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
LC Goyal for the Appellant
GA 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 sections 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
Shri LC 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 which took place on February 7 1974at about 1030 pm
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 section 302 read with section 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 vs State of UP C Maina Singh vs State of Rajasthan2
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 section 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 LC 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 AIR 1975 Sc7 2211
2  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 article 47 of the Directive Principles of State Policy
MR Appeal dis missed


Summary:
Four persons were tried by the Sessions COurt for of fences punishable under section 302 read with section 34 IPC and section 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 section 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
section 34 IPC 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 vs State of UPAIR  Maina Singh vs Stare of Rajasthan AER
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