LexHARSHAD SINGH@ BABA PAHALVAN SINGH THAKURA versus STATE OF GUJARAT
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A B c HARSHAD SINGH@ BABA PAHALVAN SINGH HJAKURA v. STATE OF GUJARAT September 17, 1976 [P. N. BHAGWATI, V. R. KRISHNA !YER AND S. MURTAZA FAZAL ALI, JJ.] Indian Penal Code, S. 34-Specific evidence for infliction of falal wound not • l"eq11ired-Comm11nity nf intent with participatory presence fixes col!S'l"llctive liability. Practice find proced11re-/11terference with findinus on reliability of Cl'idence oulv in exceptional circ1nnstances. Four persons were tried by the Sessions Court for offences punishable under s. 302 read with s. 34 l.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 D on the reliability of evidence were also questioned. E F G H Dismissing the appeal, the Court HELD : ( l) When a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones f:om the others and seek to salvage those whose stabs have not proved fatal. The circumstance that one man':; 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. S. 34 l.P.C. fixes constructive liability in case of community of intent coupled with parti~ipatory presence or operation, and even if some of several accused are acquitted but the participating presence of a plurality of assailants is proved, fhe conjoint culpability for the crime is inescapable. [629B-D, F] Amir Hussain v. Stale of U.P. A.LR. 1975 S.C. 2211, Maina Si11!ih v. Slate of Rajasl/ian, A.LR. 1976 S.C. 1084. Classic legal shorthand for con,;tructive 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 excep- tional circumstan~es, the review jurisdiction of the Supreme Court may be invoked. [627 A-C] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 254 of 1976. (Appeal by Special Leave from the Judgment and 8-12-1975 of the Gujarat High Court in Crl. Appeal 1976). L. C. Goyal for the Appellant. Order dated No. 557 of G. A. Shah and Miss Radha Rangaswamy for the Respondrrit. 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 sclf-rcstrnining mks of 'r- • +, HARSHADSINGH P. THAKURA v. GUJARAT (Krishna Iyer, J.) 627 processual symmetry. The trial Court directly sees the witnesses testify and tests their veracity in the raw. The appellate Court, enjoy- ing co-extensive power of examination, exercises it circumspectly, looks for errors of probative appraisal, oversight or omission in the m.:ord 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 persuad- ed, without stultifying the system of our judicature, to go over the ground of reading the evidence and interpreting it anew so as to up- hold 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 circums- tances also may invoke our review jurisdiction. These prefatory .observations have become necessary since, usually appellants, hope- fully slurring over these jurisdictional limitations, argue the whole way before us as if the entire evidence is at large for de nova examina- tion. 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. 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
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