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Case: Javed Shaukat Ali Qureshi vs The State Of Gujarat

Case Comment, Publications

DATE OF JUDGEMENT: September 13,2023

APPELLANT: Javed Shaukat Ali Qureshi

RESPONDENT: The State of Gujarat

BENCH: Hon’ble Justice Abhay S. Oka and Hon’ble Justice Sanjay Karol

CRIMINAL APPEAL NO: 1012 OF 2022

FACTS OF THE CASE:

  • The incident that led to the appellant’s conviction occurred on November 7, 2003. The prosecution claims that on that day, between 1,000 and 1,500 individuals gathered in the Shah Alam neighborhood of Ahmedabad at 10 a.m. PW1 Baldev was halted by the throng as he rode his two-wheeler past the area. He was compelled to reveal who he was. He was attacked by the mob after revealing his name, and his two-wheeler was set on fire.
  • The autorickshaw’s occupants were then forced to disembark after the throng halted it. PW2 Gitaben Bhailal, who was riding in the auto rickshaw, had his jewelry stolen. PW3 Hemubhai was attacked by the mob while pedaling a bicycle with LPG cylinders in it. Ajay, PW 13, and Mukesh, his passenger, were riding through that region on a two-wheeler. PW13 Ajay was successful in escaping. The mob, however, attacked Mukesh. Mukesh’s corpse was later discovered in a nearby lake.
  • Thirteen suspects were all charged with crimes. Trial Court cleared all other defendants, while convicting defendants Nos. 1 through 6 and 13 alone. For the offenses punishable under Sections 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, seven defendants were found guilty, including the current appellant defendant No. 6.
  • The maximum punishment for the offense covered by Section 396 read with 149 of the IPC was life in prison. By the contested decision, the High Court reduced the sentence to 10 years while upholding the accused’s guilt. A Division Bench of the High Court rendered the contested verdict after hearing the appeals filed by the convicted defendants.
  • The appellant is the sixth accuser. Accused nos. 1, 5, and 13 requested this Court hear Criminal Appeal No. 1041 of 2016. By decision dated August 9, 2018, this Court cleared the three defendants. According to an order from the 11th of May 2018, the SLP (Crl.) Dy. No. 13063 of 2018 submitted by Accused No. 2 was summarily rejected. No appeal was filed by Accused Nos. 3 and 4 to contest the High Court’s ruling.

ISSUES RAISED

One of those who was found guilty (appellant) appealed the conviction before the Supreme Court, challenging the High Court ruling. The question raised was that when the evidence against both of them is the identical, may courts condemn one accused and exonerate the other?

CONTENTIONS

ARGUMENTS FROM APPELLANT

  • The appellant’s learned attorney, who was appointed as Amicus Curiae to support his claim, noted that only PW­2 Gitaben, who recognized the appellant, gave him credit for yanking her gold necklace. He said that PW2 was unfamiliar with the appellant. Because there were 50–100 people in the throng that approached the autorickshaw the witness was traveling in, it is now questionable if she correctly identified the appellant in court. Furthermore, the witness testified in court almost two years after the crime was committed. He emphasized the absence of the test identification parade.
  • He asserted that it is his job as a court employee to emphasize that PWs 25 and 26 were the sole witnesses utilized to convict Accused Nos. 3 and 4.He said that accusation number two is similarly situated. He claimed that the evidence of PWs 25 and 26 was totally disregarded by the court when it decided Criminal Appeal No. 1041 of 2016, which was filed by Accused Nos. 1, 5, and 13.He would argue that the verdict should apply to the other three accused numbers as well, in addition to the appellant, who he believes deserves to be exonerated.

ARGUMENTS FROM RESPONDANT

  • The experienced attorney for the respondent insisted that PW2 had positively recognized the appellant and had given him credit for stealing her gold necklace. The appellant might easily have been identified by PW2 given that just two years had passed between the incident and the date of PW2’s deposition, according to her argument. Since PW 2 is a woman, she said, she would always remember the accused’s face as the person who had taken her gold chain. In her argument, she argued that the convictions of Accused Nos. 2, 3, and 4 were now definitive and could not be overturned.

RATIONALE

  • The court 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.”
  • They started by addressing the appellant’s case. The police constables PW25 (Arif Khan) and PW26 (Sachinbhai Patel), who are said to be the eyewitnesses, are PWs. Both of them said that a crowd of between 1000–1,500 individuals had collected at the scene of the occurrence at the time of the incident. According to the challenged judgements, only PW­2 Gitaben has named the appellant and assigned him a particular chain-snatching function. PW2 is therefore the only witness in the case of the appellant. PW 2 reported in the examination-in-chief that there were six other people traveling with her in the auto-rickshaw. The auto-rickshaw driver stopped and fled after spotting the crowd outside Shah Alam Gate. She claimed that a crowd had gathered around the autorickshaw. She said that the mob’s members were from the Muslim community. She said that two passengers in the autorickshaw’s front seat had been removed. She was unable to exit the autorickshaw. She said that someone removed her gold chain, which weighed over 10 grams, off her neck. She claimed that she was smacked and that a nail caused her injuries. She said there were 50 to 100 persons in the group, to be exact. There was a crowd gathered around the autorickshaw, but she did not Identify any mob members. When she was asked to pay attention she informed the court’s in attendance defendants that one of the mob contained them. The witness motioned toward one charged. According to the Trial Court, the aforementioned accused when forced to stand up, the man revealed his identity to be Javed. The witness then said that the accused pulled the chain that was around her neck. She acknowledged during the cross-examination that there was no test identification parade. Here, it is important to observe that no other prosecution witness has named the appellant. According to the witness, a crowd of between 50 to 100 people had formed around the autorickshaw. She did not already know the appellant, contrary to the argument of the prosecution. According to her account of what happened, she did not have enough time to notice the appellant’s distinguishing traits. The snatching event must have ended quickly. Therefore, it is quite difficult to believe that after a lapse of almost two years from the date of the occurrence, the witness could recall the face of just one accused and recognize him in such a sizable group gathered around the auto­rickshaw.
  • It is impossible to say that PW2’s evidence is 100 percent trustworthy given the nature of his testimony. After a period of around two years, it is dubious for a number of reasons that the appellant can be identified for the first time in court. First of all, PW2 was unfamiliar with the appellant. Second, the appellant was a part of a sizable, violent crowd that encircled the autorickshaw and included between 50 and 100 persons. Third, no identification parade was held. Fourthly, PW2 did not have enough time to take notice of the appellant’s distinguishing characteristics. Therefore, it is extremely dangerous to record a determination that the appellant’s guilt was established beyond a reasonable doubt based only on the testimony of the one witness. Even if we classify PW2’s testimony as “neither wholly reliable nor wholly unreliable,” the appellant cannot be found guilty only on the basis of PW2’s testimony unless there is other direct or indirect evidence that supports PW2’s version of events. In this instance, there is not even a hint of such support. As a result, the appellant’s conviction cannot stand.
  • Now that court have gotten to the accused numbers 2, 3, and 4, it’s important to notice that the only role that has been assigned to them is that they were members of the mob. They were not charged with any overt acts. The Trial Court accepted PW25 (Arif khan) and PW26 (Sachin bhai Patel) as credible witnesses. PW25 and PW26 both recognized Accused No. 2. A test identification parade, however, was not held.
  • Regarding accused number three, PW26 described him as a gang member. Court discovered after reading PW25’s evidence that he did not clearly mention Accused No. 3 in his testimony. Although PW26 did not identify Accused No. 4, the Trial Court found that PW25 had done so.
  • The Court thus believed that the testimony of PW25 and PW26 lacks credibility. The evidence of PW25 and PW26 was entirely dismissed by this Court, not just a portion of it.

DEFECTS OF LAW

In acquitting four persons who had been given 10-year prison sentences for offenses including dacoity with murder, the Supreme Court ruled that courts cannot condemn one accused and acquit the other where there is comparable evidence attributing the same or similar roles. The top court stated that in a situation where the evidence is identical, the “principle of parity” would apply and that the courts cannot establish a distinction between the two parties since doing so would be discriminatory. The top court upheld the conviction of seven defendants in the case, although it lowered their life sentence to ten years.

The supreme court also overturned the convictions of two defendants who had not filed an appeal against the judgment of the high court, stating that “suo motu exercise of powers under Article 136 is warranted” because it included a violation of their constitutionally protected right to liberty under Article 21. In contrast to Article 136 of the Constitution, which deals with the supreme court’s authority to give extraordinary permission to appeal cases, Article 21 of the Constitution deals with the preservation of life and individual freedom.

The bench observed that three defendants had been exonerated by the supreme court in August 2018, and that another defendant’s plea had been rejected in May 2018.

INFERENCE

Overall, we can see that the appellant’s appeal is successful and for very good reason. As noted in paragraph 21 sub-clause (a), the Bench then declares that: The appellant, accused no. 6-Javed Shaukat Ali Qureshi is acquitted of the offenses 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 has a bail bond. His bail bonds have been canceled. The next sentence in subclause (b) reads: We set away the order of conviction of accused nos. 3 Mehboob khan Allarakha and 4 Said khan @ Anna Ikbal hussain by setting aside the same judgments to that extent and acquit them of the offenses claimed against them.

If they are not necessary to be held in connection with another case, they will be immediately released. They recall the order from SLP (Crl.) Diary No. 13063 of 2018 from May 11 and grant leave, it is held in subclause (c). Because of the aforementioned factors, the challenged decisions of the Trial Court and the High Court are being set aside to the degree that they acquitted Accused No. 2 Amjad khan Nasir khan Pathan.

 The main takeaway from this significant ruling by the Apex Court is that the court cannot condemn one accused person while acquitting another where there is comparable eyewitness testimony against two accused people assigning them the same role. That’s just right! This must be strictly followed in all situations comparable to this. It is undeniable!

AUTHOR: Shreya Kapoor

Vivekananda Institute of Professional Studies

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