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Synopsis

The Supreme Court recently set aside the Gujarat High Court's judgment reversing acquittal of six persons in a post-Godhra 2002 riots, saying the prosecution ought to have led some reliable evidence to demonstrate that they were a part of the unlawful assembly and not just spectators.

A bench of Justices P S Narasimha and Manoj Misra found no evidence had 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. 

"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," the bench said.

Besides that, the bench pointed out, in absence of any inculpatory role ascribed to the appellants, their arrest on the spot 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. 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, it said.

"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," the bench said.

Allowing the appeals filed by Dhirubhai Bhailalbhai Chauhan and another and Kiritbhai Manibhai Patel and others, the bench held the high court by its judgment on May 5, 2016, erred in reversing the order of acquittal of the appellants. The high court had maintained acquittal of 12 out of 19 accused but upheld the conviction of the six appellants for offences punishable under sections 143, 147, 153 (A), 295, 436, and 332 of the Indian Penal Code and punished them with varied sentences, all to run concurrently, maximum being of one year.

The police registered the FIR on February 28, 2002, that a mob had surrounded a graveyard and a mosque at village Vadod. 

The mob also 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-like situation; in the melee, the police could apprehend seven persons on the spot, namely, Dhirubhai Bhailalbhai Chauhan, Maheshbhai Bhailalbhai Chauhan, Mukeshbhai Ambalal Patel, Kiritbhai Manibhai Patel, Ravjibhai Harmanbhai Patel, Dipakkumar Bhopalbhai Negi and Sanjaykumar Laxmansinh Mahida, all residents of village Vadod. One accused died during the trial.

The counsel for the appellants submitted that the incident was an aftermath of events at Godhra. Admittedly, the rioting was on a public street of a village, where presence of villagers, such as the appellants, was natural and, therefore, on basis of their mere presence, without anything further, they could not be held to be a part of the unlawful assembly. 

Otherwise, the counsel said, there was 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. 

The state counsel, on the opposite, 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 a 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 could not be faulted, she said.  

The apex court said the primary issue which arose for consideration was whether the high court was justified in reversing the judgment of acquittal passed by the trial court qua the appellants. The court considered whether in the facts of the case mere presence of the appellants at the scene of the crime, without anything further, was sufficient to hold them members of the unlawful assembly.  

"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 bench said.

The court pointed out, this was so, because very often, particularly when the scene of crime is a public place, out of curiosity, persons step out of their homes to witness as to what is happening around. Such persons are no more than bystanders 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. 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," the bench said.

The court emphasised 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, based on the proven facts of the case.

It pointed out, in the instant case, the appellants were residents of the same village where riots broke out, therefore their presence at the spot was natural and by itself not incriminating. More so, because it was 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, the court added.

Case Title: Dhirubhai Bhailalbhai Chauhan & Anr Vs State of Gujarat & Ors