No TIP, Witness Could Not Identify Accused With Certainty: Gujarat High Court Acquits 3 In 2002 Post-Godhra Riots Case

The Gujarat High Court on Monday (July 28) acquitted three men who had been convicted in 2006 by a sessions court in Anand for rioting and for being members of unlawful assembly, in connection with the 2002 Post-Godhra riots.

The high court observed that no Test Identification Parade was conducted and in absence of the same the dock identification of accused was doubtful. It further observed that how the prosecution witness identified the accused was not stated nor had the witness mentioned the role of each of accused whom he saw in a crowd of over 100 people. 

Justice Gita Gopi passed the order while allowing two appeals– one filed by Sachinbhai Hasmukhbhai Patel and Ashokbhai Jashbhai Patel and other filed by Ashok@ Banarasi Bharatbhai Gupta.

The accused were also sentence to undergo five years imprisonment for Section 149 (common object of unlawful assembly) and six month rigorous imprisonment for offence under Section 147 (rioting) IPC. 

It was alleged by the prosecution that a mob, which included the accused persons had put shops on fire at various locations in Anand. The high court noted that the conviction was totally based on the testimony of PW3 and the trial court had convicted 4 out of 9 accused and had released 5 accused.

The high court in its 98 page order observed:

"...in cases where accused is a stranger to the witness and there has been no TIP, the trial Court should be very cautious while accepting the dock identification by such a witness. In absence of TIP, the dock identification of accused will always remain doubtful. Absence of TIP may not prejudice the case of the prosecution or affect the identification of the accused, if the evidence of the prosecution witness who has identified the accused in the Court is of a sterling quality. Otherwise identification of the accused before the Court ought to have been corroborated by the previous TIP. The question of holding TIP arises when the accused is not known to the witness. There was no test identification for all the referred names. How PW3 was knowing these people, has not been stated, nor the witness had stated about the role of all the individual accused whom he had seen in the crowd of 100-200 people".

The high court said that the law presupposes the existence of unlawful assembly and it has to be proved that the accused being the member of unlawful assembly, who in prosecution of common object has committed offence or that they had the knowledge what was likely to be committed in pursuance of their common object.

"As referred earlier, PW14 had stated in his deposition, few of them were extinguishing the fire. If the present referred people were there in burning the shops and more specifically, burning the shop of his employer, this employee-PW3 as brother-in-law was required to give evidence of the act of each and every referred accused, more so when since they were charged for rioting with deadly weapons. The identification could have been of the deadly weapon, in the hands of the accused...In view of the definition the assembly of five or more persons with a common object of burning the place was required to be delineated to be recounted as “unlawful assembly”. The conduct of each individual referred in the deposition of PW3 was required to be stated," the court added.

The high court observed that PW-3 could not identify the accused with their "full name and the identification by name does not match with the mononyms".

"He could even not identify rest of the two accused nos.4 and 7. In his deposition, he stated that the person, whom he had named as above, were in the crowd, while rest of them whether were in the crowd or not, he could not recollect...The witness is not sure about the act of the members of the crowd. According to him, all the members of the crowd, which was a crowd of 150 to 200 people, were engaged in sabotage. He denied the suggestion that only four shops were broken and stated that he could not state as to who had caused destruction of which shop, further stating that he could only tell the names of the persons who had destroyed his shop. The witness was put to question that he had no occasion earlier to meet the accused, which he affirmed, nor had he any relation with the accused earlier. He also stated that he does not recognize all the people of Anand". 

It furher observed that PW3 had not specifically stated the role of each of the accused in the incident and in order to fasten criminal liability upon an accused, there must be identification of the accused "with certainty"; however here PW3 could not give the full name of the accused. 

The high court observed that PW3 for the first time when to the police on March 17, 2002 when the incident had occurred on March 1, 2002. 

"The learned trial Court Judge has made a observation of the deposition of PW3 whereby he has affirmed that he cannot definitely say about the part played and who was involved in the breakage. PW3 generalized by deposing that all the members of the mob were breaking things. PW3's evidence named the person who had broken his shop. Merely naming the person without describing about the prosecution of common object would not be sufficient enough to implicate the persons as accused, as contemplated under Section 141 IPC...The witness-PW3- is a partisan witness, his evidence cannot be believed without corroboration from other witness, which in this case PW14 who was an eye witness with PW3, who both had gone on same bike, has not supported PW3. The conviction on the basis of the deposition of PW3 by the trial Court is not safe without corroboration...He has the motive to gain compensation for his shop". 

The court thus observed that the trial court had erred in the appreciation of the evidence as the conviction is not based on reliable and corroborative evidence, wherein the identification of the accused has not been proved during the trial. 

Background

The charge against the accused as well as co-accused indicated that they along with persons in the crowd, "because of the incident in regard to Ayodhya issue", on 01.03.2002  at Anand Lotia Bagod, gathered in concert, for prosecution of common object and formed an unlawful assembly and being the member of unlawful assembly committed offence punishable under Section 143 IPC. 

They were also accused of assembling with armed instruments for setting fire, and forming an unlawful assembly with deadly weapons and using force, committed riots punishable under Section 147 IPC. 

They were also accused of setting the complainant's and other witnesses' shops on fire and thereby, committed the offence under Section 149 IPC.

On February 6, 2006 the trial Court Judge raised the charge under Section 148 of IPC alleging riots with the deadly weapons. 

The appellants' counsel argued that no panch witnesses have supported the case of the prosecution, nor there are independent witnesses to the alleged offence. It was argued that the Investigating Agency has failed to conduct Test Identification Parade (TIP), and in absence of TIP, the dock identification of the accused persons by the witnesses would become highly doubtful, more so, when none has been named in the FIR. 

It was also argued that a prosecution witness had (PW3) had deposed that he had seen the accused person in the mob on 01.03.2002 and on the very same day, he met another witness PW2 and gives the details of the incident, but the said person did not name the appellants, nor give an FIR before the police.

Meanwhile the prosecution argued that deposition of all the witnesses and more specifically, PW2, PW3 and PW14 read with the evidence of PW5-police complainant, PW12-police witness, PW13-Investigating Officer, that even if one person could identify the rioters then there would not be any necessity to bring extraordinary evidence on record to prove the offence.

It was further submitted that the PW3 is the eye witness to the incident whose testimony gets corroborated by the evidence of PW14; in that case, TIP would not be necessary to corroborate the version of the eye witness.

The high court allowed both appeals and set aside the conviction and sentence. 

Case title: SACHINBHAI HASMUKHBHAI PATEL & ANR. v/s STATE OF GUJARAT And Another Appeal

Criminal Appeal 1067 of 2006 and Criminal Appeal 1142 of 2006

Click Here To Read/Download Order 

Citation: 2025 LiveLaw (Guj) 115