IMPORTANT POINT
Rioting – In cases of group clashes where a large number of persons are involved, onerous duty is cast upon courts to ensure that no innocent bystander is convicted and deprived of his liberty – Where 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 – Appellants’ arrest from spot is not a guarantee of their culpability.

JUDGMENT :

MANOJ MISRA, J.

1. These two appeals impugn a common judgment and order of the High Court of Gujarat at Ahmedabad¹ [The High Court] dated 05.05.2016 passed in Criminal Appeal No. 155 of 2016 (State of Gujarat vs. Dhirubhai Bhailalbhai Chauhan and 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 [The IPC] 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 [FIR] 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 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 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 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 complain