Overt Act Of Some Accused In An Unlawful Assembly With Common Object To Kill Deceased Is Sufficient To Charge All U/S 302 R/W 149 IPC: SC

The Supreme Court observed that the participation of some accused in an unlawful assembly with the common intent to kill the victim and grievously hurt others is sufficient to charge all under Section 302 IPC read with Section 149 Indian Penal Code, 1860 (IPC).

The Court dismissed the Appeal challenging the order of the High Court affirming the conviction and sentence passed by the Trial Court under Section 302 read with 149 IPC.

The Court noted that the witness's testimony established a premeditated gathering, with two accused near the house, others arriving in an autorickshaw, collecting weapons, and entering armed with choppers, indicating a shared intent to unlawfully eliminate the victim's family.

The Bench comprising Justice Abhay S. Oka and Justice Pankaj Mithal observed, “a plain reading of the above provision abundantly makes clear that an overt act of some of the accused persons of an unlawful assembly with the common object to kill the deceased Shivanna and to cause grievous hurt to the other family members is enough to rope in all of them for an offence under Section 302 IPC in aid with Section 149 IPC”.

Advocate Tripurari Ray appeared for the Appellant and Additional Advocate General Muhammad Ali Khan appeared for the Respondent.

A series of Criminal Appeals were submitted to the Supreme Court challenging the High Court's decision that upheld the conviction and sentencing of Accused Nos. 4, 5, 6, and 7 under Section 302 in conjunction with Section 149 of the IPC. The remaining two accused, A-8 and A-9, were acquitted. Accused Nos. 1, 2, and 3 accepted the trial court's judgment without filing an appeal. Accused Nos. 4, 5, and 6 jointly appealed, while Accused No. 7 filed a separate appeal before the High Court.

Per the prosecution’s case, the accused unlawfully assembled with the intention to kill Shivanna and his family. Armed with weapons, they trespassed into Shivanna's house. Accused Nos. 1 to 3 attacked Shivanna, Accused Nos. 4 and 5 assaulted his wife Savithramma, and Accused Nos. 6 and 7 attacked his daughter Girija. Accused Nos. 8 and 9 stood at the door, instigating the assault. Shivanna succumbed to injuries, but his wife and daughter survived with severe injuries.

The Court noted that all accused individuals gathered unlawfully in front of Shivanna's house, armed with deadly weapons, falling under Section 149 of the Indian Penal Code.

“They together armed with weapons (choppers), entered their house and A-8 and A-9 stood on the door of the house instigating others to kill. This evidence is sufficient in itself to establish that they had assembled in front of the house of the deceased Shivanna sharing a common intention of doing an unlawful act of eliminating the family of the deceased Shivanna”, the Bench noted.

The Court held that an overt act by some accused members in an unlawful assembly, with the common goal of killing Shivanna and causing harm to other family members, was sufficient to implicate all of them under Section 302 IPC, in conjunction with Section 149 IPC. 

The Court dismissed the appellants' contention that medical evidence did not support the prosecution's stance. The doctor conducting the postmortem confirmed the injuries but suggested the possibility of different weapons, conflicting with the prosecution's claim of a single chopper being used. “Moreover, even the said doctor herself in the end had suggested that all the wounds could have been caused by the same kind of weapons. Therefore, this submission also lacks merit”, the Bench noted.

“It goes without saying that this Court in exercise of its appellate jurisdiction is always slow in interfering with the concurrent findings of the courts below recorded on the basis of the evidence until and unless such findings are shown to be perverse”, the Bench noted. 

The Court observed the inherent weakness of opinions based on probability when compared to direct eyewitness testimony. Moreover, the doctor conducting the postmortem conceded that all wounds could potentially have been caused by the same weapon.

Accordingly, the Court dismissed the Appeals.

Cause Title: Haalesh @ Haleshi @ Kurubara Haleshi v State Of Karnataka

Appearance:

Appellant: Anirudh Ray, Hemant Kumar Sagar, E.C. Vidya Sagar Advocates

Respondent: V.N. Raghupathy, Manendra Pal Gupta, Omar Hoda, Easha Bakshi, Uday Bhatia, Kamran Khan Advocates.

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