Source: Supreme Court

Why in News?

The Supreme Court (SC) in the matter of Javed Shaukat Ali Qureshi V. State of Gujarat has held that, when evidence against all the accused individuals is identical the benefit of acquittal given to one accused has to be extended to the other accused also, even if they haven't approached the Court.

Background

• A total of 13 persons were prosecuted over a case of mob violence in the Shah Alam Area, Ahmedabad, Gujarat that took place on 7th November 2003.
• Accused nos. 1 to 6 and 13 were convicted and sentenced to 10 years imprisonment whereas the rest were acquitted by the trial court.
• The present appellant­ (accused) is accused no.6, the conviction was made for the offences punishable under Section 396, 395, 307, 435, 201 read with Section 149, of the Indian Penal Code, 1860.
• The maximum sentence imposed was life imprisonment for the offence punishable under Section 396 read with 149 of IPC.
• Upon appeal to the Gujarat High Court (HC) division bench, the sentence was brought down to 10 years.
• Thereafter in 2016, accused nos. 1, 5 and 13 preferred a Criminal Appeal to the Supreme Court (SC) and consequently the said three accused were acquitted.
  • The acquittal was based upon the decision given in the case of Musa Khan & Ors. v. State of Maharashtra (1976): 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.
• A Special Leave Petition (SLP) was filed by the accused no. 2 which was summarily dismissed.
• The present appellant accused no. 6 preferred the present appeal to the SC and Accused No. 3 and 4 did not seek any remedy against the judgement of HC.

Court’s Observations

• The SC observed that accused no. 3 and 4 were similarly placed as accused nos. 1, 5 and 13 in the trial who were initially convicted and later it was set aside by SC.
• Also, accused no. 2 must get the benefit of parity, the Court observed. Accused no. 2 had challenged his conviction before the SC but his SLP was dismissed without recording reasons.
• The bench of Justices Abhay S Oka and Sanjay Karol observed 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".

Legal Provision

Indian Penal Code, 1860

• The charges in the present matter pertained to following provisions:
  • Section 201: Causing disappearance of evidence of offence, or giving false information to screen offender — Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false,
    • If a capital offence. —shall, if the offence which he knows or believes to have been committed is punishable with death be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine;
    • If punishable with imprisonment for life — and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
    • If punishable with less than ten years’ imprisonment — and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
• Section 307 - Attempt to murder—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
  • Attempts by life-convicts —When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
• Section 395 - Punishment for dacoity — Whoever commits dacoity shall be punished with imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
• Section 396 - Dacoity with murder — If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
• Section 435 - Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees.—Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards or (where the property is agricultural produce) ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
• Section 149 - Every member of unlawful assembly guilty of offence committed in prosecution of common object — If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

Key Elements of Section 149

• Unlawful Assembly: To invoke Section 149, there must be an unlawful assembly as defined under Section 141 of IPC.
• Common Object: The common object of the unlawful assembly must be specified.
  • In the State of Maharashtra v. Kashirao and Ors (2003) case, the SC stated that “the meaning of the word ‘object’ means the purpose and, in order to make it ‘common’, it must be shared by all.
• Liability: Section 149 makes every member of the unlawful assembly liable for the offence committed by any member of the assembly in pursuit of the common object.
  • In the Rohtas v. State of Haryana (2020) case, the SC held that the offence under this provision creates a vicarious liability by virtue of membership in the unlawful assembly.