[pic]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 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.
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.
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 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 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.
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 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.
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 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.
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.
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
and there was no unlawful assembly is without reference to the facts of the
case.
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.
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 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.”
A Full Bench of the Calcutta High Court analysed Section 149 IPC in the
year 1873 in Queen v. Sabid Ali[1]. 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 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 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 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.” ”
This Court in Mizaji and Another v. State of U.P.[2]observing 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 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 Haryana[3], Roy
Fernandes v. State of Goa[4], Lokeman Shah v. State of W.B.[5])
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 Lalaji v State of Uttar Pradesh[6] 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.”
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 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 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.
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-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.
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 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 Bihar[7])
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.
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
-----------------------
[1]
[2] (1873) 20 W.R. 5 Cr. | (1873) 11 Beng. L.R. 347 (FB).
[3]
[4]1959 (1) SCR 940 at p. 946-949.
[5]
[6] (2012) 9 SCC 432 at ¶ 27 and 28.
[7]
[8] (2012) 3 SCC 221 at ¶ 31 and 32.
[9]
[10] (2001) 5 SCC 235 at ¶ 20 and 21.
[11]
[12] (1989) 1 SCC 437 at ¶ 8
[13]
[14] AIR 1960 SC 725 | 1960 Cri LJ 144 at ¶ 6 and 7
-----------------------
19
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 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.
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.
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 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 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.
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 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.
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 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.
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.
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
and there was no unlawful assembly is without reference to the facts of the
case.
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.
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 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.”
A Full Bench of the Calcutta High Court analysed Section 149 IPC in the
year 1873 in Queen v. Sabid Ali[1]. 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 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 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 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.” ”
This Court in Mizaji and Another v. State of U.P.[2]observing 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 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 Haryana[3], Roy
Fernandes v. State of Goa[4], Lokeman Shah v. State of W.B.[5])
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 Lalaji v State of Uttar Pradesh[6] 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.”
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 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 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.
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-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.
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 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 Bihar[7])
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.
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
-----------------------
[1]
[2] (1873) 20 W.R. 5 Cr. | (1873) 11 Beng. L.R. 347 (FB).
[3]
[4]1959 (1) SCR 940 at p. 946-949.
[5]
[6] (2012) 9 SCC 432 at ¶ 27 and 28.
[7]
[8] (2012) 3 SCC 221 at ¶ 31 and 32.
[9]
[10] (2001) 5 SCC 235 at ¶ 20 and 21.
[11]
[12] (1989) 1 SCC 437 at ¶ 8
[13]
[14] AIR 1960 SC 725 | 1960 Cri LJ 144 at ¶ 6 and 7
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19
