'Mere presence or arrest from spot not sufficient': SC acquits 6 men in post-Godhra riots case

New Delhi: The Supreme Court on Friday set aside the Gujarat High Court's 2016 judgment reversing the acquittal of six persons in a post-Godhra 2002 riots case, holding that mere their presence 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.

A bench of Justices P S Narasimha and Manoj Misra restored the trial court's 2003 judgment, acquitting them, noting in absence of any inculpatory role, their arrest on the spot was not conclusive of their involvement in the incident on February 28, 2002 at Vadod, particularly when neither instrument of destruction nor any inflammatory material was seized from them.

The court noted police resorted to firing causing people to run helter skelter. In that chaos, even an innocent person may be mistaken for a miscreant. Thus, appellants’ arrest from the spot is not a guarantee of their culpability, it said.

The bench explained in group clashes, 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 him, the bench said.

The court pointed out, 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. 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," the bench said.

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, it said.

The court pointed out, 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, they said.

"The view to the contrary taken by the High Court is completely unjustified. More so, while hearing an appeal against an order of acquittal, the bench said.

Dhirubhai Bhailalbhai Chauhan, and five others were sentenced to one year jail term in the incident where a mob was reported to have surrounded a graveyard and a mosque at village Vadod. All the appellants accused were arrested from the spot. The trial court had acquitted all 19 accused but the High Court convicted six of them. One accused had died during the pendency. Seven persons including the appellants were named in the FIR.