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SUPREME COURT OF INDIA
P.N. BHAGWATI, V.R. KRISHNA IYER AND S. MURTAZA FAZAL ALI, JJ.
Harshadsingh Pahelvansingh Thakore, Appellant
Versus
The State of Gujarat, Respondent.
Criminal Appeal No. 254 of 1976,
D/- 17-9-1976.
Advocates appeared
Mr. L. C. Goyal, Advocate, A. C. for Appellant; Mr. G. A. shah and Miss Radha Rangaswamy, for Respondent.
Bombay Police Act - Section 135 – Indian Penal Code - Section 302/34 – Offence of murder - Review jurisdiction - whether the evidence is reliable or not - whether every dubious maybe or passing hesitancy can be exalted to the level of reasonable doubt in criminal jurisprudence - Appellant is entitled to acquittal like the rest 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, took place on February 7, 1974 at about 10.30 p. m. The deceased Vasant and his friends were returning from the side of 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 prosection 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 1st 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 home beyond reasonable doubt – Held, 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 do, 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 mans 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 lability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U. P., AIR 1975 SC 2211; Maina Singh v. State of Rajasthan, AIR 1976 SC 1084.) Lord Sumners classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse They also serve who only stand and wait a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer justice 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 Section 34 is impermissible. The flaw in 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 fals, 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 - Appeal dismissed
Judgment
KRISHNA IYER, J.:- Judicial symmetry, when the subject of dispute in re-appraisal of evidence of dispute in re-appraisal of evidence even on the sophisticated ground of misappreciation, has to submit itself to certain self-restraining rules of processual symmetry. The trial Court directly sees the witnesses testify and tests their veracity in the raw. The appellate Court, enjoying coextensive 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 SC 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 are disinclined to rip open the depositions to re-discover whether the evidence is reliable or not.
2. 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 Section 302 read with Section 34, IPC and Section 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.
3. Shri L. C. Goyal, appearing as amicus curiae, has urged before us that the appellant is entitled to acquittal like the rest 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, took place on February 7, 1974 at about 10.30 p. m. The deceased Vasant and his friends were returning from the side of 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 prosection 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 1st 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 home beyond reasonable doubt.
4. The trial Court had framed charges with offences under Section 302 read with Section 34, I. P. C. 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 ante-mortal and the chest wounds were sufficient in the ordinary course of nature to cause death. The deceased passed away due t
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