ARSHAD HUSSAIN Vs STATE OF RAJASTHAN
Bench: P. SATHASIVAM,J. CHELAMESWAR
Case number: Crl.A. No.-000889-000889 / 2009
Diary number: 21068 / 2008
Advocates: PRATIBHA JAIN Vs
PRAGATI NEEKHRA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 889 OF 2009
Arshad Hussain .... Appellant(s)
Versus
State of Rajasthan ... Respondent(s)
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
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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
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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.
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(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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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,
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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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