Paragraph numbers below are the court’s original numbering, recovered from the source text.
8. Considering the nature of the testimony of PW-2, it cannot be said that the evidence of PW-2 is wholly reliable. The identifi cation of the appellant for the fi rst 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 identifi cation 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 the testimony of PW-25 (Arifkhan) and PW-26 (Sachinbhai Patel). Both PW-25 and PW- 26 identifi ed accused no.2. However, a test identifi cation parade was not conducted.
10. As far as accused no.3 is concerned, he was identifi ed by PW-26 as a member of the mob. After having perused the testimony of PW-25, we fi nd that he has not specifi cally named accused no.3. Accused no.4 was not identifi ed by PW-26, but the fi nding of the Trial Court is that he was identifi ed 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 identifi cation parade as regards accused nos.1 and 5 was not held, but as regards accused no.13, the test identifi cation 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 confi dence of the Court. Identifi cation 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 Identifi cation Parade was held so far as accused Nos.1 and 5 are concerned. The prosecution has not off ered any explanation as to why no Test Identifi cation Parade was held in respect of A-1 and A-5 whereas a Test Identifi cation 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 confi dence. 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 JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT [ABHAY S. OKA, J.] in the case of Musa Khan & Ors. v. State of Maharashtra2. Paragraph 5 of the said decision reads thus: “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 diff erent 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 AIR 1976 SC 2566 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 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 identifi ed 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 benefi t of the said fi nding 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 (2003) 11 SCC 241 JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT [ABHAY S. OKA, J.] 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 satisfi ed that compelling ground for its exercise exists. However, such suo moto power should be used very sparingly with caution and 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 benefi t 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 fi led 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.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 off ence, 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 off ence 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 (1982) 2 SCC 101 signifi cant fact that the life sentence imposed on his co-accused in respect of the very same off ence 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 off ence 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 off ence, the President might have been inclined to take a diff erent 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 benefi t 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 fi led 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 off ences 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; JAVED SHAUKAT ALI QURESHI v. STATE OF GUJARAT [ABHAY S. OKA, J.] b. 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 off ences 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 off ence; and d. The appeal is allowed on the above terms. Headnote prepared by: Appeal allowed. Ankit Gyan