Force or violence
The word ‘force’ which has been defined under section 349 of the Code clearly explains the word in the context of causing motion, change of motion or cessation of motion with respect to human body, and therefore, the same meaning is intended in this section as well. But the word ‘violence’ has nowhere been defined by the Code. It includes use of force with respect to property or an inanimate object.
Force or violence, as per the definition, must always be used in prosecution of the common object of the unlawful assembly. If such is not the case, conviction for rioting cannot be maintained. The quantum of the force or violence may be less or more. It is not necessary that the force or violence should be directed against any specific person or property. Force or violence must have been ‘used’ and, therefore, mere show of either does not make one guilty under this section. Use of force or violence, and causing a particular effect are distinct.
Therefore, as soon as the former is proved, guilt under this section is established. If a particular effect is also punishable under the Code, the liability for causing that effect will be additional. For instance, if by use of force and violence injury to body and damage to property both have been caused, liability will extend for the offence of rioting as well as for causing bodily injury and damage to property under respective sections of the Code.
Where some Hindus forcibly took away an ox and two cows from the possession of a Mohammadan, not with the intention of causing wrongful loss to him but with the object of preventing them from being slaughtered, it was held that the Hindus were guilty of the offence of rioting.
On the other hand, on similar facts, where the individual accused took away a buffalo from its owner without his consent with a view to prevent it being killed, it was held that the accused was guilty of theft as his intention was to cause wrongful loss to the owner. In still another case, where some Hindus, apparently under religious belief, attacked certain Mohammedans who were driving cattle, and forcibly took away the same. It was held that they were guilty of dacoity and not merely of rioting.
Where the deceased was in possession of a disputed land and had cultivated paddy over it, and the accused in the exercise of his supposed right went there along with some other persons armed with deadly weapons, asserted that the disputed land was his, and attacked the deceased and others, it was held that all of them were guilty of rioting as well as for the offences they had committed in prosecution of their common object under section 149 of the Code.
In cases of sudden quarrels between two groups of people the courts generally hesitate to hold the accused persons guilty of rioting because of the doubt as to whether there existed a common object at all between them. Where on a sudden quarrel three accused persons started beating the deceased while the other three kept on abusing him, it was held that mere presence of these other three persons did not prove that they shared the common object, and consequently conviction for rioting could not be maintained.
Similarly, where one of the accused persons started inflicting blows on another as a remonstrance while the others followed him, on a sudden quarrel, it could not be held that they were acting in prosecution of common object, and thus they could not be held guilty of rioting.
Conviction of less than five persons
A matter which has come up before the courts frequently has been as to whether less than five persons could be convicted for the offence of rioting.
Following five situations may arise in this respect:
1. Where the total number of members of the unlawful assembly is proved and also participation of the accused persons being convicted is proved, their conviction is legal. For instance, where the prosecution proves that there was an unlawful assembly of seven persons out of whom A, Â and Ñ were definitely present when force or violence was being used by the assembly, but who were the others is uncertain, conviction of A, Â and Ñ for rioting is good.
2. Where the exact number of members of the unlawful assembly is not proved beyond doubt but participation of the accused persons being convicted is proved, their conviction will be bad. For instance, where the prosecution fails to prove the exact numbers of members of an unlawful assembly but proves beyond doubt that A, Â and Ñ were definitely present when force or violence was being used by the assembly, conviction of A, Â and Ñ will be bad because how many persons constituted the assembly is doubtful. There may, however, be a difference of opinion in this regard because some people may argue that the prosecution has proved the existence of an unlawful assembly and has also proved that A, Â and Ñ were definitely there at the time of using of force or violence and so their conviction should be good.
3. Where all the participants are named and only they, and no others, were the members of the assembly when force or violence was used, then conviction of less than five members will be bad. For instance, if the prosecution proves that À, Â, C, D, E, F and G only, and no other, were members of an unlawful assembly out of whom A, Â and Ñ were definitely there at the time force or violence was used but who were the others with them is not proved, the conviction of A, Â and Ñ for rioting will be bad and they along with all others have to be acquitted. The reason for this is that on the one hand the prosecution says that these seven persons only, and no others, constituted the assembly while on the other hand it fails to prove the case against D, E, F and G, meaning thereby that it fails to prove the existence of an unlawful assembly consisting of A, Â and Ñ along with the above four, thus contradicting itself.
4. Where the less than five persons being convicted are not public servants and their presence is proved beyond doubt by the prosecution while all other members of the assembly are public servants and sanction for their prosecution has not been given by the appropriate authority and as such no case has begun against them. In such a situation, the conviction of those less than five persons for rioting is good. For instance, A, Â and C, who are not public servants, are being prosecuted along with D, E, F and G, who all are public servants, for rioting. No case begins against D, E, F and G because the appropriate authority does not give sanction for their prosecution. Here conviction of A, Â and Ñ will be good if the prosecution proves that they were definitely members of the assembly at the time of using of force or violence.
5. If the prosecution has proved the case against the less than five persons being convicted that they along with others had committed rioting, but the other persons die during the pendency of the case before a final verdict is given by the court. In such a situation, the conviction of less than five persons will be legal. For instance, if the prosecution proves that À, Â, Ñ along with D, E, F and G were guilty of committing the offence of rioting but during the pendency of the case before a final verdict is given by the Court D, E, F and G die, the conviction of A, Â and Ñ will be legal.
It has been held in Vijayan v. State, that even though some of the accused persons were acquitted, if the court concludes that the convicted person or persons and some others, known or unknown, were members of unlawful assembly, then the known person or persons could be held guilty of rioting.
On the other hand, in Baira alias Bairagi Mohanty v. State, since the evidence was not as mentioned above, the conviction for rioting was held to be bad in law.
Where fourteen out of the fifteen accused persons had been acquitted, and there was no individual act of offence assigned to the lone convicted appellant, and there was also no finding that he was one of the members of an unlawful assembly along with five or more known or unknown members of the assembly, conviction under sections 147, 302 and 325 read with section 149 of the Code could not be maintained.
In Sherey v. State it was emphasised by the Supreme Court that convictions under law should be maintained only against those persons whose presence as members of an unlawful assembly has been proved beyond doubt by evidence, may be, from the stage of the first information report and to whom acts of violence have been attributed.
In Budhwa v. Stated the Supreme Court upheld the conviction of four persons out of a total of fifteen accused persons on the ground that the evidence against them was certain to the effect that they had participated in the crime in prosecution of the common object of the unlawful assembly of which they were definitely members.
Act done in pursuit of a lawful object
In Maiku v. State, a witness was leading a police investigation party to recover a dead body. When the witness attempted to run away from there, he was attacked by lathi by the police which resulted in his death some time after. The Supreme Court held that the police party could not be held to be an unlawful assembly and, therefore, the question of they being convicted for rioting did not arise. The court observed that where some act is done in pursuit of a lawful object, section 146 of the Code does not apply.