The Gujarat High Court on Monday acquitted three men convicted in 2006 for rioting during the 2002 Muslim genocide, citing the absence of a Test Identification Parade and expressing doubt over the reliability of dock identification, Live Law reported.
The High Court noted that no Test Identification Parade was conducted, making the dock identification of the accused doubtful, and further pointed out that the prosecution witness neither explained how he identified the accused nor specified their individual roles in a crowd of over 100 people.
Justice Gita Gopi of the Gujarat High Court allowed two appeals, one filed by Sachinbhai Hasmukhbhai Patel and Ashokbhai Jashbhai Patel, and another by Ashok Banarasi Bharatbhai Gupta.
The appellants had earlier been sentenced to five years of imprisonment under Section 149 of the IPC (unlawful assembly with a common object) and six months of rigorous imprisonment under Section 147 (rioting).
According to the prosecution, the accused were part of a mob that set fire to shops in various parts of Anand.
However, the High Court observed that the conviction was solely based on the testimony of Prosecution Witness 3 (PW3), and noted inconsistencies in the identification of the accused. The trial court had convicted only 4 out of 9 accused, acquitting the remaining five.
In its detailed 98-page judgment, the Gujarat High Court underscored the significance of proper identification procedures, especially when the accused are strangers to the witness.
It noted that “in cases where the accused is a stranger to the witness and there has been no TIP (Test Identification Parade), the trial court should be very cautious while accepting the dock identification by such a witness.”
The court observed that in the absence of a TIP, dock identification “will always remain doubtful,” unless the witness’s evidence is of “sterling quality.” It added that identification in court “ought to have been corroborated by the previous TIP” when the accused was previously unknown to the witness.
Highlighting gaps in the prosecution’s case, the court pointed out that “there was no test identification for all the referred names,” and that the prosecution witness (PW3) “had not stated how he knew the accused” or “what roles each of them played in the crowd of 100–200 people.”
The High Court underlined the legal requirements for establishing the offence of unlawful assembly, stating, “the law presupposes the existence of unlawful assembly and it has to be proved that the accused, being a member of such assembly, had either committed the offence in prosecution of the common object or had knowledge of what was likely to be committed in pursuance of that object.”
Referring to the testimony of PW14, the court noted that some individuals were seen extinguishing the fire, raising doubts over the uniformity of the mob’s intent.
“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 they were charged for rioting with deadly weapon,” the court said.
It added that the witness should have also identified the “deadly weapon in the hands of the accused,” if such a charge was to be sustained.
Highlighting the importance of individual roles and clarity in prosecution, the court observed, “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 emphasised that mere presence in a crowd could not suffice to establish criminal liability under the charge of unlawful assembly unless there was clear evidence of each accused’s role and intent.
The charges against the accused and their co-accused stemmed from allegations that, on March 1, 2002, at Lotia Bagod in Anand, they had joined a crowd that had gathered in response to the Ayodhya incident.
According to the prosecution, the group acted in concert with a common objective and constituted an unlawful assembly, thereby committing offences punishable under Section 143 of the Indian Penal Code (IPC).
They were further accused of being part of an armed assembly that used force and deadly weapons to incite violence and commit rioting, attracting charges under Section 147 IPC.
It was also alleged that they set fire to the complainant’s shop and those of other witnesses, an act that fell under the scope of Section 149 IPC, which deals with offences committed by members of an unlawful assembly in furtherance of a common object.
Later, on February 6, 2006, the trial court added charges under Section 148 IPC, accusing them of rioting while armed with deadly weapons.
On 28 February 2002, Hindu mobs who were part of the Vishva Hindu Parishad (VHP), Rashtriya Swayamsevak Sangh (RSS) and Bharatiya Janata Party (BJP), unleashed massive violence against Muslims in Gujarat that went on for weeks, killing thousands of Muslims, following the train burning incident near Godhra railway station in February 2002.
About 3,000 Muslims were killed in what has been described as a Muslim genocide; nearly 20,000 homes and businesses and 360 places of worship were destroyed, and around 150,000 people were displaced.
Narendra Modi, the current prime minister of India, was accused of initiating and condoning the violence by allegedly instructing the police to stand down and allow Hindu mobs to carry out attacks against Muslims.
Reports suggest strong links between the Modi-led Gujarat administration and the coordinated nature of the anti-Muslim violence. Hindu mobs were reported to have detailed lists of Muslim homes and businesses, and many of the attacks happened in close proximity to police stations.
