In cases of group clashes where a large number of
persons are involved, an onerous duty is cast upon the
courts to ensure that no innocent bystander is
convicted and deprived of his liberty. In such type of
cases, the courts must be circumspect and reluctant to
rely upon the testimony of witnesses who make general
statements without specific reference to the accused, or
the role played by him4. This is so, because very often,
particularly when the scene of crime is a public place,
out of curiosity, persons step out of their home to
witness as to what is happening around. Such persons
are no more than bystander though, to a witness, they
may appear to be a part of the unlawful assembly. Thus,
as a rule of caution and not a rule of law, where the
evidence on record establishes the fact that a large
number of persons were present, it may be safe to
convict only those persons against whom overt act is
alleged.5 At times, in such cases, as a rule of caution
and not a rule of law, the courts have adopted a plurality
test, that is, the conviction could be sustained only if it
is supported by a certain number of witnesses who give
a consistent account of the incident. {Para 13}
15. In the instant case, the appellants were residents
of the same village where riots broke out, therefore their
presence at the spot is natural and by itself not
incriminating. More so, because it is not the case of the
prosecution that they came with arms or instruments of
destruction. In these circumstances, their presence at
the spot could be that of an innocent bystander who had
a right to move freely in absence of prohibitory orders.
In such a situation, to sustain their conviction, the
prosecution ought to have led some reliable evidence to
demonstrate that they were a part of the unlawful
assembly and not just spectator. Here no evidence has
come on record to indicate that the appellants incited
the mob, or they themselves acted in any manner
indicative of them being a part of the unlawful
assembly.
16. The suggestion given by the defense counsel to the
investigating officer, during cross-examination, that the
accused were trying to douse the fire when they were
apprehended, though might be useful to confirm their
presence at the spot, cannot be used to infer that
accused were a part of the unlawful assembly. This we
say so, because it does not rule out their presence as a
bystander or a spectator. Besides that, in absence of
any inculpatory role ascribed to the appellants, their
arrest on the spot is not conclusive that they were a part
of the unlawful assembly, particularly when neither
instrument of destruction nor any inflammatory
material was seized from them. Besides that, the police
resorted to firing causing people to run helter skelter. In
that melee, even an innocent person may be mistaken
for a miscreant. Thus, appellants’ arrest from the spot
is not a guarantee of their culpability. In our view,
therefore, mere presence of the appellants at the spot,
or their arrest therefrom, was not sufficient to prove that
they were a part of the unlawful assembly comprising of
more than a thousand people. The view to the contrary
taken by the High Court is completely unjustified.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.816 OF 2016
DHIRUBHAI BHAILALBHAI CHAUHAN & ANR. Vs STATE OF GUJARAT & ORS.
Author: MANOJ MISRA, J.
Citation:2025 INSC 381.
1. These two appeals impugn a common judgment and
order of the High Court of Gujarat at Ahmedabad1 dated
1 The High Court
05.05.2016 passed in Criminal Appeal No.155 of 2016
(State of Gujarat v. Dhirubhai Bhailalbhai Chauhan &
18 others), whereby the High Court, though maintained
the acquittal of 12 out of 19 accused who were put on
trial, partly reversed the judgment and order of acquittal
passed by the Trial Court in Sessions Trial No.119 of
2003 and thereby convicted the appellants for offences
punishable under sections 143, 147, 153 (A), 295, 436
and 332 of the Indian Penal Code2 and punished them
with varied sentences, all to run concurrently,
maximum being of one year.
Background facts
2. The prosecution case, founded on a first information
report3 lodged by PW-1, a policeman, is to the effect that
on 28.02.2002, while the informant was patrolling with
other police personnel, information was received at
around 22:10 hours that a mob had surrounded a
graveyard and a mosque at village Vadod; when the
police party arrived at the spot and instructed the mob
2 The IPC
3 FIR
to disperse, the mob pelted stones causing damage to
police vehicles as well as injury to police personnel; in
consequence, police had to take recourse to release of
tear gas shells and firing of gun shots, which resulted
in a stampede like situation; in the melee, the police
could apprehend 7 persons on the spot, namely, (1)
Dhirubhai Bhailalbhai Chauhan, (2) Maheshbhai
Bhailalbhai Chauhan, (3) Mukeshbhai Ambalal Patel,
(4) Kiritbhai Manibhai Patel, (5) Ravjibhai Harmanbhai
Patel, (6) Dipakkumar Bhopalbhai Negi and (7)
Sanjaykumar Laxmansinh Mahida, all residents of
village Vadod. Investigation resulted in a charge sheet
against 19 persons including the ones who were
arrested on the spot. Based on the chargesheet
cognizance was taken, giving rise to Sessions Trial
No.119/2003.
Trial Court Judgment
3. The Additional Sessions Judge to whom the matter was
assigned by the Sessions Judge, conducted the trial and
by judgment and order dated 11.07.2005 acquitted all
the 19 accused by giving them the benefit of doubt.
4. The key features of the case on which the Trial Court
based its decision, inter alia, are:
(i) The police witnesses were stereotypical in their
deposition; they could not identify even a single
accused; and in their cross-examination, they
could not disclose as to which accused was caught
by which policeman.
(ii) PW-2, who deposed about participation by the
accused in rioting, was confronted with omissions
in his previous statement regarding (a) the place
from where he witnessed the incident and (b) the
presence of street-light, which helped him in
identifying the accused.
(iii) The investigating officer (PW-20), during his crossexamination, had stated that no damage was
caused to the house of the eye-witness PW-2.
Having regard to the above and the evidence on record
as also that nothing was shown to have been recovered
from the accused at the time of their arrest, the trial
court gave the accused the benefit of doubt.
High Court Judgment
5. The High Court while maintaining the acquittal of
accused nos.8 to 19, who were neither named in the FIR
nor arrested on the spot, in paragraphs 6.08, 6.09 and
6.10 of its judgment, observed:
“6.08. Now, so far as the rest of the accused i.e. original
accused Nos.8 to 19 are concerned, on re-appreciating
the entire evidence on record, including deposition of
the PW Nos.2 and 4, we are of the opinion that their
presence at the time of commission of the offence cannot
be said to have been proved by the prosecution beyond
reasonable doubt by leading cogent evidence. In
absence of any other corroborative evidence and solely
relying upon deposition of PW Nos.2 and 4, it is not safe
to convict the original accused Nos.8 to 19. Admittedly
no identification parade of the original accused Nos.8 to
19 has been held and conducted. Their names have not
been disclosed by the PW No.1 in the complaint. They
were arrested subsequently by the investigating officer.
Nothing is forthcoming on what basis and on the basis
of what evidence gathered during the course of the
investigation, original accused Nos.8 to 19 were
arrested.
6.09. PW No.2 has stated that he has given complaint
before Vasad Police Station, however, investigating
officer has denied having complaint given by the PW
No.2 on the next day. He has admitted in the crossexamination that he was shown as witness in another
case i.e., Sessions Case No.155 of 2002 with respect to
similar incident, however, in that case, he has been
declared hostile. In the present case, PW No.2 has
identified some of the accused in the Court, however,
which is after 2 years of the incident. He has stated that
he had seen the incident and the accused persons from
the terrace and in the street light. Considering the
deposition of the PW No.2, we are of the opinion that in
the mob of 1000 to 1500 persons, he could not have
identified original accused Nos.8 to 19. Even his
deposition is full of material contradictions. He has
stated in his deposition that his statement was not
recorded on 19/3/2002, however, investigating officer
has categorically stated that his statement was recorded
on 19/03/2002. Considering the deposition of the said
PW No.2, we are of the opinion that it is not safe to rely
on the deposition of the PW No.2 and convict the original
accused Nos.8 to 19 relying on the deposition of PW
No.2.
6.10. Similarly, on re-appreciating the entire deposition
of PW No.4 – Roshansha Bafatisha, we are of the opinion
that he cannot be said to be eye witness to the incident
and it is not safe to rely on his deposition and convict
the original accused Nos.8 to 19 relying on the
deposition of PW No.4. He has named some persons who
were not even arraigned as accused. Under the
circumstances and on appreciation of the entire
evidence on record, we are of the opinion that the
prosecution has failed to prove the presence of the
original accused Nos.8 to 19 at the time commission of
the offence and they being part of the mob and/or
members of the unlawful assembly. Under the
circumstances, the learned trial court has not
committed any error in acquitting the original accused
Nos.8 to 19.”
6. However, in respect of accused nos. 1 to 5 and 7 (the
appellants herein), the High Court observed that since
they were arrested on the spot and were also named in
the FIR, their presence at the scene of crime stood
proved beyond reasonable doubt and since rioting and
destruction of property has been proved, they being part
of the unlawful assembly were liable to be convicted. To
hold their presence at the spot, the High Court also
relied on a suggestion given by the defense counsel to
the prosecution witnesses that the accused were caught
while they were trying to douse the fire.
7. We have heard Mr. Alapati Sahithya Krishna for the
appellants; Ms. Ruchi Kohli for the State; and have
perused the record.
Submissions on behalf of the appellants
8. The learned counsel for the appellants submitted that
the incident was an aftermath of events at Godhara.
Admittedly, the rioting was on a public street of a village,
where presence of villagers, such as the appellants, is
natural and, therefore, on basis of their mere presence,
without anything further, they cannot be held to be a
part of the unlawful assembly. Otherwise, there is no
reliable evidence attributing any overt act to the
appellants to indicate that they were part of the
unlawful assembly. Further, the only witness in that
regard, namely, PW-2, was discarded not only by the
Trial Court but also by the High Court. In these
circumstances, there was no occasion for the High
Court to reverse the decision of the Trial Court. More so,
when it was a judgment of acquittal.
Submissions on behalf of the State
9. Per contra, the learned counsel for the State submitted
that in a case of rioting, it is extremely difficult to
particularize as to which person did what. Therefore, if
the presence of the accused at the scene of the crime,
as part of the mob, is proved that alone is sufficient to
record conviction. Since the High Court found the
presence of the appellants duly proved, in absence of
cogent explanation by the accused regarding their
presence at the scene of crime, the order convicting
them cannot be faulted.
Analysis
10. Before we set out to analyze the rival contentions,
it would be useful to highlight certain proven facts
which, in our view, have a material bearing on the
decision of this case. These are:
(i) The riots in question took place in the night hours
when there were no curfew orders. The rioting
crowd was very large comprising of over one
thousand people, as a result, the police had to
resort to firing of gunshots to disperse the crowd,
which resulted in a stampede like situation.
(ii) Out of that many people, only seven were named
in the FIR being the ones who were arrested on the
spot; and out of those seven, six were convicted by
the High Court as one of them had died during
trial.
(iii) Though the police allegedly arrested seven persons
on the spot, no satisfactory evidence was led as
regards (a) what those seven did before their
arrest, (b) who arrested them and from where. This
lacuna in the prosecution evidence was noticed by
the Trial Court to acquit them.
(iv) There was no evidence that at the time of arrest
the accused-appellants were carrying instruments
of destruction, such as an iron rod, stone, petrol
or any inflammable substance, etc., having
potential to cause damage to property or person.
(v) Except the statement of PW-2 and PW4, which was
discarded by the High Court for cogent reasons,
there is no specific evidence that the accusedappellants indulged in any act of incitement,
mischief or violence.
(vi) All the accused-appellants are residents of the
same village where the riots took place.
11. Cumulatively taken, the above facts would indicate
that the rioting crowd was very large; by the time of the
incident, curfew was not imposed in the area concerned,
therefore movement of residents of that area was not
prohibited, which means that they could venture out of
their home to watch what was happening around; the
police intervened during night hours and resorted to
firing to disperse the crowd, which resulted in a
stampede like situation. In that melee, 7 persons
including the appellants were arrested and named in
the FIR without ascribing any specific role to them. After
investigation, 12 more accused were added and,
ultimately, 19 persons including the appellants were
put on trial. The Trial Court found the prosecution
evidence perfunctory and, therefore, acquitted all the
accused. The High Court, on an appeal preferred by the
State, reversed the trial court order in part and
convicted the appellants as members of the unlawful
assembly which indulged in rioting, etc. The High Court
found appellants members of the unlawful assembly
because their arrest on the spot confirmed their
presence at the scene of the crime.
12. In that backdrop, the primary issue which arises
for our consideration is whether the High Court was
justified in reversing the judgment of acquittal passed
by the Trial Court qua the appellants. To determine the
above issue, the underlying legal question which falls
for our consideration is whether in the facts of the case
mere presence of the appellants at the scene of crime,
without anything further, is sufficient to hold them
members of the unlawful assembly.
13. In cases of group clashes where a large number of
persons are involved, an onerous duty is cast upon the
courts to ensure that no innocent bystander is
convicted and deprived of his liberty. In such type of
cases, the courts must be circumspect and reluctant to
rely upon the testimony of witnesses who make general
statements without specific reference to the accused, or
the role played by him4. This is so, because very often,
particularly when the scene of crime is a public place,
out of curiosity, persons step out of their home to
witness as to what is happening around. Such persons
are no more than bystander though, to a witness, they
may appear to be a part of the unlawful assembly. Thus,
as a rule of caution and not a rule of law, where the
evidence on record establishes the fact that a large
number of persons were present, it may be safe to
convict only those persons against whom overt act is
alleged.5 At times, in such cases, as a rule of caution
and not a rule of law, the courts have adopted a plurality
4 Busi Koteswara Rao & others v. State of Andhra Pradesh, (2012) 12 SCC 711, paragraph 11.
5 Nagarjit Ahir v. State of Bihar, (2005) 10 SCC 369, paragraph 14.
test, that is, the conviction could be sustained only if it
is supported by a certain number of witnesses who give
a consistent account of the incident.
14. There may, however, be a situation where a crowd
of assailants, who are members of an unlawful
assembly, proceeds to commit murder in pursuance of
the common object of that assembly. In such a case, any
person who is a member of that unlawful assembly is
equally liable even though no specific overt act of
assault is attributed to him. Otherwise also, where the
assailants are large in number it may not be possible for
witnesses to describe accurately the part played by each
one of them. Besides, if a large crowd of persons armed
with weapons assault the intended victims, it may not
be necessary that all of them must take part in the
actual assault.7 Therefore, in a situation like this, what
is important for the Court is to determine whether the
accused put on trial was a part of the unlawful assembly
or just a bystander. Such determination is inferential,
6 Masalti v. State of U.P., AIR 1965 SC 202: 1964 SCC OnLine SC 30; followed in State of U.P. v. Dan Singh, (1997)
3 SCC 747
7 Masalti v. State of U.P. (supra)
based on the proven facts of the case. Though it is not
feasible to exhaustively lay down the list of
circumstances from which an inference regarding the
accused being part of the unlawful assembly be drawn,
the Courts have generally held the accused vicariously
liable, with the aid of Section 149 of the IPC, inter alia,
(a) where he had proceeded to the scene of crime along
with other members of the assembly carrying arms or
instruments which could serve the object of the
assembly; and (b) where he had participated in any
manner in the events which serve the common object of
the assembly.
15. In the instant case, the appellants were residents
of the same village where riots broke out, therefore their
presence at the spot is natural and by itself not
incriminating. More so, because it is not the case of the
prosecution that they came with arms or instruments of
destruction. In these circumstances, their presence at
the spot could be that of an innocent bystander who had
a right to move freely in absence of prohibitory orders.
In such a situation, to sustain their conviction, the
prosecution ought to have led some reliable evidence to
demonstrate that they were a part of the unlawful
assembly and not just spectator. Here no evidence has
come on record to indicate that the appellants incited
the mob, or they themselves acted in any manner
indicative of them being a part of the unlawful
assembly. The only evidence in that regard came from
PW-2 and PW-4, but that has been discarded by the
High Court for cogent reasons which need not be
repeated here. In our view, therefore, on basis of their
mere presence at the scene of crime, an inference could
not have been drawn that the appellants were a part of
the unlawful assembly.
16. The suggestion given by the defense counsel to the
investigating officer, during cross-examination, that the
accused were trying to douse the fire when they were
apprehended, though might be useful to confirm their
presence at the spot, cannot be used to infer that
accused were a part of the unlawful assembly. This we
say so, because it does not rule out their presence as a
bystander or a spectator. Besides that, in absence of
any inculpatory role ascribed to the appellants, their
arrest on the spot is not conclusive that they were a part
of the unlawful assembly, particularly when neither
instrument of destruction nor any inflammatory
material was seized from them. Besides that, the police
resorted to firing causing people to run helter skelter. In
that melee, even an innocent person may be mistaken
for a miscreant. Thus, appellants’ arrest from the spot
is not a guarantee of their culpability. In our view,
therefore, mere presence of the appellants at the spot,
or their arrest therefrom, was not sufficient to prove that
they were a part of the unlawful assembly comprising of
more than a thousand people. The view to the contrary
taken by the High Court is completely unjustified. More
so, while hearing an appeal against an order of
acquittal.
17. For all the reasons above, we are of the view that
the High Court erred in reversing the order of acquittal
of the appellants.
18. The appeals are, therefore, allowed. The impugned
judgment and order of the High Court is set aside, and
the order of the Trial Court is restored. If the appellants
are on bail, they need not surrender. Their bail bonds,
if any, are discharged. Pending application(s), if any,
stand disposed of.
….............................................J.
(Pamidighantam Sri Narasimha)
................................................J.
(Manoj Misra)
New Delhi;
March 21, 2025
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