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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 2339 of 2010

NAJABHAI DESURBHAI WAGH

.... Appellant(s) Versus

VALERABHAI DEGANBHAI VAGH & ORS.

….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

By  a  Judgment  dated  24.06.2003,  the  Second  Fast

Track Judge, Amreli convicted Accused Nos.1 to 14 who are

Respondents 1 to 14 herein for committing an offence under

Section 302 read with Sections 149/34 IPC and sentenced

them to  life  imprisonment  and a  penalty  of  Rs.5,000/-  in

default  of  which  they  shall  undergo  six  months  further

imprisonment.  The Accused were also found guilty for the

offences under Sections 324 and 325 read with 149/34 IPC

for  which  they  were  sentenced  to  six  months  rigorous

imprisonment and fine of Rs.1000/- in default of which they

shall undergo two months imprisonment.  Accused Nos.1, 2

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and  10  were  directed  to  pay  Rs.10,000/-  each  as

compensation  to  the  heirs  of  the  deceased  Unadbhai

Desurbhai  under  Section  357  of  the  Criminal  Procedure

Code, 1973.  The remaining accused were directed to jointly

pay Rs.20,000/-as compensation to the heirs.   

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2. Accused Nos.1 to 14 filed an Appeal before the High Court

of Gujarat at Ahmedabad challenging their convictions and

sentences.  The High Court allowed the appeal partly by

acquitting  Accused  Nos.1  and  2  of  the  charge  under

Section  302  read  with  Section  34/149  IPC.   The

convictions  and  sentences  under  Section  324  and  325

read with Section 34/149 IPC in respect of Accused Nos.1,

2 and 3 were maintained.   The convictions and sentences

of Accused No. 3 to 9 and 11 to 14 under Section 302 read

with  Section  34/149  IPC  and  324  and  325  read  with

Section 34/149 IPC were  set  aside.    The conviction of

Accused  No.10  under  Section  302  read  with  Section

149/34 was converted to a conviction for the offence under

Section  302  IPC  simpliciter and  he  was  sentenced  to

undergo rigorous imprisonment for life.   The Complainant

has filed this Appeal aggrieved by the judgment of the High

Court.  3. The FIR was recorded on 24.03.1998 by the Sub-Inspector

of  Police,  Rajula on a complaint  made by the Appellant

herein. According to the Complainant,  an electrical light

pole near his house was broken down by the tractor of

Accused No.1 on 23.03.1998.  The Complainant cautioned

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Accused No.1 to drive the tractor carefully.   Accused No.1

took offence and informed the Complainant that he would

come back at 06:00 PM to settle the matter.  At 06:00 PM,

Accused Nos.1 to 14, armed with axe, iron pipe and spear

came on a tractor to the Complainant’s house.   Jagabhai

Bhayabhai  was  hit  by  the  tractor  due  to  which  he

sustained injury on his legs. The other accused attacked

the  Complainant,  his  brother  Unabhai  Desurbhai,  Jaga

Bhaya and Bayabhai.   Bhagwan Bhikha (Accused No.7)

gave a blow with an iron T pipe on the left eyebrow of the

complainant.  Bhima Degan (Accused No.  3)  inflicted  an

injury  by  spear  on  the  left  side  of  the  complainant’s

stomach.   Bhagabhai  Rambhai,  Rambhai  Bhayabhai,

Lakhman Sumara and Raningbhai Tapubhai came to the

spot and they were also attacked by Accused No.1 to 14.

Unadbhai  Desurbhai,  Bhikabhai  Desurbhai,  Bhaga Ram

and Lakhman Sumara sustained injuries on their heads.

The Complainant and the other injured persons shouted

for help and the accused seeing the villagers fled from the

spot.   The  injured  were  taken  for  treatment  in  an

ambulance  of  Gujarat  Peeparu  Port  Ltd.  Unadbhai

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Desurbhai  died  on  26.03.1998  while  undergoing

treatment.  The accused were charged under Section 147,

148,  504,  506(2),  323,  324,  325,  326,  302  read  with

34/149 IPC and 135 of the Bombay Police Act.

4. In the trial,  the prosecution examined 21 witnesses and

relied  upon  several  documents.   Seven  eye-witnesses

including the Complainant were examined. To prove the

injuries  PWs  14,  15,  16  and  17  were  examined.  Dr.

Popatbhai  Bhaliya  (PW17)  was  the  Medical  Officer,

Community  Health  Centre,  Rajula  on  24.03.98.   He

examined  the  Complainant,  the  deceased  Unadbhai

Desurbhai  and  other  injured  persons.  He  proved  the

medical  certificates  given by  him regarding  the  injuries.

Dr.  Hemangbhai  Vasavdawas  who  treated  the  deceased

was examined as PW15.  He stated that the cause of death

was due to haemorrhage caused in the head by a solid

blunt  object.   PW14 Dr.  Govindbhai  Parmar,  conducted

the post mortem of the dead body of Unadbhai Desurbhai.

Dr. Madhukant (PW16) was examined to speak about the

injuries caused to Rainingbhai Tapu (PW5).   Relying upon

the  ocular  testimonies  which  were  corroborated  by  the

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medical  evidence,  the Trial  Court held that the accused

formed  an  unlawful  assembly  and  attacked  the

Complainant and others.  The right to private defence set

up by the accused was rejected by the Trial Court.  On a

detailed consideration of the material on record, the Trial

Court found all the Accused guilty of having committed the

offence under Section 302 read with 149/34 IPC for the

death  of  Unadbhai  Desurbhai.   The  Accused  were  also

found guilty  of  causing  injuries  to  the  others  and were

convicted under Section 324 and 325 read with 149/34

IPC.   

5. The High Court held that the offence under Section 302

read with 149/34 IPC was not made out on the ground

that there was a cross case and that the Accused neither

formed  an  unlawful  assembly  nor  was  there  previous

concert to cause death.   The High Court held that there

was  one  injury  on  the  head  of  the  deceased  Unadbhai

Desurbhai and Accused Nos.1, 2 and 10 were alleged to

have caused the injury.  As that injury on the head can be

attributed  to  Accused  No.10,  he  was  convicted  under

Section 302 IPC. The High Court held that Accused No.1

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and 2 cannot be held responsible for the said injury and

acquitted them of the offence under Section 302 read with

149/34 IPC. The remaining accused were also acquitted

for the offence under Section 302 read with 149/34 IPC.

The conviction and sentence under Section 324, 325 read

with 149/34 IPC were maintained.    

6. Lakshmanbhai Bhaikhabhai, Accused No.10 did not prefer

any appeal  against  his  conviction and sentence.  We are

informed that he has served his sentence.  We are also

informed that during the pendency of the appeal before the

High Court,  Accused  Nos.4,  6  and 9  have  died  against

whom the Appeal abates.     7. Ms.Meenakshi  Arora,  learned Senior  Counsel,  appearing

for the Appellant submitted that the High Court committed

a serious error in acquitting the Accused under Section

302 read with 149 IPC in the facts and circumstances of

the  case.  She submitted that  the  judgment  of  the  High

Court was cryptic and reasons given for the acquittal of

the  Accused are unsustainable.  The finding of  the High

Court that there was no previous concert to cause death

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and there was no unlawful assembly is without reference

to the facts of the case.   

8. Mr.  Harin Rawal,  learned Senior  Counsel,  appearing for

the  Accused submitted that  the  prosecution suppressed

the true facts. He contended that the Complainant’s party

were  the  aggressors  in  the  fight  that  took  place  on

24.03.1998.  He brought to our notice that Crime No.I 35

of 1998 was lodged at 08:30 pm on 24.03.1998 at Rajula

Police Station by Accused No.2. The complaint preferred

by  the  Appellant  was  lodged  15  minutes  after  their

complaint.  He took us through the record to show that

there  were  injuries  received  by  the  Accused  due  to  the

attack by the Complainant’s party.   He further submitted

that the lights of the tractor were broken, its silencer was

bent and its steering wheel was damaged.  He highlighted

the discrepancy on the question of who was driving the

tractor.  He referred to the evidence to show that Prakash

Manubhai was the driver who was injured.

9. Whether  the  High  Court  was  right  in  acquitting  the

accused  under  Section  302  read  with  149  IPC  is  the

question that falls for our consideration in this case.  The

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essential  ingredients  and  the  width  and  amplitude  of

Section 149 as well as its applicability to the facts of the

case have to be examined. It would be relevant to refer to

Section 149 IPC which is as under:

“149.  Every  member  of  unlawful  assembly  guilty  of offence committed in prosecution of common object.—If an  offence  is  committed  by  any  member  of  an  unlawful assembly  in  prosecution  of  the  common  object  of  that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

10. A  Full  Bench  of  the  Calcutta  High  Court  analysed

Section 149 IPC in the year 1873 in Queen v. Sabid Ali1.

Phear, J., speaking for the majority, held as under: “ It seems to me clearly not the case that every offence which may be committed by one member of an unlawful assembly while  the  assembly  is  existing,  i.e.,  while  the  members  are engaged in the prosecution of a common object, is attributed by Section 149 to every other member.  The Section describes the offence which is to be so attributed, under two alternative forms, viz., it must be either –  

1st. –  An  offence  committed  by  a  member  of  the  unlawful assembly  in  prosecution  of  the  common  object  of  that assembly.

2nd. – An offence such as the members of that assembly knew to be likely to be committed in prosecution of that object.

Now, inasmuch as the continuance of the unlawful assembly is by the definition of Section 141 made conterminous with the prosecution of the common object, it seems tolerably clear that  the  Legislature  must  have  employed  the  words “prosecution of  the common object”  with some difference of meaning in these two passages respectively. Also the mere fact that  the  Legislature  thought  fit  to  express  the  second alternative  appears  to  show  very  distinctly  that  it  did  not

1  (1873) 20 W.R. 5 Cr. | (1873) 11 Beng. L.R. 347 (FB).

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intend the words “in prosecution” which are found in the first to be equivalent “during the prosecution”; for if they were then the second alternative would have clearly been unnecessary. And a comparison with this passage of the language which is used  in  Section  460,  where  the  Legislature  makes  all  the persons concerned in committing a burglary punishable with transportation for life, if any one of their number act the time of committing of burglary causes death, &c., strongly bears out this view.  I  am of opinion that an offence,  in order to fall within the first of the above alternatives, i.e., in order to be committed  in the prosecution  of the common object must be immediately connected with that common object by virtue of the nature of the object: for instance, if a body of armed men go out to fight, their common object is to cause bodily injury to  their  opponents,  and  in  that  case  death  resulting  from injury caused would be homicide committed in prosecution of the common object.

And an offence will fall within the second alternative if the members of the assembly, for any reason, knew beforehand that it was likely to be committed in the prosecution of the common  object,  though  not  knit  thereto  by  nature  of  the object itself.   

It seems thus, on a little consideration, to be apparent that the two alternatives of Section 149 do not cover all possible cases of  an offence being  committed by one member  of  an unlawful assembly during the time when the common object of the assembly is being prosecuted.  It follows that in every trial of prisoners on a charge framed under the provisions of Section 149 of Penal Code, even when it is proved that the specified offence was committed by one of the members of the assembly during, so to speak, the pendency of that assembly, it  yet  remains  an  issue  of  fact  to  be  determined  on  the evidence whether that offence was committed in prosecution of the common object, as I have endeavoured to explain the meaning of those words in the first part of the Section; and, if not, whether it was an offence such as the members of the assembly knew to be likely to be committed in the prosecution of the object.”

The Calcutta High Court was dealing with a case of riot over

a dispute about a piece of land between Fukeer Buksh and

Sabid Ali.  Tureeboollah,  who was a member of  Sabid Ali’s

party of assailants, fired a gun and killed one Samed Ali. The

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Trial  Court  held  that  Tureeboollah  was  a  member  of  the

unlawful assembly of which the others in Sabid Ali’s party

were  also  members.  It  convicted  all  the  accused  under

Section 302 read with 149 IPC.  The High Court held that the

conviction  under  Section  149  was  unsustainable.   In  a

concurring opinion, Jackson J. held as follows:

“It appears to me that the construction of this Section (149), that  is,  a  construction  which  shall  be  at  once  reasonable grammatical,  involves two difficulties, or at least two points which call for attentive consideration:- 1st – “The common object,” 2nd – or “such as the members of that assembly knew to be likely to be committed in prosecution of that object.” It has been proposed to interpret the “common object” in a

precise sense so as to indicate the exact extent of violence to which the rioters intended to go, viz., to take possession of the land by force extending, if need be, to wounding and the like. This  I  think  is  not  the  sense  in  which  the  words  were

intended to be understood. They are not, it seems to me, used in the same sense as “the

common intention” in Section 34, which means the intention of all whatever it may have been. The  words  here  seem  to  have  manifest  reference  to  the

defining Section 141, and to point to one of the five objects, which  being  common  to  five  or  more  persons  assembled together, make their assembly unlawful. For  this  reason,  I  think  that  any  attempt  to  mitigate  the

rigour of the Section by limiting the construction of the words “common object” must fail,  and that any offence done by a member  of  an  unlawful  assembly  in  prosecution  of  the particular one or more of the five objects mentioned in Section 141, which is or are brought home to the unlawful assembly to  which  the  prisoner  belonged,  is  an  offence  within  the meaning of the first part of the Section.”

Pontifex, J. agreed with the majority and interpreted the word

“knew” in Section 149 in the following terms:

“To bring the offence of murder as defined by the Code within Section 149, I think it must either necessarily flow from the

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prosecution of the common object; or it must so probably flow from the prosecution of the common object that each member might antecedently except it to happen. The  offence  of  murder  as  strictly  defined  by  the  Code

requires a previous intention or knowledge in the perpetrator; and to “know” that  murder  is likely  to be committed,  is to know that some member of the assembly has such previous intention or knowledge.  The word “knew” used in the second branch of the Section is I think advisedly used, and cannot be made to bear the sense of “might have known.” ”

11. This  Court  in  Mizaji  and  Another  v.  State  of

U.P.2observing  that  various  High  Courts  of  India  had

interpreted  Section  149  held  that  every  case  has  to  be

decided on its own facts. This court proceeded to deal with

Section 149 in detail as under: “The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object;  it  is  enough if  it  is  adopted by all  the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected  immediately  with  the  common  object  of  the unlawful assembly of which the accused were members. Even if  the offence committed is  not  in direct  prosecution of  the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression ‘know' does not  mean  a  mere  possibility,  such  as  might  or  might  not happen.  For  instance,  it  is  a matter  of  common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood  and  would  be  guilty  under  the  second  part  of Section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that  they  have  the  knowledge  that  murder  is  likely  to committed if the circumstances as to the weapons carried and

2 1959 (1) SCR 940 at p. 946-949.

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other  conduct  of  the  members  of  the  unlawful  assembly clearly point to such knowledge on the part of them all. There is  a  great  deal  to  be  said  for  the  opinion  of  Couch,  C.J., in Sabid Ali case [ (1873) 20 WR 5 Cr] that when an offence is committed  in  prosecution  of  the  common  object,  it  would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the  common  object.  That,  however,  does  not  make  the converse proposition true;  there may be cases which would come within  the  second part,  but  not  within  the  first.  The distinction between the two parts of Section 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of  the common object and falls within the second part.”

Mizaji’s case was referred to and relied upon in a long

line of decisions of this court. (See, e.g.,  Avtar Singh v.

State of  Haryana3,  Roy Fernandes v.  State of  Goa4,

Lokeman Shah v. State of W.B.5)  

12. Applying the well  settled principles laid down by this

court we proceed to examine whether the Accused can be

convicted for an offence under section 302 with the aid of

Section 149 IPC. As per Section 141 IPC an assembly of

five or more persons is designated an unlawful assembly if

the  common  object  of  the  persons  composing  that

3  (2012) 9 SCC 432 at ¶ 27 and 28.

4  (2012) 3 SCC 221 at ¶ 31 and 32.

5  (2001) 5 SCC 235 at ¶ 20 and 21.

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assembly  is  to  commit  an  offence  mentioned  therein.

Guidance  is  supplied  by  this  Court  regarding  the

requirement of examining the circumstances in which the

incident occurred, the weapons used and the conduct of

the accused during the course of the incident. In Lalaji v

State of Uttar Pradesh6 this court held that: “The common object of the assembly must be one of the five objects  mentioned in Section 141 IPC.  Common object  of  the unlawful  assembly  can  be  gathered  from  the  nature  of  the assembly,  arms  used  by  them  and  the  behaviour  of  the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.”

13. There is no dispute about the occurrence of the incident

near the house of the Appellant at 06:00PM on 24.03.98.

The  oral  testimonies  of  PW1 to  PW6,  who  were  injured

witnesses  are  consistent.  The  manner  in  which  the

incident occurred, the weapons used by the Accused and

the  nature  of  the  injuries  caused  by  the  accused  were

stated clearly therein. The Doctor who treated the injured

were  examined  and  they  have  proved  the  medical

certificates issued by them. The doctors who treated the

deceased Unadbhai Desurbhai were produced before the

court  to  speak  about  the  cause  of  death.  PW14  who

conducted  the  Post  Mortem  on  the  body  of  Unadbhai

6  (1989) 1 SCC 437 at ¶ 8

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Desurbhai was also examined. The situs of the incident is

admitted to be near the house of the Appellant. There is no

denial of the incident by the Accused. The submission of

Mr.  Raval  is  that  the  complainant  along  with  others

attacked  the  Accused  and  in  the  resultant  free  fight,

persons  from  both  sides  were  injured.  On  a  careful

examination of the totality of the facts and circumstances

of the case, it is clear that Accused formed an unlawful

assembly. Armed with weapons like axe,  iron pipes and

spear, they proceeded to attack the Appellant who rebuked

the first  Respondent  in  the  morning.  After  reaching the

spot  of  the  incident,  they  attacked  the  Appellant  and

caused  injuries  to  others  who  came to  his  rescue.  The

common object to commit an offence can be inferred from

the weapons used and the violent manner of the attack.

Having  held  that  the  Accused  formed  into  an  unlawful

assembly  to  commit  an  offence,  what  remains  to  be

decided  is  whether  they  can  be  attributed  with  the

knowledge  about  murder.   One  of  the  members  of  the

unlawful assembly Lakshmanbhai Bhikabhai Vagh (A-10)

was  convicted  and  sentenced  under  section  302  for

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committing  the  murder  of  Unadbhai  Desurbhai.  The

question is whether there was a prior concert by all the

members of the unlawful assembly to commit an offence of

murder. The background in which the attack was made by

the  Accused  does  not  show  that  there  was  a  common

object of a murder amongst the accused.  Accused No.1

was  infuriated  on  being  questioned  by  the  Appellant

regarding the damage to the electric pole near his house.

Accused No.1  along with the  other  accused intended to

show their superiority and teach a lesson to the Appellant.

There is nothing on record to suggest any previous enmity

between the parties.  Common object to commit a murder

cannot  be  inferred  only  on  the  basis  that  the  weapons

carried by the accused were dangerous.  The above facts

would indicate that no knowledge about the likelihood of

an offence of murder being committed can be attributed to

the  members  of  the  unlawful  assembly,  barring

Lakshmanbhai  Bhikabhai  Vagh  (A-10)  who  has  been

convicted under Section 302 IPC.

14. Though the accused cannot be convicted under section

302  with  the  aid  of  S.  149  IPC  in  view  of  the  above

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findings, they would still be liable for a lesser punishment.

The common object of the unlawful assembly to attack the

Appellant and others is proved. Considering the manner of

the attack and the deadly weapons used,  we are of  the

considered  opinion  that  Accused  Valerbhai  Deganbhai

Vagh (A-1),  Unadbhai Deganbhai Vagh (A-2),  Bhimabhai

Deganbhai  Vagh (A-3),  Unadbhai  Bhagabhai  Vagh (A-5),

Bhagwanbhai Bhikabhai Vagh (A-7),  Bhikabhai Jinabhai

Vagh  (A-8),  Hasurbhai  Bhikhabhai  Vagh  (A-11),

Bhanabhai Bhikabhai Vagh (A-12),  Patabhai @ Aatabhai

Bhikabhai  Vagh  (A-13)  and  Bhavabhai  Jikarbhai  Vagh

(A-14) are guilty of offence under Section 326 read with

149 IPC. We are informed that the accused have already

undergone  a  sentence  of  seven  and  a  half  years.

Considering the fact that the incident occurred in the year

1998 and that there is no complaint from either side about

any further violence since then we opine that the sentence

can be limited to the period undergone.

15. It  is  no  more  res  integra that  a  finding  of  the

commission of  the  offence under  Section 326 read with

Section  149  can  be  recorded  against  members  of  an

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unlawful assembly even if it is established that the offence

under Section 302 was committed by one member of such

assembly.  (See: Shambhu Nath Singh and Ors v. State

of Bihar7)

16. The High Court found that the conviction of the accused

under section 302 read with 149 IPC cannot be upheld as

there was neither  an unlawful  assembly nor  a  common

object to cause death. The High Court miserably failed to

consider the facts and circumstances of  the case before

coming  to  such  conclusion.  Section  149  IPC  does  not

become inapplicable in all situations where there is a cross

case by the accused.  The High Court ought to have taken

note of  the acquittal  of  the Appellant  and others in the

said cross case on 24.06.2003. The judgment of the High

Court was delivered on 29.07.2009 by which date there

was  no  cross  case  pending  against  the  Appellants.

Recording a finding of acquittal without reappreciation of

evidence by the Appellate Court would result in flagrant

miscarriage of justice and that is exactly what happened in

this case.    

7  AIR 1960 SC 725 | 1960 Cri LJ 144 at ¶ 6 and 7

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17. The Appeal is partly allowed and the Accused Valerbhai

Deganbhai  Vagh (A-1),  Unadbhai  Deganbhai  Vagh (A-2),

Bhimabhai  Deganbhai  Vagh  (A-3),  Unadbhai  Bhagabhai

Vagh  (A-5),  Bhagwanbhai  Bhikabhai  Vagh  (A-7),

Bhikabhai  Jinabhai  Vagh  (A-8),  Hasurbhai  Bhikhabhai

Vagh(A-11),  Bhanabhai Bhikabhai Vagh (A-12),  Patabhai

@  Aatabhai  Bhikabhai  Vagh  (A-13)  and  Bhavabhai

Jikarbhai  Vagh  (A-14)  are  convicted  under  section  326

read with 149 IPC and sentenced to the period undergone.  

  ........................................J    [S. A. BOBDE]

..……................................J [L. NAGESWARA RAO]

New Delhi, February 01, 2017

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