Mere Presence in Riot Not Proof of Unlawful Assembly

Dhirubhai Bhailalbhai Chauhan and Kiritbhai Manibhai Patel and other accused were charged after a case of 28.02.2002 in which a mob gathered outside a graveyard and a mosque in Vadod village. Following a first information report (FIR) filed by a police officer, it was claimed that the police were stoned by the mob, causing damage and injuries, and the police used tear gas and guns to drive them away, and in the process arresting some on the spot. Thereafter, a charge sheet was filed against 19 individuals.

The Trial Court acquitted all 19 accused on grounds of stereotypical police witness depositions, failure to identify particular accused, inconsistencies in eyewitness testimony, and failure to recover any incriminating material from the arrested persons. The High Court, on appeal, confirmed the acquittal of 12 accused but partly overruled the Trial Court's decision, sentencing the appellants (accused nos. 1 to 5 and 7) for crimes under sections 143, 147, 153 (A), 295, 436 and 332 of the Indian Penal Code (IPC), mainly because they were arrested at the spot and mentioned in the FIR.

The Supreme Court granted the appeals made by Dhirubhai Bhailalbhai Chauhan and others, overruling the High Court's decision and reinstating the acquittal of the Trial Court. The Supreme Court noted that the rioting was at night without a curfew, and the mob was extremely large (over a thousand), resulting in a stampede when the police moved in. While the appellants were detained at the time of the arrest and included in the FIR, the prosecution could not supply convincing evidence of what they had specifically done prior to arrest, by whom they were arrested, or from where exactly. Crucially, no devices of destruction or flammable material was seized on the appellants upon their arrest. The Supreme Court also agreed with the High Court dismissal of the testimonies of PW-2 and PW-4 as unconvincing.

The Apex Court considered that presence in a large mob in one's own village and without any visible act or even possession of arms is not enough to conclude membership of an unlawful assembly. The defense counsel's suggestion regarding the accused attempting to extinguish the fire, in as much as it proved their presence, did not necessarily constitute their membership in the unlawful assembly. The Supreme Court held that the High Court was not justified in reversing the acquittal simply on the fact of the presence and arrest of the appellants at the place, particularly where no particular incriminating role was assigned to them.

The Apex Courts observed that the courts have an important role in ensuring that innocent bystanders are not convicted in cases of mass group clashes, and further the court must exercise prudence in acting on broad statements of witnesses without particular details regarding the accused or their function.

The presence of villagers on a public street during a riot in their village, in the absence of a curfew, is natural and does not render them members of an unlawful assembly.

To establish a person as a member of an illegal assembly, particularly when they are locals of the concerned area and are not apprehended with weapons, there must be cogent evidence reflecting on their active involvement or instigation of the mob.

Merely arrest at the site of a riot, especially in situation of confusion involving police firing and a stampede, does not necessarily entail culpability or establish one as a member of an illegal assembly.

A suggestion by defense counsel on cross-examination may be utilized for establishing presence but cannot by itself be the sole basis for inferring guilt or membership in an illegal assembly.

Coram: Justice Pamidighantam Sri Narasimha and Justice Manoj Misra
Between: DHIRUBHAI BHAILALBHAI CHAUHAN & ANR VS STATE OF GUJARAT & ORS. 2025 INSC 381
Date of Judgment: 21-03-2025