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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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