IMPORTANT POINT
In cases based on circumstantial evidence, the prosecution must establish the guilt of the accused beyond reasonable doubt, and the evidence should be consistent only with the hypothesis of the accused's guilt.

JUDGMENT :

Goutam Bhaduri, J.

1. The present appeal is against the judgment of conviction and order of sentence dated 15-7-2020 passed by the 12th Additional Sessions Judge, Raipur, in S.T. No.193/2016 whereby the appellant has been convicted under Section 302 of the Indian Penal Code (for short ‘the IPC’) and under Sections 4 read with Section 25 (1-b) (b) & 27 (1) of the Arms Act and sentenced him to undergo Life Imprisonment; imprisonment for 3 years and imprisonment for 7 years, respectively with usual default stipulations. All the sentences were directed to run concurrently.

2. (i) Case of the prosecution, in brief, is that prior to 17-6-2016 the appellant Abhishek Diwan lost money in IPL gambling. He obtained loan of Rs.25,000/- from Akash Tiwari (since deceased). Thereafter, within a period of one month he had returned an amount of Rs.35,000/- to the deceased. In this regard, before a week from 17-6-2016 some quarrel took place between the accused and the deceased. For which the accused was holding animosity against the deceased. On 17-6-2016 at about 8.00 pm, the deceased along with his friends namely; Piyush Shukla (PW-14) and Atit Pandey (PW- 11) were near at Baniyan Tree of Rohinipuram Pond where the deceased called the accused by phone. On which the accused went to his house; took pistol with three rounds; and went on his two wheeler vehicle bearing registration No.CG-04-LB-5716 and fired three gun shots whereby the deceased sustained injuries. Thereafter, the accused assaulted the deceased by the handle of pistol and fled away. Piyush Shukla (PW-14) reported the matter at DD Nagar Police Station whereby initially on a First Information Report (FIR) (Ex.P/27) Cr.No.151/16 for offence under Section 307 of the IPC and Sections 25 & 27 of the Arms Act was registered and started investigation. The injured was admitted in the hospital and statements of witnesses were recorded. From the spot the bloodstained soil and one blank cartridge of 7.65 was recovered. During the course of treatment the deceased died. Thereafter, the offence under Section 302 of the IPC was added.

(ii) Another co-accused namely; Mohd. Mahmood gave loan of Rs.10,000/- to the accused Abhishek Diwan and advised him to fled away. Thereafter, the accused parked the Activa Scooty at Ashok Millennium Plaza and also kept the pistol in the dicky of said vehicle. The accused purchased one new SIM & Mobile. The coaccused used to inform the movements of police to the accused on the said mobile number.

(iii) The mobile used by the accused at the time of offence and the newly purchased mobile both were seized by the police. The police after apprehension of the accused on his memorandum recovered the Activa and the pistol which was used to commit the crime. The clothes of the deceased along with the clothes of the accused, which he was wearing at the time of incident, were seized and the same were sent for FSL. As per the order of the District Magistrate, Raipur, dated 5-7-2016, three live cartridges of 7.65 KF were purchased. The seized pistol, live cartridges and the blank cartridge, which was recovered from the spot, were sent for examination to the CFCL (Central Forensic Science Laboratory), Hyderabad and the report was received vide Ex.P/31. According to the prosecution, the CFSL report affirmed the fact that the blank cartridge which was found on the spot of 7.65 mm was fired by the gun as 7.65 KF live cartridges were also fired by the gun which was seized and tested. On the basis of evidence and the statement of witnesses the charge sheet was filed.

3. During trial the appellant/accused abjured his guilt and claimed to be tried. The prosecution examined as many as 19 witnesses and exhibited 54 documents. Upon appreciation of evidence, the trial Court came to a finding that the appellant has committed the offence and convicted & sentenced him as mentioned above. Thus, this appeal.

4. (A) Learned senior counsel appearing for the appellant would submit that t