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Issue for consideration: Assault by mob, Seven accused were convicted, including the present appellant-accused no.6, for the off ences punishable u/s. 396 r/w. s.149, s.395 r/w. s.149, s.307 r/w. s.149, s.435 r/w. s.149 and s.201 r/w. s.149 of the IPC. Accused nos. 1, 5 and 13 were acquitted in appeal by the Supreme Court. (a) Whether conviction of appellant-accused no.6 justifi ed; (b) Whether conviction of accused no. 2, 3, 4 was justifi ed, when role ascribed to them was that they were part of mob.Evidence – Conviction of appellant-accused no.6 based on sole testimony of PW-2 – Propriety:Held: 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 the evidence of PW-2 is categorized 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. [Para 8]Penal Code, 1860 – Conviction of accused nos. 2, 3, 4 – Propriety:Held: The conviction of accused nos. 1, 5 and 13 was based only on the testimony of PW-25 and PW-26 – The Supreme Court had in its earlier decision rejected the testimony of PW-25 and PW-26 in its entirety – 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 the Supreme 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 – Therefore, the conviction of accused nos.2, 3 and 4 set aside. [Paras 11, 12 and 14]Evidence – Similar or identical evidence of eyewitnesses against accused persons – Principle of parity: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. [Para 15]Constitution of India – Suo moto exercise of jurisdiction u/Art.136:Held: The testimony of PW-25 and PW-26 was rejected – Consequent to which, accused nos.1, 5 and 13 were acquitted – The case of accused nos. 3 and 4 stands on the same footing as accused nos. 1,5 and 13 – They must get the benefi t of parity – Accused nos.3 and 4 did not prefer any appeal – In the case of Pawan Kumar v. State of Haryana, Supreme Court dealt with similar contingency in some detail – The 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. [Para 16]Practice and Procedure:Held: Earlier special leave petition fi led by accused no.2 was summarily dismissed without recording any reasons – The law is well-settled that an order refusing special leave to appeal by a non-speaking order does not attract the doctrine of merger – 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 – Therefore, the order passed in the earlier special leave petition fi led by accused no.2 is recalled. [Para 18] |
