Legal provisions regarding Rioting under section 146 of Indian Penal Code, 1860
The following are the ingredients of the offence of rioting.
i) The accused persons must be five or more in number and form an unlawful assembly;
ii) The accused must be animated by a common object;
iii) The force or violence must be used by the unlawful assembly or any member thereof in prosecution of the common object.
Force or violence
The word ‘force’ is defined in Section 349 of the Code and it is restricted to force used against persons only. The word ‘violence’ has not been defined in the Code. Violence is not restricted to force used against persons only but extends also to force against inanimate objects.
Thus ‘violence’ is wider than ‘force’, because it includes force used against property and other inanimate objects. Even the slightest use of force by any member of an unlawful assembly, if proved to be unlawful, constitutes rioting.
The mere use of force by a number of men assembled does not render all of them liable for rioting. The essence of the offence lies in the use of force to achieve common purpose. If the common Object of an assembly is not illegal, it is not rioting even if force is used by any member of that assembly.
Five members or more:
To constitute the offence of rioting there should be at least five persons and force should be used in prosecution of the common object. If the number is less than five there could be no unlawful assembly and consequently no rioting.
If a number of persons assembled for any lawful purpose suddenly quarrels without any previous intention or design they would not be liable for rioting.
Spectators and Wayfarers etc.
Spectators, wayfarers etc., attracted to the scene of rioting by curiosity, as generally happen in the countryside when a riot or offence is going on, should not, by reason of their mere presence at the scene of rioting be held to be members of unlawful assembly or rioters.
However, if they are proved to have marched with the rioters for a long distance, when the rioters were shouting tell-tale slogans and pelting stones, it will be for them to prove their innocence under Section 106 of the Evidence Act.
Fundamental Principles of mammoth rioting (i.e., mob rioting)
i) When the large number of the rioters are produced in court and the consequent difficulty for the prosecution to name the specific acts attributable to each of the accused, the court must see to it that all the ingredients required for unlawful assembly and use of force or violence in rioting are strictly proved by the prosecution before convicting that particular accused.
ii) Spectators, wayfarers etc., should not be considered as members of the unlawful assembly or riots as they have no common object and they have not taken active participation in such offence.
iii) It is not safe to rely on a single witness to prove the mob rioting.
iv) Where there are acute factories, the greatest care must be exercised before believing the evidence of a particular witness belonging to one of these factions against an accused of the rival faction.
v) Mere followers in rioting deserve a much more lenient sentence than leaders, who mislead them into such violent acts by emotional appeals, slogans and cries.
In State of UP v. Dan Singh [1997 Cr.LJ 1150 (SC)] it has been observed that there may be some inconsequential contradictions or exaggeration in the testimony of the eye-witnesses that should not be a ground to reject their evidence in its entirety in the case of rioting, where there are a large number of assailants and a number of witnesses, it is but natural that the testimony of the witnesses may not be identical.
What has to be seen is whether the basic features of the occurrence have been similarly viewed and/or described by the witnesses in a manner which tallies with the outcome of the riot viz., the injuries sustained by the victims and the number of people who are attacked and killed.
In Raghunath Rai v. R [(1892) 15 All 22], where several Hindus, acting in concert, forcibly removed an ox and two cows from the possession of a Mahomedan, not for the purpose of causing ‘wrongful gain’ to themselves or ‘wrongful loss’ to the owner of the cattle but for the purpose of preventing the killing of the cows, it was held that they were guilty of rioting.