instance of accused No. 1.

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(iii)Recovery of a wooden plank at the instance of accused No. 1.
(iv)The identification of both the accused before the court.

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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 learned Counsel Ms. Payoshi Roy has

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placed reliance upon the Judgment of the Apex Court in the case of
Bollavaran Pedda Nersi Reddi v/s. State of Andhra Pradesh1. According
to her, availability of light is a matter of crucial significance.

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17The learned Counsel appointed for the appellant in
Criminal Appeal No. 648 of 2012 has submitted that the test
identification parade had not been conducted as per the Manual.
There was a delay in holding the test identification parade. The
learned Counsel has placed reliance on the Judgment of Apex Court in
the case of Mohd. Sajjad @ Raju @ Salim v/s. State of West Bengal2 to
substantiate his contention that test identification parade was not
conducted as per the Manual.

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18Per contra, learned APP has submitted that the prosecution

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has proved the recovery of the cell phone and the clothes at the
instance of accused No. 2 and recovery of wooden plank at the
instance of accused No. 1 is proved. That the accused were identified
at the test identification parade as well as in the court. Identification
in the court is a substantive evidence and the accused have not given

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1 1991 Cr.L.J. 1833

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2 (2017) 11 SCC 150

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any explanation for being in possession of the said cell phone.

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19Upon perusing the records meticulously what needs to be

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first appreciated at the threshold is the scene of offence. The scene of
offence panchanama was conducted on 27/3/2010 and is marked at
Exh. 21. It clearly indicates that at the time of conducting the
panchanama, the police had to carry petromax and high power search
lights. There are bushes on the said open ground. It has a compound
on all four sides. At some places, the compound wall is damaged. On
the right side of the compound wall, there is evershine building. At the
south east corner of the compound is a public toilet. The wall near the
bus stop is damaged. On the west side of the compound, there are 3
shops, namely, Maharashtra Automobile, Sun Control Film and
Siddiqui Glass House. On the west side the wall is damaged to a great
extent and there is an iron gate on the south east side. The incident of
assault had taken place on the remote east side. There are two Ice-
apple trees at a distance of 20 ft. 4 inch. The second tree is at a
distance 41 ft. 2 inch. The distance between both the trees is 26 ft. 3
inch. There was pool of blood near the roots of the trees. Two school
bags are thrown there. There were footwear, one spectacles, a comb

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and a key lying nearby and an empty packet of Gold Flake cigarette
and one ticket of BEST bus. At the spot there was a bag in which the
police found a notebook and a diary on which name of Mahendra
Maurya was written. There was domestic account noted in the diary
and some telephone numbers. The panchanama was conducted
between 2 a.m. to 4 a.m. of 27/3/2010. This would establish presence
of Mahendra Morya at the spot on the relevant day and time.

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20In view of the above mentioned description of the scene of
offence, it is more than clear that there was no availability of sufficient
light to enable anyone to identify the facial features of any person. The
investigating agency had to use petromax and high power search lights
which would establish that there was no availability of light. In these
circumstances, the identification at the test identification parade would
loose its significance.

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21In the case of Bollavaram Pedda Narsi Reddy (cited supra),
the Hon’ble Supreme Court has held has follows :

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“In the present case, the appellants are admittedly the
person to whom the two witnesses had no previous
acquaintance. The occurrence had happened on the dark

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night. When the crime was committed during the hours of
darkness and the assailants are utter strangers to the
witnesses, the identification of the accused persons
assumes great importance. The prevailing light is a matter
of crucial significance.”

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In any case, P.W. 15 Arun Yadav has categorically admitted that he had
not identified the assailants at the test identification parade. According
to P.W.1, one of them had caught hold of him, gagged him and dragged
him in darkness.

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22As far as recovery of the cell phone is concerned, it was
recovered from an open ground and there was garbage on the said
spot. It was an open place and there is no verification of IMEI number.
P.W.3 happens to be brother of the deceased. He was not shown the
handset, in order to verify as to whether it belongs to the deceased
neither P.W. 4 Prakash, father of the deceased has identified the
handset to be of the deceased Sachin. P.W. 14 happened to be brother
of P.W. 1 and all that is stated by P.W. 14 is that the SIM card used by
P.W. 1 was registered in his name. Therefore, it cannot be said that the
cell phone which was recovered at the instance of the accused No. 2
was stolen in the said incidence.

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23It would be trite to place implicit reliance upon the

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judgment of the Privy Council in the case of Pulukuri Kottaya and ors.
v/s. Emporer3. It is held as follows :

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“it is fallacious to treat the "fact discovered" within the
section as equivalent to the object produced; the fact
discovered embraces the place from which the object is
produced and the knowledge of the accused as to this, and
the information given must relate distinctly to this fact.
Information as to past user, or the past history, of the object
produced is not related to its discovery in the setting in
which it is discovered. Information supplied by a person in
custody that "I will produce a knife concealed in the roof of
my house" does not lead to the discovery of a knife; knives
were discovered many years ago. It leads to the discovery
of the fact that a knife is concealed in the house of the
informant to his knowledge; and if the knife is proved to
have been used in the commission of the offence, the fact
discovered is very relevant. But if to the statement the
words be added "with which I stabbed A", these words are
inadmissible since they do not relate to the discovery of the
knife in the house of the informant.”

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In view of the above, it cannot be said even remotely that the cell

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3 AIR (34) 1947 Privi Council page 67

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phones which were recovered were stolen in the course of the
transactions of theft and commission of murder in the course of
committing the theft. Moreover, in the memorandum under section 27
of the Indian Evidence Act, the accused has not stated the exact
location where the cell phone was concealed. It is necessary to state
the same in the memorandum so as to lend assurance to the fact that
the article to be recovered was concealed in a particular place and the
place of concealment is exclusively within the knowledge of the
accused. At this juncture, it would be appropriate to place implicit
reliance upon the ratio laid down by Privy Council in the case of
Pulukuri Kottaya(Cited supra), wherein it is held as follows :

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“The condition necessary to bring section 27 into operation
is that the discovery of a fact must be deposed to and
thereupon so much of the information as relates distinctly
to the fact thereby discovered may be proved. The section
seems to be based on the view that if a fact is actually
discovered in consequence of information given, some
guarantee is afforded thereby that the information was
true, and accordingly can be safely allowed to be given in
evidence; but clearly the extent of the information
admissible must depend on the exact nature of the fact
discovered to which such information is required to relate.”

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Hence, 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.

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24It is seen from the record that the said wooden plank was
lying on the ground near Afifa Glass Center. There was no special
identification of the plank.

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25None of the witnesses had given any specific features or
identification marks of the assailants so as to enable the police to arrest
them within 24 hours. The statement of injured was recorded on 6th
April, 2010. It is a matter of record as per the evidence of the
witnesses that the said deserted compound is habituated by drug
addicts and alcoholics. There is no material to show that the present
accused were addicted to drug or alcohol.

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26The forensic report shows that the blood group of the
deceased was “A” which has matched with the blood group found on
the wooden plank. This is the only circumstance which would show

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that the deceased was assaulted by the said plank and therefore, the
irregularity in the investigation in respect of the recovery of the article
may loose its significance. However, as far as accused No. 1 is
concerned, it is clear that the intention was not to commit the murder
of the deceased but the same had occurred in an attempt to commit
theft. Hence, it cannot be said that the accused would be liable to
have committed an offence under section 302 of the Indian Penal
Code. Section 397 of the Indian Penal Code reads as follows :

¶158

“397. Robbery, or dacoity, with attempt to cause death or
grievous hurt.—If, at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes
grievous hurt to any person, or attempts to cause death or
grievous hurt to any person, the imprisonment with which
such offender shall be punished shall not be less than seven
years.”

¶159

In the case of Phool Kumar v/s. Delhi Administration4, the Supreme
Court has observed as follows :

¶160

“The term offender under section 397 of IPC is confined to
the offender who uses any deadly weapons. Use of deadly
weapons by one offender at the time of committing robbery
cannot attract section 397 of the IPC for imposition of

¶161

4 ( 1975) 1 SCC 797,

¶162

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APEAL1037.2019.648.2012.doc

¶165

minimum punishment on another offender who had not
used any deadly weapon. There is distinction between
“uses” as used in section 397 of IPC and 398 IPC. Section
397 IPC connotes something more than merely being
armed with a deadly weapon.”

¶166

In the present case, the wooden plank was used by accused No. 1,
recovered at the instance of accused No. 1 and it had the blood stains
of group “A” which is of the deceased.

¶167

27In view of the above, accused No. 1 Sunil Kharwar is liable
to be convicted under section 397 of Indian Penal Code. The appellant
Sunil Kharwar has been in custody since the date of arrest i.e. since
27/3/2010. The accused No. 2 Prasad Jadhav was enlarged on bail
vide order dated 10/7/2012 during the pendency of the appeal.
However, the bail application of the accused No. 1 was rejected. Hence,
he continues to be in jail. In view of the above discussion, no offence

¶168

is proved against accused No. 2 Prasad Jadhav. Hence, he deserves to
be acquitted.

¶169

28Before parting with the Judgment, we appreciate efforts

¶170

put in by the learned Counsel Mr. Mihir Joshi, appointed to espouse

¶171

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APEAL1037.2019.648.2012.doc

¶174

the cause of the appellant. The learned Counsel Mr. Mihir Joshi is
entitled for the professional fees as per rules.

¶175

29Hence, following order is passed :

¶176

ORDER

¶177

(I)Criminal Appeal No. 1037 of 2019 is partly allowed.

¶178

(II) The conviction and sentence imposed upon the appellant Sunil Kharwar by learned Sessions Judge, Gr. Bombay vide Judgment and Order dated 2^nd February, 2012 in Sessions Case No. 440 of 2010 is hereby quashed and set aside.

¶179

(III) The accused Sunil Kharwar is acquitted of the offence punishable under section 341 and 302 of the Indian Penal Code.

¶180

(IV)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.

¶181

(V)The appellant Sunil Kharwar has undergone the
substantive sentence as well as the default sentence and hence, he be
released forthwith, if not required in any other offence.

¶182

(VI)Criminal Appeal No. 648 of 2012 is allowed.

¶183

(VII)The conviction and sentence imposed upon the appellant

¶184

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APEAL1037.2019.648.2012.doc

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Prasad Jadhav by learned Sessions Judge, Gr. Bombay vide Judgment and Order dated 2^nd February, 2012 in Sessions Case No. 440 of 2010 is hereby quashed and set aside.

¶188

(VIII)The Accused Prasad Jadhav is acquitted of all the charges
levelled against him.

¶189

(IX)The bail bonds of appellant Prasad Jadhav stands
cancelled. Fine amount if paid be refunded to him.

¶190

(X)Both the appeals are disposed of accordingly.

¶191

(XI)In view of disposal of the appeals, nothing survives in the
applications. The same are disposed of accordingly.

¶192

(PRITHVIRAJ K. CHAVAN, J)

¶193

(SMT. SADHANA S. JADHAV, J)

¶194

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Sunil Gourishankar Kharwar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sunil Gourishankar Kharwar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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