1 2025:CGHC:26257-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2012 of 2024 Akshat Shrivasan S/o Late Anil Shrivasan, Aged About 32 Years R/o Housing Board Colony, Nehru Nagar, P.S.- Civil Line, Bilaspur, District- Bilaspur (C.G.) ... Appellant versus State Of Chhattisgarh, Through- The District Magistrate Bilaspur (C.G.) ... Respondents (Cause-title taken from Case Information System) For Appellant : Mr. Raj Kumar Gupta, Advocate For Respondent-State : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha , Chief Justice 20.06.2025 1. Heard Mr. Raj Kumar Gupta, learned counsel for the appellant and Mr. Nitansh Jaiswal, learned Panel Lawyer, appearing on behalf of the State/respondent. 2. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) questioning the impugned judgment dated 30.09.2024 passed by the learned ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.06.20 17:38:33 +0530 2 First Additional Sessions Judge, Bilaspur, District Bilaspur (C.G.) in Sessions Trial No.92/2019, whereby the trial Court has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo life imprisonment and fine of Rs.1,000/-, in default of payment of fine amount, additional rigorous imprisonment for six months. 3. It is an admitted position that accused was associated with a group of friends with deceased, namely Shubham Kesharwani, Tanmeet Chhabda, Bhavesh Bhardwaj, Raktim Sarkhe, Rishabh Prajapati, Vishesh Tiwari, Pratik Maheshwari and Yash Bhatia before the incident. On the night of 14.03.2019, deceased Shubham Kesharwani had gone to Khalsa Dhaba Sakri with his friends, where the accused also went in his WagonR car. All the people came back to Bilaspur after eating and drinking from Sakri. After coming to Bilaspur, the accused left his car at his house and went to Hotel Midtown in Bilaspur with deceased Shubham in his car, where his other friends also reached and everyone consumed beer etc. in Hotel Midtown. From there, accused along with his other friends Rishabh and Vishesh Tiwari came to Rishabh's house in Shubham's car and all the friends have left for their respective homes near the house of Rishabh. 4. Brief facts of the case, in a nutshell are that, on 15.03.2019, at about 6.00 AM, uncle of the deceased, Sapan Kesharwani (PW-1), on 3 receiving information that Shubham Kesharwani, Panna Nagar Parishad, was lying dead in the street, went to the spot and saw Shubham Kesharwani lying dead there as also blood was oozing out from his mouth. The car of the deceased and its keys were lying near the spot, the keys also had blood on them. On the information of Sapan Kesharwani, Sub-Inspector Ibrahim Mohammad (PW-20) registered Rural Merg Intimation vide Ex.P/1 and Rural Nalisi vide Ex.P/2 at the spot itself as also notice was issued vide Ex.P/3 to the witnesses Sapan Kesharwani (PW-1) and Santosh Kesharwani (PW- 24) present there for the Panchnama of the dead body of the deceased and prepared Panchnama Ex.P/4 of the dead body of the deceased in their presence. Thereafter, the body of the deceased was sent for examination along with postmortem application Ex.P/22 to District Hospital Bilaspur by issuing duty certificate Ex.P/19 to constable Ajay Sharma. In the District Hospital Bilaspur, Dr. V.K. Mishra (PW-25) examined the body of the deceased and issued postmortem report Ex.P/41. As per the information given by Sapan Kesharwani (PW-1)m, map of the crime scen was prepared vide Ex.P/21. Blood stained and plain soil as well as car keys were recovered from crime scene in front of Sapan Kesharwani (PW-1) and Vijay Tripathi (PW-7) vide Ex.P/5. The car of the deceased, a green colour cap and an I-phone mobile were seized from the spot itself in the presence of witnesses vide Ex.P/17. After returning to the Police Station, on the basis of Rural Merg Intimation (Ex.P/1), Rural Nalishi (Ex.P/2) as well as Numbered Merg Intimation (Ex.P/24), First 4 Information Report was registered vide Ex.P/25 against the unknown accused and taken into investigation. 5. The further case of the prosecution is that on receiving information about a monetary dispute between the accused and the deceased, the house of the accused was searched in the presence of witnesses and six iron swords were recovered from the house of the accused vide seizure memo Ex.P/16. The accused and the deceased had come together near Rishabh's house to the place of incident in the car of the deceased and on the absconding of the accused after the incident, a letter Ex.P/30 was sent to Cyber Cell Bilaspur and the call details of the mobile of the accused (Ex.P/37 and Ex.P/38) as also the call details of the mobile of the deceased Shubham Kesharwani (Ex.P/39) and CCTV footage etc. were obtained in relation to his being at the place of incident at the time of the incident and going out of the city after the incident. Upon the arrest of the accused, the memorandum statement of the accused was recorded vide Ex.P/10 in the presence of witnesses Anurag Kesharwani (PW-11) and Jaiharsh Kumar Pandey (PW-19). On production of the accused, one Oppo mobile phone was seized vide Ex.P/11 and the knife used in the crime was seized from the body of Rajesh Agarwal in Panna Nagar Parishad Gali vide Ex.P/12. The knife used in the crime was sent to the Doctor and query report was obtained vide Ex.P/42. The knife used in the crime, blood stained and plain soil, car keys and clothes of the deceased were sent to Forensic Science Laboratory, Bilaspur for chemical test through memorandum vide Ex.P/28 of the 5 Superintendent of Police and the FSL report was obtained vide Ex.P/34. 6. In pursuance of the memorandum statement of the accused, the clothes worn by him at the time of the incident were searched in the dustbin near Sulabh Shauchalaya in Raipur and when they were not recovered, a panchanama to this effect was prepared in front of witness Lalit Kesharwani (PW-27) vide Ex.P/43. One motorcycle RS- 100 bearing registration No. CG 04 ZX. 5171 along with its registration certificate was seized from the accused vide Ex.P/13 in the presence of witnesses Anurag Kesharwani (PW-11) and Arpit Kesharwani (PW-12). The notice (Ex.P/23) under Section 91 Cr.P.C. was issued to the accused to produce documents in respect of the sword recovered from his house and he had failed to produce any documents, however, additional Section under the Arms Act was added. A letter (Ex.P/33) was sent to Tehsildar and a map of the place of incident (Ex.P/8) was obtained from Patwari. When the lady constable brought the clothes of deceased Shubham Kesharwani from hospital and produced it, they were seized vide seizure memo Ex.P/15 in front of witnesses Anurag Kesharwani (PW-11) and Arpit Kesharwani (PW-12). Regarding withdrawal of money by the accused, letters (Exs.P/31 and P/32) were sent to State Bank of India Bilaspur and account statement was obtained. 7. Statement of the witnesses, namely Sapan Kesharwani, Santosh Kesharwani, Yash Bhatia, Raktim Prasad Sarkhel, Vishesh Tiwari, 6 Rahul Singh, Rishabh Prajapati, Bhavesh Bhardwaj and Luv Kumar Singh under Section 161 of the Cr.P.C. were recorded. After arresting the accused and finding him guilty in the investigation, charge-sheet under Sections 302, 201 of the IPC and Section 25 of the Arms Act, 1959 (for short, ‘Arms Act’) was filed before the concerned Judicial Magistrate, who then transferred the case to the Sessions Court under Section 209 of Cr. P.C. and the same has been transferred to the Court of Additional Sessions Judge Bilaspur for disposal in accordance with law. 8. The trial Court has framed charges against the appellant for the offence punishable under Sections 302 of the IPC and Section 25(1- B)(b) of the Arms Act and proceeded on trial. The appellant abjured the guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated in the crime in question. 9. The prosecution in order to prove its case examined as many as 27 witnesses as PW-1 to PW-27 and exhibited 43 documents vide Ex.P/1 to Ex.P/43 as well as ARticle-A1, whereas the appellant- accused in support of his defence has not examined any witness, but exhibited 4 document vide Ex.D/1 to D/4. 10. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 30.09.2024, acquitted the appellant for the offence punishable under Section 25(1-B)(b) of the Arms Act and convicted 7 and sentenced the appellant in the manner mentioned in the second paragraph of this judgment, against which this appeal under Section 374(2) of the Cr.P.C. has been preferred by him calling in question the impugned judgment. 11. Mr. Raj Kumar Gupta, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the learned trial Court has not proved the offence beyond reasonable doubt. He further submits that there is no direct evidence available against the appellant. He further submits that although conviction of the appellant is substantially based on the memorandum statement of the appellant, but the same does not inspire confidence from independent source. Thus, the conviction of the accused-appellant herein is unsustainable, inadmissible and bad in law. It has been contended that even if the entire case is taken at its face value, the case would not travel beyond Section 304 Part-II of the IPC. It has been further contended that the evidence adduced on behalf of the prosecution is suspicious in nature and same is not safe for placing reliance that too for conviction of the appellant for commission of heinous offence of murder. It has been lastly contended that the appellant has been convicted only on the basis of CCTV footage and there is no eyewitness to the incident, as such, the impugned judgment of conviction is liable to be set aside and appellant-accused be acquitted/discharged from the said offence. 8 12. Per-contra, Mr. Nitansh Jaiswal, learned Panel Lawyer appearing for the State supported the impugned judgment of conviction and order of sentence and submitted that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that there is ample evidence on record to connect the accused/appellant with the offence in question. The learned trial Court, after proper appreciation of the evidence and materials available on record, has convicted and sentenced the appellant/accused, which warrants no interference. The learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC, as the accused-appellant has committed murder of his friend as there was some money dispute between them. It has been contended that on his memorandum statement, blood stained knife and clothes have been recovered and the FSL report stands positive as the blood stains have been found on the clothes and knife used in the incident. It has been further argued that the blood stains were also found on the car, in which both of them i.e. appellant and deceased were lastly seen together as per CCTV footage. Thus, the present appeal is bereft of merit, is deserves to be dismissed. 13. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection. 14. There is no eye-witness to the assault on the deceased and the entire case of the prosecution is based on circumstantial evidence. 9 15. The first and foremost question for consideration would be, whether the trial Court was justified in holding that death of deceased- Shubham Kesharwani was homicidal in nature ? 16. The learned trial Court, relying upon the statement of Dr. V.K. Mishra (PW-25), who has conducted postmortem on the body of deceased vide Ex.P/41, has clearly come to the conclusion that the cause of death of the deceased was syncope due to hemorrhage caused by injury to the heart and lungs and the nature of death of the deceased was homicidal. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby affirm the said finding. 17. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime. 18. In the present case, homicidal death on account of syncope due to hemorrhage caused by injury to the heart and lungs and the nature of death is homicidal has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. V.K. Mishra (PW-s5) and the postmortem report (Ex.P/41) that the death of deceased was homicidal in nature. 19. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the circumstantial evidence 10 as well as statement of Dr. V.K. Mishra (PW-25) as also upon the memorandum statement of the appellant vide Ex.P/26. 20. Father of deceased Shubham Kesharwani, namely Girija Prasad Kesharwani (PW-8), uncle-Sapan Kesharwani (PW-1) and Santosh Kesharwani (PW-24) along with friends of the deceased Rahul Singh (PW-2), Aavish Bhardwaj (PW-3), Luv Singh (PW-4), Yash Bhatia (PW-5), Rishabh Prajapati (PW-6), Vijay Tripathi (PW-7), Vishesh Tiwari (PW-9) and Raktim Sarsel (PW-10), all the witnesses have stated in their statements that Shubham Kesharwani was murdered on 15.03.2019. 21. Sapan Kesharwani (PW-1) has stated in his evidence that regarding the murder of deceased Shubham Kesharwani, rural intimation (Ex.P/1) and rural complaint (Ex.P/2) were registered at the scene of incident and in presence of him and his brother Santosh Kesharwani, police has prepared the map of the dead body of deceased Shubham Kesharwani vide Panchayatnama Ex.P/4 which has been supported by the uncle of the deceased, namely Santosh Kesharwani (PW-24). 22. Dr. V.K. Mishra (PW-25) has conducted postmortem of the dead body of deceased Shubham Kesharwani and found following injuries:- “External Examination- 01. A 1x0.5 cm deep and cut sharp wound on the right side of the chest towards the front. 02. A 2x3/4 cm deep sunken, sharp cut wound on the left side of the chest, towards the front, above the heart region. 11 03. Sharp cut sunken wound measuring 1x3/4 cm over scapula bone in the back. 04. Sharp incised wound measuring 1.5x3/4 cm in the lower part of scapula region on left side of back. 05. Sunken wound measuring 1x3/4 cm in the middle of the back. 06. Escaped wound measuring 9x3 cm on the back of right elbow and forearm. 07. Escaping wound measuring 3x1 cm on the back of the right elbow. 08. The right forearm had numerous small abrasions of varying sizes and lengths over the entire front portion of the forearm from the wrist to the wrist. 09. There was a superficial lacerated wound on the front of the left knee measuring 7x6 cm. Internal Examination- Upon internal examination of the deceased, he found blood filled inside the membrane of both the lungs of the deceased, a sunken wound of the size 2x0.5 cm with sharp edge in the right lung, a sunken wound of the size 1x3/4 cm × 6 cm with sharp edge in the left lung, a sharp cut wound of the size 3/4x1/2 cm on the heart membrane, blood filled inside the heart membrane, a sunken wound of the size 3/4x1/2 cm with sharp edge inside the heart, which was cut upto inside the heart cavity. 12 Opinion- All the above injuries to the deceased as antemortem, injury No. 1 to 5 were caused by sharp and long weapons and injury No. 6 to 9 were caused by hard and rough objects, and the deceased died due to severe and traumatic injuries to the heart and lungs. The death of the deceased occurred due to excessive bleeding within 24 hours of the test and has been stated to be of homicidal nature in his postmortem report Ex.P/41.” 23. Dr. V.K. Mishra (PW-25) in his cross-examination, though has admitted that the direction and depth of injury No. 02 to 05 in the external examination was not mentioned in the postmortem report (Ex.P/41) and the injury was not shown in the photograph. However, the medical witness Dr. V.K. Mishra (PW-25) during the postmortem examination of the deceased stated that before death, five severe and traumatic injuries were inflicted on the vital places of the deceased, chest and back, and as a result of that, the deceased died due to excessive bleeding, which remained unconfirmed in his cross- examination. In the postmortem report, the type of serious and traumatic embedded and cut injuries on the vital spots of the deceased have been mentioned. After considering the said injuries caused to the deceased before death and other circumstances of the case, it is established that the death of the deceased Shubham Kesharwani on 15.03.2019 was a result of the said injuries caused to him and was homicidal in nature. 13 24. From perusal of the record, it transpires that the on the basis of memorandum statement of the accused (Ex.P/10), clothes of the appellant as well as knife used in the incident were seized from the scene of incident and the same were sent for FSL examination and the FSL report is found to be positive as the blood stains were present on the above articles. 25. Considering the evidences of the aforesaid witnesses, it is evident that the accused on the fateful day of incident, the appellant who is having money dispute with the deceased and for that, quarrel had been taken place between them on an earlier day of the incident, due to which, the appellant has murdered him in his car, in which blood stains were also present. It is further reflected from the postmortem report that the deceased has suffered four stab wounds and, he died on account of syncope due to hemorrhage caused by injury to the heart and lungs. 26. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that :- “death of deceased Shubham Kesharwani was homicidal in nature; it is the appellant who has murdered the deceased.” 27. For the foregoing discussions, it is clearly and reliably established that it was the accused/appellant, who caused the death of the deceased by stabbing her with the help of iron knife and in this 14 regard, there is no defence on the part of the accused/appellant during his examination under Section 313 of the Cr.P.C. It is further reflected from the record that the appellant has been shown in the CCTV footage and in this regard, Mr. Alen Monis Sonwani and Mr. Daniel Joseph have given the certificate under Section 65(B) of the Information Technology Act, 2000 and therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the accused/appellant for the offence punishable under Section 302 of the IPC. Therefore, we do not find any illegality or irregularity in the findings recorded by the trial Court. 28. For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed. 29. It is stated at the Bar that the appellant is in jail since 20.03.2019, as such, he shall serve out the sentence as ordered by the learned trial Court. 30. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 15 31. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Anu