'Can't Convict One Accused & Acquit Another When Evidence Is Same': Supreme Court Acquits Persons Who Didn't File Appeal

 The jurisdiction under Article 136 of the Constitution can be invoked even suo motu in compelling cases, observed the Supreme Court in a recent judgment, while setting aside the conviction of certain accused persons, even though they themselves had not filed any appeal.

While considering the appeal filed by another accused person, the Court noted that the evidences against all the accused persons were the same. Hence, the benefit of acquittal given to one accused has to be extended to the other accused also, even if they haven't approached the Supreme Court.

"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", the bench comprising Justices Abhay S Oka and Sanjay Karol observed.

The Court also recalled an order passed in 2018 which summarily dismissed a Special Leave Petition filed by another accused. Advocate Shoeb Alam assisted the Court as an amicus curiae appointed in the case.

In the matter at hand, a total of 13 persons were prosecuted over a case of mob violence in Gujarat in 2013.  Accused nos. 1 to 6 and 13 were convicted and sentenced to 10 years imprisonment and the rest were acquitted by the trial court. 

In May 2018, the Supreme Court summarily dismissed the SLP filed by accused 2. However, in August 2018, the Court allowed the appeals of three other accused - accused 1, 5 and 13- and acquitted them.

The present appeal was filed by accused 6. Accused 3 and 4 did not file any appeal.

The Apex Court observed that accused no. 3 and 4 were similarly placed as accused nos. 1,5 and 13 in the trial who were initially convicted on the basis of the testimony of two police constables, PW­25 and PW­26 . However, the convictions of accused 1,5 and 13 were later set aside by the Apex Court finding the evidence of PW-25 and PW-26 to be unreliable. 

“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.” 

The Court in this case also granted relief to accused no 2, finding him to be on the same footing as accused nos. 1,5 and 13 who had been previously acquitted by the Apex Court. The accused no.2 must get the benefit of parity, the Court observed. Accused no.2 had challenged his conviction before the Apex Court in 2018. However the Apex Court had dismissed his SLP without recording reasons. The Apex Court while considering the present matter set aside the 2018 order.

“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", the Court said.

In this regard, the Court noted the settled law that an order refusing special leave to appeal by a non­speaking order does not attract the doctrine of merger.

Case Title: Javed Shaukat Ali Qureshi V. State of Gujarat

Citation : 2023 LiveLaw (SC) 782

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