No Acts & Articles mentioned in this case
2023INSC829 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1012 OF 2022
Javed Shaukat Ali Qureshi … Appellant
versus
State of Gujarat … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1.The occurrence based on which the appellant was
convicted was of 7
th
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 twowheeler, the crowd stopped him. He was
forced to disclose his identity. After he disclosed his identity,
the crowd started assaulting him and his twowheeler 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
Criminal Appeal No.1012 of 2022 Page 1 of 18
13 Ajay was passing through that area on his twowheeler
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 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 9
th
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
11
th
May 2018. Accused nos.3 and 4 did not prefer any
appeal for challenging the judgment of the High Court.
Criminal Appeal No.1012 of 2022 Page 2 of 18
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
Criminal Appeal No.1012 of 2022 Page 3 of 18
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 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. PW25
(Arif Khan) and PW26 (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 PW2 Gitaben
has identified the appellant and has ascribed a specific role of
chain snatching to him. Thus, as far as the appellant is
concerned, PW2 is the solitary witness. PW2 stated in the
examinationinchief that there were six passengers in the
autorickshaw 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 autorickshaw. She also stated that the members of the
mob belonged to the Muslim community. She stated that two
people sitting in the front seat of the autorickshaw were
pulled out. She could not get out of the autorickshaw. She
stated that someone pulled her gold chain from her neck,
Criminal Appeal No.1012 of 2022 Page 4 of 18
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 50100 people in the
mob present around the autorickshaw, 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 crossexamination, 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 autorickshaw. 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 autorickshaw, 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
Criminal Appeal No.1012 of 2022 Page 5 of 18
this Court in the case of Vadivelu Thevar & Anr. v. State of
Madras
1
. 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) 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
1 AIR 1957 SC 614
Criminal Appeal No.1012 of 2022 Page 6 of 18
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 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
Criminal Appeal No.1012 of 2022 Page 7 of 18
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 wellestablished 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
Criminal Appeal No.1012 of 2022 Page 8 of 18
subornation of witnesses. Situations may arise
and do arise where only a single person is
available to give 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 PW2, it
cannot be said that the evidence of PW2 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 PW2. 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 PW2 to note
the distinctive features of the appellant. Hence, it is very
Criminal Appeal No.1012 of 2022 Page 9 of 18
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 PW2 as “neither wholly reliable nor wholly unreliable,” the
appellant cannot be convicted only based on the sole
testimony of PW2 unless there is a corroboration to the
version of PW2 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 PW25
(Arifkhan) and PW26 (Sachinbhai Patel). Both PW25 and
PW26 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 PW26 as a member of the mob. After having perused the
testimony of PW25, 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 PW25.
11.The conviction of accused nos. 1, 5 and 13 was based
only on the testimony of PW25 and PW26. The test
identification parade as regards accused nos.1 and 5 was not
Criminal Appeal No.1012 of 2022 Page 10 of 18
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 PWs25 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 accusedappellants, in
a mob of 10001500 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 A1
and A5 whereas a Test Identification Parade
was held in respect of A13.”
(emphasis added)
12.This Court was of the view that evidence of PW25 and
PW26 does not inspire confidence. This Court did not
partially reject the testimony of PW25 and PW26 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 Maharashtra
2
. Paragraph 5
of the said decision reads thus:
2 AIR 1976 SC 2566
Criminal Appeal No.1012 of 2022 Page 11 of 18
“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
Criminal Appeal No.1012 of 2022 Page 12 of 18
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 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 PW25 and PW26 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
Criminal Appeal No.1012 of 2022 Page 13 of 18
and 4 as they are similarly placed with accused nos.1,5 and
13. Moreover, except for PW25 and PW26, 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 Haryana
3
, 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 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 PW25 and PW26. They were
3 (2003) 11 SCC 241
Criminal Appeal No.1012 of 2022 Page 14 of 18
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 11
th
May 2018, a special leave petition filed by accused
no.2 was summarily dismissed without recording any
reasons. The law is wellsettled. 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 coaccused for the very same
4 (1982) 2 SCC 101
Criminal Appeal No.1012 of 2022 Page 15 of 18
offence is commuted to one of life
imprisonment and the life of the coaccused
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.”
(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 Singh
4
will
apply. If we fail to grant relief to accused no 2, the rights
Criminal Appeal No.1012 of 2022 Page 16 of 18
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 17
th
March 2006 and judgment of the High
Court dated 11
th
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 Ikbalhusain by setting aside the same
judgments to that extent and acquit them of the
offences alleged against them. They shall be
Criminal Appeal No.1012 of 2022 Page 17 of 18
forthwith set at liberty if they are not required to be
detained in connection with any other case;
c.We recall the order dated 11
th
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.
….…………………….J.
(Abhay S. Oka)
…..…………………...J.
(Sanjay Karol)
New Delhi;
September 13, 2023.
Criminal Appeal No.1012 of 2022 Page 18 of 18
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