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.
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