NAJABHAI DESURBHAI WAGH versus VALERABHAI DEGANBHAI VAGH & ORS.

Citation: [2017] 2 S.C.R. 764 · Decided: 01-02-2017 · Supreme Court of India · Bench: S.A. BOBDE · Disposal: Case Partly allowed
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Judgment (excerpt)

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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 
764 
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. " 
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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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SUPREME COURT REPORTS 
(2017] 2 S.C.R. 
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 do
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