# Rizwan v. State of U.P

- **Citation:** (2026) 4 ILRA 1122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-20
- **Case number:** Criminal Appeal No. 1548 of 2026
- **Bench:** Siddhartha Varma, Jai Krishna Upadhyay
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rizwan-v-state-of-u-p-54370
- **Pages:** 7

## Text

1122 INDIAN LAW REPORTS ALLAHABAD SERIES
the side of the first informant, the report was lodged at 08:15 AM on 19.08.1986, in which the incident was
alleged to have taken place at 05:00 PM on 18.08.1986. The first information is delayed by more than 15
hours. Explanation tendered by the prosecution for the delay in lodging the first information report is that
after the incident the first informant while going to the police station along with injured Raj Pal and Babu
Ram to lodge the first information and when he reached near village Sanda at about 12:00 in the night,
injured-Raj Pal (deceased) succumbed to the injuries. Thereafter, he returned back to village and could not go
to the police station to lodge the first information report on account of flood in the river. The distance
between the police station Khudaganj and the place of occurrence is 07 Kms. As per evidence of PW-1,
Bhikhari, after the occurrence at 05:00 PM, he along with Raj Pal and Babu Ram left for the police station,
which was about 07 Kms. and when he reached near village Sanda at about 12:00 in the night, injured-Raj
Pal died and thereafter he returned to village. The explanation tendered by the prosecution is too hard to
swallow inasmuch as the first informant could not cover the distance of 7 kms. in seven hours. Whereas as
per version of the accused-appellants, the incident in question took place at 08:00 PM and their report has
been lodged at 00:15 AM, i.e. in four hours and fifteen minutes.

50. Further the injury of the injured Babu Ram was examined at 10:00 AM on 20.3.1986, which
was allegedly sustained at 05:00 PM on 18.03.1986, whereas the injuries of the accused-appellants were
examined at 01:00 AM on 18/19.3.1986.

51. In view of the above, we are of the view that the learned Trial Court has failed to examine the
case
of
the
accused-appellants
in
respect
of
cross
case
in
corrective
perspective.
52. Accordingly, the order dated 29.4.1987 passed by the learned Sessions Judge, Shahjahanpur in Sessions
Trial No. 403 of 1986 is set aside.

53. Consequently, the appeal is allowed.

54. Appellants Chet Ram and Rameshwar are on bail. Their bail bonds are cancelled and sureties
are discharged.

55. Office is directed to send a copy of this order to the court concerned along with necessary
documents for compliance and compliance report be submitted to this Court within two months.
---------
(2026) 4 ILRA 1122
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.04.2026

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE JAI KRISHNA UPADHYAY, J.

Criminal Appeal No. 1548 of 2026

Rizwan ...Appellant
Versus
State of U.P. ...Respondent
4 All. Rizwan Vs. State of U.P.
1123
Issue for Consideration
Matter pertains to whether, for the purposes of suspension of sentence and release on bail pending appeal
under S. 389 Cr.P.C., the appellant's contention that he had no intention or motive to commit the murder of
the deceased and that the shot intended for the informant accidentally hit the deceased excluded the
applicability of S. 302 IPC and brought the case within S. 304 IPC, or whether S. 301 IPC embodying the
Doctrine of Transfer of Malice rendered the offence punishable under S. 302 IPC. (Paras 2, 4 and 7-10)

Headnotes
Criminal Law - Suspension of Sentence Pending Appeal - Murder - Indian Penal Code, 1860 - Ss.
301, 302, 307, 506 - Arms Act, 1959 - Ss. 3/25 - Doctrine of Transfer of Malice or Transmigration
of Motive - Accused intending to cause death of one person but shot hitting and killing another
person - Whether offence falls under S. 302 IPC or S. 304 IPC - Held, by virtue of S. 301 IPC,
intention stands transferred to the actual victim and the offender would still be guilty of causing
death - Submission that there was no intention to kill the deceased rejected - Bail declined.
(Paras 7-10)
Criminal Law - Suspension of Sentence Pending Appeal - Consideration of Criminal Antecedents -
Code of Criminal Procedure, 1973 - S. 389 - Extensive criminal history involving offences like
murder, attempt to murder and dacoity with murder brought on record by the State - Criminal
history not sufficiently explained in supplementary affidavit - Held, appellant was a man of
criminal character and had been involved in commission of serious offences - No case for grant
of bail made out. (Paras 9, 10)
Held: 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 Doctrine
of Transfer of Malice or Transmigration of Motive provides that where there is mens rea of committing an
offence, it can be transferred to another - 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 - a
composite reading and understanding of S. 301 IPC, Doctrine of Transfer of Malice or Transmigration of
Motive and the cases on the subject makes it quite implicit that the appellant is guilty of committing an
offence of culpable homicide amounting to murder punishable under S. 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 - the submission that he had no intention to cause
death of the deceased is not acceptable - the appellant had been engaged in commission of offence like
murder, attempt to murder and dacoity with murder and the criminal history was not sufficiently explained -
taking into account 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 in Nanhe
(supra), the appellant has not made out a case of bail and the bail application is liable to be rejected - bail
application is accordingly rejected. (Paras 7-10) (E-7)

Case Law Cited
Nanhe vs. State of Uttar Pradesh, (2024) 13 SCC 765; Shankerlal Kacharabhai v. State of Gujarat, 1964
SCC OnLine SC 131: AIR 1965 SC 1260; Rajbir Singh v. State of U.P., (2006) 4 SCC 51: (2006) 2 SCC
(Cri) 209; Jagpal Singh v. State of Punjab, 1991 Supp (1) SCC 549: 1991 SCC (Cri) 721: AIR 1991 SC
982.

List of Acts
Code of Criminal Procedure, 1973; Indian Penal Code, 1860; Arms Act, 1959

List of Keywords
Suspension of Sentence; Bail Pending Appeal; Doctrine of Transfer of Malice; Transmigration of Motive; Mens
Rea; Culpable Homicide Amounting to Murder; Intention to Cause Death; Accidental Killing; Criminal History;
Criminal Character; Murder; Attempt to Murder; Dacoity with Murder; Conviction; Bail Rejection.

Case Arising From
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION: Application under S. 389 Cr.P.C. seeking suspension of sentence of conviction and
release on bail pending appeal in Session Trial No. 658 of 2019 arising out of Case Crime No. 250 of 2019
under Ss. 307, 302, 506 IPC and Ss. 3/25 Arms Act, Police Station Baniyather, District Sambhal.

Appearances for Parties
Advs. for the Appellant:
Shri Irshad Mohammad.
Advs. for the Respondents:
Learned A.G.A. for the State.

(Delivered by Hon'ble 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
4 All. Rizwan Vs. State of U.P.
1125
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. मु०ि०िं० 250/2019 धारा 302,307,506 भािदव० व 3/25 आयुध ििध० थाना
िबनयाढ़़ ़़ ़़ ़़ ़़ ़़ ़़ ़़ ़़ ़़ ़़ ़़ ़़ ़़ ़़ ़़ े र जनपद िम्भ ल (आरोप पत्र )
 2. मु०ि०िं० 86/2015 धारा 307 भािदव० व 25 आयुध ििध० थाना चन् दौ ि जनपद िम्भ ल
(आरोप पत्र )
 3. मु०ि०िं० 307/2015 धारा 174-ए भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 4. मु०ि०िं० 669/2008 धारा 384,504,506, भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र
)
 5. मु०ि०िं० 883/2007 धारा 3(1) गैगस्ट र एक्ट थाना चन्दौ ि जनपद िम्भ ल (आरोप पत्र )
 6. मु०ि०िं० 35/2009 धारा 307 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 7.मु०ि०िं० 36/2009 धारा 25 आयुध ििध० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 8. मु०ि०िं० 86/2009 धारा 323,504,506 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 9. मु०ि०िं० 104/2011 धारा 394,397 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 10. मु०ि०िं० 176/2011 धारा 302,34 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 11. मु०ि०िं० 179/2011 धारा 147,323,504,506 भािदव० थाना चन् दौ ि जनपद िम्भ ल
(आरोप पत्र )
 12. मु०ि०िं० 449/2011 धारा 3(1) गैगस्ट र एक्ट थाना चन्दौ ि जनपद िम्भ ल (आरोप पत्र )
 13. मु०ि०िं० 665/2008 धारा 394 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 14. मु०ि०िं० 669/2008 धारा 384,504,506 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र
)
 15. मु०ि०िं० 689/2005 धारा 307 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 16. मु०ि०िं० 798/2007 धारा 356,323 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 17. मु०ि०िं० 799/2007 धारा 302 भािदव० व 4/25/27 आयुध ििध० थाना चन् दौ ि जनपद
िम्भ ल (आरोप पत्र )
 18. मु०ि०िं० 807/2008 धारा 380 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र )
 19. मु०ि०िं० 883/2007 धारा 3(1) गैगस्ट र एक्ट थाना चन्दौ ि जनपद िम्भ ल (आरोप पत्र )
 20. मु०ि०िं० 910/2007 धारा 323,504,506 भािदव० थाना चन् दौ ि जनपद िम्भ ल (आरोप पत्र
)
 21. मु०ि०िं० 260/2005 धारा 147,148,149,307,452,302,323 भािदव० थाना कोतवाल िम्भ ल
जनपद िम्भ ल (आरोप
पत्र )
 22. मु0ि0िं0 1352/2005 धारा 147,148,149,307 भािदव0 थाना कोतवाल िम्भ ल जनपद िम्भ
ल (आरोप पत्र )
 23. मु0ि0िं0 175/2011 धारा 394 भािदव0 थाना चन्दौ ि जनपद िम्भ ल (आरोप पत्र )
 24. मु0ि0िं0 469/2013 धारा 279,337,338,304 ब , 427 भािदव0 थाना चन्दौ ि जनपद िम्भ ल
(आरोप पत्र )
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
 25. मु0ि0िं0 569/2013 धारा 10 उत्त र प्र देश गुण्डा ििध० थाना चन् दौ ि जनपद िम्भ ल
(ि आर)
 26. मु0ि0िं0 537/2015 धारा 3/4 गुण्डा ििध० थाना चन् दौ ि जनपद िम्भ ल (ि आर)
 27. मु0ि0िं0 1353/2005 धारा 25 आयुध ििध० थाना कोतवाल िम्भ ल जनपद िम्भ ल (आरोप
पत्र )"

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
4 All. Rizwan Vs. State of U.P.
1127
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."
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
---------
(2026) 4 ILRA 1128
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.04.2026

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Appeal No. 1613 of 2012

Shanu ...Appellant
Versus
State of U.P. ...Respondent

Issue for Consideration
Matter pertains to whether it is safe to convict the accused solely on the solitary statement of the prosecutrix
which is sought to be corroborated by the evidence of her father and whether the evidence of the prosecutrix
inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality. (Paras
20-23)

Headnotes
Criminal Law - Rape and Gang Rape - Appreciation of Evidence - Indian Penal Code, 1860 - Ss.
376(g), 342, 506, 120-B - Conviction based on solitary testimony of prosecutrix - Requirement
that evidence must inspire confidence and be of sterling quality - Court required to examine