Case Note & Summary
The appellant, Abdul Gani Kamruddin Mulla, was convicted by the Sessions Court for offences under Sections 326 and 452 of the Indian Penal Code, 1860, arising out of the 1992 communal riots following the demolition of Babri Masjid. The incident occurred on 7 December 1992 when a mob allegedly attacked the house of PW-1 Balkrishna, causing injuries to his wife PW-2 Prabhavati and son PW-3 Prabhakar. The appellant was identified as one of the assailants. The FIR was lodged on 17 December 1992, ten days after the incident. The prosecution did not conduct a test identification parade. The appellant was arrested later and identified in court by the witnesses. The High Court found that the identification of the appellant for the first time in court was unreliable, as the witnesses had no prior acquaintance with him and the delay in FIR was not explained. The court also noted that the prosecution failed to produce station diary entries or case diary to corroborate the timing of the incident. Consequently, the court allowed the appeal, set aside the conviction, and acquitted the appellant, giving him the benefit of doubt.
Headnote
A) Criminal Law - Identification Parade - Delay in FIR - Conviction under Sections 326 and 452 IPC - The appellant was convicted for causing grievous hurt with a dangerous weapon during communal riots - The prosecution failed to conduct a test identification parade and the FIR was lodged 10 days after the incident - The court held that the identification of the accused for the first time in court without prior test identification parade is unreliable, especially when the witness had no prior acquaintance - The delay in FIR was not satisfactorily explained - Held that the appellant is entitled to benefit of doubt and acquittal (Paras 1-19).
Issue of Consideration
Whether the conviction of the appellant under Sections 326 and 452 of the Indian Penal Code, 1860 is sustainable in the absence of a test identification parade and in view of the delayed lodging of the FIR.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted of all charges. Bail bonds cancelled.
Law Points
- Identification parade
- Delay in FIR
- Unlawful assembly
- Section 326 IPC
- Section 452 IPC
- Benefit of doubt
Case Details
2019 LawText (BOM) (06) 83
Criminal Appeal No. 613 of 1997
Mr. Lokesh Zade (Court appointed advocate for Appellant), Ms. Pallavi N. Dabholkar (APP for the State)
Abdul Gani Kamruddin Mulla
Senior Inspector of Police and Anr.
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Nature of Litigation
Criminal appeal against conviction under Sections 326 and 452 IPC
Remedy Sought
Appellant sought acquittal by setting aside the conviction and sentence
Filing Reason
Appellant was convicted for causing grievous hurt with a dangerous weapon during communal riots
Previous Decisions
Sessions Court convicted the appellant and sentenced him to seven years RI under Section 326 IPC and fine, with no separate sentence under Section 452 IPC
Issues
Whether the identification of the appellant in court without a prior test identification parade is reliable?
Whether the delay in lodging the FIR (10 days) is fatal to the prosecution case?
Submissions/Arguments
Appellant argued that no test identification parade was conducted and the FIR was delayed, making the identification unreliable.
Prosecution contended that the witnesses identified the appellant in court and the delay was due to the chaotic situation during riots.
Ratio Decidendi
In the absence of a test identification parade, identification of an accused for the first time in court by a witness who had no prior acquaintance is unreliable. Delay in lodging FIR without satisfactory explanation casts doubt on the prosecution case. The appellant is entitled to benefit of doubt.
Judgment Excerpts
The appellant herein is the original accused no. 14 in Sessions Case No. 1254 of 1993 re-numbered as 1472 of 1994 and is convicted for the offence punishable under section 326 of the Indian Penal Code and is sentenced to suffer R.I. for seven years and fine of Rs. 1,000/- (One thousand only), in default, R.I. for three months.
It is pertinent to note that the prosecution has not placed on record any material to indicate that on the basis of information given by PW-1 Balkrishna station diary entry was taken or that there was case diary to show, that they had admitted PW-2 and PW-3 in the hospital.
In the absence of test identification parade, the identification of the accused for the first time in the Court is not reliable.
Procedural History
The appellant was convicted by the Sessions Court in Sessions Case No. 1254 of 1993 (renumbered 1472 of 1994) on 30 April 1997. He filed Criminal Appeal No. 613 of 1997 before the Bombay High Court. The appeal was heard and decided on 10 June 2019.
Acts & Sections
- Indian Penal Code, 1860: 326, 452
