Case ID: 3581

Judgment:
: 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 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 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 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 U.P. C)	 Maina Singh vs 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 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 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) ; 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 I.P.C. 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 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 vs State of U.P.A.I.R. 	 Maina Singh vs Stare of Rajasthan	 A.ER. 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]