1. The appellants in two appeals who were A-1 (Ismail @ Barafwala Latifbhai), A-5 (Usmangani alias Bhura Abdulgafar) and A-13 (Yunusmohammed Chandmohammed Shaikh) in the sessions trial have been convicted under Sections 396, 395, 307, 435 and 201 read with Section 149 of the Indian Penal Code and sentenced to undergo life imprisonment by the learned trial Court. In appeal, the High Court while maintaining the conviction altered the sentence to one of rigorous imprisonment for ten years. The aforesaid accused are in appeal before this Court.

2. The prosecution case, in short, is that on 17-11-2003 between 9:00 a.m. to 11:00 a.m. a crowd of about 1000-1500 people formed themselves into an unlawful assembly and had attacked people and public property. As a result of the aforesaid acts death of one Mukesh had occurred; damage to a scooter and a state transport bus was caused and a gold chain of one Gitaben Bhailalbhai (Pw-2) valued at Rs.5000/- was snatched. One Baldev Gangaram (PW-1) sustained injuries whereas one Ajay Vasantlal Shah (PW-13) also sustained injuries besides suffering damage of the scooter that he was riding with his pillion rider Mukesh who was taken away by the mob. The dead body of Mukesh was recovered after four days of the incident.

3. Two principal questions have to be answered in the present appeals. The first is with regard to the veracity of the prosecution evidence on identification of the accused and the second is their liability for the offence alleged to have been committed with the aid of Section 149 of the Indian Penal Code.

4. Though several prosecution witnesses were examined to prove the identity of the accused as members of the unlawful assembly, the learned trial court believed Pw-25 (Arifkhan) and PW-26 (Sachinbhai Maljibhai Patel). No Test Identification parade was conducted so far as accused Nos.1 and 5 are concerned whereas in a Test Identification Parade held the two witnesses i.e Pws-25 and 26 had identified accused No.13. According to PWs-25 and 26 they have been attached to local police Chowki. They, therefore, knew a lot of people of the neighborhood. PW-25 has also stated that so far as the accused No.5 is concerned, he knew him from the before because both of them used to visit the same Dargah.

5. On a careful consideration of the evidence adduced by PWs-25 and 26, we are left with serious doubt as to whether the evidence of the said two witness should inspire the confidence of the Court. Identification of a total of 13 accused, who were sent out for trial including present accused-appellants, in a mob of 1000- 1500 people is by no means an easy task. Over and above that no Test Identification Parade was held so far as accused Nos.1 and 5 are concerned. The prosecution has not offered any explanation as to why no Test Identification Parade was held in respect of A-1 and A-5 whereas a Test Identification Parade was held in respect of A-13.

6. Insofar as the liability of the accused with aid of Section 149 IPC is concerned on the evidence on record we have grave doubt as to whether the accused-appellants were members of the unlawful assembly as alleged by the prosecution. Admittedly no overt act or participation in the acts of rioting, violence, damage to property etc. has been attributed to any of the accused-appellants by the prosecution witnesses. While the prosecution witnesses have specifically deposed about stone pelting by members of the unlawful assembly no such act is attributed to any of the accused. No evidence has been led by the prosecution to show any connection between the death of Mukesh; the injuries sustained by PW-1 and PW13 or the snatching of the gold chain of PW-2 and the accused-appellants. Mere presence of the accused-appellants at the scene of the crime will not make the accused-appellants members of the unlawful assembly. Much less a common object to do a criminal act can be attributed to the accused-appellants. The prosecution to sustain the charge had to rule out that the accused-appellants were not mere bystanders or people who happened to be just present at the scene of the crime. Dealing with a similar situation, this Court in Musakhan and Ors. Vs. State of Maharashtra AIR 1976 SC 2566 [LQ/SC/1976/369] had observed :

“5. xxxxx

It is well settled that a mere innocent presence in an assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly. Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, 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 these stages. Such an evidence is wholly lacking in this case where the evidence merely shows that some of the accused were members of the unlawful assembly at one particular stage but not at another.

7. In the light of the discussions above, we unhesitantly come to the conclusion that the prosecution has failed to prove the charge against the accused-appellants. The conviction recorded and the sentence imposed, therefore, is set aside. The order of the High Court is interfered with and the appeals are allowed. Such of the accused-appellants who are in custody shall be set at liberty forthwith whereas the accused-appellant No.1 who stated to be on bail, his bail bond shall stand discharged.