Holding

Mere presence at the scene of a large riot, without specific evidence of participation or possession of weapons, does not establish that the accused were members of the unlawful assembly, and the High Court erred in convicting them.

Summary

The case arose from a large-scale riot in Vadod village where over a thousand people clashed, resulting in police firing and a stampede. Seven persons, including the appellants, were arrested on the spot and named in the FIR, while a total of nineteen were tried. The trial court acquitted all accused due to lack of specific evidence linking any of them to overt acts of rioting, noting that witnesses could not positively identify the appellants and no weapons or incendiary material were recovered. The Gujarat High Court reversed the acquittal of the appellants, holding that their arrest at the scene proved their participation in the unlawful assembly. The Supreme Court held that mere presence at the scene, without specific incriminating conduct, is insufficient to infer membership in an unlawful assembly, especially in a massive crowd, and set aside the High Court’s conviction, restoring the trial court’s acquittal.

Issues considered

Whether the High Court was justified in reversing the trial court's acquittal of the appellants.
Whether mere presence at the scene of a riot, without any overt act, suffices to constitute membership in an unlawful assembly under s.149 IPC.

Legislation cited

Indian Penal Code, 1860s. 143, s. 147, s. 149, s. 153, s. 295, s. 332, s. 436

Headnote

Issue for Consideration Whether the High Court was justified in reversing the judgment of acquittal passed by the Trial Court qua the appellants; whether in the facts of the case, mere presence of the appellants at the scene of crime, without anything further, was sufficient to of the unlawful assembly. Headnotes† Penal Code, 1860 – ss.143, 147, 153A, 295, 436, 332 – Large rioting crowd comprising of over a thousand people – Six accused-appellants arrested from the crime scene (originally 7 persons were arrested, one died during the trial)

Subjects

Unlawful assemblyRiotsGroup clashes involving large number of personsLarge rioting crowdCommon objectStampedeArrested on the spotAcquittalMere presence at the scene of crimePresence at the spotVicariously liableDestruction of propertyPlurality testSpecific overt actMembers of assembly carrying armsFiring of gunshot to disperse the crowdInnocent bystanderDeprived of libertyProhibitory ordersSpectatorAbsence of inculpatory roleAcquittal reversed

Judgment

[2025] 3 S.C.R. 904 : 2025 INSC 381

Dhirubhai Bhailalbhai Chauhan & Anr.
v.
State of Gujarat & Ors.
(Criminal Appeal No. 816 of 2016)
21 March 2025
[Pamidighantam Sri Narasimha and Manoj Misra,* JJ.]

Issue for Consideration
Whether the High Court was justified in reversing the judgment of
acquittal passed by the Trial Court qua the appellants; whether in
the facts of the case, mere presence of the appellants at the scene
of crime, without anything further, was sufficient to hold them as
members of the unlawful assembly.

Headnotes†
Penal Code, 1860 – ss.143, 147, 153A, 295, 436, 332 – Large
rioting crowd comprising of over a thousand people – Six
accused-appellants arrested from the crime scene (originally 7
persons were arrested, one died during the trial) – High Court
reversed their acquittal holding them to be part of the unlawful
assembly – Correctness:
Held: High Court erred in reversing the order of acquittal of the
appellants – 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 making
general statements without specific reference to the accused, or
the role played by him – 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 – Their
arrest from the spot is not a guarantee of their culpability – No
evidence that at the time of arrest they were carrying instruments
of destruction or any inflammable substance, etc, having potential
to cause damage to property or person – Except the statement of
PW-2 and PW4, which was rightly discarded by the High Court,
no specific evidence that the appellants indulged in any act of

* Author
[2025] 3 S.C.R. 905

Dhirubhai Bhailalbhai Chauhan & Anr. v. State of Gujarat & Ors.

incitement, mischief or violence – 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 – Impugned order set aside, order of the
Trial Court restored. [Paras 10, 14, 16-18]

Criminal Law – Riots/group clashes involving large number of
persons – Duty of Courts as regards bystanders – Bystanders
not to be convicted as a part of the unlawful assembly relying
upon the testimony of witnesses making general statements:
Held: 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 – In such type of cases,
the courts must be circumspect and reluctant to rely upon the
testimony of witnesses making general statements without specific
reference to the accused, or the role played by him – 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 – 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 – Courts have generally held the
accused vicariously liable, with the aid of s.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 – Very often 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 – 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 – Therefore,
in a situation like this, the Court ought to determine whether the
906 [2025] 3 S.C.R.

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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. [Paras 13, 14]

Case Law Cited
Busi Koteswara Rao & others v. State of Andhra Pradesh [2012]
9 SCR 1046 : (2012) 12 SCC 711; Nagarjit Ahir v. State of Bihar
(2005) 10 SCC 369; Masalti v. State of U.P. [1964] 8 SCR 133 :
AIR 1965 SC 202 : 1964 SCC OnLine SC 30; State of U.P. v.
Dan Singh [1997] 1 SCR 764 : (1997) 3 SCC 747 – referred to.

List of Acts
Penal Code, 1860.

List of Keywords
Unlawful assembly; Riots; Group clashes involving large number
of persons; Large rioting crowd; Common object; Stampede;
Arrested on the spot; Acquittal; Mere presence at the scene of
crime; Presence at the spot; Vicariously liable; Destruction of
property; Pluarity test; Specific overt act; Members of assembly
carrying arms or instruments; Firing of gunshot to disperse the
crowd; Innocent bystander; Deprived of liberty; Prohibitory orders;
Spectator; Absence of inculpatory role; Acquittal reversed.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
816 of 2016
From the Judgment and Order dated 05.05.2016 of the High Court
of Gujarat at Ahmedabad in CRLA No. 155 of 2006
With
Criminal Appeal No. 817 of 2016

Appearances for Parties
Advs. for the Appellants:
Alapati Sahithya Krishna, Pradhuman Gohil, Ms. Taruna Singh
Gohil, Rushabh N. Kapadia, Vikash Singh.
Advs. for the Respondents:
Ms. Ruchi Kohli, Sr. Adv., Ms. Swati Ghildiyal, Ms. Devyani Bhatt,
Ms. Srishti Mishra.
[2025] 3 S.C.R. 907

Dhirubhai Bhailalbhai Chauhan & Anr. v. State of Gujarat & Ors.

Judgment / Order of the Supreme Court

Judgment

Manoj Misra, J.

1. These two appeals impugn a common judgment and order of the High
Court of Gujarat at Ahmedabad1 dated 05.05.2016 passed in Criminal
Appeal No.155 of 2016 (State of Gujarat v. Dhirubhai Bhailalbhai
Chauhan & 18 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 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 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.

1 The High Court
2 The IPC
3 FIR
908 [2025] 3 S.C.R.

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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
[2025] 3 S.C.R. 909

Dhirubhai Bhailalbhai Chauhan & Anr. v. State of Gujarat & Ors.

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 complaint. They were arrested subsequently
by the investigating officer. Nothing is forthcoming on what
basis and on the basis of what evidence gathered during
the course of the investigation, original accused Nos.8 to
19 were arrested.
6.09. PW No.2 has stated that he has given complaint
before Vasad Police Station, however, investigating officer
has denied having complaint given by the PW No.2 on the
next day. He has admitted in the cross-examination that he
was shown as witness in another case i.e., Sessions Case
No.155 of 2002 with respect to similar incident, however,
in that case, he has been declared hostile. In the present
case, PW No.2 has identified some of the accused in the
Court, however, which is after 2 years of the incident.
He has stated that he had seen the incident and the
accused persons from the terrace and in the street light.
Considering the deposition of the PW No.2, we are of the
opinion that in the mob of 1000 to 1500 persons, he could
not have identified original accused Nos.8 to 19. Even his
deposition is full of material contradictions. He has stated
in his deposition that his statement was not recorded on
19/3/2002, however, investigating officer has categorically
stated that his statement was recorded on 19/03/2002.
Considering the deposition of the said PW No.2, we are
of the opinion that it is not safe to rely on the deposition
of the PW No.2 and convict the original accused Nos.8
to 19 relying on the deposition of PW No.2.
6.10. Similarly, on re-appreciating the entire deposition of
PW No.4 – Roshansha Bafatisha, we are of the opinion
that he cannot be said to be eye witness to the incident
and it is not safe to rely on his deposition and convict the
original accused Nos.8 to 19 relying on the deposition of
PW No.4. He has named some persons who were not
even arraigned as accused. Under the circumstances
and on appreciation of the entire evidence on record, we
910 [2025] 3 S.C.R.

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are of the opinion that the prosecution has failed to prove
the presence of the original accused Nos.8 to 19 at the
time commission of the offence and they being part of the
mob and/or members of the unlawful assembly. Under the
circumstances, the learned trial court has not committed
any error in acquitting the original accused Nos.8 to 19.”
6. However, in respect of accused nos. 1 to 5 and 7 (the appellants
herein), the High Court observed that since they were arrested on
the spot and were also named in the FIR, their presence at the
scene of crime stood proved beyond reasonable doubt and since
rioting and destruction of property has been proved, they being part
of the unlawful assembly were liable to be convicted. To hold their
presence at the spot, the High Court also relied on a suggestion
given by the defense counsel to the prosecution witnesses that the
accused were caught while they were trying to douse the fire.
7. We have heard Mr. Alapati Sahithya Krishna for the appellants;
Ms. Ruchi Kohli for the State; and have perused the record.

Submissions on behalf of the appellants
8. The learned counsel for the appellants submitted that the incident
was an aftermath of events at Godhara. Admittedly, the rioting was
on a public street of a village, where presence of villagers, such
as the appellants, is natural and, therefore, on basis of their mere
presence, without anything further, they cannot be held to be a part
of the unlawful assembly. Otherwise, there is no reliable evidence
attributing any overt act to the appellants to indicate that they were
part of the unlawful assembly. Further, the only witness in that regard,
namely, PW-2, was discarded not only by the Trial Court but also
by the High Court. In these circumstances, there was no occasion
for the High Court to reverse the decision of the Trial Court. More
so, when it was a judgment of acquittal.

Submissions on behalf of the State
9. Per contra, the learned counsel for the State submitted that in a case
of rioting, it is extremely difficult to particularize as to which person
did what. Therefore, if the presence of the accused at the scene of
the crime, as part of the mob, is proved that alone is sufficient to
record conviction. Since the High Court found the presence of the
[2025] 3 S.C.R. 911

Dhirubhai Bhailalbhai Chauhan & Anr. v. State of Gujarat & Ors.

appellants duly proved, in absence of cogent explanation by the
accused regarding their presence at the scene of crime, the order
convicting them cannot be faulted.

Analysis
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 [2025] 3 S.C.R.

Supreme Court Reports

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

4 Busi Koteswara Rao & others v. State of Andhra Pradesh (2012) 12 SCC 711, paragraph 11.
5 Nagarjit Ahir v. State of Bihar (2005) 10 SCC 369, paragraph 14.
[2025] 3 S.C.R. 913

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

6 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
7 Masalti v. State of U.P. (supra)
914 [2025] 3 S.C.R.

Supreme Court Reports

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