Dhirubhai Bhailalbhai Chauhan vs The State Of Gujarat

2025 INSC 381 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.816 OF 2016

DHIRUBHAI BHAILALBHAI CHAUHAN & ANR. …APPELLANT(S)

VERSUS

STATE OF GUJARAT & ORS. …RESPONDENT(S)

WITH CRL.A. NO.817 OF 2016

KIRITBHAI MANIBHAI PATEL & ORS. …APPELLANT(S)

VERSUS

THE STATE OF GUJARAT …RESPONDENT(S)

JUDGMENT

MANOJ MISRA, J.

1. These two appeals impugn a common judgment and

order of the High Court of Gujarat at Ahmedabad1 dated Signature Not Verified Digitally signed by NAVEEN D Date: 2025.03.21 1 The High Court 17:41:16 Reason:

IST

Crl. A. Nos.816/2016 & 817/2016 Page 1 of 17 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

Crl. A. Nos.816/2016 & 817/2016 Page 2 of 17 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

Crl. A. Nos.816/2016 & 817/2016 Page 3 of 17 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 cross-

examination, 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

Crl. A. Nos.816/2016 & 817/2016 Page 4 of 17 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 cross- examination 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

Crl. A. Nos.816/2016 & 817/2016 Page 5 of 17 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

Crl. A. Nos.816/2016 & 817/2016 Page 6 of 17 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

Crl. A. Nos.816/2016 & 817/2016 Page 7 of 17 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:

Crl. A. Nos.816/2016 & 817/2016 Page 8 of 17

(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

Crl. A. Nos.816/2016 & 817/2016 Page 9 of 17 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 accused-

appellants 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

Crl. A. Nos.816/2016 & 817/2016 Page 10 of 17 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.

Crl. A. Nos.816/2016 & 817/2016 Page 11 of 17

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.

Crl. A. Nos.816/2016 & 817/2016 Page 12 of 17 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.6

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)

Crl. A. Nos.816/2016 & 817/2016 Page 13 of 17 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.

Crl. A. Nos.816/2016 & 817/2016 Page 14 of 17 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

Crl. A. Nos.816/2016 & 817/2016 Page 15 of 17 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.

Crl. A. Nos.816/2016 & 817/2016 Page 16 of 17

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

Crl. A. Nos.816/2016 & 817/2016 Page 17 of 17