NAJABHAI DESURBHAI WAGHversusVALERABHAI DEGANBHAI VAGH & ORS.

                            (2017] 2 S.C.R. 764



A                   NAJABHAI DESURBHAI WAGH
                                     v.
              VALERABHAI DEGANBHAI VAGH & ORS.
                     (Criminal Appeal No. 2339 of2010)
B                          FEBRUARYOl,2017
            [S. A. BOBDE AND·L. NAGESWARA RAO, JJ.]
    Penal Code, 1860:
          ss. 149 and 141 - Width and amplitude of - Unlawful
c   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
D
    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
E   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
F   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
G   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
H
                                  764
       NAJABHAI DESURBHAI WAGH v. VALERABHAI                              765
               DEGANBHAI VAGH & ORS.

of s.149 !PC - However, the common object of the unlawfal assembly         A
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           B
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. "            _,
                                                                           c
        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          D
  finding of acqui1tal without re-appreciation of evidence by the High
  Court resulted in flagrant miscarriage of justice.
       Partly allowing the appeal, the Court
       HELD: 1. 1 The oral testimonies of PWl to PW6, who                  E
 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)                                                             F
        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           G
 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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766            SUPREME COURT REPORTS                      (2017] 2 S.C.R.


A            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
B
      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
c     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)
D           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
E     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
F     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.
G
            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.
H
       NAJABHAI DESURBHAI WAGH v. VALERABHAI                            767
              DEGANBHAI VAGH & ORS.

Section 149 IPC does not become inapplicable in all situations           A
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
                                                                         B
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.
      Avtar Singh v. State of Haryana (2012) 9 SCC 432 :                 C
      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.             D
                       Case Law Reference
(1873) 20 W.R. 5 Cr.           referred to             Para 10
11'!591 1 SCR 940              relied on               Para 11 .
                                                                         E
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           F

AIR 1960 SC 725                relied on               Para 15
      CRIMINAL APPEL LATE JURISDICTION: Criminal Appeal No.
2339 of2010.
      From the Judgment and Order dated 29.07 .2009 of the High Court    G
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
768            SUPREME COURT REPORTS                         [2017] 2 S.C.R.


A     Ms. DivyaAnand, Nipun Saxena,Abhaid Parikh, Ms. Hemantika Wahi,
      Ms. Jesal Wahi, Advs.for the Respondents.
            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
B     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
c     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
D     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
E     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
F     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
G     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
H
      NAJABHAI DESURBHAI WAGH v. VALERABHAI                                  769
    DEGANBHAI VAGH & ORS. [L. NAGESWARA RAO, J.]

with axe, iron pipe and spear came on a tractor to the Complainant's          A
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
                                                                              B
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            c
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.
                                                                              D
       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
                                                                              E
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              F
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              G
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.                              H
770            SUPREME COURT REPORTS                           [2017] 2 S1C.R.


A            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.
B
      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
c     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
D     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
E     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 ofthe 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.

F            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
G     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
H
          NAJABHAI DESURBHAI WAGH v. VALERABHAI                                    771
        DEGANBHAI VAGH & ORS. [L. NAGESWARA RAO, J.]

tractor. He referred to the evidence to show that Prakash Manubhai                  A
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           B
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                    c
           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."
                                                                                    D
         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             E
           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-
                                                                                    F
           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           G
           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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772      SUPREME COURT REPORTS                             [201 7] 2 S:C.R.


A     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
B
      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 ofcommitting of burglary causes death. &c .•
      strongly bears out this view. 1 am of opinion that an offence, in
c     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
D
      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
E     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
F     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
G     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."
H
      NAJABHAI DESURBHAI WAGH v. VALERABHAI                                   773
    DEGANBHAI VAGH & ORS. [L. NAGESWARA RAO, J.]

       The Calcutta High Court was dealing with a case of riot over a          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
                                                                               B
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
                                                                               c
      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."                          D
        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      E
       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 ..
                                                                               F
         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            G
      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."          H
774             SUPREME COURT REPORTS                           [2017] 2 S.C.R.



A          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
B            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
c           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
D     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
E
             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
 F           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
G            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

H     '1959 (I) SCR 940 at p. 946·949.
      NAJABHAI DESURBHAI WAGH v. VALERABHAI                                     775
    DEGANBHAI VAGH & ORS. [L. NAGESWARA RAO, J.]

      must be aware of that likelihood and would be guilty under the            A
                                                    a
      second part of Section 149. Similarly, if 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,           c
      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
                                                                                 D
      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',         E
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                F
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 ofexamining 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/i 6    G
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.
                                                                                 H
776             SUPREME COURT REPORTS                          [2017] 2 S.C.R.


A           "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.'"
B
              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
c     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
D     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
E     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
F     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
G     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.
H
         NAJABHAI DESURBHAI WAGH v. VALERABHAI                               777
       DEGANBHAI VAGH & ORS. (L. NAGESWARA RAO, J.]

Accused No. I along with the other accused intended to show their            A
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
                                                                              B
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         c
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),             D
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     E
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        F
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         G
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                               H
778            SUPREME COURT REPORTS                          [2017] 2 S.C.R.



A     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 ofjustice and that is exactly what happened
      in this case.
B
               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
c     @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.