PETITIONER:
HARSHAD SINGH @ BABA PAHALVAN SINGH THAKURA
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT17/09/1976
BENCH:
KRISHNAIYER, V.R.
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 710 1977 SCR (1) 626
1976 SCC (4) 640
ACT
Indian Penal Code, S. 34--Specific evidence for inflic-
tion of fatal wound not required---Community of intent with
participatory presence fixes constructive liability.
Practice and procedure--Interference with findings on
reliability of evidence only in exceptional circumstances.
HEADNOTE
Four persons were tried by the Sessions COurt for of-
fences punishable under s. 302 read with s. 34 I.P.C. and s.
135 of the Bombay Police Act. Two of the accused were
acquitted by the Sessions Court and one by the High Court,
having been given the benefit of doubt of identity.
The appellant contended before this Court that there was
no specific evidence of his having inflicted the fatal stab,
and also that since three out of the four accused were
acquitted the invocation of s. 34 was impermissible. The
findings on the reliability of evidence were also ques-
tioned.
Dismissing the appeal, the Court
HELD: (1) When a murderous assault by many bands with
many knives has ended fatally, it is legally impermissible
to dissect the serious ones from the others and seek to
salvage those whose stabs have not proved fatal. The cir-
cumstance that one man’s stab fails on a less or more vul-
nerable part of the person of the victim is of no conse-
quence to fix the guilt for murder. S. 34 I.P.C. fixes
constructive liability in case of community of intent cou-
pled with participatory presence or operation, and even if
some of several accused are acquitted but the participating
presence of a plurality of assailants is proved, the con-
joint culpability for the crime is inescapable. [629B-D, F]
Amir Hussain v. State of U.P.A.I.R. 1975 S.C. 2211,
Maina Singh v. Stare of Rajasthan, A.ER. 1976 S.C. 1084.
Classic legal sbortband for constructive criminal liability
by Lord Sumner referred to.
(2) Only if there is perversity, miscarriage of justice,
shocking misreading or gross-misapplication of the rules,
procedural and substantive, or other exceptional circum-
stances, the review jurisdiction of the Supreme Court may be
invoked. [627A-C]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 254
of 1976
(Appeal by Special Leave from the Judgment and Order
dated 8-12-1975 of the Gujarat High Court in Crl Appeal
No. 557 of 1976).
L.C. Goyal for the Appellant.
G.A. Shah and Miss Radha Rangaswamy for the Respondent. The
Judgment of the Court was delivered by
KRISHNA IYER, J. Judicial summitry, when the subject of
dispute is re-appraisal of evidence even on the sophisticat-
ed ground of misappreciation, has to submit itself to cer-
tain self-restraining rules of
627
processual symmetry. The trial Court directly sees the
witnesses testify and tests their veracity in the raw. The
appellate Court, enjoying co-extensive power of examination,
exercises it circumspectly, looks for errors of probative
appraisal, oversight or omission in the record and makes a
better judgment on the totality of materials in the light of
established rules of criminal jurisprudence. As the case
ascends higher, forensic review is more rarefied. Such
being the restrictive approach, the Supreme Court cannot be
persuaded, without stultifying the system of our judicature,
to go over the ground of reading the evidence and interpret-
ing it anew so as to uphold that which appeals to it among
possible alternative views. If there is perversity,
miscarriage of justice, shocking misreading or gross-misap-
plication of the rules, procedural and substantive, we
interfere without hesitation. Of course, other exceptional
circumstances also may invoke our review jurisdiction.
These prefatory observations have become necessary since,
usually appellants, hopefully slurring over these jurisdic-
tional limitations, argue the whole way before us as if the
entire evidence is at large for de novo ’examination. Such
a procedure has been attempted in the present case and, for
reasons just mentioned, we arc disinclined to rip open the
depositions to re-discover whether the evidence is reliable
or not.
A single survivor figures as the appellant before us, from
among four persons who were tried by the Sessions Court,
Baroda, for .offences punishable under ss. 302 read with s.
34 IPC and s. 135 of the Bombay Police Act. Accused 3 and
4 secured acquittal before the Sessions Court and accused 2
won his appeal before the High Court. Concurrent findings
of guilt notwithstanding, the first accused has secured
special leave by jail appeal.
Shri L.C. Goyal, appearing as amicus curiae, has urged
before us that the appellant is entitled to acquittal like
the re.st of the accused. The few facts, to explain why we
make short shrift of this case, may be narrated. The
murderous episode, preceded some days earlier by a minor
incident, which took place on February 7, 1974at about 10.30
p.m. The deceased Vasant and his friends were returning
from the side of a cinema house, Krishna Talkies. Sitting
on the footpath and in keeping with the hour and the compa-
ny, the group took hot drinks, the deceased having consumed
considerable potions. The drunk was led by his comrades
towards his house when a bunch of persons including
the .four accused confronted them. A tipsy altercation
often sparks the plug of tantrums and violence. Here the
prosecution version is that accused No. 1 Baba and the
deceased Vasant began the brawl with a heated verbal ex-
change, followed by mutual fisting but climaxed by the l st
accused planting his knife on the left chest of the victim.
The others too joined in the attack, accused 2 with knife
and accused 3 with fist. The last man only shouted to incite
them into giving blows. Hardly had the victim Vasant
fallen when the accused assailants took to their heels.
The injured was shortly hospitalised but soon succumbed to
his wounds. Eye-witnesses testified, medical evidence was
adduced and the homicide brought beyond reasonable doubt.
628
The trial court had framed charges with offences under
s. 302 read with s. 34 IPC. The post-mortem certificate
revealed two transverse incised wounds penetrating the chest
cavity. There were quite a few other incised wounds in
less lethal parts of the anatomy. However, in the opinion of
the doctor all the injuries were antemortal and the chest
wounds were sufficient in the ordinary course of nature to
cause death. The deceased passed away due to shock and
haemorrhage caused by the stab wounds, especially on the
chest.
Both the courts below have affirmed in substance the
case set forth by the prosecution about the occurrence.
Concurrent findings of fact carry considerable weight at the
Supreme Court level that to shake our credence is too
demanding a forensic exercise. Shri Goyal persistently
drew us into the details of testimony to persuade us into a
contrary conclusion from that recorded by the trial Court
and, after due examination, approved by the High Court.
While the murder is the tragedy, the discovery of the
murderer beyond doubt is the judicial function. So much
so, the essential enquiry turned on who the culprits were.
The learned Sessions Judge absolved accused nos. 3 and ’4
of the offences on the score of absence of reliable evidence
on record as regards any part played by accused nos. 3 and
4’. Nevertheless, he held accused nos. 1 and 2 to be
guilty of jointly murdering Vasant taking the view that they
’had taken under and unfair advantage of the fact that the
deceased was unarmed, and had acted in a cruel manner by
inflicting 7 or ’8 injuries with knives’. The sentence
that followed however was rigorous imprisonment for life on
the ameliorative circumstance that the attackers had acted
in the heat of passion. The High Court,. in fair discharge
of its appellate function, sedulously studied the evidence
bearing on the murder and the murderers. Hardly any flaw
in appreciation has emerged from the argument of the counsel
for the appellant, in regard to the truth of the occurrence
and nothing short of grave mistakes or palpable omissions
can induce us to dissent from this finding. Even so the
High Court has been at great pains to screen the testimony
with reference to their credibility, motivation and proba-
bility so that their finding may not be faulty on the score
of insufficient evidence of involvement of any of the two
accused. Such a searching scrutiny yielded fruitful result
for the second accused and he drew the dividend of acquittal
at; the High Court level on account of mistakes of the
’might-have-been’ category. We express no opinion as to
whether every dubious ’maybe’ or passing hesitancy can be
exalted to the level of ’reasonable doubt’ in criminal
jurisprudence. The conviction of the guilty is as much part
of the administration of justice as the acquittal of the
innocent. The judicial art takes no sides where the truth
is in fair measure manifest. Anyway, accused no. 2 having
been acquitted, we are concerned with the solitary, appel-
lant before us.
Counsel Shri Goyal pressed upon us what he regarded as a
surefire contention that if there was no specific evidence
of the appellant having inflicted the fatal stab on the
chest he was entitled to share the
629
acquittal with the rest even if there was abundant proof of
several persons including him having set upon the deceased
and killed him using lethal weapons. In the present case
more than one knife was used, more than., one man was in the
attacking party and more than one incised wound was inflict-
ed. While we can make short work of the submission by
holding, as we d9, that there is clear testimony that the
chest stab which was fatal in the ordinary course was the
handiwork of the appellant, we make the legal position clear
that when a murderous assault by many hands with many knives
has ended fatally, it is legally impermissible to dissect
the serious ones from the others and seek to salvage those
whose stabs have not proved fatal. When people’ play with
knives and lives, the circumstance that one man’s stab falls
on a less or more vulnerable part of the person of the
victim is of no consequence to fix the guilt for murder.
Conjoint complicity is the inevitable inference when a gory
group animated by lethal intent accomplish their purpose
cumulatively. Section 34 IPC fixing constructive liability
conclusively silences such a refined plea of extrication.
(See Amir Hussain v. State of U.P. C), Maina Singh v. State
of Rajasthan(2). Lord Sumner’s classic legal shothand for
constructive criminal liability, expressed in the Miltonic
verse ’They also serve who only stand and wait’ a Jortiori
embraces cases of common intent instantly formed, triggering
a plurality of persons into an adventure in criminality,
some hitting, some missing, some spletting hostile heads,
some spilling drops of blood. Guilt goes with community of
intent coupled with participatory presence or operation. No
finer juristic niceties can be pressed into service to
nullify or jettison the plain punitive purpose of the Penal
Code.
Counsel also argued that since three out of the four accused
have secured acquittal the invocation of s. 34 is impermis-
sible. The flaw this submission is obvious. The
Courts have given the benefit of doubt of identity but have
not held that there was only one assailant in the criminal
attack. The proposition is plain that even if some out of
several accused are acquitted but the participating presence
of a plurality of assailants is proved, the conjoint culpa-
bility for the crime is inescapable. Not that the story of
more than one person having attacked the victim is false,
but that the identity of the absolved accused is not firmly
fixed as criminal participants. Therefore it follows
that such of them, even if the number dwindled to one, as
are shown by sure evidence to have knifed the deceased,
deserve to be convicted for the principal offence read with
the constructive provision.
We therefore hold that the appeal deserves to be and is
hereby dismissed. We appreciate the unsuccessful but
industrious enthusiasm of Shri L.C. Goyal who has served as
amicus curiae.
Before parting with this case we may draw attention to a
sociological thought. There is evidence in the case of
high spirits and consumption of alcohol. Intoxicating
beverages subvert sobriety and
(1) A.I.R. 1975 Sc7 2211.
(2) AIR 1976 SC 1084.
630
the drinking habit which begins with enjoyment of exuberance
escalates into consumption of intemperate potions by tempt-
ing degrees ultimately holding the bacchanalian votary
captive. The deleterious nexus between alcohol and violent
crime is fairly obvious and these days, when drunken
delicts and delinquencies are alarmingly on the increase,
the State must be doubly concerned to control intoxicating
liquors as part of the strategy of defusing crime explosion
and as proof of bearing true faith and allegiance to Art. 47
of the Directive Principles of State Policy.
MR Appeal dis-
missed.
631