published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40570
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 889 OF 2009
Arshad Hussain
....
Appellant(s)
Versus
State of Rajasthan ... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been filed against the judgment and order dated
30.04.2008 passed by the High Court of Judicature for Rajasthan at Jodhpur
in Criminal Appeal No. 586 of 2004 whereby the Division Bench of the High
Court dismissed the appeal with regard to the appellant herein while
setting aside the conviction and sentence imposed upon rest of the two
appellants therein by the Court of Sessions, Udaipur, vide order dated
18.05.2004 in Session Case No. 96 of 2001 for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short
’the IPC’).
2) Brief facts
(a) As per the prosecution case, on 18.12.2000, at around 10:30 p.m.,
Nizam (the complainant), Iqbal, Jamil and Moin were returning back to
Khanji Peer, Udaipur on two scooters after having meals at Mulla Talai,
Udaipur, in-laws’ house of Iqbal. At that time, when all four of them
reached near the house of Ashfaq, all of a sudden, Shahjad and Mujaffar,
sons of Ashfaq, came in front of their scooters and stopped them. On seeing
them, Iqbal got down from the scooter and asked as to what is the matter?
Immediately, Shahjad and Mujaffar shouted ‘Arshad fire’. On hearing the
same, Arshad, who was standing in the verandah of his house with a gun,
fired three shots which hit on the chest and shoulder of Iqbal, as a result
of which, he fell down. Nizam, Jamil and Moin, who were also standing
closer to Iqbal, ran away from the spot.
(b) Thereafter, Nizam (the complainant), Jamil and Moin took Iqbal to the
hospital in the car of Raja@Siraj (PW-7) and submitted a written report
(Exh. P-1) to Nazir Khan, Sub-Inspector of Police (PW-19), posted at P.S.
Surajpol, Udaipur, on the basis of which, a First Information Report (FIR)
being No. 523 of 2000 (Exh. P-52) was registered against Arshad Hussain (A-
1), Mujaffar (A-2) and Shahjad (A-3) under Sections 341, 302 read with
Section 34 of IPC and Section 30 of the Arms Act, 1959. It was also stated
in the written complaint that there was old enmity between Ashfaq and Iqbal
and the said incident was a pre-determined plan in order to kill him and
also that he had seen the gun in the hands of Arshad while running away.
(c) After filing of the chargesheet, the case was committed to the Court
of Sessions, Udaipur which was numbered as Session Case No. 96 of 2001.
(d) The Sessions Judge, vide order dated 18.05.2004, convicted Arshad
Hussain (A-1), Mujaffar (A-2) and Shahjad (A-3) under Section 302 read with
Section 34 of IPC and sentenced them to undergo rigorous imprisonment (RI)
for life along with a fine of Rs. 10,000/- each, in default, to further
undergo RI for one year.
(e) Aggrieved by the said order of conviction and sentence, the appellant
herein (A-1) and other convicted accused (A-2 and A-3) filed an appeal
being Criminal Appeal No. 586 of 2004 before the High Court. By judgment
dated 30.04.2008, the High Court, while acquitting Mujaffar (A-2) and
Shahjad (A-3) of all the charges, confirmed the conviction and sentence of
Arshad Hussain (A-1).
(f) Against the said order, the appellant-accused has filed this appeal
by way of special leave before this Court.
3) Heard Mr. Sushil Kumar Jain, learned counsel for the appellant-
accused and Dr. Manish Singhvi, learned Additional Advocate General for the
respondent-State.
4) Mr. Sushil Kumar Jain, learned counsel for the appellant-accused
mainly contended that the deceased was a history-sheeter, hard core
criminal, was involved in more than 17 criminal cases in the States of
Rajasthan and Gujarat and was detained under Section 3(2) of the National
Security Act, 1980 (Act No. 65 of Central Act of 1980). He further
submitted that the deceased and his gang wanted to extract money from the
appellant by demanding Rs. 50 lakhs and when the appellant did not agree to
the same, the deceased and his gang attacked his brother and 4-5 years’ old
daughter. He further pointed out that in view of the background of the
said enmity between his gang and the appellant as well as his family
members, even if the prosecution case is acceptable, the appellant is
entitled to avail the right of private defence. He also submitted that
inasmuch as the other co-accused, namely, Mujaffar (A-2) and Shahjad (A-3),
have been acquitted by the High Court believing their alibi that they were
not present at the place of incident, the entire prosecution story is to be
disbelieved. According to him, in view of the acquittal of those persons,
viz., Mujaffar (A-2) and Shahjad (A-3), the genesis of the prosecution case
is completely falsified.
5) On the other hand, Dr. Manish Singhvi, learned Additional Advocate
General for the respondent-State submitted that though the State has not
preferred any appeal against the acquittal of A-2 and A-3, in the light of
overwhelming evidence adduced by the prosecution with reference to the
specific role of the appellant, the High Court is justified in confirming
his conviction, hence, prayed for dismissal of the appeal.
6) We have carefully considered the rival submissions and perused all
the relevant materials.
Discussion:
7) In order to understand the rival submissions, it is useful to refer
the First Information Report (FIR) made by PW-4 which reads as under:
“Sir,
Submitted that today on 18.12.2000 at 10.30 p.m. night, I Iqbal
Bhai, Jameel Bhai and Moin Bhai were returning to Khanji Peer on two
scooters, after taking meals, from SASURAL of Iqbal Bhai at the house
of Babu Bhai which is at Mulla Talai. That at about 10.45 p.m., all
the four of us reached near the house of Ashfaw in Kishanpol where
there is a Ghati. My scooter was ahead which I was driving. Iqbal
Bhai was sitting behind me and another scooter which Moin was driving
and Jameel was sitting behind him. We were going side by side. Since
there is ghati near the house of Ashfaw, scooters were at slow speed
just then Shahjad and his brother Muzaffar came against my scooter all
of a sudden and stopped us and just then Iqbal Bhai got down and asked
what is the matter, by then Shahjad and Muzaffar both shouted Arshad
fire, just then Arshad, who was already standing near the wall of the
Verandah having a gun in hand fired three shots of gun. I feared and
sat down and the bullet hit in the chest and side of Iqbal Bhai and he
fell down there itself. At that time Jameel and Moin were also
standing close by and all the three of them fled from the scene. At
the time of this incident all the street lights of the road and the
light in the verandah of the house of Ashfaq were also lit. There was
old enmity between Ashfaq and Iqbal Bhai and they have committed this
murder with pre-planning. While running, I saw gun in the hands of
Arshad. Please take action. Thereafter I, Jameel, Moin put Iqbal in
the car of my friend Raja alias Siraj and brought to the hospital
where he died.”
8) If we carefully scrutinize the contents of the FIR given by Nizam (PW-
4), it is clear that the occurrence took place at 10:30 p.m. on 18.12.2000
when Iqbal (since deceased), Nizam (PW-4), Jamil (PW-6) and Moinuddin (PW-
5) were returning to Khanji Peer on two scooters. When all the four reached
near the house of Ashfaq, Shahjad (A-3) and his brother Muzaffar (A-2) came
towards their scooters and stopped them. On seeing this, Iqbal got down
and asked about the matter, by then Shahjad and Mujaffar both shouted
“Arshad fire”. On hearing the same, Arshad (A-1), the appellant herein,
who was standing in the verandah of his house with a gun opened fire upon
them. It is further stated that the appellant, who was having gun in his
hand, fired three shots and in order to escape, Nizam (PW-4) sat down and
the bullet hit in the chest and the shoulder of Iqbal as a result of which
he fell down immediately. Afterwards, PWs 5 and 6 ran away from the scene.
It is also stated that at that time, the streetlights as well as the light
of the verandah of the house of Ashfaq were on. It is also seen that there
was old enmity between Ashfaq and Iqbal. It is further clear that on
seeing the deceased and the prosecution party and also on the shoutings of
A-3 and A-4, the appellant herein (A-1), who was standing in the verandah,
fired three shots which hit the deceased due to which he sustained fatal
injuries.
9) It is not in dispute that the High Court, after analyzing the
evidence of prosecution witnesses, particularly PWs 4, 5, 6, 7 and 19 and
the defence pleaded by A-2 and A-3, accepted the plea of alibi and
categorically concluded that both of them were not present at the scene of
occurrence. We have already stated that the State has not challenged the
said order of acquittal by filing appeal before this Court and it has
become final. It is clear that with the acquittal of said persons, viz., A-
2 and A-3, the genesis of the prosecution case is completely falsified.
Let us analyse this aspect in detail hereunder.
10) Though Mr. Sushil Kumar Jain has mainly submitted that the deceased
was a history-sheeter and he threatened the family members of the appellant
on several occasions and also in view of the criminal antecedents of the
deceased, there is no acceptable evidence for availing the right of private
defence as claimed by him. Likewise, though this Court on 29.09.2008
issued notice qua nature of offence only considering the materials placed
by both the sides, we have gone into the matter in depth in order to do
complete justice to the parties.
11) We have already noted the contents of the FIR and the conclusion of
the High Court ordering the acquittal of A-2 and A-3. The first witness
relied on by the prosecution is Nizam (PW-4) – the complainant. A perusal
of the evidence of PW-4 shows that the same is in conformity with the
contents of the FIR. In other words, he reiterated what he has stated in
the FIR. The important statement made by him as stated in the FIR is as
under:
“Iqbal Bhai asked the accused as to what is the matter, by then
Arshad fired. Arshad, who was already standing with gun inside the
boundary wall of his house shot three fires on Iqbal. One shot hit on
the right shoulder and right arm pit.”
It is clear from the above that only on the direction of Shahjad and
Mujaffar, Arshad (the appellant herein) fired at Iqbal.
12) The other witnesses examined on the side of the prosecution were PWs
5, 6 & 7. All of them made similar statements as that of PW-4. In other
words, all the three witnesses once again reiterated similar assertion made
in the FIR including the presence of Shahjad and Mujaffar, stopping of
scooters and shouting Arshad to fire on Iqbal.
13) The High Court has found that Mujaffar and Shahjad were not present
at the place of incident. The basis for such conclusion was that at the
relevant time Mujaffar (A-2) was admitted in a Hospital at Bombay and
Shahjad, his brother, was attending him at the said place. In the absence
of challenge as to the same by the State, it is clear that both the co-
accused were not present at the place of incident and, therefore, three
important aspects of the prosecution case have not been established,
namely, (a) the party of the deceased was stopped by Shahjad and Muzaffar;
(b) the deceased and his associates were stopped by Shahjad and Muzaffar
near the gate of their house; and (c) Shahjad and Muzaffar had asked Arshad
to open fire upon the deceased.
14) A perusal of the contents of the FIR, the statements of the above
mentioned prosecution witnesses as well as the reasoning of the High Court
clearly show that the incident had not taken place as alleged by the
prosecution. We are satisfied that the prosecution had suppressed genesis
and the manner in which the incident took place.
15) In other words, in such circumstances, in the absence of specific
assertion by PWs 4, 5, 6 & 7, the role of the appellant and also in the
light of the conclusion by the High Court accepting the alibi pleaded by A-
2 and A-3, the entire prosecution case could not be believed.
16) Another aspect to be noticed is the use of automatic 12 bore gun in
the manner alleged by the prosecution. According to the prosecution, each
of the cartridges used in the 12 bore gun has 180 pellets. With regard to
the above, Nizam (PW-4), who is alleged to have driven the scooter on which
Iqbal was sitting, has stated as under:
”The scooter which was being driven by Moin stopped on the right side
just ahead to my scooter. Muzaffar and Shahjad only stopped our
scooter nobody stopped the other scooter. Iqbal got down from left
side of the scooter. We, the six persons, who were standing on the
spot were within the radius of about seven feet.”
Again it is stated that: –
“This is true that except Iqbal none of us were hit by the pellet.”
Moinuddin (PW-5), in his evidence has stated as under:
“This is true that the pellets of cartridge did not hit any one of us
except Iqbal Bhai and not hit on our scooter.”
In view of the above, it is seen that after firing 540 pellets, i.e., 3
rounds, how it is possible that none of the witnesses or the brothers of
the appellant did not receive a single pellet though they were within 7
feet radius. This aspect has not been clarified by the prosecution.
17) In addition to the above infirmities, no scooter was recovered from
the place of incident. Likewise, the story relating to recovery of gun
from the custody of the appellant-accused is also doubtful. There is no
evidence as to how and when the gun was kept by the appellant under the bed
and thereafter got recovered from his own house. The story of recovery of
the gun at the information of the appellant is ex facie concocted and
unbelievable.
18) It is a well settled principle of law that when the genesis and the
manner of the incident is doubtful, the accused cannot be convicted for the
offence punishable under Section 302 IPC. Inasmuch as the prosecution
failed to establish the circumstances in which the appellant was alleged to
have fired at the deceased, the entire story has to be rejected.
19) In the light of the above discussion, though we are unable to accept
the contention relating to the right of private defence as pleaded by
learned counsel for the appellant, on going through the entire prosecution
case, coupled with the reasoning of the High Court accepting the claim of
the other accused, i.e., A-2 and A-3, the entire prosecution case is to be
rejected as unbelievable. In such circumstances, the appellant is entitled
to the benefit of doubt, accordingly, we set aside his conviction and
sentence.
20) The appeal is allowed. The appellant is directed to be released
forthwith, if he is not required in any other case.
………….…………………………J.
(P. SATHASIVAM)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 889 OF 2009
Arshad Hussain
....
Appellant(s)
Versus
State of Rajasthan ... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been filed against the judgment and order dated
30.04.2008 passed by the High Court of Judicature for Rajasthan at Jodhpur
in Criminal Appeal No. 586 of 2004 whereby the Division Bench of the High
Court dismissed the appeal with regard to the appellant herein while
setting aside the conviction and sentence imposed upon rest of the two
appellants therein by the Court of Sessions, Udaipur, vide order dated
18.05.2004 in Session Case No. 96 of 2001 for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short
’the IPC’).
2) Brief facts
(a) As per the prosecution case, on 18.12.2000, at around 10:30 p.m.,
Nizam (the complainant), Iqbal, Jamil and Moin were returning back to
Khanji Peer, Udaipur on two scooters after having meals at Mulla Talai,
Udaipur, in-laws’ house of Iqbal. At that time, when all four of them
reached near the house of Ashfaq, all of a sudden, Shahjad and Mujaffar,
sons of Ashfaq, came in front of their scooters and stopped them. On seeing
them, Iqbal got down from the scooter and asked as to what is the matter?
Immediately, Shahjad and Mujaffar shouted ‘Arshad fire’. On hearing the
same, Arshad, who was standing in the verandah of his house with a gun,
fired three shots which hit on the chest and shoulder of Iqbal, as a result
of which, he fell down. Nizam, Jamil and Moin, who were also standing
closer to Iqbal, ran away from the spot.
(b) Thereafter, Nizam (the complainant), Jamil and Moin took Iqbal to the
hospital in the car of Raja@Siraj (PW-7) and submitted a written report
(Exh. P-1) to Nazir Khan, Sub-Inspector of Police (PW-19), posted at P.S.
Surajpol, Udaipur, on the basis of which, a First Information Report (FIR)
being No. 523 of 2000 (Exh. P-52) was registered against Arshad Hussain (A-
1), Mujaffar (A-2) and Shahjad (A-3) under Sections 341, 302 read with
Section 34 of IPC and Section 30 of the Arms Act, 1959. It was also stated
in the written complaint that there was old enmity between Ashfaq and Iqbal
and the said incident was a pre-determined plan in order to kill him and
also that he had seen the gun in the hands of Arshad while running away.
(c) After filing of the chargesheet, the case was committed to the Court
of Sessions, Udaipur which was numbered as Session Case No. 96 of 2001.
(d) The Sessions Judge, vide order dated 18.05.2004, convicted Arshad
Hussain (A-1), Mujaffar (A-2) and Shahjad (A-3) under Section 302 read with
Section 34 of IPC and sentenced them to undergo rigorous imprisonment (RI)
for life along with a fine of Rs. 10,000/- each, in default, to further
undergo RI for one year.
(e) Aggrieved by the said order of conviction and sentence, the appellant
herein (A-1) and other convicted accused (A-2 and A-3) filed an appeal
being Criminal Appeal No. 586 of 2004 before the High Court. By judgment
dated 30.04.2008, the High Court, while acquitting Mujaffar (A-2) and
Shahjad (A-3) of all the charges, confirmed the conviction and sentence of
Arshad Hussain (A-1).
(f) Against the said order, the appellant-accused has filed this appeal
by way of special leave before this Court.
3) Heard Mr. Sushil Kumar Jain, learned counsel for the appellant-
accused and Dr. Manish Singhvi, learned Additional Advocate General for the
respondent-State.
4) Mr. Sushil Kumar Jain, learned counsel for the appellant-accused
mainly contended that the deceased was a history-sheeter, hard core
criminal, was involved in more than 17 criminal cases in the States of
Rajasthan and Gujarat and was detained under Section 3(2) of the National
Security Act, 1980 (Act No. 65 of Central Act of 1980). He further
submitted that the deceased and his gang wanted to extract money from the
appellant by demanding Rs. 50 lakhs and when the appellant did not agree to
the same, the deceased and his gang attacked his brother and 4-5 years’ old
daughter. He further pointed out that in view of the background of the
said enmity between his gang and the appellant as well as his family
members, even if the prosecution case is acceptable, the appellant is
entitled to avail the right of private defence. He also submitted that
inasmuch as the other co-accused, namely, Mujaffar (A-2) and Shahjad (A-3),
have been acquitted by the High Court believing their alibi that they were
not present at the place of incident, the entire prosecution story is to be
disbelieved. According to him, in view of the acquittal of those persons,
viz., Mujaffar (A-2) and Shahjad (A-3), the genesis of the prosecution case
is completely falsified.
5) On the other hand, Dr. Manish Singhvi, learned Additional Advocate
General for the respondent-State submitted that though the State has not
preferred any appeal against the acquittal of A-2 and A-3, in the light of
overwhelming evidence adduced by the prosecution with reference to the
specific role of the appellant, the High Court is justified in confirming
his conviction, hence, prayed for dismissal of the appeal.
6) We have carefully considered the rival submissions and perused all
the relevant materials.
Discussion:
7) In order to understand the rival submissions, it is useful to refer
the First Information Report (FIR) made by PW-4 which reads as under:
“Sir,
Submitted that today on 18.12.2000 at 10.30 p.m. night, I Iqbal
Bhai, Jameel Bhai and Moin Bhai were returning to Khanji Peer on two
scooters, after taking meals, from SASURAL of Iqbal Bhai at the house
of Babu Bhai which is at Mulla Talai. That at about 10.45 p.m., all
the four of us reached near the house of Ashfaw in Kishanpol where
there is a Ghati. My scooter was ahead which I was driving. Iqbal
Bhai was sitting behind me and another scooter which Moin was driving
and Jameel was sitting behind him. We were going side by side. Since
there is ghati near the house of Ashfaw, scooters were at slow speed
just then Shahjad and his brother Muzaffar came against my scooter all
of a sudden and stopped us and just then Iqbal Bhai got down and asked
what is the matter, by then Shahjad and Muzaffar both shouted Arshad
fire, just then Arshad, who was already standing near the wall of the
Verandah having a gun in hand fired three shots of gun. I feared and
sat down and the bullet hit in the chest and side of Iqbal Bhai and he
fell down there itself. At that time Jameel and Moin were also
standing close by and all the three of them fled from the scene. At
the time of this incident all the street lights of the road and the
light in the verandah of the house of Ashfaq were also lit. There was
old enmity between Ashfaq and Iqbal Bhai and they have committed this
murder with pre-planning. While running, I saw gun in the hands of
Arshad. Please take action. Thereafter I, Jameel, Moin put Iqbal in
the car of my friend Raja alias Siraj and brought to the hospital
where he died.”
8) If we carefully scrutinize the contents of the FIR given by Nizam (PW-
4), it is clear that the occurrence took place at 10:30 p.m. on 18.12.2000
when Iqbal (since deceased), Nizam (PW-4), Jamil (PW-6) and Moinuddin (PW-
5) were returning to Khanji Peer on two scooters. When all the four reached
near the house of Ashfaq, Shahjad (A-3) and his brother Muzaffar (A-2) came
towards their scooters and stopped them. On seeing this, Iqbal got down
and asked about the matter, by then Shahjad and Mujaffar both shouted
“Arshad fire”. On hearing the same, Arshad (A-1), the appellant herein,
who was standing in the verandah of his house with a gun opened fire upon
them. It is further stated that the appellant, who was having gun in his
hand, fired three shots and in order to escape, Nizam (PW-4) sat down and
the bullet hit in the chest and the shoulder of Iqbal as a result of which
he fell down immediately. Afterwards, PWs 5 and 6 ran away from the scene.
It is also stated that at that time, the streetlights as well as the light
of the verandah of the house of Ashfaq were on. It is also seen that there
was old enmity between Ashfaq and Iqbal. It is further clear that on
seeing the deceased and the prosecution party and also on the shoutings of
A-3 and A-4, the appellant herein (A-1), who was standing in the verandah,
fired three shots which hit the deceased due to which he sustained fatal
injuries.
9) It is not in dispute that the High Court, after analyzing the
evidence of prosecution witnesses, particularly PWs 4, 5, 6, 7 and 19 and
the defence pleaded by A-2 and A-3, accepted the plea of alibi and
categorically concluded that both of them were not present at the scene of
occurrence. We have already stated that the State has not challenged the
said order of acquittal by filing appeal before this Court and it has
become final. It is clear that with the acquittal of said persons, viz., A-
2 and A-3, the genesis of the prosecution case is completely falsified.
Let us analyse this aspect in detail hereunder.
10) Though Mr. Sushil Kumar Jain has mainly submitted that the deceased
was a history-sheeter and he threatened the family members of the appellant
on several occasions and also in view of the criminal antecedents of the
deceased, there is no acceptable evidence for availing the right of private
defence as claimed by him. Likewise, though this Court on 29.09.2008
issued notice qua nature of offence only considering the materials placed
by both the sides, we have gone into the matter in depth in order to do
complete justice to the parties.
11) We have already noted the contents of the FIR and the conclusion of
the High Court ordering the acquittal of A-2 and A-3. The first witness
relied on by the prosecution is Nizam (PW-4) – the complainant. A perusal
of the evidence of PW-4 shows that the same is in conformity with the
contents of the FIR. In other words, he reiterated what he has stated in
the FIR. The important statement made by him as stated in the FIR is as
under:
“Iqbal Bhai asked the accused as to what is the matter, by then
Arshad fired. Arshad, who was already standing with gun inside the
boundary wall of his house shot three fires on Iqbal. One shot hit on
the right shoulder and right arm pit.”
It is clear from the above that only on the direction of Shahjad and
Mujaffar, Arshad (the appellant herein) fired at Iqbal.
12) The other witnesses examined on the side of the prosecution were PWs
5, 6 & 7. All of them made similar statements as that of PW-4. In other
words, all the three witnesses once again reiterated similar assertion made
in the FIR including the presence of Shahjad and Mujaffar, stopping of
scooters and shouting Arshad to fire on Iqbal.
13) The High Court has found that Mujaffar and Shahjad were not present
at the place of incident. The basis for such conclusion was that at the
relevant time Mujaffar (A-2) was admitted in a Hospital at Bombay and
Shahjad, his brother, was attending him at the said place. In the absence
of challenge as to the same by the State, it is clear that both the co-
accused were not present at the place of incident and, therefore, three
important aspects of the prosecution case have not been established,
namely, (a) the party of the deceased was stopped by Shahjad and Muzaffar;
(b) the deceased and his associates were stopped by Shahjad and Muzaffar
near the gate of their house; and (c) Shahjad and Muzaffar had asked Arshad
to open fire upon the deceased.
14) A perusal of the contents of the FIR, the statements of the above
mentioned prosecution witnesses as well as the reasoning of the High Court
clearly show that the incident had not taken place as alleged by the
prosecution. We are satisfied that the prosecution had suppressed genesis
and the manner in which the incident took place.
15) In other words, in such circumstances, in the absence of specific
assertion by PWs 4, 5, 6 & 7, the role of the appellant and also in the
light of the conclusion by the High Court accepting the alibi pleaded by A-
2 and A-3, the entire prosecution case could not be believed.
16) Another aspect to be noticed is the use of automatic 12 bore gun in
the manner alleged by the prosecution. According to the prosecution, each
of the cartridges used in the 12 bore gun has 180 pellets. With regard to
the above, Nizam (PW-4), who is alleged to have driven the scooter on which
Iqbal was sitting, has stated as under:
”The scooter which was being driven by Moin stopped on the right side
just ahead to my scooter. Muzaffar and Shahjad only stopped our
scooter nobody stopped the other scooter. Iqbal got down from left
side of the scooter. We, the six persons, who were standing on the
spot were within the radius of about seven feet.”
Again it is stated that: –
“This is true that except Iqbal none of us were hit by the pellet.”
Moinuddin (PW-5), in his evidence has stated as under:
“This is true that the pellets of cartridge did not hit any one of us
except Iqbal Bhai and not hit on our scooter.”
In view of the above, it is seen that after firing 540 pellets, i.e., 3
rounds, how it is possible that none of the witnesses or the brothers of
the appellant did not receive a single pellet though they were within 7
feet radius. This aspect has not been clarified by the prosecution.
17) In addition to the above infirmities, no scooter was recovered from
the place of incident.
Likewise, the story relating to recovery of gun
from the custody of the appellant-accused is also doubtful.
There is no
evidence as to how and when the gun was kept by the appellant under the bed
and thereafter got recovered from his own house.
The story of recovery of
the gun at the information of the appellant is ex facie concocted and unbelievable.
18) It is a well settled principle of law that
when the genesis and the
manner of the incident is doubtful,
the accused cannot be convicted for the
offence punishable under Section 302 IPC.
Inasmuch as the prosecution
failed to establish the circumstances in which the appellant was alleged to have fired at the deceased, the entire story has to be rejected.
19) In the light of the above discussion,
though we are unable to accept
the contention relating to the right of private defence as pleaded by learned counsel for the appellant, on going through the entire prosecution case, coupled with the reasoning of the High Court accepting the claim of the other accused, i.e., A-2 and A-3, the entire prosecution case is to be rejected as unbelievable.
In such circumstances, the appellant is entitled
to the benefit of doubt, accordingly, we set aside his conviction and sentence.
20) The appeal is allowed. The appellant is directed to be released
forthwith, if he is not required in any other case.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(J. CHELAMESWAR)
NEW DELHI;
JULY 17, 2013.
-----------------------
10
………….…………………………J.
(J. CHELAMESWAR)
NEW DELHI;
JULY 17, 2013.
-----------------------
10
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 889 OF 2009
Arshad Hussain
....
Appellant(s)
Versus
State of Rajasthan ... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been filed against the judgment and order dated
30.04.2008 passed by the High Court of Judicature for Rajasthan at Jodhpur
in Criminal Appeal No. 586 of 2004 whereby the Division Bench of the High
Court dismissed the appeal with regard to the appellant herein while
setting aside the conviction and sentence imposed upon rest of the two
appellants therein by the Court of Sessions, Udaipur, vide order dated
18.05.2004 in Session Case No. 96 of 2001 for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short
’the IPC’).
2) Brief facts
(a) As per the prosecution case, on 18.12.2000, at around 10:30 p.m.,
Nizam (the complainant), Iqbal, Jamil and Moin were returning back to
Khanji Peer, Udaipur on two scooters after having meals at Mulla Talai,
Udaipur, in-laws’ house of Iqbal. At that time, when all four of them
reached near the house of Ashfaq, all of a sudden, Shahjad and Mujaffar,
sons of Ashfaq, came in front of their scooters and stopped them. On seeing
them, Iqbal got down from the scooter and asked as to what is the matter?
Immediately, Shahjad and Mujaffar shouted ‘Arshad fire’. On hearing the
same, Arshad, who was standing in the verandah of his house with a gun,
fired three shots which hit on the chest and shoulder of Iqbal, as a result
of which, he fell down. Nizam, Jamil and Moin, who were also standing
closer to Iqbal, ran away from the spot.
(b) Thereafter, Nizam (the complainant), Jamil and Moin took Iqbal to the
hospital in the car of Raja@Siraj (PW-7) and submitted a written report
(Exh. P-1) to Nazir Khan, Sub-Inspector of Police (PW-19), posted at P.S.
Surajpol, Udaipur, on the basis of which, a First Information Report (FIR)
being No. 523 of 2000 (Exh. P-52) was registered against Arshad Hussain (A-
1), Mujaffar (A-2) and Shahjad (A-3) under Sections 341, 302 read with
Section 34 of IPC and Section 30 of the Arms Act, 1959. It was also stated
in the written complaint that there was old enmity between Ashfaq and Iqbal
and the said incident was a pre-determined plan in order to kill him and
also that he had seen the gun in the hands of Arshad while running away.
(c) After filing of the chargesheet, the case was committed to the Court
of Sessions, Udaipur which was numbered as Session Case No. 96 of 2001.
(d) The Sessions Judge, vide order dated 18.05.2004, convicted Arshad
Hussain (A-1), Mujaffar (A-2) and Shahjad (A-3) under Section 302 read with
Section 34 of IPC and sentenced them to undergo rigorous imprisonment (RI)
for life along with a fine of Rs. 10,000/- each, in default, to further
undergo RI for one year.
(e) Aggrieved by the said order of conviction and sentence, the appellant
herein (A-1) and other convicted accused (A-2 and A-3) filed an appeal
being Criminal Appeal No. 586 of 2004 before the High Court. By judgment
dated 30.04.2008, the High Court, while acquitting Mujaffar (A-2) and
Shahjad (A-3) of all the charges, confirmed the conviction and sentence of
Arshad Hussain (A-1).
(f) Against the said order, the appellant-accused has filed this appeal
by way of special leave before this Court.
3) Heard Mr. Sushil Kumar Jain, learned counsel for the appellant-
accused and Dr. Manish Singhvi, learned Additional Advocate General for the
respondent-State.
4) Mr. Sushil Kumar Jain, learned counsel for the appellant-accused
mainly contended that the deceased was a history-sheeter, hard core
criminal, was involved in more than 17 criminal cases in the States of
Rajasthan and Gujarat and was detained under Section 3(2) of the National
Security Act, 1980 (Act No. 65 of Central Act of 1980). He further
submitted that the deceased and his gang wanted to extract money from the
appellant by demanding Rs. 50 lakhs and when the appellant did not agree to
the same, the deceased and his gang attacked his brother and 4-5 years’ old
daughter. He further pointed out that in view of the background of the
said enmity between his gang and the appellant as well as his family
members, even if the prosecution case is acceptable, the appellant is
entitled to avail the right of private defence. He also submitted that
inasmuch as the other co-accused, namely, Mujaffar (A-2) and Shahjad (A-3),
have been acquitted by the High Court believing their alibi that they were
not present at the place of incident, the entire prosecution story is to be
disbelieved. According to him, in view of the acquittal of those persons,
viz., Mujaffar (A-2) and Shahjad (A-3), the genesis of the prosecution case
is completely falsified.
5) On the other hand, Dr. Manish Singhvi, learned Additional Advocate
General for the respondent-State submitted that though the State has not
preferred any appeal against the acquittal of A-2 and A-3, in the light of
overwhelming evidence adduced by the prosecution with reference to the
specific role of the appellant, the High Court is justified in confirming
his conviction, hence, prayed for dismissal of the appeal.
6) We have carefully considered the rival submissions and perused all
the relevant materials.
Discussion:
7) In order to understand the rival submissions, it is useful to refer
the First Information Report (FIR) made by PW-4 which reads as under:
“Sir,
Submitted that today on 18.12.2000 at 10.30 p.m. night, I Iqbal
Bhai, Jameel Bhai and Moin Bhai were returning to Khanji Peer on two
scooters, after taking meals, from SASURAL of Iqbal Bhai at the house
of Babu Bhai which is at Mulla Talai. That at about 10.45 p.m., all
the four of us reached near the house of Ashfaw in Kishanpol where
there is a Ghati. My scooter was ahead which I was driving. Iqbal
Bhai was sitting behind me and another scooter which Moin was driving
and Jameel was sitting behind him. We were going side by side. Since
there is ghati near the house of Ashfaw, scooters were at slow speed
just then Shahjad and his brother Muzaffar came against my scooter all
of a sudden and stopped us and just then Iqbal Bhai got down and asked
what is the matter, by then Shahjad and Muzaffar both shouted Arshad
fire, just then Arshad, who was already standing near the wall of the
Verandah having a gun in hand fired three shots of gun. I feared and
sat down and the bullet hit in the chest and side of Iqbal Bhai and he
fell down there itself. At that time Jameel and Moin were also
standing close by and all the three of them fled from the scene. At
the time of this incident all the street lights of the road and the
light in the verandah of the house of Ashfaq were also lit. There was
old enmity between Ashfaq and Iqbal Bhai and they have committed this
murder with pre-planning. While running, I saw gun in the hands of
Arshad. Please take action. Thereafter I, Jameel, Moin put Iqbal in
the car of my friend Raja alias Siraj and brought to the hospital
where he died.”
8) If we carefully scrutinize the contents of the FIR given by Nizam (PW-
4), it is clear that the occurrence took place at 10:30 p.m. on 18.12.2000
when Iqbal (since deceased), Nizam (PW-4), Jamil (PW-6) and Moinuddin (PW-
5) were returning to Khanji Peer on two scooters. When all the four reached
near the house of Ashfaq, Shahjad (A-3) and his brother Muzaffar (A-2) came
towards their scooters and stopped them. On seeing this, Iqbal got down
and asked about the matter, by then Shahjad and Mujaffar both shouted
“Arshad fire”. On hearing the same, Arshad (A-1), the appellant herein,
who was standing in the verandah of his house with a gun opened fire upon
them. It is further stated that the appellant, who was having gun in his
hand, fired three shots and in order to escape, Nizam (PW-4) sat down and
the bullet hit in the chest and the shoulder of Iqbal as a result of which
he fell down immediately. Afterwards, PWs 5 and 6 ran away from the scene.
It is also stated that at that time, the streetlights as well as the light
of the verandah of the house of Ashfaq were on. It is also seen that there
was old enmity between Ashfaq and Iqbal. It is further clear that on
seeing the deceased and the prosecution party and also on the shoutings of
A-3 and A-4, the appellant herein (A-1), who was standing in the verandah,
fired three shots which hit the deceased due to which he sustained fatal
injuries.
9) It is not in dispute that the High Court, after analyzing the
evidence of prosecution witnesses, particularly PWs 4, 5, 6, 7 and 19 and
the defence pleaded by A-2 and A-3, accepted the plea of alibi and
categorically concluded that both of them were not present at the scene of
occurrence. We have already stated that the State has not challenged the
said order of acquittal by filing appeal before this Court and it has
become final. It is clear that with the acquittal of said persons, viz., A-
2 and A-3, the genesis of the prosecution case is completely falsified.
Let us analyse this aspect in detail hereunder.
10) Though Mr. Sushil Kumar Jain has mainly submitted that the deceased
was a history-sheeter and he threatened the family members of the appellant
on several occasions and also in view of the criminal antecedents of the
deceased, there is no acceptable evidence for availing the right of private
defence as claimed by him. Likewise, though this Court on 29.09.2008
issued notice qua nature of offence only considering the materials placed
by both the sides, we have gone into the matter in depth in order to do
complete justice to the parties.
11) We have already noted the contents of the FIR and the conclusion of
the High Court ordering the acquittal of A-2 and A-3. The first witness
relied on by the prosecution is Nizam (PW-4) – the complainant. A perusal
of the evidence of PW-4 shows that the same is in conformity with the
contents of the FIR. In other words, he reiterated what he has stated in
the FIR. The important statement made by him as stated in the FIR is as
under:
“Iqbal Bhai asked the accused as to what is the matter, by then
Arshad fired. Arshad, who was already standing with gun inside the
boundary wall of his house shot three fires on Iqbal. One shot hit on
the right shoulder and right arm pit.”
It is clear from the above that only on the direction of Shahjad and
Mujaffar, Arshad (the appellant herein) fired at Iqbal.
12) The other witnesses examined on the side of the prosecution were PWs
5, 6 & 7. All of them made similar statements as that of PW-4. In other
words, all the three witnesses once again reiterated similar assertion made
in the FIR including the presence of Shahjad and Mujaffar, stopping of
scooters and shouting Arshad to fire on Iqbal.
13) The High Court has found that Mujaffar and Shahjad were not present
at the place of incident. The basis for such conclusion was that at the
relevant time Mujaffar (A-2) was admitted in a Hospital at Bombay and
Shahjad, his brother, was attending him at the said place. In the absence
of challenge as to the same by the State, it is clear that both the co-
accused were not present at the place of incident and, therefore, three
important aspects of the prosecution case have not been established,
namely, (a) the party of the deceased was stopped by Shahjad and Muzaffar;
(b) the deceased and his associates were stopped by Shahjad and Muzaffar
near the gate of their house; and (c) Shahjad and Muzaffar had asked Arshad
to open fire upon the deceased.
14) A perusal of the contents of the FIR, the statements of the above
mentioned prosecution witnesses as well as the reasoning of the High Court
clearly show that the incident had not taken place as alleged by the
prosecution. We are satisfied that the prosecution had suppressed genesis
and the manner in which the incident took place.
15) In other words, in such circumstances, in the absence of specific
assertion by PWs 4, 5, 6 & 7, the role of the appellant and also in the
light of the conclusion by the High Court accepting the alibi pleaded by A-
2 and A-3, the entire prosecution case could not be believed.
16) Another aspect to be noticed is the use of automatic 12 bore gun in
the manner alleged by the prosecution. According to the prosecution, each
of the cartridges used in the 12 bore gun has 180 pellets. With regard to
the above, Nizam (PW-4), who is alleged to have driven the scooter on which
Iqbal was sitting, has stated as under:
”The scooter which was being driven by Moin stopped on the right side
just ahead to my scooter. Muzaffar and Shahjad only stopped our
scooter nobody stopped the other scooter. Iqbal got down from left
side of the scooter. We, the six persons, who were standing on the
spot were within the radius of about seven feet.”
Again it is stated that: –
“This is true that except Iqbal none of us were hit by the pellet.”
Moinuddin (PW-5), in his evidence has stated as under:
“This is true that the pellets of cartridge did not hit any one of us
except Iqbal Bhai and not hit on our scooter.”
In view of the above, it is seen that after firing 540 pellets, i.e., 3
rounds, how it is possible that none of the witnesses or the brothers of
the appellant did not receive a single pellet though they were within 7
feet radius. This aspect has not been clarified by the prosecution.
17) In addition to the above infirmities, no scooter was recovered from
the place of incident. Likewise, the story relating to recovery of gun
from the custody of the appellant-accused is also doubtful. There is no
evidence as to how and when the gun was kept by the appellant under the bed
and thereafter got recovered from his own house. The story of recovery of
the gun at the information of the appellant is ex facie concocted and
unbelievable.
18) It is a well settled principle of law that when the genesis and the
manner of the incident is doubtful, the accused cannot be convicted for the
offence punishable under Section 302 IPC. Inasmuch as the prosecution
failed to establish the circumstances in which the appellant was alleged to
have fired at the deceased, the entire story has to be rejected.
19) In the light of the above discussion, though we are unable to accept
the contention relating to the right of private defence as pleaded by
learned counsel for the appellant, on going through the entire prosecution
case, coupled with the reasoning of the High Court accepting the claim of
the other accused, i.e., A-2 and A-3, the entire prosecution case is to be
rejected as unbelievable. In such circumstances, the appellant is entitled
to the benefit of doubt, accordingly, we set aside his conviction and
sentence.
20) The appeal is allowed. The appellant is directed to be released
forthwith, if he is not required in any other case.
………….…………………………J.
(P. SATHASIVAM)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 889 OF 2009
Arshad Hussain
....
Appellant(s)
Versus
State of Rajasthan ... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been filed against the judgment and order dated
30.04.2008 passed by the High Court of Judicature for Rajasthan at Jodhpur
in Criminal Appeal No. 586 of 2004 whereby the Division Bench of the High
Court dismissed the appeal with regard to the appellant herein while
setting aside the conviction and sentence imposed upon rest of the two
appellants therein by the Court of Sessions, Udaipur, vide order dated
18.05.2004 in Session Case No. 96 of 2001 for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short
’the IPC’).
2) Brief facts
(a) As per the prosecution case, on 18.12.2000, at around 10:30 p.m.,
Nizam (the complainant), Iqbal, Jamil and Moin were returning back to
Khanji Peer, Udaipur on two scooters after having meals at Mulla Talai,
Udaipur, in-laws’ house of Iqbal. At that time, when all four of them
reached near the house of Ashfaq, all of a sudden, Shahjad and Mujaffar,
sons of Ashfaq, came in front of their scooters and stopped them. On seeing
them, Iqbal got down from the scooter and asked as to what is the matter?
Immediately, Shahjad and Mujaffar shouted ‘Arshad fire’. On hearing the
same, Arshad, who was standing in the verandah of his house with a gun,
fired three shots which hit on the chest and shoulder of Iqbal, as a result
of which, he fell down. Nizam, Jamil and Moin, who were also standing
closer to Iqbal, ran away from the spot.
(b) Thereafter, Nizam (the complainant), Jamil and Moin took Iqbal to the
hospital in the car of Raja@Siraj (PW-7) and submitted a written report
(Exh. P-1) to Nazir Khan, Sub-Inspector of Police (PW-19), posted at P.S.
Surajpol, Udaipur, on the basis of which, a First Information Report (FIR)
being No. 523 of 2000 (Exh. P-52) was registered against Arshad Hussain (A-
1), Mujaffar (A-2) and Shahjad (A-3) under Sections 341, 302 read with
Section 34 of IPC and Section 30 of the Arms Act, 1959. It was also stated
in the written complaint that there was old enmity between Ashfaq and Iqbal
and the said incident was a pre-determined plan in order to kill him and
also that he had seen the gun in the hands of Arshad while running away.
(c) After filing of the chargesheet, the case was committed to the Court
of Sessions, Udaipur which was numbered as Session Case No. 96 of 2001.
(d) The Sessions Judge, vide order dated 18.05.2004, convicted Arshad
Hussain (A-1), Mujaffar (A-2) and Shahjad (A-3) under Section 302 read with
Section 34 of IPC and sentenced them to undergo rigorous imprisonment (RI)
for life along with a fine of Rs. 10,000/- each, in default, to further
undergo RI for one year.
(e) Aggrieved by the said order of conviction and sentence, the appellant
herein (A-1) and other convicted accused (A-2 and A-3) filed an appeal
being Criminal Appeal No. 586 of 2004 before the High Court. By judgment
dated 30.04.2008, the High Court, while acquitting Mujaffar (A-2) and
Shahjad (A-3) of all the charges, confirmed the conviction and sentence of
Arshad Hussain (A-1).
(f) Against the said order, the appellant-accused has filed this appeal
by way of special leave before this Court.
3) Heard Mr. Sushil Kumar Jain, learned counsel for the appellant-
accused and Dr. Manish Singhvi, learned Additional Advocate General for the
respondent-State.
4) Mr. Sushil Kumar Jain, learned counsel for the appellant-accused
mainly contended that the deceased was a history-sheeter, hard core
criminal, was involved in more than 17 criminal cases in the States of
Rajasthan and Gujarat and was detained under Section 3(2) of the National
Security Act, 1980 (Act No. 65 of Central Act of 1980). He further
submitted that the deceased and his gang wanted to extract money from the
appellant by demanding Rs. 50 lakhs and when the appellant did not agree to
the same, the deceased and his gang attacked his brother and 4-5 years’ old
daughter. He further pointed out that in view of the background of the
said enmity between his gang and the appellant as well as his family
members, even if the prosecution case is acceptable, the appellant is
entitled to avail the right of private defence. He also submitted that
inasmuch as the other co-accused, namely, Mujaffar (A-2) and Shahjad (A-3),
have been acquitted by the High Court believing their alibi that they were
not present at the place of incident, the entire prosecution story is to be
disbelieved. According to him, in view of the acquittal of those persons,
viz., Mujaffar (A-2) and Shahjad (A-3), the genesis of the prosecution case
is completely falsified.
5) On the other hand, Dr. Manish Singhvi, learned Additional Advocate
General for the respondent-State submitted that though the State has not
preferred any appeal against the acquittal of A-2 and A-3, in the light of
overwhelming evidence adduced by the prosecution with reference to the
specific role of the appellant, the High Court is justified in confirming
his conviction, hence, prayed for dismissal of the appeal.
6) We have carefully considered the rival submissions and perused all
the relevant materials.
Discussion:
7) In order to understand the rival submissions, it is useful to refer
the First Information Report (FIR) made by PW-4 which reads as under:
“Sir,
Submitted that today on 18.12.2000 at 10.30 p.m. night, I Iqbal
Bhai, Jameel Bhai and Moin Bhai were returning to Khanji Peer on two
scooters, after taking meals, from SASURAL of Iqbal Bhai at the house
of Babu Bhai which is at Mulla Talai. That at about 10.45 p.m., all
the four of us reached near the house of Ashfaw in Kishanpol where
there is a Ghati. My scooter was ahead which I was driving. Iqbal
Bhai was sitting behind me and another scooter which Moin was driving
and Jameel was sitting behind him. We were going side by side. Since
there is ghati near the house of Ashfaw, scooters were at slow speed
just then Shahjad and his brother Muzaffar came against my scooter all
of a sudden and stopped us and just then Iqbal Bhai got down and asked
what is the matter, by then Shahjad and Muzaffar both shouted Arshad
fire, just then Arshad, who was already standing near the wall of the
Verandah having a gun in hand fired three shots of gun. I feared and
sat down and the bullet hit in the chest and side of Iqbal Bhai and he
fell down there itself. At that time Jameel and Moin were also
standing close by and all the three of them fled from the scene. At
the time of this incident all the street lights of the road and the
light in the verandah of the house of Ashfaq were also lit. There was
old enmity between Ashfaq and Iqbal Bhai and they have committed this
murder with pre-planning. While running, I saw gun in the hands of
Arshad. Please take action. Thereafter I, Jameel, Moin put Iqbal in
the car of my friend Raja alias Siraj and brought to the hospital
where he died.”
8) If we carefully scrutinize the contents of the FIR given by Nizam (PW-
4), it is clear that the occurrence took place at 10:30 p.m. on 18.12.2000
when Iqbal (since deceased), Nizam (PW-4), Jamil (PW-6) and Moinuddin (PW-
5) were returning to Khanji Peer on two scooters. When all the four reached
near the house of Ashfaq, Shahjad (A-3) and his brother Muzaffar (A-2) came
towards their scooters and stopped them. On seeing this, Iqbal got down
and asked about the matter, by then Shahjad and Mujaffar both shouted
“Arshad fire”. On hearing the same, Arshad (A-1), the appellant herein,
who was standing in the verandah of his house with a gun opened fire upon
them. It is further stated that the appellant, who was having gun in his
hand, fired three shots and in order to escape, Nizam (PW-4) sat down and
the bullet hit in the chest and the shoulder of Iqbal as a result of which
he fell down immediately. Afterwards, PWs 5 and 6 ran away from the scene.
It is also stated that at that time, the streetlights as well as the light
of the verandah of the house of Ashfaq were on. It is also seen that there
was old enmity between Ashfaq and Iqbal. It is further clear that on
seeing the deceased and the prosecution party and also on the shoutings of
A-3 and A-4, the appellant herein (A-1), who was standing in the verandah,
fired three shots which hit the deceased due to which he sustained fatal
injuries.
9) It is not in dispute that the High Court, after analyzing the
evidence of prosecution witnesses, particularly PWs 4, 5, 6, 7 and 19 and
the defence pleaded by A-2 and A-3, accepted the plea of alibi and
categorically concluded that both of them were not present at the scene of
occurrence. We have already stated that the State has not challenged the
said order of acquittal by filing appeal before this Court and it has
become final. It is clear that with the acquittal of said persons, viz., A-
2 and A-3, the genesis of the prosecution case is completely falsified.
Let us analyse this aspect in detail hereunder.
10) Though Mr. Sushil Kumar Jain has mainly submitted that the deceased
was a history-sheeter and he threatened the family members of the appellant
on several occasions and also in view of the criminal antecedents of the
deceased, there is no acceptable evidence for availing the right of private
defence as claimed by him. Likewise, though this Court on 29.09.2008
issued notice qua nature of offence only considering the materials placed
by both the sides, we have gone into the matter in depth in order to do
complete justice to the parties.
11) We have already noted the contents of the FIR and the conclusion of
the High Court ordering the acquittal of A-2 and A-3. The first witness
relied on by the prosecution is Nizam (PW-4) – the complainant. A perusal
of the evidence of PW-4 shows that the same is in conformity with the
contents of the FIR. In other words, he reiterated what he has stated in
the FIR. The important statement made by him as stated in the FIR is as
under:
“Iqbal Bhai asked the accused as to what is the matter, by then
Arshad fired. Arshad, who was already standing with gun inside the
boundary wall of his house shot three fires on Iqbal. One shot hit on
the right shoulder and right arm pit.”
It is clear from the above that only on the direction of Shahjad and
Mujaffar, Arshad (the appellant herein) fired at Iqbal.
12) The other witnesses examined on the side of the prosecution were PWs
5, 6 & 7. All of them made similar statements as that of PW-4. In other
words, all the three witnesses once again reiterated similar assertion made
in the FIR including the presence of Shahjad and Mujaffar, stopping of
scooters and shouting Arshad to fire on Iqbal.
13) The High Court has found that Mujaffar and Shahjad were not present
at the place of incident. The basis for such conclusion was that at the
relevant time Mujaffar (A-2) was admitted in a Hospital at Bombay and
Shahjad, his brother, was attending him at the said place. In the absence
of challenge as to the same by the State, it is clear that both the co-
accused were not present at the place of incident and, therefore, three
important aspects of the prosecution case have not been established,
namely, (a) the party of the deceased was stopped by Shahjad and Muzaffar;
(b) the deceased and his associates were stopped by Shahjad and Muzaffar
near the gate of their house; and (c) Shahjad and Muzaffar had asked Arshad
to open fire upon the deceased.
14) A perusal of the contents of the FIR, the statements of the above
mentioned prosecution witnesses as well as the reasoning of the High Court
clearly show that the incident had not taken place as alleged by the
prosecution. We are satisfied that the prosecution had suppressed genesis
and the manner in which the incident took place.
15) In other words, in such circumstances, in the absence of specific
assertion by PWs 4, 5, 6 & 7, the role of the appellant and also in the
light of the conclusion by the High Court accepting the alibi pleaded by A-
2 and A-3, the entire prosecution case could not be believed.
16) Another aspect to be noticed is the use of automatic 12 bore gun in
the manner alleged by the prosecution. According to the prosecution, each
of the cartridges used in the 12 bore gun has 180 pellets. With regard to
the above, Nizam (PW-4), who is alleged to have driven the scooter on which
Iqbal was sitting, has stated as under:
”The scooter which was being driven by Moin stopped on the right side
just ahead to my scooter. Muzaffar and Shahjad only stopped our
scooter nobody stopped the other scooter. Iqbal got down from left
side of the scooter. We, the six persons, who were standing on the
spot were within the radius of about seven feet.”
Again it is stated that: –
“This is true that except Iqbal none of us were hit by the pellet.”
Moinuddin (PW-5), in his evidence has stated as under:
“This is true that the pellets of cartridge did not hit any one of us
except Iqbal Bhai and not hit on our scooter.”
In view of the above, it is seen that after firing 540 pellets, i.e., 3
rounds, how it is possible that none of the witnesses or the brothers of
the appellant did not receive a single pellet though they were within 7
feet radius. This aspect has not been clarified by the prosecution.
17) In addition to the above infirmities, no scooter was recovered from
the place of incident.
Likewise, the story relating to recovery of gun
from the custody of the appellant-accused is also doubtful.
There is no
evidence as to how and when the gun was kept by the appellant under the bed
and thereafter got recovered from his own house.
The story of recovery of
the gun at the information of the appellant is ex facie concocted and unbelievable.
18) It is a well settled principle of law that
when the genesis and the
manner of the incident is doubtful,
the accused cannot be convicted for the
offence punishable under Section 302 IPC.
Inasmuch as the prosecution
failed to establish the circumstances in which the appellant was alleged to have fired at the deceased, the entire story has to be rejected.
19) In the light of the above discussion,
though we are unable to accept
the contention relating to the right of private defence as pleaded by learned counsel for the appellant, on going through the entire prosecution case, coupled with the reasoning of the High Court accepting the claim of the other accused, i.e., A-2 and A-3, the entire prosecution case is to be rejected as unbelievable.
In such circumstances, the appellant is entitled
to the benefit of doubt, accordingly, we set aside his conviction and sentence.
20) The appeal is allowed. The appellant is directed to be released
forthwith, if he is not required in any other case.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(J. CHELAMESWAR)
NEW DELHI;
JULY 17, 2013.
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………….…………………………J.
(J. CHELAMESWAR)
NEW DELHI;
JULY 17, 2013.
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