While striking entirely the right chord and taking the most right, robust and rational stand at the right time, the Apex Court has in a most learned, laudable, landmark and latest judgment titled Javed Shaukat Ali Qureshi vs State of Gujarat in Criminal Appeal No. 1012 of 2022 and cited as 2023INSC829 and also cited in 2023 LiveLaw (SC) 782 that was pronounced as recently as on September 13, 2023 in the exercise of its criminal appellate jurisdiction in an unlawful assembly related case has minced just no words to hold in no uncertain terms that 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. The Apex Court has thus made it absolutely clear that the jurisdiction under Article 136 of the Constitution can be invoked even suo motu in compelling cases. This was so observed by the Supreme Court while so very commendably in the fitness of things setting aside the conviction of certain accused persons, even though they themselves had not filed any appeal.

It must be also mentioned here that the Court was deciding a criminal appeal preferred by one of the accused who was convicted based on an occurrence that took place in 2003. The Bench took the most nuanced and balanced stand that the case of the appellant/accused stands on the same footing as other accused persons who were acquitted by the Apex Court and hence, the said accused must get the benefit of parity. We thus see that while considering the appeal that had been filed by another accused person, the Court noted that the evidence against all the accused persons were one and the same. The Court perhaps quite ostensibly was most pragmatic in holding that the benefit of acquittal has to be extended to the other accused also, even if they haven’t approached the Supreme Court. Very rightly so!

Factual Aspects
At the very outset, this remarkable, rational, refreshing and recent judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Sanjay Karol sets the ball in motion by first and foremost putting forth in para 1 that:
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, 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 PW-2 Gitaben Bhailal, who was a passenger in the autorickshaw 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 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.

As it turned out, the Bench then enunciates in para 2 that:
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.

Do note, the Bench notes in para 14 that:
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.

Most forthrightly, the Bench propounds in para 15 holding that:
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.

Be it noted, the Bench then notes aptly in para 17 that:
Accused nos. 1, 5 and 13 were convicted only on the basis of the testimony of PW25 and PW26. 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 reasons 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.

Most notably, while citing the most relevant case law, the Bench then hastens to add in para 18 observing succinctly that:
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 non-speaking 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. (1982) 2 SCC 101. 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. 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.

Most significantly, the Bench holds in para 19 propounding that:
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 Singh 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.

Conclusion
In sum, we thus see that the appeal by the appellant very rightly succeeds. As pointed out in para 21 sub-clause (a) we see that the Bench then finally holds that:
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 stands cancelled. In sub-clause (b), it is then stated that:
We set aside the order of conviction of accused no.3 Mehboobkhan Allarakha and accused no.4 Saidkhan @ Anna 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. In sub-clause (c), it is held that:
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.

All told, the sum and substance of this notable judgment by the Apex Court is that when there is similar evidence of eyewitnesses against two accused ascribing them same role, court can’t convict one and acquit other. Absolutely right! This must be definitely adhered to in all such similar cases. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh