1. Mob violence — Convictions under Sections 396, 395, 307, 435, and 201 read with Section 149, IPC — Appeal against conviction for chain snatching. (Para 1 , 2 )
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2023 Supreme(SC) 861
SUPREME COURT OF INDIA
ABHAY S. OKA, SANJAY KAROL, JJ.
Javed Shaukat Ali Qureshi - Appellant
Versus
State of Gujarat - Respondent
Criminal Appeal No. 1012 of 2022
Decided on : 13-09-2023
Advocates appeared:
For the Appellant(s) : Mr. M. Shoeb Alam, AOR (Amicus Curiae) Ms. Fauzia Shakil,Adv. Mr. Ujjwal Singh,Adv. Mr. Agastya Sen,Adv.
For the Respondent(s): Ms. Ruchi Kohli, Adv. Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv. Ms. Srishti Mishra, Adv.
For the Appellant(s) : Mr. M. Shoeb Alam, AOR (Amicus Curiae) Ms. Fauzia Shakil,Adv. Mr. Ujjwal Singh,Adv. Mr. Agastya Sen,Adv.
For the Respondent(s): Ms. Ruchi Kohli, Adv. Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv. Ms. Srishti Mishra, Adv.
IMPORTANT POINTS
(1) It is very unsafe to record a conclusion based only on testimony of solitary witness that guilt of accused was proved beyond reasonable doubt when no identification parade was held.
(2) Common object of unlawful assembly – Criminal Court should decide like cases alike, and in such cases, Court cannot make distinction between two accused which will amount to discrimination.
(3) An order refusing special leave to appeal by a non-speaking order does not attract doctrine of merger.
(4) Jurisdiction under Article 136 of Constitution of India can be invoked in favour of party even suo motu when Court is satisfied that compelling ground for its exercise exists.
Headnote:
(A) Indian Penal Code, 1860 – Section 396 read with Section 149 – Constitution of India – Article 21 – Dacoity with murder – Common object – Conviction and sentence – Violence perpetrated by mob belonging to Muslim community – In a given case, conviction can be based on testimony of only one eyewitness – Identification of appellant for the first time in Court after a lapse of about two years becomes doubtful for more than one reason – Witness stated that a mob had gathered around auto-rickshaw – It is not the case of prosecution that she knew appellant beforehand – Going by her version of incident, there was no time available to her to observe distinctive features of appellant – There was no identification parade held – It is very unsafe to record a conclusion based only on testimony of solitary witness that guilt of appellant was proved beyond reasonable doubt – Corroboration is completely absent in this case – Conviction of appellant cannot be sustained – Only role ascribed to accused was that they were part of a mob – No overt act was ascribed to accused – Case of accused no 2 stands on same footing as accused nos. 1,5 and 13 acquitted by this Court – If Court fail to grant relief to accused no 2, rights guaranteed to accused no. 2 under Article 21 of Constitution of India will be violated – Appellant, accused no.6–Appellant acquitted. (Paras 6, 7, 8, 9, 19, 20 and 21)
(B) Indian Penal Code, 1860 – Section 149 – Common object of unlawful assembly – When there is similar or identical evidence of eyewitnesses against two accused by ascribing them same or similar role, Court cannot convict one accused and acquit other – In such a case, cases of both accused will be governed by principle of parity – Criminal Court should decide like cases alike, and in such cases, Court cannot make distinction between two accused which will amount to discrimination. (Para 15)
(C) Constitution of India – Article 136 – Appeal by Special Leave – An order refusing special leave to appeal by a non-speaking order does not attract doctrine of merger – Jurisdiction under Article 136 of Constitution of India can be invoked in favour of the party even suo motu when Court is satisfied that compelling ground for its exercise exists – However, such suo motu power should be used very sparingly with caution and circumspection. (Paras 16, 17 and 18)
Facts of the case:
Seven accused were convicted, including present appellant-accused no.6, for offences punishable under Section 396 read with Section 149, Section 395 read with Section 149, Section 307 read with Section 149, Section 435 read with Section 149 and Section 201 read with Section 149 of Indian Penal Code, 1860. Maximum sentence imposed was life imprisonment for offence punishable under Section 396 read with 149 of IPC. By impugned judgment, while confirming the conviction of accused, High Court brought down the sentence to 10 years. Appeals preferred by convicted accused were decided by a Division Bench of High Court by impugned judgment.
Findings of Court:
Appellant, accused no.6 is acquitted of offences alleged against him by setting aside judgment of Trial Court dated 17th March 2006 and judgment of High Court dated 11th February 2016 to the extent. He is on bail. His bail bonds stand cancelled.
Result : Appeal allowed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
- constitutional law
Table of Contents
2. Reliability of solitary witness identification without test identification parade — Application of parity based on the acquittal of co-accused. (Para 3 , 4 , 5 )
3. Identification by a solitary witness after significant time lapse in a large mob without a test identification parade is unreliable and requires corroboration. (Para 6 , 8 , 11 , 12 )
4. Conviction based on a single witness requires corroboration if the testimony is not wholly reliable; similarly placed accused must be treated with parity. (Para 7 , 8 , 15 )
5. Convictions of the appellant and co-accused set aside — All accused acquitted. (Para 21 )
6. When can a conviction be based on the testimony of a single eyewitness?
A court may act on a single witness's testimony if it is wholly reliable. If the testimony is neither wholly reliable nor wholly unreliable, the court must look for corroboration in material particulars by reliable direct or circumstantial evidence. (Para 7 , 8 )
7. How does the absence of a test identification parade affect the reliability of a witness's identification in court?
In cases involving large mobs and significant time lapses between the incident and the trial, the absence of a test identification parade makes the identification of an unknown accused in court doubtful and potentially unreliable. (Para 6 , 8 , 11 )
8. What is the principle of parity in criminal convictions?
The principle of parity dictates that when identical evidence is presented against multiple accused persons ascribing them similar roles, the court should decide like cases alike and cannot convict one while acquitting another. (Para 14 , 15 )
9. Can the court exercise suo motu powers to extend the benefit of parity to accused persons who did not appeal?
Yes, the court may invoke its jurisdiction under Article 136 suo motu in the rarest of rare cases to prevent a violation of the fundamental right to liberty guaranteed under Article 21. (Para 16 , 17 , 19 )
10. Does a non-speaking order refusing special leave to appeal attract the doctrine of merger?
No, an order refusing special leave to appeal by a non-speaking order does not attract the doctrine of merger, allowing the court to later grant relief to ensure justice. (Para 18 )
JUDGMENT :
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The occurrence based on which the appellant was convicted was of 7th November 2003. According to the prosecution case, around 10 a.m. on that day, about 1,000 to 1,500 people had gathered in the Shah Alam area of the city of Ahmedabad. When PW1 Baldev was passing through that area by his two-wheeler, the crowd stopped him. He was forced to disclose his identity. After he disclosed his identity, the crowd started assaulting him and his two-wheeler was burnt. Thereafter, the crowd stopped an autorickshaw, and the passengers in the autorickshaw were forced to alight. The necklace of PW2 Gitaben Bhailal, who was a passenger in the auto rickshaw, was snatched. The mob assaulted PW3 Hemubhai, who was carrying LPG cylinders on a bicycle. PW 13 Ajay was passing through that area on his two-wheeler with Mukesh as a pillion rider. PW13 Ajay managed to run away. However, Mukesh was assaulted by the mob. Afterwards, the dead body of Mukesh was found in a nearby lake. A total of 13 accused were prosecuted. Accused nos. 1 to 6 and 13 were convicted and Trial Court acquitted the rest of the accused. Seven accused were convicted, including the present appellant-accused no.6, for the offences punishable under Section 396 read with Section 149, Section 395 read with Section 149, Section 307 read with Section 149, Section 435 read with Section 149 and Section 201 read with Section 149 of the Indian Penal Code, 1860 (for short ‘IPC’). The maximum sentence imposed was life imprisonment for the offence punishable under Section 396 read with 149 of IPC. By the impugned judgment, while confirming the conviction of the accused, the High Court brought down the sentence to 10 years. The appeals preferred by the convicted accused were decided by a Division Bench of the High Court by the impugned judgment.
2. The appellant is accused no.6. Accused nos.1, 5 and 13 preferred Criminal Appeal no.1041 of 2016 to this Court. By the judgment dated 9th August 2018, this Court acquitted the said three accused. SLP (Crl.) Dy. No.13063 of 2018 filed by the accused no.2 was summarily dismissed vide order dated 11th May 2018. Accused nos.3 and 4 did not prefer any appeal for challenging the judgment of the High Court.
SUBMISSIONS :
3. Learned counsel appointed as Amicus Curiae to espouse the cause of the appellant pointed out that only one witness, namely, PW2 Gitaben identified the appellant and ascribed him a role of pulling her gold chain. He submitted that PW2 did not know the appellant. Therefore, her identification of the appellant in the Court becomes doubtful as even according to her version; there were 50100 persons in the mob which surrounded the autorickshaw by which the witness was travelling. Moreover, the witness deposed before the Court approximately two years after the occurrence of the crime. He pointed out that the test identification parade was not held.
4. He submitted that as an officer of the Court, it is his duty to point out that accused nos.3 and 4 were convicted only on the basis of the testimony of PW25 and PW26. He submitted that the same is the case with accused no 2. He submitted that while deciding Criminal Appeal no. 1041 of 2016 preferred by the accused nos.1, 5 and 13, this Court has completely discarded the testimony of both PW25 and PW26. He would, therefore, submit that not only that the appellant deserves to be acquitted, but the benefit of the judgment may be extended to accused nos. 2, 3 and 4 as well.
5. The learned counsel appearing for the respondent urged that PW2 has clearly identified the appellant and has ascribed the role of snatching her gold chain to him. She submitted that time of only two years had elapsed between the date of occurrence and the date of deposition of PW2, and therefore, it was easily possible for PW2 to identify the appellant. She submitted that PW2, being a woman, would never forget the face of the accused who had snatched the gold chain from her neck. She sub
