These are extract from a Bail Order where a whole lot of people have been incarcerated for allegedly rioting. BA3014-2024+.DOC
…2. Briefly stated, the prosecution case runs as under: On the eve of the consecration of Lord Ram, at Ayodhya, on 21st January, 2024, Vinod Jaiswal, the first informant and his family members and relatives attended a devotional hems(bhajan) function. Thereafter, the first informant and his family members, relatives and friends proceeded for a drive in 3 to 4 four wheelers and 10 to 15 two wheelers… When the convoy reached in front of the McDonald’s on the way to Silver Park Road, there was a huge traffic jam. They decided to return home and took a U-turn.
On the way home, they again faced huge traffic near Shivar Garden. A motorcyclist who was plying in front of the first informant took a turn towards Lodha Road. …
3. A mob of 50 to 60 persons armed with rods, sticks, batteries and weighing scales surrounded the first informant and his associates… …
4. The first informant lodged a report against 50 to 60 unknown persons. … On the basis of the images captured by CCTV, the investigating agency could identify the persons, who were the members of the said unlawful assembly.
…
…the broad submissions on behalf of the applicants
(i) the incident had occurred at the spur of the moment. There was no premeditation.
… as there was huge traffic on both the flanks of Golden Nest Circle to Silver Park Road, the convoy of the informant party proceeded towards Lodha Road,
… the residents of the locality, where the incident occurred, had no inkling that the informant party would enter the said road.
(ii) since the first informant and the injured had not known the accused from before and there was a huge mob, which had allegedly accosted and attacked the informant party, there is no material to connect the applicants with the alleged offences.
… Reliance on the identification of the accused in the Test Identification Parade was stated to be infirm for two reasons. One, the Memorandums of Test Identification Parade simply record that a particular witness identified a particular accused without attributing any role or part played by that accused. Such identification without ascribing any particular role is of no assistance.
Two, there was delay of over a month is holding Test Identification Parade.
(iii) most of the accused are the residents of the said locality, their mere presence at the scene of occurrence, by itself, is not sufficient to implicate them by invoking the principle of constructive criminality.
…Reliance on the CCTV footages to fix the identity of the accused is also unsustainable as, at the most, the CCTV footages show the presence of few accused at the time and place of the occurrence. In the absence of a particular overt act attributable to a particular accused, his mere presence at the
scene of occurrence does not incriminate him.
(iv) the applicants cannot be roped in by invoking Section 149 of the Penal Code as the prerequisites to invoke constructive criminality thereunder have not been
fulfilled.
(v) the complicity of the applicants as the members of the unlawful assembly in prosecution of the common object of which the alleged offences were committed may be required to be appreciated in
the light of the then prevailing circumstances and fractious atmosphere. …according to the prosecution, a huge mob had indulged in rioting, without evidence of any overt act, cannot be a sustainable ground to deprive the personal liberty of the applicants, who are in custody for almost a year.
(vi) there is not a shred material to show that there was an attempt to commit murder.
. Mr. Mhatre, the lAPP, urged that …a huge mob of persons charged upon the members of the informant party … the vehicles were damaged by means of dangerous weapons… the first informant and the injured were assaulted. The utterances and exhortations of the accused party also reflect the object … The flags and the stickers on the vehicles bearing the images of the deities were desecrated.
(ii) on the aspect of identification … the victims were scared for their life. …therefore, their inability, …to state the exact role played by each of the accused
…In such a grave situation, the victims may miss to identify few of the perpetrates. it is trite law that no overt act is required qua each member of the unlawful assembly to invoke constructive criminality. At the heart of the constructive liability is the existence of a common object, The Supreme Court in the cases of Yunis alias Kariya etc. vs. State of MP1 and State of Maharashtra vs. Kashirao and others2.
(iv) (On) Existence of an injury, much less a fatal injury, is not a sine qua non for an offence punishable under Section 307 of the Penal Code.
1 AIR 2003 SCC 539.
2 AIR 2003 SCC 3901.decision of the Supreme Court in the case of State of MP vs. Saleem alias Chamaru and another3.
(v) that there was no premeditation as the informant party had entered Lodha Road unannounced, is belied by the swiftness with which a huge mob of more than 50 to 60 persons assembled armed with deadly weapons. From the exhortations of the members of the unlawful assembly, it becomes evident that the objection of the accused party was to the very passage of the informant party from the said
locality. Reliance was placed on an order passed by Madras High Court in the case of Ramasamy Udayar vs. The District Collector and others4, wherein it was observed that merely because one religious group is dominating in a particular locality, it cannot be a ground to prohibit celebration of religious festivals or procession of other religious groups through those roads.
-
Undoubtedly, overt act by each of the members of the unlawful assembly is not an essential ingredient of the constructive criminality under Section 149 of the Penal Code. Nonetheless, there ought to be prima facie material to show that the particular accused was a member of the unlawful assembly and either shared the common object in prosecution of which the offences were allegedly committed or knew that such offences were likely to be committed.
An inference as to whether a particular member was actuated by and animated with such common object can be drawn on the basis of the manner in which the offending acts were perpetrated, the weapons with which the members were armed and the utterances and exhortations by the members. -
in the case of Masalti vs. The State of UP5 … the Supreme Court enunciated that what has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly, and he entertained alongwith the other members of the assembly, the common object as defined by Section 141 I.P.C. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly.
-
In the case of Taijuddin vs. State of Assam the Supreme Court observed that the Court must
guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. There must be reasonable direct or indirect circumstances which lend assurance to the prosecution case that they shared common object of the unlawful assembly. It must be proved in each case that the person concerned was not only a member of the unlawful
assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. This has to be based on the conduct of the members and the behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. -
In the light of the nature of the injuries suffered by the members of the informant party, the claim of the prosecution witnesses that a number of members of unlawful assembly simultaneously assaulted the members of the informant party armed with multiple weapons may warrant appreciation at the trial.
-
. Undoubtedly, a bodily injury sufficient to cause death is not an ingredient of an offence punishable under Section 307 of the Penal Code.
Reliance placed by Mr. Mhatre on the decision of the Supreme Court in the case Saleem alias Chamaru (supra) is impeccable. In the facts of the case at hand, the pivotal question which would warrant adjudication at the trial would be whether each of the applicants shared the common object
to commit the offence punishable under Section 307 of the Penal Code.
-
Prima facie, it does not appear that in the CCTV cameras have captured any of the applicants
assaulting the first informant by means of the knife, as alleged, or for that matter, any of the injured witnesses. That brings to the fore the question of constructive criminality. -
the identification of the accused by the prosecution witnesses does not appear to be with reference to the role of the particular identified accused in the alleged occurrence.
…the weight to be attached to the mere identification in the Test Identification Parade, sans ascribing a particular role, are matters for trial. -
where a huge mob has allegedly indulged in rioting and there are a number of victims/injured…as a rule, it is the quality and not quantity of evidence that matters, the plurality of evidence and element of corroboration are looked for, as a matter of caution. Where the guilt of the accused would
hinge upon their identity as the members of the unlawful assembly, who shared the common object to commit the alleged offences, their further detention as under-trial prisoners appears tenuous. -
As regards, Abu Shema Abubakar Shaikh (A21), the applicant had posted a video containing
comments which had the propensity to promote enmity between different groups on the grounds of religion and were prejudicial to maintenance of harmony… There is no material to indicate that the applicant was a member of the unlawful assembly .(.at Lodha Road. )
2…the applicant has already been arraigned in CR No.35/2024, and was released on bail. Prima facie the said post does not give any indication of conspiracy.
So far as the statement of Abdul Qureshi, it is suffice to note Abdul Qureshi has not been arraigned as an accused though he claimed to have indulged in the rioting. Issues of admissibility and reliability of the evidence of Abdul Qureshi who prima faice appears to be privy to the alleged offences, and Mohammad Muslim Chauhan, who can be said be the person before whom, Abu Shema Abubakar Shaikh (A21), allegedly made an extra-judicial confession, would be matters for trial. Likewise the admissibility and reliability of the transcript of the audio recording of the conversation between
Abu Shema Abubakar Shaikh (A21) and Mohammad Muslim Chauhan would be matters in issue.
27. The aforesaid consideration, as regards the Evidently, the investigation is complete for all intent and purpose. The applicants appear to have roots in society to tie them down to their place of abode
and avocation. Possibility of fleeing away from justice appears remote.
The further detention of the applicants as under-trial prisoners thus appears unwarranted. I am, therefore, inclined to exercise the discretion in favour of the applicants.