It is noteworthy that in a most significant legal development we saw how while ruling on the liability pertaining to the overt act committed by unlawful assembly members, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Haalesh @ Haleshi @ Kurubara Haleshi vs State of Karnataka in Criminal Appeal No. 1954 of 2012 with Criminal Appeal No. 1955 of 2012 and Criminal Appeal No. 1303 of 2014 that was pronounced as recently as on February 2, 2024 in the exercise of its criminal appellate jurisdiction has minced just no words to make it absolutely clear that overt act by unlawful assembly members is sufficient for murder charges under Section 302 of the Indian Penal Code (IPC). We must note that the Apex Court thus affirmed the convictions of individuals involved in a heinous crime that resulted in the death of a person named Shivanna.

We thus see quite distinctly that the top court very rightly upheld the conviction in a murder case while observing that when an ocular piece of evidence is available to sufficiently prove the guilt of the accused then conviction cannot be set aside merely on the ground that the expert evidence of the professional doctor suggests otherwise.

Of course, we must notice that the High Court had upheld the conviction of these appellants by the Trial Court that led to their appeals being dismissed. It also must be added here that in the case at hand, the Apex Court found no perversity in the findings of the Trial Courts and concluded that there was no error or illegality in their judgments. Finally, it culminated in all the three appeals being dismissed by the Apex Court as without substance. Very rightly so!

At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Justice Pankaj Mithal for a Bench of the Apex Court comprising of Hon’ble Mr Justice Abhay S Oka and himself sets the ball rolling by first and foremost putting forth in para 2 that:
In Sessions Case No. 25 of 2000 out of the nine accused, seven accused persons (A-1 to A-7) were convicted for various offences and were sentenced to undergo imprisonment for different period with a maximum of life imprisonment for an offence under Section 302 in aid with Section 149 IPC and remaining two accused persons i.e. (A-8 and A-9) were acquitted.”

As things unfolded, the Bench specifies in para 3 that:
Accused Nos. 1, 2 and 3 accepted the judgment of the Trial Court and did not file any appeal against it. Accused Nos. 4, 5 and 6 together filed a Criminal Appeal No. 219 of 2007 before the High Court whereas accused No. 7 filed a separate Criminal Appeal No. 229 of 2007. The High Court by a common judgment passed in both the appeals upheld the conviction and sentence awarded to all of them i.e. A-4, A-5, A-6 and A-7 and dismissed the appeals.”

As it turned out, the Bench enunciates in para 4 that:
It is against the aforesaid conviction and sentence that the accused A-7 has preferred Criminal Appeal No. 1954 of 2012 before this Court. Accused Nos. A-4 and A-5 together have preferred Criminal Appeal No. 1955 of 2012 whereas accused No. A-6 has preferred Criminal Appeal No. 1303 of 2014. All three appeals were clubbed and heard together. They are being disposed of by this common judgment.”

To put things in perspective, the Bench while elaborating on facts of case envisages in para 5 that:
Brief facts giving rise to the above trial are that: that there was a bitter dispute between the deceased Shivanna and his real brother Ramanna (A-9) with regard to property in connection to which there was a civil suit between the parties which was decreed in favour of the deceased and the decree was under execution.”

While shedding more light on the case, the Bench further discloses in para 6 that:
It is alleged that all the accused persons on 25.09.1999 at around 9:15 am unlawfully assembled in front of the house of deceased with the common object to kill the deceased Shivanna and his family members. All of them armed with deadly weapons mainly choppers thereafter trespassed into the house of deceased Shivanna. Accused A-1 to A-3 caught hold of deceased Shivanna and assaulted him with choppers; accused A-4 and A-5 caught hold of his wife Savithramma and assaulted her with choppers; accused A-6 and A-7 assaulted Girija, the daughter of deceased Shivanna with choppers and whereas accused A-8 and A-9 stood at the door of the house keeping a watch and instigating the other accused to kill the deceased Shivanna and his family members. The deceased Shivanna upon sustaining injuries died whereas his wife and daughter who had sustained grievous injuries survived.”

Further, the Bench then aptly reveals in para 7 that:
After the case was committed to the Sessions Court, the prosecution examined as many as 33 witnesses and produced Exhibits P-1 to P-63 and M.Os. 1 to 34. The defence got marked Exhibits D-1 and D-2 but chose not to lead any evidence in defence. On the basis of the evidence adduced, the Trial Court convicted A-1 to A-7 and sentenced them to undergo maximum imprisonment for life with fine. Accused Nos. 8 and 9 who were not assigned any role of assault and were alleged to be standing on the door of the house of the deceased were acquitted. The conviction, as stated earlier, was upheld by the High Court.”

It cannot be lightly brushed aside that the Bench points out in para 17 that, “There is a clear evidence of PW-3 and PW-4 that, in the first instance, a day earlier, a threat was extended to them and then in a planned manner on the next morning initially A-8 and A-9 had come and stood near their house. Thereafter, the other accused came in an autorickshaw and after alighting from it collected weapons from behind the board of a tailor shop and assembled in front of their house. 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.”

No doubt, the Bench then rightly observes in para 18 that:
In the light of the above evidence and in the absence of any defence evidence, it is amply clear that all the accused persons unlawfully assembled in front of the house of the deceased Shivanna and armed themselves with deadly weapons attracting the provisions of Section 149 IPC.”

Most significantly, the Bench mandates in para 20 that:
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.”

No less significant is what is then pointed out in para 21 that:
The second contention advanced on behalf of the appellants that the medical evidence or the medical report on record does not substantiate the stand taken by the prosecution has no merit at all for the simple reason that the doctor (PW-18) who conducted the postmortem had proved the injuries. However, she suggested the possibility of use of different weapons in causing those injuries. Undoubtedly, only one kind of weapon i.e. chopper was used in committing the crime and, therefore, the evidence of the doctor may not be matching with that of the prosecution, but again, the ocular evidence of PW-3 and PW-4 is sufficient enough to prove that only chopper was used as a weapon of crime.

In the light of the said evidence of the two eyewitnesses, the suggestion or opinion of the doctor cannot prevail as the opinion based upon probability is a weak evidence in comparison to the ocular evidence of eyewitnesses. 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.”

Needless to say, the Bench then hastens to add in para 22 postulating that:
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. In the case at hand, no perversity of any kind has been pointed out in the findings returned by the two courts below. We are ourself satisfied upon consideration of the entire material evidence on record that none of the findings are in any manner perverse, thus, leaving no scope for this Court to disturb the findings or the judgments and orders of the courts below.”

As a corollary, the Bench then holds in para 23 that:
In view of the aforesaid facts and circumstances, we do not find any error or illegality in the judgments and orders of the two courts below.”

Finally, the Bench then concludes by directing and holding in para 24 that, “Accordingly, all three appeals are dismissed as without substance.”

In conclusion, we thus see that the Apex Court has made it indubitably clear in this notable judgment that overt acts committed by the unlawful assembly members is sufficient for conviction for murder charge under Section 302 of the IPC. There can be just no gainsaying that this must be adhered to similarly by all the Courts in similar such cases without fail. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh