Harshad Singh @ Baba Pahalvan Singh
Thakura Vs. State of Gujarat  INSC 223 (17 September 1976)
FAZALALI, SYED MURTAZA
CITATION: 1977 AIR 710 1977 SCR (1) 626 1976
SCC (4) 640
CITATOR INFO :
C 1991 SC 318 (9)
Indian Penal Code, S. 34--Specific evidence
for infliction 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.
Four persons were tried by the Sessions Court
for offences 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
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 circumstance that one man's stab fails on a less or
more vulnerable part of the person of the victim is of no consequence to fix
the guilt for murder. S. 34 I.P.C. fixes constructive liability in case of
community of intent coupled 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 conjoint 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 circumstances, the review
jurisdiction of the Supreme Court may be invoked. [627A-C]
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 sophisticated ground of mis-appreciation, has to submit itself to certain
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 interpreting 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-misapplication 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 jurisdictional
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
company, 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
exchange, 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
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 probability 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, appellant before
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 inflicted. 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
Counsel also argued that since three out of
the four accused have secured acquittal the invocation of s. 34 is impermissible.
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 culpability 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
tempting 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 dismissed.