Chattisgarh High Court
Abhishek Diwan vs State Of Chhattisgarh on 14 September, 2021
1
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 611 of 2020
• Abhishek Diwan S/o Chandra Shekar Diwan Aged About 20 Years R/o Shanti
Vihar, Danganiya, District : Raipur, Chhattisgarh
---- Appellant
Versus
• State Of Chhattisgarh Through Station House Officer D.D. Nagar, District :
Raipur, Chhattisgarh
---Respondent
14/09/2021 Mr. Surendra Singh, Senior Advocate (through video
conferencing) assisted by Mr. Vinay Pandey, counsel for the appellant.
Mr. Ravish Verma, G.A. for the State/respondent.
Heard on application (I.A. No.01/2020) for suspension of
sentence and grant of bail.
The appellant has been convicted under the impugned judgment
of conviction and order of sentence dated 15.07.2020 passed by
learned 12th Additional Sessions Judge, District- Raipur, (C.G.) in
Sessions Trial No.193/2016, C.I.S. No.193/2016 and Crime
No.151/2016.
Learned Senior counsel for the appellant would argue that the
conviction of the appellant is founded on extremely weak circumstantial
evidence of motive and recovery of firearm. He would argue that the
ballistic report Ex.P-35 does not carry any evidentiary value because
characteristic features and observations on the basis of which opinion
was rendered regarding identity of the seized cartridge and test fired
cartridge is not stated and thus, it is not possible for the Court to cross
check the opinion. He would further submit that other evidence of Pratik
Tiwari (PW-12) informed by the deceased as well as the appellant
regarding dispute between them is based only on telephonic
conversation and particularly the conversation of this witness with the
deceased is of no aid to the prosecution because it does not relate to
cause of his death so as to treat as dying declaration. Learned Senior
counsel would further argue that evidence of other prosecution
witnesses Atit Pandey (PW-11) and Piyush Shukla (PW-14) are also of
no aid to the prosecution because though these witnesses were cited
as eyewitnesses, none of them have supported the prosecution case
and stated that they had not seen as to who had fired gunshot on the
deceased and except stating that they had heard cracker's noise, they
could not see anything else.
Thus, it is contended, the whole case of the prosecution has not
been able to translate the prosecution story into truth and at the most
remained in the realm of suspicion, however, strong.
On the other hand, learned State Counsel opposes and submits
that the conviction of the appellant is founded on circumstantial
evidence which has been summerised by the learned trial Court in the
Para-35 of the judgment which includes existence of the dispute and
quarrel between the appellant and the deceased within short period
just before murder of the deceased, recovery of used pistol from the
place upon disclosure statement of the appellant, opinion of the ballistic
expert in Ex.P-35 that the cartridge found at the spot was fired from the
said pistol, and homicidal death of the deceased was due to gunshot
injury.
Taking into consideration the submissions of learned counsel for
the parties and the circumstantial evidence which has been made basis
for conviction of the appellant, we are not inclined to allow the
application for suspension of sentence and grant of bail.
Accordingly, application (I.A. No.01/2020) for suspension of
sentence and grant of bail is rejected.
Sd/- Sd/-
(Manindra Mohan Shrivastava) (Vimla Singh Kapoor)
Judge Judge
Ravi
