[2023] 12 S.C.R. 220 : 2023 INSC 829
JAVED SHAUKAT ALI QURESHI
v.
STATE OF GUJARAT
(Criminal Appeal No. 1012 of 2022)
SEPTEMBER 13, 2023
[ABHAY S. OKA* AND SANJAY KAROL, JJ.]
Issue for consideration: Assault by mob, Seven accused were
convicted, including the present appellant-accused no.6, for the
offences punishable u/s. 396 r/w. s.149, s.395 r/w. s.149, s.307 r/w.
s.149, s.435 r/w. s.149 and s.201 r/w. s.149 of the IPC. Accused
nos. 1, 5 and 13 were acquitted in appeal by the Supreme Court.
(a) Whether conviction of appellant-accused no.6 justified; (b)
Whether conviction of accused no. 2, 3, 4 was justified, when role
ascribed to them was that they were part of mob.
Evidence – Conviction of appellant-accused no.6 based on
sole testimony of PW-2 – Propriety:
Held: Considering the nature of the testimony of PW-2, it cannot be
said that the evidence of PW-2 is wholly reliable – The identification
of the appellant for the first time in the Court after a lapse of about
two years becomes doubtful for more than one reason – Firstly,
the appellant was not known to PW-2 – Secondly, the appellant
was part of a large aggressive mob of 50 to 100 people which
surrounded the auto-rickshaw – Thirdly, there was no identification
parade held – Fourthly, there was no time available to PW-2 to
note the distinctive features of the appellant – Hence, it is very
unsafe to record a conclusion based only on the testimony of the
solitary witness that the guilt of the appellant was proved beyond a
reasonable doubt – Even if the evidence of PW-2 is categorized as
“neither wholly reliable nor wholly unreliable,” the appellant cannot
be convicted only based on the sole testimony of PW-2 unless
there is a corroboration to the version of PW-2 either by direct
or circumstantial evidence – Such a corroboration is completely
absent in this case – Therefore, the conviction of the appellant
cannot be sustained. [Para 8]
* Author
[2023] 12 S.C.R. 221
JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT
Penal Code, 1860 – Conviction of accused nos. 2, 3, 4 –
Propriety:
Held: The conviction of accused nos. 1, 5 and 13 was based only
on the testimony of PW-25 and PW-26 – The Supreme Court had
in its earlier decision rejected the testimony of PW-25 and PW26 in its entirety – Assuming that PW-25 and PW-26 identified
accused nos.2, 3 and 4 by stating that they were members of the
mob; once a Coordinate Bench of the Supreme Court discards
their testimony in its entirety being unreliable, the benefit of the
said finding will have to be extended to the accused nos.2, 3,
and 4 as they are similarly placed with accused nos.1,5 and 13
– Therefore, the conviction of accused nos.2, 3 and 4 set aside.
[Paras 11, 12 and 14]
Evidence – Similar or identical evidence of eyewitnesses
against accused persons – Principle of parity:
Held: When there is similar or identical evidence of eyewitnesses
against two accused by ascribing them the same or similar role,
the Court cannot convict one accused and acquit the other – In
such a case, the cases of both the accused will be governed by
the principle of parity – This principle means that the Criminal
Court should decide like cases alike, and in such cases, the Court
cannot make a distinction between the two accused, which will
amount to discrimination. [Para 15]
Constitution of India – Suo moto exercise of jurisdiction
u/Art.136:
Held: The testimony of PW-25 and PW-26 was rejected –
Consequent to which, accused nos.1, 5 and 13 were acquitted
– The case of accused nos. 3 and 4 stands on the same footing
as accused nos. 1,5 and 13 – They must get the benefit of parity
– Accused nos.3 and 4 did not prefer any appeal – In the case of
Pawan Kumar v. State of Haryana, Supreme Court dealt with similar
contingency in some detail – The Court held that the jurisdiction
under Article 136 of the Constitution of India can be invoked in
favour of the party even suo moto when the Court is satisfied
that compelling ground for its exercise exists – However, such
suo moto power should be used very sparingly with caution and
222 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
circumspection – The Court held that the power must be exercised
in the rarest of the rare cases. [Para 16]
Practice and Procedure:
Held: Earlier special leave petition filed by accused no.2 was
summarily dismissed without recording any reasons – The law
is well-settled that an order refusing special leave to appeal by a
non-speaking order does not attract the doctrine of merger – The
case of accused no 2 stands on the same footing as accused nos.
1,5 and 13 acquitted by this Court – The accused no.2 must get
the benefit of parity – Therefore, the order passed in the earlier
special leave petition filed by accused no.2 is recalled. [Para 18]
Vadivelu Thevar & Anr. v. State of Madras AIR 1957
SC 614 : [1957] SCR 981; Musa Khan & Ors. v. State
of Maharashtra AIR 1976 SC 2566; Pawan Kumar v.
State of Haryana (2003) 11 SCC 241 : [2003] 1 Suppl.
SCR 710; Harbans Singh v. State of U.P. & Ors. (1982)
2 SCC 101 : [1982] 3 SCR 235 – relied on.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1012
of 2022.
From the Judgment and Order dated 11.02.2016 of the High Court of
Gujarat at Ahmedabad in CRLA No.736 of 2006.
M. Shoeb Alam (Amicus Curiae), Ms. Fauzia Shakil, Ujjwal Singh,
Agastya Sen, Ms. Garima Chaudhry, Advs. for the Appellant.
Ms. Ruchi Kohli, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Ms. Srishti
Mishra, Advs. for the Respondents.
The Judgment of the Court was delivered by
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 PW-1 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,
[2023] 12 S.C.R. 223
JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT
the crowd started assaulting him and his two-wheeler was burnt.
Thereafter, the crowd stopped an auto-rickshaw, and the passengers
in the auto-rickshaw were forced to alight. The necklace of PW-2
Gitaben Bhailal, who was a passenger in the auto rickshaw, was
snatched. The mob assaulted PW-3 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. PW-13 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 appellantaccused 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, PW-2
Gitaben identified the appellant and ascribed him a role of pulling
her gold chain. He submitted that PW-2 did not know the appellant.
Therefore, her identification of the appellant in the Court becomes
doubtful as even according to her version; there were 50-100
persons in the mob which surrounded the auto-rickshaw by which
224 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 PW-25 and PW-26. 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 PW-25 and
PW-26. 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 PW-2
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 PW-2, and therefore, it was easily possible for PW-2
to identify the appellant. She submitted that PW-2, being a woman,
would never forget the face of the accused who had snatched the
gold chain from her neck. She submitted that as far as accused
nos.2,3 and 4 are concerned, their conviction has become final and
cannot be interfered with.
OUR VIEW
6. Firstly, we deal with the case of the appellant. PW-25 (Arif Khan) and
PW-26 (Sachinbhai Patel), who are alleged to be the eyewitnesses,
are the police constables. Both of them claimed that at the time
of the incident, a mob of about 1000-1,500 people had gathered
at the spot where the incident took place. Going by the impugned
judgments, only PW-2 Gitaben has identified the appellant and
has ascribed a specific role of chain snatching to him. Thus, as far
as the appellant is concerned, PW-2 is the solitary witness. PW-2
stated in the examination-in-chief that there were six passengers in
the auto-rickshaw by which she was travelling. After seeing the mob
near Shah Alam Gate, the driver stopped the auto-rickshaw and fled
away. She stated that a mob surrounded the auto-rickshaw. She
also stated that the members of the mob belonged to the Muslim
[2023] 12 S.C.R. 225
JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT
community. She stated that two people sitting in the front seat of
the auto-rickshaw were pulled out. She could not get out of the
auto-rickshaw. She stated that someone pulled her gold chain from
her neck, which was nearly weighing 10 grams. She stated that she
was slapped and that she received injuries caused by a nail. She
specifically stated that there were 50-100 people in the mob present
around the auto-rickshaw, and she did not identify anyone from the
mob. When her attention was invited to the accused present in the
Court, she stated that one of them was present in the mob. The
witness signalled toward one accused. The Trial Court has noted
that the said accused was told to stand up who disclosed his name
as Javed. Thereafter, the witness stated that the said accused pulled
the chain from her neck. In the cross-examination, she accepted
that no test identification parade was held. It must be noted here
that no other prosecution witness has identified the appellant. The
witness stated that a mob of around 50-100 people had gathered
around the auto-rickshaw. It is not the case of the prosecution that
she knew the appellant beforehand. Going by her version of the
incident, there was no time available to her to observe the distinctive
features of the appellant. The incident of snatching must have been
over in seconds. Therefore, it is very difficult to accept that in such
a large mob gathered around the auto-rickshaw, the witness could
remember the face of only one accused and recognise him after a
lapse of about two years from the date of the incident.
7. In a given case, the conviction can be based on the testimony of
only one eyewitness. The law has been laid down on this behalf by a
Bench of three Hon’ble Judges of this Court in the case of Vadivelu
Thevar & Anr. v. State of Madras1
. In paragraphs 10,11 and 12 of
the said decision, this Court held thus:
“10. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
On a consideration of the relevant authorities and the provisions of
the Evidence Act, the following propositions may be safely stated
as firmly established:
1 AIR 1957 SC 614
226 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
(1) As a general rule, a court can and may act on the testimony
of a single witness though uncorroborated. One credible
witness outweighs the testimony of a number of other
witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts
should not insist on corroboration except in cases where
the nature of the testimony of the single witness itself
requires as a rule of prudence, that corroboration should
be insisted upon, for example in the case of a child witness,
or of a witness whose evidence is that of an accomplice
or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or
is not necessary, must depend upon facts and circumstances
of each case and no general rule can be laid down in a matter
like this and much depends upon the judicial discretion of the
Judge before whom the case comes.
11. In view of these considerations, we have no hesitation in holding
that the contention that in a murder case, the court should insist
upon plurality of witnesses, is much too broadly stated. Section 134
of the Indian Evidence Act, has categorically laid it down that “no
particular number of witnesses shall, in any case, be required for
the proof of any fact”. The legislature determined, as long ago as
1872, presumably after due consideration of the pros and cons, that
it shall not be necessary for proof or disproof of a fact, to call any
particular number of witnesses. In England, both before and after
the passing of the Indian Evidence Act, 1872, there have been a
number of statutes as set out in Sarkar’s Law of Evidence — 9th
Edn., at pp. 1100 and 1101, forbidding convictions on the testimony
of a single witness. The Indian Legislature has not insisted on laying
down any such exceptions to the general rule recognized in Section
134 quoted above. The section enshrines the well recognized maxim
that “Evidence has to be weighed and not counted”. Our Legislature
has given statutory recognition to the fact that administration of
justice may be hampered if a particular number of witnesses were to
be insisted upon. It is not seldom that a crime has been committed
in the presence of only one witness, leaving aside those cases
[2023] 12 S.C.R. 227
JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT
which are not of uncommon occurrence, where determination of
guilt depends entirely on circumstantial evidence. If the legislature
were to insist upon plurality of witnesses, cases where the
testimony of a single witness only could be available in proof
of the crime, would go unpunished. It is here that the discretion
of the presiding judge comes into play. The matter thus must
depend upon the circumstances of each case and the quality
of the evidence of the single witness whose testimony has to
be either accepted or rejected. If such a testimony is found by
the court to be entirely reliable, there is no legal impediment
to the conviction of the accused person on such proof. Even
as the guilt of an accused person may be proved by the testimony
of a single witness, the innocence of an accused person may be
established on the testimony of a single witness, even though a
considerable number of witnesses may be forthcoming to testify to
the truth of the case for the prosecution. Hence, in our opinion, it is
a sound and well-established rule of law that the court is concerned
with the quality and not with the quantity of the evidence necessary
for proving or disproving a fact. Generally speaking, oral testimony
in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in
coming to its conclusion either way — it may convict or may acquit on
the testimony of a single witness, if it is found to be above reproach
or suspicion of interestedness, incompetence or subornation. In the
second category, the court equally has no difficulty in coming to its
conclusion. It is in the third category of cases, that the court has
to be circumspect and has to look for corroboration in material
particulars by reliable testimony, direct or circumstantial. There
is another danger in insisting on plurality of witnesses. Irrespective
of the quality of the oral evidence of a single witness, if courts were
to insist on plurality of witnesses in proof of any fact, they will be
indirectly encouraging subornation of witnesses. Situations may
arise and do arise where only a single person is available to give
228 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
evidence in support of a disputed fact. The court naturally has to
weigh carefully such a testimony and if it is satisfied that the evidence
is reliable and free from all taints which tend to render oral testimony
open to suspicion, it becomes its duty to act upon such testimony.
The law reports contain many precedents where the court had to
depend and act upon the testimony of a single witness in support
of the prosecution. There are exceptions to this rule, for example,
in cases of sexual offences or of the testimony of an approver; both
these are cases in which the oral testimony is, by its very nature,
suspect, being that of a participator in crime. But, where there are
no such exceptional reasons operating, it becomes the duty of the
court to convict, if it is satisfied that the testimony of a single witness
is entirely reliable. We have therefore, no reasons to refuse to act
upon the testimony of the first witness, which is the only reliable
evidence in support of the prosecution.”
(emphasis added)
8. Considering the nature of the testimony of PW-2, it cannot be said
that the evidence of PW-2 is wholly reliable. The identification of the
appellant for the first time in the Court after a lapse of about two years
becomes doubtful for more than one reason. Firstly, the appellant
was not known to PW-2. Secondly, the appellant was part of a large
aggressive mob of 50 to 100 people which surrounded the autorickshaw. Thirdly, there was no identification parade held. Fourthly,
there was no time available to PW-2 to note the distinctive features
of the appellant. Hence, it is very unsafe to record a conclusion
based only on the testimony of the solitary witness that the guilt
of the appellant was proved beyond a reasonable doubt. Even if
we categorise the evidence of PW-2 as “neither wholly reliable nor
wholly unreliable,” the appellant cannot be convicted only based on
the sole testimony of PW-2 unless there is a corroboration to the
version of PW-2 either by direct or circumstantial evidence. Such
a corroboration is completely absent in this case. Therefore, the
conviction of the appellant cannot be sustained.
9. Now, coming to the role of accused nos.2,3 and 4, we must note here
that the only role ascribed to them was that they were a part of the
mob. No overt act was ascribed to them. The Trial Court believed
[2023] 12 S.C.R. 229
JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT
the testimony of PW-25 (Arifkhan) and PW-26 (Sachinbhai Patel).
Both PW-25 and PW-26 identified accused no.2. However, a test
identification parade was not conducted.
10. As far as accused no.3 is concerned, he was identified by PW-26 as
a member of the mob. After having perused the testimony of PW-25,
we find that he has not specifically named accused no.3. Accused
no.4 was not identified by PW-26, but the finding of the Trial Court
is that he was identified by PW-25.
11. The conviction of accused nos. 1, 5 and 13 was based only on the
testimony of PW-25 and PW-26. The test identification parade as
regards accused nos.1 and 5 was not held, but as regards accused
no.13, the test identification parade was conducted. While dealing
with appeals preferred by accused nos.1,5 and 13, in paragraph 5,
this Court held thus:
“On a careful consideration of the evidence adduced by PWs-25
and 26, we are left with serious doubt as to whether the evidence
of the said two witnesses should inspire the confidence of the
Court. Identification of a total of 13 accused, who were sent out
for trial including present accused-appellants, in a mob of 1000-
1500 people is by no means an easy task. Over and above that no
Test Identification Parade was held so far as accused Nos.1 and 5
are concerned. The prosecution has not offered any explanation as
to why no Test Identification Parade was held in respect of A-1 and
A-5 whereas a Test Identification Parade was held in respect of A-13.”
(emphasis added)
12. This Court was of the view that evidence of PW-25 and PW-26 does
not inspire confidence. This Court did not partially reject the testimony
of PW-25 and PW-26 but rejected their testimony in its entirety.
13. As Section 149 of IPC was applied, this Court dealt with the theory
of the prosecution based on the fact that accused nos.1,5 and 13
were present in the mob. This Court relied upon what is held in
paragraph 5 of its decision in the case of Musa Khan & Ors. v.
State of Maharashtra2
. Paragraph 5 of the said decision reads thus:
2 AIR 1976 SC 2566
230 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
“5. The appellants pleaded innocence and averred that they had
been falsely implicated due to enmity and had not participated in the
riot. Both the courts below have accepted the main facts leading to
the occurrence as also participation of the appellants in the rioting.
The Additional Sessions Judge as also the High Court, however,
do not appear to have made a correct approach in examining the
individual cases of the accused, particularly with reference to their
actual presence or participation in the incident in question. It is true
that having regard to the background against which the events took
place all the incidents starting from the National Hotel and ending
with the chawl of Jogendra Singh were parts of the same transaction,
nevertheless they were separate incidents in which different members
of the mob had participated. In these circumstances, therefore, without
there being any direct evidence about the actual participation of the
appellants in all the incidents it could not be inferred as a matter
of law that once the appellants were members of the mob at the
National Hotel, they must be deemed to have participated in all the
other incidents at the Engineering College Hostel, Bharat Lodge and
the chawl of Jogendra Singh. It is well settled that a mere innocent
presence in an assembly of persons, as for example a bystander,
does not make the accused a member of an unlawful assembly,
unless it is shown by direct or circumstantial evidence that the
accused shared the common object of the assembly. Thus, a court
is not entitled to presume that any and every person who is
proved to have been present near a riotous mob at any time
or to have joined or left it at any stage during its activities is
in law guilty of every act committed by it from the beginning
to the end, or that each member of such a crowd must from
the beginning have anticipated and contemplated the nature of
the illegal activities in which the assembly would subsequently
indulge. In other words, it must be proved in each case that
the person concerned was not only a member of the unlawful
assembly at some stage, but at all the crucial stages and shared
the common object of the assembly at all these stages. Such
an evidence is wholly lacking in this case where the evidence
merely shows that some of the accused were members of the
unlawful assembly at one particular stage but not at another. In
[2023] 12 S.C.R. 231
JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT
these circumstances, therefore, the accused who were not present
or who did not share the common object of the unlawful assembly at
other stages cannot be convicted for the activities of the assembly
at those stages. In view of this error committed by the High Court it
has become necessary for us to examine the evidence on the limited
question as to which of the accused had actually participated in the
incidents at the Engineering College, Bharat Lodge and the chawl
of Jogendra Singh where acts of incendiarism had taken place. It is
also common ground that the occurrence had taken place at night
and the evidence of the witnesses identifying the accused had to
be examined with great caution.”
(emphasis added)
14. Assuming that PW-25 and PW-26 identified accused nos.2, 3 and 4
by stating that they were members of the mob; once a Coordinate
Bench of this Court discards their testimony in its entirety being
unreliable, the benefit of the said finding will have to be extended to
the accused nos.2,3 and 4 as they are similarly placed with accused
nos.1,5 and 13. Moreover, except for PW-25 and PW-26, no other
witnesses have ascribed any role to the accused nos.2, 3 and 4.
15. When there is similar or identical evidence of eyewitnesses against
two accused by ascribing them the same or similar role, the Court
cannot convict one accused and acquit the other. In such a case,
the cases of both the accused will be governed by the principle of
parity. This principle means that the Criminal Court should decide like
cases alike, and in such cases, the Court cannot make a distinction
between the two accused, which will amount to discrimination.
16. As far as accused nos.3 and 4 are concerned, they did not prefer
any appeal. In the case of Pawan Kumar vs. State of Haryana3
,
this Court dealt with similar contingency in some detail. This Court
held that the jurisdiction under Article 136 of the Constitution of India
can be invoked in favour of the party even suo moto when the Court
is satisfied that compelling ground for its exercise exists. However,
such suo moto power should be used very sparingly with caution and
3 (2003) 11 SCC 241
232 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
circumspection. The Court held that the power must be exercised in
the rarest of the rare cases.
17. Accused nos. 1,5 and 13 were convicted only on the basis of the
testimony of PW-25 and PW-26. They were acquitted by holding that
the testimony of both witnesses was unreliable and deserved to be
discarded. If the same relief is not extended to accused nos. 3 and
4 by reason of parity, it will amount to violation of fundamental rights
guaranteed to accused nos. 3 and 4 by Article 21 of the Constitution
of India. Therefore, we have no manner of doubt that the benefit
which is granted to accused nos. 1,5 and 13 deserves to be extended
to accused nos.3 and 4, who did not challenge the judgment of the
High Court. In this case, the suo motu exercise of powers under
Article 136 is warranted as it is a question of the liberty of the said
two accused guaranteed by Article 21 of the Constitution.
18. Now, we come to the case of accused no.2. By the order dated
11th May 2018, a special leave petition filed by accused no.2 was
summarily dismissed without recording any reasons. The law is
well-settled. An order refusing special leave to appeal by a nonspeaking order does not attract the doctrine of merger. At this stage,
we may refer to a three-judge Bench decision of this Court in the
case of Harbans Singh v. State of U.P. & Ors.4
. In paragraph 18,
this Court held thus:
“18.To my mind, it will be a sheer travesty of justice and the
course of justice will be perverted, if for the very same offence,
the petitioner has to swing and pay the extreme penalty of death
whereas the death sentence imposed on his co-accused for the
very same offence is commuted to one of life imprisonment and
the life of the co-accused is shared (sic spared). The case of the
petitioner Harbans Singh appears, indeed, to be unfortunate, as
neither in his special leave petition and the review petition in
this Court nor in his mercy petition to the President of India, this
all important and significant fact that the life sentence imposed
on his co-accused in respect of the very same offence has been
commuted to one of life imprisonment has been mentioned.
4 (1982) 2 SCC 101
[2023] 12 S.C.R. 233
JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT
Had this fact been brought to the notice of this Court at the
time when the Court dealt with the special leave petition of the
petitioner or even his review petition, I have no doubt in my
mind that this Court would have commuted his death sentence
to one of life imprisonment. For the same offence and for the same
kind of involvement, responsibility and complicity, capital punishment
on one and life imprisonment on the other would never have been
just. I also feel that had the petitioner in his mercy petition to the
President of India made any mention of this fact of commutation of
death sentence to one of life imprisonment on his co-accused in
respect of the very same offence, the President might have been
inclined to take a different view on his petition.”
(emphasis added)
19. We have found that the case of accused no 2 stands on the same
footing as accused nos. 1,5 and 13 acquitted by this Court. The
accused no.2 must get the benefit of parity. The principles laid down
in the case of Harbans Singh4 will apply. If we fail to grant relief to
accused no 2, the rights guaranteed to accused no. 2 under Article
21 of the Constitution of India will be violated. It will amount to
doing manifest injustice. In fact, as a Constitutional Court entrusted
with the duty of upholding fundamental rights guaranteed under the
Constitution, it is our duty and obligation to extend the same relief
to accused no.2. Therefore, we will have to recall the order passed
in the special leave petition filed by accused no.2.
20. Before we part with the judgment, we must record our appreciation
of the service rendered by Mr. M. Shoeb Alam, Advocate as Amicus
Curiae.
21. Accordingly, the appeal succeeds and we pass the following order:
a. The appellant, accused no.6–Javed Shaukat Ali Qureshi, is
acquitted of the offences alleged against him by setting aside
the judgment of the Trial Court dated 17th March 2006 and
judgment of the High Court dated 11th February 2016 to the
extent. He is on bail. His bail bonds stand cancelled;
b. We set aside the order of conviction of accused no.3
Mehboobkhan Allarakha and accused no.4 Saidkhan @ Anna
234 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
Ikbalhusain by setting aside the same judgments to that extent
and acquit them of the offences alleged against them. They
shall be forthwith set at liberty if they are not required to be
detained in connection with any other case;
c. We recall the order dated 11th May 2018 in SLP (Crl.) Diary
No.13063 of 2018 and grant leave. For the reasons set out
above, accused no. 2 Amjadkhan Nasirkhan Pathan stands
acquitted by setting aside the impugned judgment of the Trial
Court and the High Court to that extent. He shall be forthwith
set at liberty unless he is required to be detained in connection
with any other offence; and
d. The appeal is allowed on the above terms.
Headnote prepared by: Ankit Gyan Result of the case : Appeal allowed.
