NAJABHAI DESURBHAI WAGH versus VALERABHAI DEGANBHAI VAGH & ORS.
[2017] 2 S.C.R. 764, Supreme Court of India, 2017
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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(2017] 2 S.C.R. 764 
NAJABHAI DESURBHAI WAGH 
v. 
VALERABHAI DEGANBHAI VAGH & ORS. 
(Criminal Appeal No. 2339 of2010) 
FEBRUARYOl,2017 
[S. A. BOBDE AND·L. NAGESWARA RAO, JJ.] 
Penal Code, 1860: 
ss. 149 and 141 - Width and amplitude of - Unlawful 
ass~mbly .:_ When - Accused persons attacked the appell;nt-
complainani after A-1 was rebuked by appellant on damaging the 
electric pole near appellant :S house - Death of appellants brother 
- Trial court convicted all the accused uls. 302 r!w ss.149 and 324, 
s.325 r!w ss.149134 - High Court acquitted accused for offence 
u!s.302 rlw s.149 holding that the accused did not form an unll1l1ful 
assembly - On appeal, held: Armed with weapons like axe, iron 
pipes and spear, the accused proceeded to attack the appellant -
After reaching the ~pot of the incident, they attacked the appellant 
and caused injuries to others who came to his rescue - Common 
object to commit an offence can be inferred from the weapons used 
and the violent manner of the attack - Thus, it is clear that accused 
formed an unlawful assembly. 
s. 302 r!w s.149 - Unlawful assembly when cannot be 
attributed with common object of murder - Held: Common object to 
commit a murder cannot be inferred only 011 the basis that the 
weapons carried by the accused were dangerous - Though, the 
accused persons formed an unlawful assembly but the background 
in which the attack was made does not show that there was a common 
object of a murder
amongst ihe accused - A-1 was infuriated on 
being questioned by the appellant regarding the damage to the 
electric pole near his house and along with the other accused 
i11tended to teach a lesson to the appellant - Nothing on record to 
suggest any previous enmity between the parties - Thus, no 
knowledge about the likelihood of w1 offence of murder being 
committed can be attributed lo the members of the u11lawful assembly 
- Therefore, accused cannot be convicted under s.302 with the aid 
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NAJABHAI DESURBHAI WAGH v. VALERABHAI 
DEGANBHAI VAGH & ORS. 
of s.149 !PC - However, the common object of the unlawfal assembly 
to attack the appellant and others is proved - Considering the 
manner of the attack and deadly weapons used, accused held guilty 
of offence uls. 326 r/w 149 1PC - However, on facts sentence limited 
to the period un.dergone. 
ss.302 and 326 r!w s.149 -'Accused persons formed unlawfal 
as.,embly -' Murder committed by one member, others convicted for 
offence uls.326rlw149-Proprietyof-Held: Even if it is established 
that offence u/s. 302 was committed by one member of an unlawful 
assembly, afinding of co111missio11 of offence u/s. 326 r!w s.149 can 
be recorded against other members of the assembly. " 
_, 
s.302 rlw s.149 - Conviction under, of accused persons, set 
. aside by High Court inter alia holding that there was a cross case by 
the accused against complainant - Held: s.149 !PC does not become 
inapplicable in all situations where there is a cross case by the 
accused - High Court ought to have taken note of the acquittal of 
the complainant and others in the said cross case - Recording a 
finding of acqui1tal without re-appreciation of evidence by the High 
Court resulted in flagrant miscarriage of justice. 
Partly allowing the appeal, the Court 
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HELD: 1. 1 The oral testimonies of PWl to PW6, who 
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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 situs of the incident is admitted to be near the house of the 
Appellant. There is no denial of the incident by the accused. [Para 
13) [776-B-D) 
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1.2 On a careful examination of the totality of the facts and 
circumstances of the case, it is clear that accnsed 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 
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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. !Para 13] [776-E-F] 
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1.3 The accused formed into an unlawful assembly to commit 
an offence, however, 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.I was infuriated on 
being questioned by the Appellant regarding the damage to the 
electric pole near his house. Accused No.I along with the other 
accnsed 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 dangerons. The facts of the case wonld 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 A-10 who was convicted under Section 302, 
IPC and did not file any appeal against his conviction and sentence. 
[Para 13 J [776CF-H; 777-A-B) 
1.4 However, 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 nsed, the accnsed 
are guilty of offence under Section 326 read with 149 IPC. 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, the sentence can be limited to the 
period undergone. [Para 14] [777-C-EJ 
2. It is no more res inlegrn that a finding of the commission 
of the offence under Section 326 read with Section 149 can be 
recorded against members of an unlawful assembly even if it is 
established that the offence under Section 302 was committed by 
one member of such assembly. [P_ara 15) [777-F) 
Shambhu Nath Singh and Ors. v. State of Bihar AIR 
1960 SC 725 - relied on. 
3. The High Court fonnd 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.
NAJABHAI DESURBHAI WAGH v. VALERABHAI 
DEGANBHAI VAGH & ORS. 
Section 149 IPC does not become inapplicable in all situations 
where there is a cross case by the accnsed. The High Court ought 
to have taken note of the acquittal of the Appellant and others in 
the said cross case. 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.[Paras 16, 17) [777-G-H; 778-A-B) 
Mizaji and Another v. State of U.P. 119591 1 SCR 940; 
Lalaji v State of Uttar Pradesh (1989) 1 SCC 437: 
(1989) 1 SCR 130 - relied on. 
767 
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Avtar Singh v. State of Haryana (2012) 9 SCC 432 : 
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120121 10 SCR 790; Roy Fernandes v. State of Goa 
(2012) 3 SCC 221 : [2012) 1 SCR 477; Lokeman Shah 
v. State of WB. (2001) 5 SCC 235: (2001) 2 SCR 1095 
- referred to. 
Queen v. Sabid Ali (1873) 20 W.R. 5 Cr. ~ referred to. 
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Case Law Reference 
(1873) 20 W.R. 5 Cr. 
referred to 
Para 10 
11'!591 1 SCR 940 
relied on 
Para 11 . 
120121 10 SCR 790 
· referred to 
Para 11 · 
[2Q12l 1 SCR 477 
referred to 
Para 11 
[2001] 2 SCR 1095 
referred to 
Para 11 
[1'!89] 1 SCR 130 
relied on 
Para 12 
AIR 1960 SC 725 
relied on 
Para 15 
CRIMINAL APPEL LATE JURISDICTION: Criminal Appeal No. 
2339 of2010. 
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From the Judgment and Order dated 29.07 .2009 of the High Court 
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of Gujarat atAhmedabad in Criminal Appeal No. 880 of2003. 
Ms. Meenakshi Arora, Sr. Adv., Mohit D. Ram, Ms.
Monisha 
Handa, Advs. for the Appellant. 
H. P. Raval, Sr. Adv., Anirudh Sharma, Anando Mukherjee,· H
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Ms. DivyaAnand, Nipun Saxena,Abhaid Parikh, Ms. Hemantika Wahi, 
Ms. Jesal Wahi, Advs.for the Respondents. 
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The Judgment of the Court was delivered by 
L. NAGESWARA RAO, J. I. By a Judgment dated 24.06.2003, 
the Second Fast Track Judge, Amreli convicted Accused Nos. I to 14 
who are Respondents I to 14 herein for com1i1itting an offence under 
Section 302 read with Sections 149/34 !PC and sentenced them to life 
imprisonment and a penalty ofRs.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 !PC 
for which they were sentenced to six months rigorous imprisonment and 
tine of Rs. I 000/- in default of which they shall undergo two months 
imprisonment. Accused Nos. I, 2 and I 0 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. 
2. Accused Nos. I to 14 tiled 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. I and 2 
of the charge under Section 302 read with Section 34/149 !PC. The 
convictions and sentences under Section 324 and 325 read with Section 
34/149 !PC in respect
of Accused Nos. I, 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 !PC and 324 and 325 read with 
Section 34/149 !PC were set aside. The conviction of Accused No. I 0 
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under Section 302 read with Section 149/34 was converted to a conviction 
for the offence under Section 302 !PC simpliciter and he was sentenced 
to undergo rigorous imprisonment for life. The Complainant has tiled 
this Appeal aggrieved by the judgment of the High Court. 
3. The FIR was recorded on 24.03.1998 by the Sub-Inspector of 
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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. I on 23.03.1998. The Complainant 
cautioned Accused No. I to drive the tractor carefully. Accused No. I 
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. I to 14, armed 
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NAJABHAI DESURBHAI WAGH v. VALERABHAI 
DEGANBHAI VAGH & ORS. [L. NAGESWARA RAO, J.] 
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 
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 lPC 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 (PWl 7) 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 PWl 5. 
He stated that the cause of death was due to 
haemorrhage caused in the head by a solid blunt object. PW 14 Dr. 
Govindbhai Parmar, conducted the post mo1tem of the dead body of 
Unadbhai Desurbhai. Dr. Madhukant (PW 16) was examined to speak 
aboutthe injuries caused to Rainingbhai Tapu (PW5). Relying upon the 
ocular testimonies which were corroborated by the medical evidence, 
the TriafCourt 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 ofcausing injuries to the others and were convicted 
under Section 324 and 325 read with 149/34 IPC. 
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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. I, 2 and I 0 were alleged to have caused the injury. 
As that injury on the head can be attributed to Accused No. I 0, he was 
convicted under Section 302 !PC. The High Court held that Accused 
No. I and 2 cannot be held responsible for the said injury and acquitted 
them of the offence under Section 302 read with 149/34 !PC. The 
remaining accused were also acquitted for the offence under Section 
302 read with I 49/34 !PC. The conviction and sentence under Section 
324, 325 read with 149/34 we were maintained. 
6. Lakshmanbhai Bhaikhabhai, Accused No. I 0 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 !PC 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 thatthere was no previous 
concert to cause death 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 
35of1998 was lodged at 08:30 pm on 24.03.1998 at Raju la 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
NAJABHAI DESURBHAI WAGH v. VALERABHAI 
771 
DEGANBHAI VAGH & ORS. [L. NAGESWARA RAO, J.] 
tractor. He referred to the evidence to show that Prakash Manubhai 
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was the driver who was injured. 
9. Whether the High Com1 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 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 
!PC which is as under: 
"149. Every member of unlawful assembly guilty of offence 
commit- ted in prosecution of common object.-lf 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." 
I 0. A Full Bench of the Calcutta High Court analysed Section 149 
!PC in the year 1873 in Queen v. Sabid Ali'. 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-
151. - An offence committed by a member of the unlawful 
assembly in prosecution of the common object of that assembly. 
211d. - 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 conimon object" with some difference of meaning in these 
1 ( 1873) 20 W.R. 5 Cr. \ ( 1873) II Beng. L.R. 34 7 (FB). 
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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 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 anyone of their 
number act the time of committing of burglary causes death. &c .• 
strongly bears out this view. 1 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 1 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."
NAJABHAI DESURBHAI WAGH v. VALERABHAI 
DEGANBHAI VAGH & ORS. [L. NAGESWARA RAO, J.] 
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 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 !PC. 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:-
! st - "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. 
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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 oile or more of 
the five objects mentioned in Section I 41, which is or ar~ brought 
home to the unlawful assembly to which the prisoner belonged, is 
an offence within the meaning ~fthe first part of the Section." 
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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 
prosecution of the common object; or it must so probably flow 
from the prosecution of the common object that each member 
might anteced.ently 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 Cou11 in Miz(lji (llld A11other v. Sf(lfe of U.P.1 observing 
that .various High Courts oflndia 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 ifthe 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 matterof 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 
'1959 (I) SCR 940 at p. 946·949.
NAJABHAI DESURBHAI WAGH v. VALERABHAI 
775 
DEGANBHAI VAGH & ORS. [L. NAGESWARA RAO, J.] 
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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 
other conduct of the members of the unlawful assembly clearly· 8 
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 Sa bid 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. Jn 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 Jong line of
decisions of this court. (See, e.g., Avtar SinJ:fl v. State of Haryamt', 
Roy Fernandes v. State of Goa', Lokenum Shafi v. State of W.B.·') 
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 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 1..a/11ji v State of Uttar Prtules/i6 
this court held that: 
3 (2012) 9 sec 432 at 27 and 28. 
4 (2012)3 SCC221 at31 and32. 
'(2001) 5 sec 235 at 20 and 21. 
'' \1989) 1 sec 437 at 8. 
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"The common object of the assembly must be one of the five 
objects mentio1ied in Section 141 !PC. 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. 1t is an inference 
to be deduced from the focts 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 PW! 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. PW 14 who conducted the Post 
Mortem on the body of Unadbhai 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 fornied 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 c0mmit 
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-
l 0) was convicted and sentenced under section 302 for committing the 
murder 'of Unadbhai Desurbhai. The question is whether there ·.vas 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. I was infuriated on being questioned 
by the Appellant regarding the damage to the electric pole near his house.
NAJABHAI DESURBHAI WAGH v. VALERABHAI 
DEGANBHAI VAGH & ORS. (L. NAGESWARA RAO, J.] 
Accused No. I 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-I 0) 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 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-I), 
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 ofoffence under 
Section 326 read with 149 IPC. We are informed that the accused have 
already
undergone a sentence of seven and a half years. Co1isidering 
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 i111egra that a finding of the commission of 
the offence under Section 326 read with Section 149 can be recorded 
against members of an unlawful assembly even if it is established that 
the offence under Section 302 was committed by one membec of such 
assembly. (See: Shambl1u Nath Si11gh cmd Ors v. Stale of Bilmr) 
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 Higl! Court oughtto have taken note of the acquittal of the Appellant 
7 AIR 1960 SC 72511960 Cri LJ 144 at 6 and 7 
777 
A 
B 
c 
D 
E 
F 
G 
H
778 
A 
B 
c 
SUPREME COURT REPORTS 
[2017] 2 S.C.R. 
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. 
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) ar(;l convicted under section 326 read with 149 IPC and sentenced to 
the period undergone. 
Divya Pandey 
Appeal partly allowed.