ARSHAD HUSSAIN versus STATE OF RAJASTHAN

Citation: [2013] 17 S.C.R. 955 · Decided: 17-07-2013 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2013] 17 S.C.R. 955 
ARSHAD HUSSAIN 
v. 
STATE OF RAJASTHAN 
(Criminal Appeal No. 889 of 2009) 
JULY 17, 2013 
[P. SATHASIVAM AND J. CHELAMESWAR, JJ.] 
A 
B 
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 
G 
set aside. [Paras 18 and 19] [964-E, 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 
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 
B 
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 Pe
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