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.

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