Paragraph numbers below are the court’s original numbering, recovered from the source text.
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: (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 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 912 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 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.
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 test, that is, the conviction could be sustained only if it is Busi Koteswara Rao & others v. State of Andhra Pradesh (2012) 12 SCC 711, paragraph 11. Nagarjit Ahir v. State of Bihar (2005) 10 SCC 369, paragraph 14. [2025] 3 S.C.R. Dhirubhai Bhailalbhai Chauhan & Anr. v. State of Gujarat & Ors. 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, 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. 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 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 Masalti v. State of U.P. (supra) 914 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 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.
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. Result of the case: Appeals allowed. †Headnotes prepared by: Divya Pandey