Chattisgarh High Court
Sudhir Gajwani vs State Of Chhattisgarh on 6 December, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
Neutral Citation
2023:CGHC:30574-DB
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1029 of 2023
Judgment Reserved on : 09.10.2023
Judgment Delivered on : 06.12.2023
Sudhir Gajwani, S/o Chandra Kumar Gajwani, aged about 26
years, R/o Shyam Nagar, P.S. - Telibandha, District Raipur (C.G.)
---Appellant/accused
Versus
State of Chhattisgarh, Through P.S. Telibandha, District Raipur
(C.G.)
---- Respondent
And
Criminal Appeal No. 1044 of 2023
Nirmal @ Sahil, S/o Shri Thakur Das Aswani, Aged about 27
years, R/o Vidhayak Colony, Block No. 25, House No. 02, P.S.
Telibandha, District Raipur (C.G.)
---Appellant/accused (In jail)
Versus
State of Chhattisgarh, through District Magistrate, Raipur (C.G.)
---- Respondent
For Appellant : Mrs. Kiran Jain, Adv. in Cr.A. No. 1029
of 2023
For Appellant : Mr. Pragallabh Sharma, Adv. in Cr.A.
No. 1044 of 2023
For Respondent : Mr. Pawan Keshwarwani, Panel Lawyer
Hon'ble Shri Ramesh Sinha, Chief Justice and
Hon'ble Shri Naresh Kumar Chandravanshi, Judge
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CAV JUDGMENT
Per Naresh Kumar Chandravanshi, J.
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 monthU/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 daysU/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.
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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 monthU/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.
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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
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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
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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. 1PW-03 Statement of Adarsh Panjwani
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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 deceasedPW-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
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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
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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
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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 /
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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-
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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
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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 @
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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.
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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 04×2 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 03×01 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.
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(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
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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
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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
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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
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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
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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 –
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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
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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
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(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
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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
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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
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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
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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
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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
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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
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(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 :-
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“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:
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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
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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
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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/-
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