Allahabad High Court
Rizwan vs State Of U.P. on 20 April, 2026
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:86496-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Order reserved on 16.4.2026
Order delivered on 20.4.2026
CRIMINAL APPEAL No. - 1548 of 2026
Rizwan
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Irshad Mohamad, Noor Mohammad
Counsel for Respondent(s)
:
G.A.
Court No. - 42
HON'BLE SIDDHARTHA VARMA, J.
HON'BLE JAI KRISHNA UPADHYAY, J.
(Per : Jai Krishna Upadhyay, J.) Criminal Misc. Bail Application / (Suspension of Sentence) Application
1. Heard Shri Irshad Mohammad, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
2. The instant application has been filed under Section 389 of Cr.P.C. to suspend the sentence of conviction and to release the applicant on bail in Session Trial No. 658 of 2019 (State of U.P. versus Rizwan) arising out of Case Crime No. 250 of 2019, under Sections 307, 302, 506 (part-2) of I.P.C. and 3/25 Arms Act, Police Station - Baniyather, District ? Sambhal.
3. As per the prosecution case, on 27.8.2019 at about 6:00 PM, while the informant was at his shop and was paying wages to labourers, Rizwan arrived at the scene and demanded money from the informant and when he refused to give the money to him, he drew a pistol from his pocket and fired at him with intent to kill, which was missed. However, when he fired second time, the bullet struck Shakir, who was working nearby and as a result, a large crowd gathered there and Rizwan was apprehended and beaten, consequently he sustained injuries. Injured Shakir succumbed to his injuries during treatment.
4. Contention of the learned counsel for the applicant is that the applicant is innocent and has been falsely implicated. It has been further submitted that the appellant had no intention or motive to commit the murder of the deceased rather he wanted to cause death of the informant and by mistake it hit the deceased. Hence, offence under Section 302 IPC is not made out and the case cannot travel beyond the purview of Section 304 IPC. In paragraph no. 28 of the affidavit it has been mentioned that neither the appellant is previous convict nor has any criminal history to his credit. It has further been submitted that the appellant has served out more than five years and six months sentence. It has also been submitted that the conviction and sentence imposed by the learned trial Judge is against the weight of evidence on record. Recovery of murder weapon on the pointing out of the appellant is false and planted. The trial court has misread the evidence on record and convicted the appellant. The prosecution has not been able to prove its case beyond reasonable doubt. Since there is no likelihood of early hearing of the appeal in near future, the appellant may be released on bail pending appeal.
5. In rebuttal, learned A.G.A. has opposed the bail application and submitted that the appellant has been rightly convicted by the trial court. Cogent and reliable evidence has been collected by the I.O. against him during investigation. The trial court has appreciated the evidence in right perspective. Lastly, it has been submitted that the Appellant is a man of criminal character and in this regard a list of cases lodged against him has been annexed with the counter affidavit which is as under :
?1. ???????? 250/2019 ???? 302,307,506 ?????? ? 3/25 ???? ???? ???? ???????? ???? ????? (???? ????)
2. ???????? 86/2015 ???? 307 ?????? ? 25 ???? ???? ???? ??????? ???? ????? (???? ????)
3. ???????? 307/2015 ???? 174-? ?????? ???? ??????? ???? ????? (???? ????)
4. ???????? 669/2008 ???? 384,504,506, ?????? ???? ??????? ???? ????? (???? ????)
5. ???????? 883/2007 ???? 3(1) ??????? ???? ???? ??????? ???? ????? (???? ????)
6. ???????? 35/2009 ???? 307 ?????? ???? ??????? ???? ????? (???? ????)
7. ???????? 36/2009 ???? 25 ???? ???? ???? ??????? ???? ????? (???? ????)
8. ???????? 86/2009 ???? 323,504,506 ?????? ???? ??????? ???? ????? (???? ????)
9. ???????? 104/2011 ???? 394,397 ?????? ???? ??????? ???? ????? (???? ????)
10. ???????? 176/2011 ???? 302,34 ?????? ???? ??????? ???? ????? (???? ????)
11. ???????? 179/2011 ???? 147,323,504,506 ?????? ???? ??????? ???? ????? (???? ????)
12. ???????? 449/2011 ???? 3(1) ??????? ???? ???? ??????? ???? ????? (???? ????)
13. ???????? 665/2008 ???? 394 ?????? ???? ??????? ???? ????? (???? ????)
14. ???????? 669/2008 ???? 384,504,506 ?????? ???? ??????? ???? ????? (???? ????)
15. ???????? 689/2005 ???? 307 ?????? ???? ??????? ???? ????? (???? ????)
16. ???????? 798/2007 ???? 356,323 ?????? ???? ??????? ???? ????? (???? ????)
17. ???????? 799/2007 ???? 302 ?????? ? 4/25/27 ???? ???? ???? ??????? ???? ????? (???? ????)
18. ???????? 807/2008 ???? 380 ?????? ???? ??????? ???? ????? (???? ????)
19. ???????? 883/2007 ???? 3(1) ??????? ???? ???? ??????? ???? ????? (???? ????)
20. ???????? 910/2007 ???? 323,504,506 ?????? ???? ??????? ???? ????? (???? ????)
21. ???????? 260/2005 ???? 147,148,149,307,452,302,323 ?????? ???? ??????? ????? ???? ????? (???? ????)
22. ??0?0??0 1352/2005 ???? 147,148,149,307 ?????0 ???? ??????? ????? ???? ????? (???? ????)
23. ??0?0??0 175/2011 ???? 394 ?????0 ???? ??????? ???? ????? (???? ????)
24. ??0?0??0 469/2013 ???? 279,337,338,304 ??, 427 ?????0 ???? ??????? ???? ????? (???? ????)
25. ??0?0??0 569/2013 ???? 10 ????? ?????? ?????? ???? ???? ??????? ???? ????? (????)
26. ??0?0??0 537/2015 ???? 3/4 ?????? ???? ???? ??????? ???? ????? (????)
27. ??0?0??0 1353/2005 ???? 25 ???? ???? ???? ??????? ????? ???? ????? (???? ????)?
6. We have perused the judgment of the Trial Court with the assistance of the learned counsel for the parties and have considered the submissions made by the learned counsel for the parties.
7. So far as the submission that appellant had no intention or motive to commit the murder of the deceased rather he wanted to cause death of the informant and by mistake it hit the deceased is concerned, it is settled law that if a person has an intention to commit an offence or cause death of any person but kills one whose death he never intended to cause, he would still be guilty of causing death. The Hon?ble Apex Court in Nanhe vs. State of Uttar Pradesh, (2024) 13 SCC 765 has held as under :
?10. In context with the argument that the appellant had no intention to kill the deceased and that he was accidentally killed though in fact he had fired the shot upon Mahendra with whom he had a quarrel/altercation a little earlier, it is relevant to refer to Section 301 IPC which reads as under:
?301. Culpable homicide by causing death of person other than person whose death was intended.?If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.?
11. The aforesaid provision is based up on the ?Doctrine of Transfer of Malice or Transmigration of Motive? which provides that where there is ?mens rea? of committing an offence, it can be transferred to another. To illustrate the said doctrine, an example could be given of a person who had intention to kill a person but by mistake kills another person, then he would still be held guilty of committing murder even in the absence of intention to kill that particular person. In simpler words, if a person has an intention to commit an offence or cause death of any person but kills one whose death he never intended to cause, he would still be guilty of causing death.
12. In Shankerlal Kacharabhai v. State of Gujarat [Shankerlal Kacharabhai v. State of Gujarat, 1964 SCC OnLine SC 131 : AIR 1965 SC 1260] , this Court while discussing the scope of Section 301 IPC held as under: (SCC OnLine SC para 10) ?10. ? It embodies what the English authors describe as the doctrine of transfer of malice or the transmigration of motive. Under the Section if A intends to kill B, but kills C whose death he neither intends nor knows himself to be likely to cause, the intention to kill C is by law attributed to him. If A aims his shot at B, but it misses B either because B moves out of the range of the shot or because the shot misses the mark and hits some other person C, whether within sight or out of sight, under Section 301, A is deemed to have hit C with the intention to kill him. What is to be noticed is that to invoke Section 301 of the Penal Code, 1860A shall not have any intention to cause the death or the knowledge that he is likely to cause the death of C.?
13. In a similar case where also, the victim was accidentally shot though the firing was intended to cause injuries to some other person, this Court in Rajbir Singh v. State of U.P. [Rajbir Singh v. State of U.P., (2006) 4 SCC 51 : (2006) 2 SCC (Cri) 209] held that the approach of the High Court in setting aside the order passed by the Special Judge solely on the ground that the firing was not aimed at the victim and that he was accidentally injured is completely in ignorance of the provision of Section 301IPC. The Supreme Court observed as under: (SCC p. 54, paras 5 & 7) ?5. We have heard the learned counsel for the appellant (the complainant), the learned counsel for Akhilesh Chauhan (Respondent 2) and have perused the records. The only reason given by the High Court for setting aside the order passed by the learned Special Judge framing charges against Respondent 2 is that the firing was not aimed at Pooja Balmiki but she accidentally received the injuries as she was passing through that way and was hit. The High Court completely ignored the provisions of Section 301IPC.?
The aforesaid provision clearly shows that if the killing took place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out.
7. The fact that there was no intention to cause injury to Pooja Balmiki and she was accidentally hit can make no difference as according to the version of the prosecution, the accused intended to cause injuries by firearm to Hoti Lal and in attempting to carry out the same, also caused injuries to her. The reasons given by the High Court for quashing the charges are, therefore, wholly erroneous in law and cannot be sustained.?
14. In another case of similar nature i.e. Jagpal Singh v. State of Punjab [Jagpal Singh v. State of Punjab, 1991 Supp (1) SCC 549 : 1991 SCC (Cri) 721 : AIR 1991 SC 982], this Court held that under the ?Doctrine of Transfer of Malice or Transmigration of Motive? as per Section 301IPC, the accused has made himself punishable under Section 302IPC (simpliciter) as he accidentally shot a particular person, though, in fact he might have intended to kill another person and may have aimed the shot at that another person only.
15. A composite reading and understanding of the aforesaid provision of Section 301IPC, ?Doctrine of Transfer of Malice or Transmigration of Motive? and above cases on the subject, it is quite implicit that the appellant herein is guilty of committing an offence of culpable homicide amounting to murder punishable under Section 302 IPC and that the intention to kill some other person is not material inasmuch as he had the intention of committing the aforesaid offence though accidentally he might have killed another person.?
8. In view of the law laid down by the Hon?ble Apex Court in the case of Nanhe (supra), the submission made by the learned counsel for the appellant that he had no intention to cause death of the appellant is not acceptable.
9. Further, though the learned counsel for the appellant has mentioned in the affidavit that neither he is previous convict nor has any criminal history to his credit yet the learned AGA has brought on record a list of criminal cases lodged against the appellant which shows that the appellant had been engaged in commission of offence like murder, attempt to murder and dacoity with murder etc. In the supplementary affidavit filed on 16.4.2026 the learned counsel for the appellant has not sufficiently explained the criminal history of the appellant.
10. In view of the above discussions and taking into account the fact that the appellant is a man of criminal character and had been involved in commission of offences like murder, attempt to murder and dacoity with murder etc. and the law laid down by the Hon?ble Apex Court in the case of Nanhe (supra), we are of the view that the appellant has not made out a case of bail. The bail application is accordingly rejected.
Order on appeal
11. Office to prepare the paper book.
12. List this appeal on 6.7.2026 for hearing.
(Jai Krishna Upadhyay,J.) (Siddhartha Varma,J.) April 20, 2026 safi