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SUPREME COURT OF INDIA
S.A. BOBDE, L. NAGESWARA RAO, JJ.
NAJABHAI DESURBHAI WAGH – Appellants
Versus
VALERABHAI DEGANBHAI VAGH & ORS. – Respondents
CRIMINAL APPEAL No. 2339 of 2010
Decided On : 01-02-2017
(b) Indian Penal Code, 1860 – Section 149 – Common object to commit a murder cannot be inferred only on the basis that the weapons carried by the accused were dangerous – Conviction u/s 302 with the aid of section 149 not sustainable. (Para 13, 14)
(1873) 20 W.R. 5 Cr. : (1873) 11 Beng. L.R. 347 (FB); (1959) 1 SCR 940; (2012) 9 SCC 432; (2012) 3 SCC 221; (2001) 5 SCC 235; (1989) 1 SCC 437 – Relied upon
(c) Indian Penal Code, 1860 – Section 326 r/w section 149 – Common object to murder not made out – However the unlawful assembly had common object to attack the appellant and others – Liable to be convicted u/s 326 r/w 149 – However, in facts of the case, sentence limited to period undergone. (Para 14, 15)
AIR 1960 SC 725 : 1960 CrLJ 144 – Relied upon
(d) Indian Penal Code, 1860 – Section 326 r/w section 149 – Section 149 IPC does not become inapplicable in all situations where there is a cross case by the accused. (Para 16)
Facts of the case:
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 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.
Finding of the Court:
Appellant is not liable to be convicted u/s 302/149 but 326/149.
Result: Appeal partly allowed.
JUDGMENT
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.
2. Accused Nos.1 to 14 filed an Appeal before the High Court of Gujarat at Ahmedabad challenging their convictions and sentences. The High Court allowed the appeal partly by acquitting Accused Nos.1 and 2 of the charge under Section 302 read with Section 34/149 IPC. The convictions and sentences under Section 324 and 325 read with Section 34/149 IPC in respect of Accused Nos.1, 2 and 3 were maintained. The convictions and sentences of Accused No. 3 to 9 and 11 to 14 under Section 302 read with Section 34/149 IPC and 324 and 325 read with Section 34/149 IPC were set aside. The conviction of Accused No.10 under Section 302 read with Section 149/34 was converted to a conviction for the offence under Section 302 IPC simpliciter and he was sentenced to undergo rigorous imprisonment for life. The Complainant has filed this Appeal aggrieved by the judgment of the High Court.
3. The FIR was recorded on 24.03.1998 by the Sub-Inspector of Police, Rajula on a complaint made by the Appellant herein. According to the Complainant, an electrical light pole near his house was broken down by the tractor of Accused No.1 on 23.03.1998. The Complainant cautioned 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.
4. In the trial, the prosecution examined 21 witnesses and relied upon several documents. Seven eye-witnesses including the Complainant were examined. To prove the injuries PWs 14, 15, 16 and 17 were examined. Dr. Popatbhai Bhaliya (PW17) was the Medical Officer, Community Health Centre, Rajula on 24.03.98. He examined the Complainant, the deceased Unadbhai Desurbhai and other injured persons. He proved the medical certificates given by him regarding the injuries. Dr. Hemangbhai Vasavdawas who treated the deceased was examined as PW15. He stated that the cause of death was due to haemorrhage caused in
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