Nirmal @ Sahil vs State Of Chhattisgarh on 6 December, 2023

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Chattisgarh High Court

Nirmal @ Sahil vs State Of Chhattisgarh on 6 December, 2023

1. These criminal appeals filed by the appellants-accused under Section 374 (2) of the Criminal Procedure Code, 1973 (henceforth "Cr.P.C.") are directed against the impugned judgment of conviction and order of sentence dated 10 th April, 2023 passed by 7th Additional Sessions Judge, Raipur (C.G.) in Sessions Trial No. 265 of 2029, whereby they have been convicted & sentenced as under :-

Appellant - Sudhir Gajwani Conviction Sentence U/s 302 of IPC Rigorous imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo simple imprisonment for one month U/s 25 of Arms Act Rigorous imprisonment for three years and to pay fine of Rs. 500/-, in default of payment of fine to further undergo simple imprisonment for 15 days U/s 27 of Arms Act Rigorous imprisonment for 5 years and to pay fine of Rs.500/-, in default of payment of fine, to further undergo simple imprisonment for 15 days.

All the sentences have been directed to run concurrently.

Neutral Citation 2023:CGHC:30574-DB 3 Appellant - Nirmal @ Sahil Conviction Sentence U/s 201 of IPC Rigorous imprisonment for five years and to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo simple imprisonment for one month U/s 25 of Arms Act Rigorous imprisonment for three years and to pay fine of Rs.500/-, in default of payment of fine to further undergo simple imprisonment for 15 days.

Both the sentences have been directed to run concurrently.

2. Case of the prosecution, in brief, is that on 12.09.2019 complainant - Akash Poptani (PW-1) lodged a merg report bearing No. 55/2019 at police Station Telibandha, Raipur alleging therein that Vicky @ Vikash Poptani is his real elder brother, who had performed love marriage with one Kiran Kaur 5 -6 years ago. Vicky @ Vikas Potani's friend Sudhir Gajwani, appellant herein, used to talk sometime with Kiran Kaur, who is sister-in-law (HkkHkh) of complainant, due to which, dispute occurred between his elder brother Vicky @ Vikas Poptani and appellant -Sudhir Gajwani and there was internal discord also between them. On 12.09.2019 at around 1.30 the night, complainant saw that Vijju and his maternal uncle went towards Telibandha on his elder brother Vikky Poptani's motorcycle, then the complainant went to the house and slept.

Neutral Citation 2023:CGHC:30574-DB 4 2.1. It is further case of the prosecution that on 12.09.2019, at around 4.30 AM in the morning, Mukesh Prithyani (PW-5), Adarsh Panjwani (PW-6) & Yash Pahuja (PW-4) came to the house of complainant and told him that someone had murdered his brother Vickky @ Vikash Poptani (since deceased) in front of Vinoba Petrol Pump on Vishal Nagar Road turning, thereafter, the complainant alongwith aforesaid three persons reached at the place of occurrence and saw that complainant's brother Vickky @ Vikash Poptani was lying soaked in blood, he had died, his body was injured by sharp object like knife on the chest, below the left rib and on many other parts of the body. Based on the report of complainant, FIR (Ex.P-3) was registered against the appellant Sudhir Gajwani & others for offence under Section 302 of the IPC. During investigation, it was found that appellant Sudhir Gajwani assaulted the deceased by means of knife and the said knife was provided to him by another accused Nirmal @ Sahil.

2.2 After giving notice to the witnesses, inquest report of dead- body of deceased was prepared vide Ex. P-2. The dead-body of the deceased was sent for post mortem. Dr. Shivnarayan Manjhi (PW-11), conducted postmortem of the dead-body of deceased and vide postmortem report Ex.P-22, he reported six injuries over the body of deceased and opined that cause of death was due to haemorrhage and shock as a result of multiple stab injuries to the chest region of the body and death was homicidal in nature. On the Neutral Citation 2023:CGHC:30574-DB 5 basis of memorandum statement of accused/appellant No. 1 - Sudhir Gajwani (Ex.P-26), one black coloured full T-shirt and a black coloured full pent were seized vide seizure memo (Ex.P-29) and one pulsar motorcycle was also seized from the said appellant vide Ex. P-30. Further on the basis of memorandum statement of another accused/appellant No. 2 - Nirmal @ Sahil (Ex.P-27), one black colour buttondar knife & key pad mobile was seized vide seizure memo (Ex.P-31). Appellant No. 1 - Sudhir Gajwani was arrested on 12.09.2019 vide arrest memo (Ex.P-33) whereas Appellant No. 2 - Nirmal @ Sahil was arrested on 12.09.2019 vide arrest memo (Ex.P-34), spot Map cum Panchnama was prepared vide Ex.P-15. Statements of the witnesses under Section 161 of the CrPC were recorded, in presence of witnesses, human blood soaked in cotton was collected from Damar road and kept in a plastic box and plain cotton was also kept in plastic box and sealed it and two mobile phone of deceased Vicky @ Vikash Poptani was seized vide Ex.P-35. Voice call recorded in mobile phone of Rahul Prithyani (PW-2) was got reduced in writing and panchnama to this effect was prepared vide Ex. P-13. The property seized in the case i.e. blood soaked and plain cotton seized from the spot, knife seized at the behest of appellant Nirmal @ Sahil, T - Shirt & full pant seized from appellant Sudhir Gajwani and clothes recovered and seized from body of deceased were sent to Forensic Sceince Laboratory, Raipur for chemical examination, whose report is Ex.P-47 and the report of Neutral Citation 2023:CGHC:30574-DB 6 the seized Viscera of the deceased is Ex.P-48.

3. After completion of usual investigation, the police filed charge- sheet in the court of Chief Judicial Magistrate, Raipur, District Raipur under Section 302 read with Section 34 of the IPC and Sections 25 & 27 of the Arms Act, 1959 (henceforth "Act, 1959") against the appellants, who in turn, committed the case to the District & Sessions Judge, Raipur, from where 7th Additional Sessions Judge, Raipur received the case on transfer for trial.

4. Charges under Section 302 of the IPC & 25 (1-B) b & 27 of the Act, 1959 were framed against appellant/accused - Sudhir Gajwani whereas charges under Sections 302 read with section 34 of the IPC & Sections 25(1-B) b & 27 of the Act, 1959 were framed against appellant /accused- Nirmal @ Sahil, which were read over and explained to them, they abjured their guilt and entered into defence by making plea that they are innocent.

5. In support of its case, prosecution has examined as many as 20 following witnesses: -

Particulars of documents PW-1 statement of Akash Poptani PW-02 Statement of Rahul Prithyani, Before whom extra judicial confession was made by appellant No. 1 PW-03 Statement of Adarsh Panjwani Neutral Citation 2023:CGHC:30574-DB 7 PW-04 Statement of Yash Pahuja PW-05 Statement of Mukesh Prithyani PW-06 Statement of Lalchand Poptani PW-07 Statement of Sachin Shrivastava, Revenue Inspector.

PW-08 Statement of Ajay Aswani PW-9 Statement of Vijay Aswani (Eye witness to the incident) PW-10 Statement of Ramswarop Dewangan, Sub- Inspector.

PW-11 Statement of Dr. Shivnarayan Manjhi, who conducted postmortem of the deceased PW-12 Statement of Kiran Kaur, who is wife of deceased.

PW-13 Statement of Ajay Bajaj PW-14 Statement of Adarsh Sharma PW-15 Statement of Rajesh Chawla PW-16 Statement of Chandrakumar Gajwani PW-17 Statement of Kishan Poptani PW-18 Statement of Mohsin Khan, Deputy Superintendent of Police.

PW-19 Statement of Tarun Meghani PW-20 Statement of Vikram Dhruv

6. Beside the aforesaid ocular evidence, prosecution has also exhibited the following documents and articles in support of its case:-

      Type of documents                            Exhibit or Article
  Neutral Citation
 2023:CGHC:30574-DB




                                     8




Summons under Section 175 of the Ex. P-1
Code of Criminal Procedure

Inquest report / Naksha Panchayatnama Ex.P-2 First Information Report (FIR) Ex.P-3 Crime Details Form Ex. P-4 Property seizure memo Ex.P-5 Panchnama of the Mobile Voice Ex.P-13 recording Statement of Yash Pahuja Ex. P-14A Memo for requesting Spot Map Ex.P-14 Spot map cum panchnama Ex.P-15 Notice under Section 91 of Cr.P.C. Ex.P-16 Statement of Ajay Aswani Ex.P-17 Seizure memo of black colour Avenger Ex. P-17 motorcycle bearing registration No. CG-

04 K 7326 Statement of Bijju @ Vijay Aswani u/S Ex.P-18 164 of the Cr.P.C., who is said to be the eye-witness to the incident Application for post mortem Ex.P-19 & P-20 Duty certificate Ex. P-21 Post Mortem Report Ex. P-22 Statement of Ajay Bajaj Ex.P-23 Memo for examination & query of seized Ex. P-23 articles Neutral Citation 2023:CGHC:30574-DB 9 Forensic Report Ex. P-24 Notice under Section 160 of Cr.P.C. Ex. P-25 Memorandum statement of Sudhir Ex.P-26 Gajwani Memorandum statement of Nirmal @ Ex.P-27 Sahil Certificate under Section 65-B of Ex. P-28 Evidence Act Seizure memo of Pulsar Motor cycle, Exs.P-29 & P-30 blood stained full T- Shirt, Full pent of accused/appellant No. 1 - Sudhir Gajwani Seizure memo of knife & Key pad Ex.P-31 mobile of doctor company at the instance of appellant No. 2 - Nirmal @ Sahil Seizure memo of Mobile Model of Vivo Ex.P-32 Company, on which the appellant Sudhir Gajwani called his father through the mobile of his friend Rahul Prathyani Arrest/Court surrender memo of Ex.P-33 appellant - Sudhir Gajwani Arrest/Court surrender memo of Ex.P-34 appellant - Nirmal @ Sahil Seizure of human blood from the Ex.P-35 incident site was collected from the incident site using cotton in a plastic bag and plain cotton in a plastic box Merg intimation Ex.P-36 Information regarding arrest Exs. P-37 & P-38 Application for medical examination of Ex.P-39 accused Sudhir Gajwani and its report Application for medical examination of Ex.P-40 Neutral Citation 2023:CGHC:30574-DB 10 accused Nirmal & Sahil Aswani and its report Memo of JMFC requesting to record Ex.P-41 statement of witness Bijju @ Vijay Asawni u/S 164 of the Cr.P.C. (Eye witness) Seizure of 35 numbers of photographs Ex.P-42 of deceased vide Article A-1 to A-35 Notice under Section 91 of Cr.P.C. Ex.P-43 Request letter for providing certificate Ex.P-44 under Section 65 B of the Evidence Act Memo for providing certificate under Ex.P-45 Section 65B of the Evidence Act Memo seeking information about Ex.P-46 vehicle's owner name & address F.S.L. Report Ex.P-47 F.S.L. Report Ex.P-48 Exmination report relating to S.M.S., Ex.P-49 audio, Videos, Voice recording was included in the retrieved date, which was saved in a folder named suspected audio.

Certificate under Section 65B of the Ex.P-50 Evidence Act List of articles admitted in evidence Article 1 to 4 Photograph of Deceased Article 13 , 5 , 6 , 14, 15,7, 16 & 8, photographs Article 9 , 17 to 23, photographs Articles 24 to 32, photographs Neutral Citation 2023:CGHC:30574-DB 11 Article 33 , 11 , 12 , 34 & 35, photographs Article 36 Letter of photosection Article 37 copy of Envelope Article 13 Photograph of Knife List of documents admitted in evidence for the defence Photographs Ex. D-1 Statement of Akash Poptani Ex.D-1 Information under RTI Act Ex.D-2 Examination of Accused Sudhir Gajwani Examination of accused Nirmal @ Sahil

7. After prosecution evidence, statements of appellants/accused person were recorded under Section 313 of Cr.P.C., in which, they pleaded their innocence and false implication. Apart from that, the appellants have not examined any witness in support of their defence, but exhibited two documents i.e. Ex.D-1 & Ex.D-2 in support of their defence.

8. The trial Court, upon appreciation of oral and documentary evidence available on record, by its judgment dated 10 th April, 2023 convicted appellant - Sudhir Gajwani for offence under Section 302 of the IPC & Sections 25 & 27 of the Act, 1959 and sentenced him as noticed in opening paragraph of the judgment whereas appellant - Nirmal @ Sahil has been acquitted of the offence under Section 302 / Neutral Citation 2023:CGHC:30574-DB 12 34 of the IPC and Section 27 of the Act, 1959 by giving benefit of doubt but convicted him for offence punishable under Section 201 of the IPC and Section 25 of the Act, 1959 and sentenced him as noticed in opening paragraph of this judgment. Against which, both the appellants have preferred instant criminal appeals challenging the same.

9. Mrs. Kiran Jain, learned counsel appearing for the appellant - Sudhir Gajwani submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC & Sections 25 & 27 of the Act, 1959, as the prosecution has utterly failed to prove the said offences beyond reasonable doubt. She would submit that Vjay Aswani @ Vijju (PW-9) is said to be eye witness to the incident, who is brother of appellant - Nirmal @ Sahil. As per case of the prosecution, alleged incident had occurred due to instigation made by appellant - Nirmal @ Sahil but to save his brother, this witness (PW-9) has not stated anything against him, which itself shows that he is concocted witness. Further, in examination-in-chief Vijay Aswani @ Vijju (PW-9) has projected himself as eye-witness but in cross- examination, he has admitted intervention of some 3 rd person having helmet on his head and he has not seen making assault on deceased, which further creates doubt on truthfulness of his deposition. Learned counsel for the appellant - Sudhir Gajwani submit that this witness (PW-9) has admitted in his cross-

Neutral Citation 2023:CGHC:30574-DB 13 examination that he has gone to jail to meet appellant - Sudhir Gajwani twice and despite summons / bailable warrant issued various times to him, he did not appear in the Court, which further shows his doubtful conduct, therefore, he cannot be relied upon as eye-witness to the incident.

9.1. Ms. Kiran Jain, learned counsel appearing for the appellant- Sudhir Gajwani, would further submit that there is also alleged extra- judicial confession said to be made by appellant - Sudhir Gajwani, but the same has not been proved, even alleged call recording (Ex.P-13) of aforesaid appellant has also not been proved in accordance with law, as neither voice sample of appellant - Sudhir Gajwani or his father have been proved, nor who, transcripted the sindhi language into hindi language, has been stated in panchnama (Ex.P-13). She would further submit that alleged weapon of offence has not been seized from appellant - Sudhir Gajwani and the alleged blood stained T-shirt seized from him vide seizure memo (Ex.P-29) was not sent to FSL, because as per FSL report, on being opened packet marked as 'D', instead of T-shirt, full shirt was found in it, further blood stains has not been reported found on full pant marked as 'E' in FSL report. Thus, aforesaid FSL report is not supported to the case of the prosecution, particularly, with regard to appellant - Sudhir Gajwani. She would further submit that in the instant case, the prosecution has utterly failed to prove the fact that alleged crime of weapon i.e. knife was having measurement of Neutral Citation 2023:CGHC:30574-DB 14 prohibited arms. Thus, judgment under challenge is not sustainable, therefore, appellant - Sudhir Gajwani deserves to be acquitted of the charges levelled against him by setting aside the impugned judgment.

10. Mr. Pragallabh Sharma, learned counsel appearing for appellant - Nirmal @ Sahil would submit that in the instant case, as per case of the prosecution itself main accused is Sudhir Gajwani, who allegedly assaulted the deceased and killed him. None of the prosecution witnesses has proved the fact that alleged knife, which is said to be the weapon of offence, has been given by appellant Nirmal @ Sahil to Sudhir Gajwani, even seizure of alleged knife has also been falsely made, as Rahul Prithyani (PW-2) himself has stated in his deposition that no knife was seized from water tank situated at Vidhayak Colony where alleged knife was stated to be kept by appellant Nirmal @ Sahil in his memorandum statement (Ex.P-27). He would further submit that alleged dispute was between Sudhir Gajwani and the deceased, as appellant - Sudhir Gajwani used to talk with wife of deceased, but there is no such dispute between Nirmal @ Sahil and the deceased, then why after killing deceased by Sudhir Gajwani, appellant Nirmal @ Sahil would take alleged weapon of offence from him and conceal it. He would further submit that appellant Nirmal @ Sahil has been implicated in the case only on the basis of memorandum statement of Sudhir Gajwani and he has named him only to create pressure upon his brother Vaijay Aswani @ Neutral Citation 2023:CGHC:30574-DB 15 Vijju (PW-9), who is eye-witness in the instant case. He would also submit that prosecution has also not proved the fact that alleged knife was come in the category of prohibited weapon under Section 4 & 5 of the Act, 1959, as measurement of the same has not been proved. Therefore, judgment of conviction and order of sentence passed by learned trial Court against appellant Nirmal @ Sahil deserves to be set aside.

11. Per contra, learned counsel for the State would submit that there is eye-witness account i.e. Vijay Aswani @ Vijju (PW-9) in the instant case and he has supported the case of the prosecution in his deposition. He would further submit that there is also evidence of extra judicial confession against main accused Sudhir Gajwani, blood stained clothes have also been seized on the basis of his memorandum statement. He would further submit that appellant Nirmal @ Sahil is a person, who has instigated main accused Sudhir Gajwani to kill the deceased, as he used to talk with the wife of deceased, which he did not like and quarrelled many times with them, thus, motive of appellants to kill the deceased has also been proved, blood stained knife has been seized at the behest of appellant Nirmal @ Sahil. He would further submit that the learned trial Court, after due appreciation of evidence adduced by the prosecution, has convicted both the appellants, which does not call for any interference of this Court, hence, appeals filed by both the appellants are liable to be dismissed.

Neutral Citation 2023:CGHC:30574-DB 16

12. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection.

13. First question for consideration would be, whether the trial Court is justified in holding that the death of the deceased Vicky @ Vikash Poptani was homicidal in nature, which the trial Court has answered in affirmative relying evidence adduced by the prosecution mainly upon the testimony of medical officer Dr. Shivnarayan Manjhi (PW-11) who has proved the postmortem reports (Ex.P-22), in which, he has found following injuries on the person of the deceased :-

(i) Stab wound present on chest lower most part & epigastric region upper end and lower end left to mid plane size of 04x2 cm. vertical slightly oblique 14 cm.

thoracic cavity deep after cutting skin intercostals muscles & abdominal muscles which entered into thoracic cavity, directed lower to upwards & mid to left side, then entered into pericardium, heart right ventricle cut through & through then superior venacava then pulmonary vessels size 03x01 cm continue then left lung mediastrium then upper lobe tissue deep. Thoracic cavity contains about 01 liter blood left side. Upper end of wound slightly contused & wide, lower end sharply cut, both edge sharply cut, all around would red colour ecchymosis present.

Neutral Citation 2023:CGHC:30574-DB 17

(ii) Stab wound present on left hypocondrial region 12 cm. below to nipple at anterior auxiliary region 02 x01 cm. transverse 03 cm. muscles deep only, directed down to upwards. Medial end wide lateral end sharply cut.

(iii) Stab wound present on right iliac fossa at anterior superior iliac spine 2.5 x 02 cm. transverse, 07 cm. muscles deep, after cutting skin pelvic muscles which entered upto iliac bone lateral aspect. Directed lateral to medial.

(iv) Stab wound present on right thigh posterior aspect mid part size 2.5 x 02 cm. transverse, 07 cm. muscles deep, after cutting skin thigh muscles which entered upto femur bone. Directed posterior to anterior. Medial end sharply cut & lateral end wide with contusion.

(v) Stab wound present on left arm thigh posterior aspect mid part size 2.5 x 02 cm. transverse, 07 cm. muscles deep, after cutting skin thigh muscles which entered upto femur bone. Directed posterior to anterior. Medial end sharply cut & lateral end wide with contusion.

"Injury No. 01 to 05 caused with sharp single edge, pointed & hard object.

(vi) Multiple linear abrasion present on neck left side over thyroid eminence 01 x 0.2 cm. transverse 3 in no. 01 Neutral Citation 2023:CGHC:30574-DB 18 cm. distance another is just below left clavicular region medial aspect 01 x 0.3 cm. transverse.

He has opined that cause of death was due to haemorrhage and shock as a result of multiple stab injuries to the dead body on chest region and death was homicidal in nature.

14. Rajesh Chawla (PW-15) and Kishan Poptani (PW-17) are the witnesses of inquest report (Ex.P-2). They have also supported alleged stab wound on the person of deceased, which is well corroborated by FIR, merg report etc.

15. Learned trial Court, after appreciating oral, medical and documentary evidence available on record, has held that death of deceased Vicky @ Vikash Poptani was homicidal in nature due to aforesaid haemorrhage and shock as a result of multiple stab injuries on vital part of the deceased. The aforesaid finding, which is based on proper appreciation of evidence available on the record, is neither perverse nor contrary to the records and we hereby affirm the said finding.

16. Now, the next question for consideration would be whether the appellants herein are the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of eye witness to the incident namely Vijay Aswani (PW-9) and other witnesses namely Akash Poptani (PW-1), Rahul Prathyani (PW-2), Mukesh Prathyani (PW-5), Adarsh Panjwani (PW-3),Yash Neutral Citation 2023:CGHC:30574-DB 19 Pahuja (PW-4) & Tarun Meghani (PW-19).

17. In the instant case, Vijay Aswani @ Vijju (PW-9), who is eye- witness to the incident, has stated in paragraphs No. 2 to 6 of his deposition that in the night of incident, he alongwith his maternal uncle Laxmi Chand and deceased Vicky @ Vikash Poptani were sitting in a Green Light Dhaba, located at Ring Road, Raipur, which is situated before the police station, Telibandha, at that time, appellant Sudhir Gajwani had come in the motorcycle and looking to the deceased, appellant Sudhir Gajwani made comment that "ckn'kkg cksyrh gS nqfu;k", due to this, altercation took place between them and they abused each other, thereafter, appellant - Sudhir Gajwani had gone from there. He has further deposed that after sometime, he called his younger brother Nirmal @ Sahil (appellant) and sent his maternal uncle (ekek - y{ehpan) alongwith him to the house, thereafter, he alongwith deceased went in the motorcycle to go to home and when they reached near turning of Vishal Nagar, in service road, there appellant - Sudhir Gajwani stopped them, thereafter, again altercation and exchange of abuse started between them with regard to wife of deceased i.e. Kiran Kaur, as appellant used to wander with her in his motorcycle and due to this, dispute occurred between them many times. This witness has further stated that while aforesaid quarrel, appellant - Sudhir Gajwani assaulted Vicky @ Vikash Poptani by means of knife for 3 -4 times, thereafter, he fled away from Neutral Citation 2023:CGHC:30574-DB 20 the spot. He has further stated that he had seen the incident from 8-10 feet far from the place of occurrence. He has further deposed that on being called by him, his younger brother appellant - Nirmal @ Sahil came there within 10 minutes, thereafter, they had gone to the house of Rahul Prathyani (PW-2), whom they told about the incident, then Rahul Prathyani (PW-2) also told them that appellant - Sudhir Gajwani had called him that he has killed deceased by means of knife.

18. Thus, Vijay Aswani @ Vijju (PW-9) has clearly stated in his deposition narrating prior and subsequent event alongwith instant dispute and assault made by appellant - Sudhir Gajwani that he has seen the incident, in which, appellant - Sudhir Gajwani has assaulted deceased many times by knife. In paragraphs 21 to 29, this witness (PW-9) has developed complete new facts with regard to incident and he has stated that after talking with deceased, appellant Sudhir Gajwani had gone from the place of occurrence and after sometime, some other person came there having helmet on his head, who quarelled with the deceased, at that time. he had gone for nature's call (urination) and when he came, then he saw that deceased was lying there in injured condition. He has admitted suggestion of learned defence counsel in paragraph 26 of his cross-examination that he has not seen assaulting the appellant- Sudhir Gajwani to deceased by means of knife. Thus, this witness has tried to destroy his eye-witness status of the incident made by him in his examination-in-chief, but his Neutral Citation 2023:CGHC:30574-DB 21 aforesaid statement of cross-examination made by him in paragraph 20 to 29 is found to be after thought and concocted, because he has not stated anything about alleged intervention of helmet wearing person in his police statement or his statement recorded under Section 164 of the Cr.P.C., therefore, aforesaid new story brought by him in cross-examination is wholly unreliable.

19. Although, eye - witness Vijay Aswani @ Vijju (PW-9), who is brother of another appellant Nirmal @ Sahil, has admitted in his cross-examination that he had gone to jail twice to meet appellant - Sudhir Gajwani and even many times after receiving summons / bailable warrants, he did not appear in the court to record his deposition, but only because of it, deposition made by him in his examination in chief, which is not contradictory to his police statement recorded under Section 161 of the Cr.P.C. and the statement recorded under Section 164 of the Cr.P.C., however, he has cleverly brought new fact in his cross-examination, which do not get any support from any document of prosecution, as such, we do not find trustworthy to the aforesaid improved statement made by this witness in his cross-examination with regard to intervention of alleged helmet wearing person coming on the spot. In view of above, submission of learned defence counsel of appellant Sudhir Gajwani to discredit his deposition cannot be accepted.

20. Rahul Prathyani (PW-2) is a friend of deceased - Vicky @ Vikash Poptani and he has also known to appellant - Sudhir Neutral Citation 2023:CGHC:30574-DB 22 Gajwani. After assaulting deceased, appellant - Sudhir Gajwani had gone to the house of this witness and he had made extra-judicial confession to him that due to dispute with deceased, he has killed him. Aforesaid facts have been proved by Rahul Prathyani (PW-2) in his deposition. Nothing could have been brought in his cross- examination to discredit or discard his aforesaid statement. Thus, there is existence of evidence of extra-judicial confession also of appellant - Sudhir Gajwani with regard to killing of deceased Vicky @ Vikash Poptani by him.

21. Rahul Prathyani (PW-2) has further stated in his deposition that at about 3.30 A.M. in the night of incident, when appellant - Sudhir Gajwani had come to his house, then he had talked with his father on the mobile phone of this witness which were recorded in his mobile phone, Ex.P-13 is said to be transcription panchnama of alleged call recording. Although, Rahul Prathyani (PW-2), Tarun Meghani (PW-

19) and Adarsh Panjwani (PW-3) have supported alleged panchnama (Ex.P-13), but neither it has been mentioned in Ex.P-13 that, who transcripted / translated alleged talk / call recording from Sindhi language to Hindi language, nor voice sample of appellant - Sudhir Gajwani & his father - Chandrakumar Gajwani (PW-16) between whom alleged talk was made, has been proved by the prosecution. Hence, recording panchnama (Ex.P-13) cannot be held to be proved, therefore, it cannot be relied upon.

22. Ms. Kiran Jain, learned counsel appearing for appellant -

Neutral Citation 2023:CGHC:30574-DB 23 Sudhir Gajwani would submit that extra-judicial confession is very weak type of evidence, therefore, it cannot be relied upon for proper adjudication of the present case.

23. It is the settled principle of criminal justice that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See : Sahadevan and another v. State of Tamil Nadu 1]

24. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab 2 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under :-

"15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10) "10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great 1 (2012) 6 SCC 403 2 1995 Supp (4) SCC 259 Neutral Citation 2023:CGHC:30574-DB 24 deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."

15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra- judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B. 3 and Pancho v. State of Haryana4.) The principles

16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused :

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

3 (2011) 11 SCC 754 4 (2011) 10 SCC 165 Neutral Citation 2023:CGHC:30574-DB 25

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

25. Thus, although in aforesaid judicial pronouncement, it has been held that extra-judicial confession is weak type of evidence, but in instant case, there is eye-witness account also and on the strength of same, it cannot be said in the instant case that extra judicial confession made by appellant - Sudhir Gajwani to Rahul Prathyani (PW-2) is weak type of evidence in any manner. However, transcription / Panchnama (Ex.P-13) reduced in writing of alleged call record is not found proved.

26. Akash Poptani (PW-1) is brother of deceased, who lodged merg report (Ex. P-36) as well as FIR (Ex.P-3) and he has supported those documents. Adarsh Panjwani (PW-3) is friend of Mukesh Prathyani (PW-5), who is younger brother of Rahul Prathyani (PW-2) whereas Yash Pahuja (PW-4) is friend of Rahul Prathyani (PW-2). These witnesses have also supported the fact that in the night of incident, altercation had taken place between deceased and appellant - Sudhir Gajwani at Green Light Dhaba. They have further Neutral Citation 2023:CGHC:30574-DB 26 stated that at about 3.30 AM in the night of incident Mukesh Prathyani (PW-05), who is younger brother of Rahul Prathyani (PW-2), had told them that deceased Vicky @ Vikash Poptani has been killed. Aforesaid fact had told by Rahul Prathyani (PW-2) to his brother Mukesh Prathyani that appellant - Sudhir Gajwani has killed the deceased. Aforesaid witnesses are friends and well known to each other and in the intervening night itself, on being extra-judicial confession made by appellant - Sudhir Gajwani to Rahul Prathyani (PW-2), all of them came to know about the incident and also about perpetrator of the crime i.e. appellant Sudhir Gajwani. Adarsh Panjwani (PW-3), Yash Pahuja (PW-4) & Mukesh Prathyani (PW-5) had informed about the incident to Akash Poptani (PW-1), who lodged FIR (Ex.P-3) against appellant - Sudhir Gajwani. Nothing has been elicited by defence counsel in cross-examination of aforesaid witnesses including eye-witness- Vijay Aswani @ Vijjy (PW-9) to discredit their deposition made by them, rather it is apparent from evidence, as has been stated earlier that deceased and aforesaid witnesses are friends and well known to each other, therefore, nothing is found to believe that they have falsely made statement against appellant Sudhir Gajwani.

27. As per seizure memo (Ex.P-29) one T shirt and one full pant were seized from Sudhir Gajwani and those were sent to FSL for chemical examination, but as per FSL report (Ex. P-47) in packet marked 'D' instead of T shirt, one full shirt was found in it. Although Neutral Citation 2023:CGHC:30574-DB 27 human blood has been reported to be found on that shirt, but due to aforesaid contradictory fact, it cannot be held proved that allege T shirt seized from appellant Sudhir Gajwani was sent for chemical examination, further blood stains was not found in the full pant. Therefore, case of prosecution do not get any support from seizure of aforesaid articles.

28. In view of above discussion, we find that learned trial Court has not committed any error in holding guilty to appellant Sudhit Gajwani committed murder of deceased Vicky @ Vikash Poptani.

29. As per case of the prosecution, after killing deceased by knife, appellant - Sudhir Gajwani had given that knife to appellant Nirmal @ Sahil, earlier who has given that knife to Sudhir Gajwani and on the basis of memorandum statement (Ex.P-27) of Nirmal @ Sahil, blood stains knife was seized at the behest of Nirmal @ Sahil vide seizure memo (Ex.P-31).

30. Aforesaid facts has been proved by Investigating Officer - Mohsin Khan (PW-18). Independent witness - Tarun Meghani (PW-19) in his deposition para 13 & 14 has supported aforesaid memorandum statement and seizure memo of appellant Nirmal @ Sahil. He has also stated in his cross-examination para 20 that proceedings were conducted by the police in front of him and Rahul Prathyani (PW-2), although Rahul Prathyani (PW-2) has not fully supported the aforesaid documents, but only because of that, alleged memorandum and seizure proved by Investigating Officer Mohsin Neutral Citation 2023:CGHC:30574-DB 28 Khan and independent witness Tarun Meghani cannot be discarded.

31. As per FSL report (Ex.P-47), human blood stains has been found on the knife marked as 'C' seized at the behest of appellant Nirmal @ Sahil. Although, origin or blood group has not been proved by the prosecution in the blood stains found on the knife, but considering evidence of instant case it cannot be held to be fatal to the case of prosecution.

32. In Sattatiya alias Satish Rajanna Kartalla (supra), the two-Judges Bench of the Supreme Court has held that as per the chemical examiner's report the bloodstains found on the shirt, pants and half blade were those of human blood, the same could not be linked with the blood of the deceased and thereby there was serious lacuna in the prosecution story. The Supreme Court, however, in Balwan Singh Vs. State of Chhattisgarh and another 5 (three- Judges Bench), has considered the decision in Sattatiya alias Satish Rajanna Kartalla (supra) in paragraph 12 of its report and also noticed the Constitution Bench decision in the matter of Raghav Prapanna Tripathi v. State of U.P. 6 and summarised the law relating to effect of failure to establish origin of blood as being of human origin and/or its blood group and held that the same has to be ascertained in the facts and circumstances of each case, and there is no fixed formula for the same. It has been observed in paragraphs 15, 16, 20, 21, 22 and 23 of the report - Balwan Singh (supra) as 5 (2019) 7 SCC 781 6 AIR 1963 SC 74 Neutral Citation 2023:CGHC:30574-DB 29 under: -

"15.We are also conscious of the fact that, at times, it may be very difficult for the serologist to detect the origin of the blood due to the disintegration of the serum, or insufficiency of bloodstains, or haematological changes, etc. In such situations, the court, using its judicious mind, may deny the benefit of doubt to the accused, depending on the facts and circumstances of each case, if other evidence of the prosecution is credible and if reasonable doubt does not arise in the mind of the court about the investigation.

16. Thus, in R. Shaji v. State of Kerala7, this Court had observed:

"31.A failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group(s) loses significance."

(emphasis in original)

20. However, we cannot lose sight of the fact that the accused would be in a disadvantageous position in case if the aforementioned dictum laid down by this Court in R. Shaji, Gura Singh8, Jagroop Singh9 and Teja Ram10 relating to the bloodstains is applied in each and every case. Non-confirmation of blood- 7 (2013) 14 SCC 266 8 Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 9 Jagroop Singh v. State of Punjab, (2012) 11 SCC 768 10 State of Rajasthan v. Teja Ram, (1999) 3 SCC 507 Neutral Citation 2023:CGHC:30574-DB 30 group or origin of the blood may assume importance in cases where the accused pleads a defence or alleges mala fides on the part of the prosecution, or accuses the prosecution of fabricating the evidence to wrongly implicate him in the commission of the crime.

21. In John Pandian v. State11, this Court, on facts, observed that the evidence of recovery of weapons was credible. The forensic science laboratory (FSL) report had disclosed that the blood was of human origin. The Court proceeded to conclude that since the evidence of recovery of weapon was proved to the satisfaction of the Court, it was sufficient that the prosecution had proved that the bloodstains were of human origin, even though the blood group could not be ascertained.

22. The cases discussed above highlight the burden that the prosecution would ordinarily have to discharge, depending on the other facts and circumstances of the case, for the evidence relating to recovery to be considered against the accused. At the same time, as mentioned above, we are conscious of the fact that it may not always be possible to inextricably link the bloodstains on the items seized in recovery to the blood of the deceased, due to the possibility of disintegration of bloodstains on account of the time- lapse in carrying out the recovery. For this reason, in Prabhu Dayal v. State of Rajasthan12, where one of us (Mohan M. Shantanagoudar, J.) had the occasion to author the judgment, this Court, relying on Teja Ram, had held that the failure to determine the blood group of the bloodstains collected from the scene of offence would not prove fatal to the case of the prosecution. In Prabhu Dayal case, although the FSL report could not determine the blood group of the bloodstains on account of disintegration, the report clearly disclosed that the bloodstains were of human origin, and the chain of circumstantial evidence was completed by the testimonies of the other witnesses as well as the reports submitted by the ballistic expert and the forensic science laboratory regarding the weapon used to commit murder.

11 (2010) 14 SCC 129 12 (2018) 8 SCC 127 Neutral Citation 2023:CGHC:30574-DB 31

23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match." 33 . In instant case, since seizure of human blood stains knife has been found proved at the behest of appellant Nirmal @ Sahil and no explanation has been offered by him to challenge aforesaid fact, therefore, applying aforesaid legal proposition, it cannot be held that if origin or blood group has not been proved by the prosecution on the weapon of crime i.e. knife, then it could not be relied upon against appellant Nirmal @ Sahil. In view of above, we find that learned trial Court has rightly held guilty to the appellant Nirmal @ Sahil for the offence of disappearing evidence of offence to screen appellant Sudhir Gajwani, who is said to be his friend, from the offence.

34. So far as motive is concerned, as per deposition of Akash Poptani (PW-1), who is brother of deceased and Vijay Aswani @ Vijju (PW-9) who had acquainted from both side, appellant - Sudhir Gajwani used to talk with wife of deceased namely Kiran Kaur Neutral Citation 2023:CGHC:30574-DB 32 (PW-12), Vijay Aswani @ Vijju (PW-9) has further stated that appellant - Sudhir Gajwani used to wander with her in the motor cycle, therefore, quarrel had taken place many times between them. Kiran Kaur (PW-12) while supporting their deposition has stated that she was not having any illicit relation with appellant- Sudhir Gajwani, despite that deceased used to doubt her character. It is apparent from deposition of eye witness Vijay Aswani @ Vijju (PW-9) that in the intervening night also, there had been dispute with regard to wife of deceased between appellant - Sudhir Gajwani and deceased and this fact proved motive of appellant - Sudhir Gajwani committing murder of Vicky @ Vikash Poptani.

35. In view of the foregoing discussion and on the basis of evidence available on record, we find that learned trial Court has not committed any error in holding guilty to appellant - Sudhir Gajwani for committing murder of deceased Vicky @ Vikash Poptani and further holding appellant Nirmal @ Sahil guilty for commission of offence under Section 201 of the IPC for disappearing evidence of offence i.e knife to screen the appellant Sudhir Gajwani.

36. So far as conviction of appellants for the offence under Section 25 & 27 of Arms Act, 1959 is concerned, aforesaid provision provide punishment for having illegal possession, use etc. of prohibited arms to which as per Sections 4, 5 & 7, licence is required. Sections 4, 5 & 7 reads thus :-

Neutral Citation 2023:CGHC:30574-DB 33 "4. Licence for acquisition and possession of arms of specified description in certain cases. - If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification, and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.

5. Licence for manufacture, sale, etc., of arms and ammunition. [(1)] No person shall-

(a) [use, manufacture, sell, transfer, convert, repair, test or prove, or

(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:

[(2)] Notwithstanding anything contained in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition:

Neutral Citation 2023:CGHC:30574-DB 34 Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be so sold or transferred by any person unless-

(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and

(b) a period of not less than forty-five days has expired after the giving of such information.]"

7. Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition. - No person shall -

(a) acquire, have in his possession or carry; or

(b) [use manufacture], sell, transfer, repair, test or prove; or

(c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, Any prohibited arms or prohibited ammunition unless he has been specially authorized by the Central Government in this behalf.

37. A bare perusal of aforesaid provisions will show that for having possession of arms of specified description prescribed by the Central Government, licence is required and punishment for contravention of the same and use of the same is provided in Section 25 & 27 of the Act, 1959. In instant case crime of weapon was knife but its measurement has not been proved by any of the witness including Investigating Officer Mohsin Khan, who seized Neutral Citation 2023:CGHC:30574-DB 35 aforesaid weapon to prove the fact that, it comes in class / category or description prescribed by the Government of prohibited arms. Thus, since it has not been proved by the prosecution that alleged knife was covered from prohibited arms specified by the Central Government, therefore, conviction and sentence awarded by learned trial Court to the appellants for the offences under Sections 25 & 27 of the Act, 1959 is bad in law and, therefore, it is un-sustainable.

38. As a consequence, we uphold judgment of conviction of appellant - Sudhir Gajwani for the offence punishable under Section 302 of the IPC and conviction of appellant - Nirmal @ Sahil under Section 201 of the IPC, but we set-aside judgment of conviction and order of sentence of appellant -Sudhir Gajwani for the offence under Sections 25 & 27 of Act, 1959 and conviction & sentence of appellant - Nirmal @ Sahil for the offence under Section 25 of the Act, 1959.

39. So far as sentence part of the impugned judgment is concerned, on due consideration of facts and evidence available on record, we also uphold the sentence awarded by learned Additional Sessions Judge, Raipur (C.G.) to appellant - Sudhir Gajwani for the offence under Section 302 of IPC i.e. rigorous imprisonment for life and fine of Rs.1,000/-, with default stipulation, but considering the facts & evidence of the case, we think it proper to reduce sentence of five years awarded to appellant Nirmal @ Sahil for commission of offence under Section 201 of IPC and instead thereof, we award him Neutral Citation 2023:CGHC:30574-DB 36 imprisonment for two years and maintained fine sentence & default stipulation imposed by the trial Court.

40. Resultantly, Criminal Appeal No. 1029 of 2023 filed by appellant - Sudhir Gajwani and Criminal Appeal No. 1044 of 2023 filed by appellant Nirmal @ Sahil are partly allowed to the extent indicated hereinabove. Rest of order / direction passed by the trial Court shall remain intact.

41 . Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

                           Sd/-                               Sd/-
                 (Naresh Kumar Chandravanshi)           (Ramesh Sinha)
                        Judge                             Chief Justice

             Judgment delivered on 06.12.2023
Dubey/-
 Neutral Citation
2023:CGHC:30574-DB




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