‘Mere presence at the spot, or arrest therefrom, not sufficient to prove that they were part of unlawful assembly’; SC acquits 6 in 2002 Gujarat Riots Case

Supreme Court: In a set of two criminal appeals against the Gujarat High Court’s decision in State of Gujarat v. Dhirubhai Bhailalbhai Chauhan, 2016 SCC OnLine Guj 8909, whereby the acquittal of the present accused persons in the 2002 Gujarat riots was partly reversed and convicted them for offences punishable under Sections 143, 147, 153(A), 295, 436 and 332 of the Penal Code, 1860 (IPC), the Division Bench of PS Narasimha and Manoj Misra*, JJ. allowed the appeal and set aside the impugned decision. The Court considered that in the absence of any inculpatory role ascribed to the accused persons, their arrest on the spot where riots outbroke, was 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. Hence, the mere presence of the accused persons 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.

Background

The prosecution’s case was that a First Information Report (FIR) was lodged by a policeman, in 2002, alleging that while he was patrolling with other police personnel, a mob had surrounded a graveyard and a mosque in village Vadod. When the police party arrived at the spot, 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 gunshots, which resulted in a stampede. The police apprehended seven persons on the spot. Investigation resulted in a charge sheet against 19 persons including the ones who were arrested on the spot.

The Trial Court acquitted all 19 accused persons. The High Court acquitted 12 accused persons who were neither named in the FIR nor arrested on the spot. Regarding the seven present accused persons who were arrested on the spot, the High Court reversed their conviction considering that they were arrested on the spot and were also named in the FIR, their presence at the scene of the crime stood proved beyond reasonable doubt and since rioting and destruction of property was proved, they being part of the unlawful assembly were liable to be convicted.

Analysis and Decision

From the evidence placed on record, the Court noted that the rioting crowd was very large and by the time of the incident, a curfew had not been imposed in the area concerned, which meant 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, seven persons including the present accused persons were arrested and named in the FIR without ascribing any specific role to them.

“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 him.

The Court explained that to a witness, the persons who step out of their home out of curiosity, may appear to be a part of the unlawful assembly. The Court also reiterated that as a rule of caution and not a rule of law, the Courts have adopted a plurality test, which underlines that a conviction could be sustained only if it is supported by a certain number of witnesses who give a consistent account of the incident.

Further, the Court added that in a situation where 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, and in such circumstances, it is important for the Court to determine whether the accused put on trial was a part of the unlawful assembly or just a bystander. Such determination is inferential, based on the proven facts of the case.

In the matter at hand, the Court said that the accused persons were residents of the same village where riots broke out, therefore their presence at the spot was natural and by itself not incriminating. The Court pointed out that the accused persons were not armed or had instruments of destruction, as per the prosecution. Hence, their presence at the spot could be that of an innocent bystander who had a right to move freely in the absence of prohibitory orders. The Court noted that no evidence had come on record to indicate that the accused persons incited the mob, or they acted in any manner indicative of them being a part of the unlawful assembly. Thus, the Court viewed that on basis of their mere presence at the scene of the crime, an inference could not have been drawn that the accused persons were a part of the unlawful assembly.

Conclusively, the Court allowing the appeals held that the High Court erred in reversing the order of acquittal of the accused persons. The impugned decision was set aside, restoring the Trial Court’s decision.

Buy Penal Code, 1860   HERE