IMPORTANT POINT
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.

Headnote:Indian Evidence Act, 1872-Section 11- Plea of alibi - All the four witnesses of the prosecution reiterated similar assertion made in the FIR including the presence of Shahjad and Mujaffar, stopping of scooters and shouting Arshad to fire on Iqbal-The High Court 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. (Paras 12, 13)
       Forensic analysis-Fire by weapon-Use of automatic 12 bore gun, each of the cartridges used in the 12 bore gun has 180 pellets- The six persons, who were standing on the spot were within the radius of about seven feet. 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. (Paras 15, 16)
        Indian Penal Code, 1860- Section 302 read with Section 34- 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. (Para 18)
       Facts of the case:
        All the four witnesses of the prosecution asserted the presence of two co-accused Shahjad and Mujaffar, stopping of scooters and shouting Arshad to fire on Iqbal. The High Court has found that Mujaffar and Shahjad were not present at the place of incident and acquitted them. 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.
       Findings of the Court :
        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. The incident had not taken place as alleged by the prosecution.
       Result : Appeal allowed.

JUDGMENT

P.Sathasivam,J.

1) This appeal has been filed against the judgment and order dated30.04.2008 passed by the High Court of Judicature for Rajasthan at Jodhpurin Criminal Appeal No. 586 of 2004 whereby the Division Bench of the HighCourt 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 dated18.05.2004 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 themreached 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

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2013 Supreme(SC) 649

SUPREME COURT OF INDIAP. SATHASIVAM & J. CHELAMESWAR, JJ.Arshad Hussain - Appellant(s)VersusState of Rajasthan - Respondent(s)CRIMINAL APPEAL NO. 889 OF 2009Decided On : JULY 17, 2013.

IMPORTANT POINT 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.

SUPREME COURT OF INDIA
P. SATHASIVAM & J. CHELAMESWAR, JJ.
Arshad Hussain - Appellant(s)
Versus
State of Rajasthan - Respondent(s)
CRIMINAL APPEAL NO. 889 OF 2009
Decided On : JULY 17, 2013.

IMPORTANT POINT
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.