ARSHAD HUSSAINversusSTATE OF RAJASTHAN

                    [2013] 17 S.C.R. 955


                    ARSHAD HUSSAIN                              A
                             v.
                  STATE OF RAJASTHAN
             (Criminal Appeal No. 889 of 2009)
                       JULY 17, 2013
                                                                B
     [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

       Penal Code, 1860 - s.302 - Murder - Alleged against 3
  accused - Conviction of all the 3 by trial court - High Court
  confirmed the conviction of only1A-1 - Acquitted A2 and A3 C
  on the ground of alibi - Appeal by A-1 - Held: In view of tlie
  evidence and thi? reasoning of High Court as regards alibi,
  prosecution seems to have suppressed the genesis and the
  manner in which the incident took place - Therefore, entire
  prosecution story liable to be rejected - There are also other D
  infirmities in the prosecution case - Hence A-1 entitled to
· benefit of doubt and acquitted.
     Appellant-accused (A-1) was prosecuted uls. 302 r/
 w. s.34 IPC alongwith A-2 and A-3. The prosecution case
 was that when the complainant party was coming on E
 scooters, A-2 and A-3 came and stopped their scooters,
 and when they got down from their scooters, A-2 and A-
 3 called out A-1 to fire at them. A-1 fired 3 rounds, which
 resulted in death of the deceased. Trial court convicted
 all the three accused. High Court confirmed the· F
 conviction of A-1 but acquitted A-2 and A-3 believing their
 plea of alibi. Hence the present appeal.
     Allowing the appeal, the Court
      HELD: 1. The contents of the FIR, the statements of G
 the 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. The prosecution had
 suppressed genesis and the manner in which the
                              955                               H
    956     SUPREME COURT REPORTS               [2013] 17 S.C.R.


A   incident took place. Thus in the absence of specific
    assertion by PWs 4, 5, 6 and 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. [Paras 14 and
B   15] [963-8-D]
         2. Each of the cartridges used in the 12 bore gun has
    180 pellets. Thus after firing 540 pellets, i.e., 3 rounds, it
    is not possible that none of the witnesses or the brothers
    of the appellant did not receive a single pellet though they
C   were within 7 feet radius. This aspect has not been
    clarified by the prosecution. 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
D   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. [Paras 16 and 17]
E   [963-E; 964-8-D]
         3. 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
F   which the appellant was alleged to have fired at the
    deceased, the entire story has to be rejected. In such
    circumstances, the appellant is entitled to the benefit of
    doubt, and accordingly his convict_ion and sentence is
    set aside. [Paras 18 and 19] [964-E, G]
G       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 889 of 2009.
        From the Judgment & Order dated 30.04.2008 of the High
    Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal
H   Appeal No. 586 of 2004.
    ARSHAD HUSSAIN v. STATE OF RAJASTHAN                      957


    Sushi! Kumar Jain, Puneet Jain, Pratibha Jain for the             A
Appellant.

    Dr. Manish Singhvi, AAG, Pragati Neekhra for the
Respondent.

     The Judgment of the Court was delivered by                       B

     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          C
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        o
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          E
  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        F
. 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    G
  fell down. Nizam, Jamil and Moin, who were also standing
  closer to Iqbal, ran away from the spot.

     (b) Thereafter, Nizam (the complainant), Ja.mil and Moin
 took Iqbal to the hospital in the car of Raja@Siraj (PW-7) and
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    958      SUPREME COURT REPORTS               [2013] 17 S.C.R.


A 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
B 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
C 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    . (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
E 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
F 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
G 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.
H
    ARSHAD HUSSAIN v. STATE OF RAJASTHAN                      959
             [P. SATHASIVAM, J.]

     4. Mr. Sushil Kumar Jain, learned counsel for the appeHant-      A
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        B
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         C
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       D
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.
                                                                      E
    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             F
specific role of the appellant, the High Court is justified in
confirming his conviction, hence, prayed for disn-lissal of the
appeal.

    6. We have carefully considered the rival submissions and         G
perused .all the relevant materials.

     Discussion:

     7. In order to understand ihe rival submissions, it is useful
                                                                      H
    960           SUPREME COURT REPORTS              [2013] 17 S.C.R.


A   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
B         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 Mu Ila Talai. That at about 10.45 p.m., all the four of
          us reached near the house of Ashfaw in Kishanpol where
c         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
D         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
E         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
F         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 ahd 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
G         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
H (PW-4), Jamil (PW-6) and Moinuddin (PW-5) were returning to
     ARSHAD HUSSAIN v. STATE OF RAJASTHAN                         961
              [P. SATHASIVAM, J.]

  Khanji Peer on two scooters. When all the four reached near             A
  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          B
  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          c
  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           0
l 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,           E
  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          F
  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. Sushi! Kumar Jain has mainly submitted
  that the deceased was a history-sheeter and he threatened the           G
  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                H
    962       SUPREME COURT REPORTS                [2013) 17 S.C.R.


A   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
8
    (PW-4) - the complainant. A perusal of the evidence of PW-4
    sh.ows 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:                              •
c
          "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
D         arm pit."

         It is clear from the above that only on the direction of
    Shahjad and Mujaffar, Arshad (the appellant herein) fired at
    Iqbal.           ·"

E        12. The other witnesses examined on the side of the
    prosecution were PWs 5, 6 & 7. All of them made simila1
    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
F   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
  coat:lusion was that at the relevant time Mujaffar (A-2) was
G admitted in a Hospital at Bombay and Shahjad, his brother, was
  attendi'lg 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
H established, namely, (a) the party of the deceased was stopped
    ARSHAD HUSSAIN v. STATE OF RAJASTHAN                      963
            • [P. SATHASIVAM, J.]
by Shahjad and Muzaffar; (b) the deceased and his associates          A
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
                                                                      8
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.
                                                                      c
     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.                               D

    16. Another aspect to be IJOticed 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,
                                                                      E
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              F
     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: -                                       G
     'This is true that except Iqbal none 'of us were hit by the
     pellet."

     Moinuddin (PW-5), in his evidence has stated as under:
                                                                      H
    964       SUPREME COURT REPORTS                  [2013] 17 S.C.R.


A         "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
8
   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
c 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 recoverecj. from his own house. The story of
  recovery of the gun at the inforn;iation of the appellant is ex facie
D 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 punishaQle under Section 302 IPC.
E   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
F 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
  b.e rejected as unbelievable. In such circumstances, the
G 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 fortlJwith, if he is not required in any other case.

H l\~1pana K. Tripathy                                    Appeal allowed.