Summary
The Supreme Court restored the acquittal of six villagers whom the High Court had convicted as members of an unlawful assembly in a 2002 riot, holding that their mere presence at, or arrest from, the scene of a night-time riot on a public street in their own village, without any overt act, weapon or incriminating recovery, could not establish membership of the unlawful assembly, particularly in an appeal against acquittal.
Issues
- Whether the High Court was justified in reversing the Trial Court's judgment of acquittal qua the appellants.
- Whether mere presence of the appellants at the scene of crime, or their arrest from the spot, without anything further, is sufficient to hold them members of the unlawful assembly.
Provisions considered
- Section 149, Indian Penal Code, 1860The Court restated that vicarious liability with the aid of Section 149 has generally been imposed where the accused went to the scene with other members carrying arms or instruments serving the assembly's object, or participated in some manner in events serving its common object; the prosecution had to lead reliable evidence that the appellants were members and not mere spectators. (¶¶ 14, 15)
- Sections 143, 147, 153A, 295, 436 and 332, Indian Penal Code, 1860These were the offences for which the High Court convicted the appellants on the footing that they were part of the unlawful assembly which rioted and destroyed property; the convictions were set aside because membership of the assembly was not proved. (¶¶ 1, 17, 18)
Held
- In cases of group clashes involving a large number of persons, courts have an onerous duty to ensure that no innocent bystander is convicted and must be circumspect about witnesses who make general statements without specific reference to the accused or his role, because at a public place curious onlookers may appear to a witness to be part of the unlawful assembly; as a rule of caution and not of law, it may be safe to convict only those against whom an overt act is alleged, and courts have at times applied a plurality test requiring a consistent account from several witnesses. (¶ 13)
- Where members of an unlawful assembly commit an offence in prosecution of its common object, every member is liable even without a specific overt act, and in a large armed crowd witnesses may be unable to describe each participant's role; the real question is whether the accused was a member of the assembly or a bystander, an inference drawn from proven facts such as arrival with arms or instruments serving the object, or participation in events serving the common object. (¶ 14)
- The appellants were residents of the village where the riot occurred, no curfew was in force so their movement was not prohibited, the police resorted to firing causing a stampede, no weapons or inflammable material were seized from them and no specific role was ascribed to them in the FIR; their presence was therefore natural and by itself not incriminating, and the only evidence of participation (PW-2 and PW-4) had been discarded by the High Court itself for cogent reasons. (¶¶ 10, 11, 15)
- A defence suggestion to the investigating officer that the accused were caught while trying to douse the fire may confirm their presence but cannot support an inference that they were part of the unlawful assembly, since it does not rule out their being bystanders; arrest from the spot in a melee caused by police firing, where an innocent person may be mistaken for a miscreant, is not conclusive of culpability. (¶ 16)
- Mere presence of the appellants at the spot, or their arrest from it, was not sufficient to prove membership of an unlawful assembly of more than a thousand people; the contrary view of the High Court was completely unjustified, more so while hearing an appeal against an order of acquittal. (¶¶ 16, 17)
Result
Appeals allowed; impugned judgment of the High Court set aside and the Trial Court's order of acquittal restored; appellants on bail need not surrender and their bail bonds stand discharged; pending applications disposed of.