- (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 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 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.;