Partha Pati and Sanjana Sinharoy of Abhay Nevagi and Associates in Pune explain the cases and facts to bear in mind in riot prosecutions.
Recently, a controversial post on a social networking site sparked violent protests in Pune, leading to several days of unrest and disorder in the city. Scores of buses and other property were damaged during the bandh, causing Special Forces to be deployed to maintain peace.
While many were injured in stone pelting, one Mohsin Shaikh, a resident of Hadapsar, was allegedly beaten to death with hockey sticks on Monday night, on his way home.
The reason for such a clash may appear to be superficial; nonetheless, this incident too, shall become another illustration of the difficulties that riots and mob outbreaks pose for the legal system. For Courts and lawyers, the problems posed by a riotous crime begin with the struggle in determining, with clarity and corroboration, as to who did what. Assembling evidence to ascertain an individual's participation amid the chaos of a riot becomes an extremely tedious and layered process.
The complexity here lies in trying to fit one’s actions within the closely defined categories and degrees of criminal culpability as opposed to if he had committed a crime just by himself.
In a situation such as this, with the events being so chaotic and the lack of precision of human observations, it becomes an enormously uphill task to assign culpability in a manner which may permit a prosecutor to prove a case beyond a reasonable doubt. On the other hand, there is valid fear that people with minor or no participation, owing to their presence at the scene, may be unfairly charged with equal gravity.
There are several factors which are to be taken into account in such matters, including the nature of the trial, whether or not there was use of violence, authenticity of a testimony of witnesses, existence of common object, liability and extent of culpability of each accused. Courts, however, through their judgments, have provided guidelines on the manner of appreciation of evidence in riot cases.
Trial: joint or separate?
The discretion remains with the Court whether to order a separate or a joint trial depending upon which of the two would better serve the purpose of justice in riot cases. Generally, every person is entitled to insist that his case be tried separately. However, Section 223(a) of the Code of Criminal Procedure, 1973 provides that persons accused of the same offence, committed in the course of the same transaction, may be charged and tried together. Courts may consider it convenient to dispose of such cases in a single judgment, depending upon the nature of the incident or where evidence on record is essentially the same against all accused, or where the incident took place in the course of the same transaction.
The Court, in the case of Bhanwarlal And Ors. vs State Of Rajasthan (1993) held that “Where a number of people have been jointly tried, the court should consider the evidence against each of the accused separately and give definite findings against the presence of each.”
Similarly, in the case of Garib Singh and others vs State of Punjab (1973), the Court held that “In case of rioting, where a number of men are accused, the magistrate should deal with the case of each of the accused separately or discuss the evidence against of each of the accused, especially when the evidence against each of the accused is by no means equally strong.”
Use of violence
As provided under Section 146 of the Indian Penal Code, 1860, a riot is simply an unlawful assembly in a particular state of activity, that activity being accompanied by the use of force or violence. It is this use of force or violence that distinguishes rioting from an unlawful assembly.
The word ‘Violence’ in this context is not restricted to force used against persons only but it extends also in force used against inanimate objects. Thus, if an unlawful assembly came together to for the purpose of pulling down a house or a shop or destroying any other property, it would be enough to show that violence was used.
Testimony of witnesses
It is an established fact that witnesses form a key ingredient in a criminal trial and it is the testimonies of these very witnesses, which establishes the guilt of the accused.
In recording evidence in riot cases, care should be taken to determine, as far as possible, the actual part played by each accused. The possibility of innocent persons being falsely implicated should be always borne in mind.
The following principle was laid down by the Supreme Court in the case State of Uttar Pradesh vs Dan Singh (1997) ‘In case of rioting, where there are a large number of assailants as well as witnesses, it is but natural that the testimony of the witnesses may not be identical. What has to be seen is that whether the basic features of the occurrence have been similarly viewed or described by the witnesses in a manner which tallies with the outcome of the riot.’
Just because there may be some inconsequential contradictions or exaggeration in the testimony of eye witnesses, that should not be a ground to reject their evidence. The rule of prudence requires that courts should insist on plurality of eye witness account”
The Supreme Court gave a similar view that ‘in such matters, it is usual to adopt the test that the conviction could be sustained, if it is supported by two, three or more witnesses who give a consistent account of the incident’ as was held in the case of Krishnegowda vs State of Karnataka (2000).
Was there a common object?
A charge of rioting presupposes the existence of an unlawful assembly with a common object as defined in Section 141 of the IPC. The crucial fact for determination of culpability is the existence of common object among the members and whether they were actuated by it. Generally, no direct evidence being available to prove the existence of common object, it becomes a question of fact to be determined. This has to, in each case, be ascertained from the attending facts and circumstances viz. language of the members, their actions, course of conduct, signs, gestures and finally whether the death was caused as a result of the injuries inflicted by them.
In such cases, common object need not require prior concert before the incident and may even be formed on the spur of the moment. The Supreme Court, in the case Amzad Ali and others vs State of Assam (2003) explained that the common object could have developed eo instanti after the assembly gathered and before the commission of crime.
In Ramjanam Pandey vs State of Bihar (1993), the Supreme Court stated “it is well settled that common object has to be inferred from various factors like the weapons with which the members were armed, their movements, the acts of violence committed by them and from the results thereof”.
Who is to be held culpable?
By virtue of Section 149 of the Indian Penal Code 1860, the basis of constructive guilt is the mere membership of an unlawful assembly. The section creates constructive or vicarious liability of the members of the unlawful assembly for unlawful acts committed pursuant to the common object by any other member of the assembly.
The principle of this Section has been explained by the Supreme Court in the case Lalji and Others v/s State of Uttar Pradesh (1989) “Section 149 creates a specific and distinct offence. Once the Court holds that certain accused person formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, every person who at the time of committing of the offence was a member of the same unlawful assembly is to be held. After such a finding, it would not be open to the Court to see as to actually did the offensive act or require the prosecution to prove who which of the members did which of the offensive acts. The prosecution will have no obligation to prove it.”
If several persons assault the victim, it is not necessary that the death of the victim must be attributed to a particular injury of a particular accused. The death could be a cumulative effect of the injuries sustained by the deceased victim resulting in his death. (Nand Kishore Prasad v. State of Bihar (2000))
It is also well settled that if the death had been caused in prosecution of the common object, it will not be necessary to record a definite or specific finding as to which particular accused out of the members of the assembly caused the fatal injury. (Munivel v. State of Tamil Nadu (2006))
However, mere presence of a person in a place where the members of the unlawful assembly had gathered for carrying out their common object does not incriminate him. The presumption of innocence would preclude such a conclusion. Whether a person was or was not a member of such unlawful assembly is a question of fact.
It must be relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and were present there as a result of idle curiosity without intending to entertain the common object of the assembly. The question here is, whether such persons were innocently present at the place of occurrence, were they harmless spectators or were they actually members of the assembly.
Is an overt act necessary?
The commission of an overt act is certainly evidence against the accused, however the converse may not always be true. It is not necessary that all persons part of the assembly must perform an overt act. The accused cannot put forward the defense that he did not, with his own hands, commit the offence. It must be taken that everyone intended the probable results of the combination of the acts of which he was also a part thereby creating a vicarious liability upon each the member of the assembly irrespective of whether he was acting in concert and has participated in the criminal act or not.
As in the case Kashthurirangam In re (1970), it was held “Active participation in actual violence is not necessary. Some may encourage by words, others by signs and others again may actually cause hurt and yet all would be equally guilty of rioting”
The Supreme court in Mannam Venkatadari and Others v/s State of Andhra Pradesh (1971) observed that while an overt act and active participation may indicate common intention of the persons perpetrating the crime, a mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149.
Definite roles need not be ascribed to accused persons. Likewise, in Gangadhar Behera & Others v/s State of Orissa (2002) it has been stated that “Even if no overt act is imputed to a particular person when the charge is under Section 149, the presence of the accused as part of an unlawful assembly is sufficient for conviction.
It is essentially difficult to prove concepts such as ‘liability’ and the ‘acting in concert’ in a mob situation. Such concepts, which are absolutely crucial in determining culpability, are challenging enough to apply in an organized crime, but prove to be particularly tougher to ascertain in a riotous state of affairs.
The fact that criminal law focuses on the intent to commit a crime, when a mob acts, it becomes extremely difficult to specifically attribute culpability to any individual members. In deciding such matters, reference must be sought to the decision of the Supreme Court in the landmark case of Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others (2004), better known as the ‘Best Bakery Case’ where it was observed as follows “Ultimately, the duty of the Court is to arrive at the truth and sub serve the ends of justice”.
Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny.
Partha Pati and Sanjana Sinharoy are, respectively, senior associate and associate at Abhay Nevagi and Associates in Pune