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Wednesday, July 24, 2013

Acquittal of murder case= 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.

            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.


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                                    ………….…………………………J.


                                      (J. CHELAMESWAR)
NEW DELHI;
JULY 17, 2013.


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