# HARSHAD SINGH@ BABA PAHALVAN SINGH HJAKURA v. STATE OF GUJARAT

- **Citation:** [1977] 1 S.C.R. 626
- **Court:** Supreme Court of India
- **Decided:** 1976-09-17
- **Case number:** Criminal Appeal No. 254 of 1976
- **Bench:** P. N. Bhagwati, V. R. Krishna !Yer, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harshad-singh-baba-pahalvan-singh-hjakura-v-state-of-gujarat-6968
- **Pages:** 5

## Headnote

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.
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F
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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 exceptional
circumstan~es, the review jurisdiction of the Supreme Court may be
invoked. [627 A-C]

## Text

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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 exceptional
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 misappreciation, has to submit itself to certain sclf-rcstrnining mks
of
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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, enjoying 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 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 nova 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.
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 accu-
.sed 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 rest of the accuc
sed.
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, 1974
:at 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 !eel 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. I 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 beyond rea,onable doubt.
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628
SUPREME COURT REPORTS
[1977] 1 S.C.R.
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
anti 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 Oourt
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 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 gμilty 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 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
...
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HARSHADSINGH P. THAKURA v. GUJARAT (Krishna Iyer, J,) 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 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 murderons 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
mati'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 liablility conclusively silences such a refined plea
of extrication.
(See Amir Hussain v. State of U. P. ('), 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 fortiori 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 s. 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 ylur~lit.Y of assailants is proved, the conjoint culpability for the
cnn!e 1s mescapable.
Not that the story of more than one person
havmg 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 const~uctive provision.
We therefore hold that the appeal deserves to be and is
dismissed.
We appreciate the unsuccessful but industrious
siasm of Shri L. C. Goyal who has served as amicus curiae.
hereby
enthuBefore parting with this case we may draw attention to a sociological th?ught.
There is evidence in the case of high spirits
and
consumpt1011 of alcohol.
Intoxicating beverages subvert sobriety and
(I) A.IR. 1975 SC 2211.
(2) AIR 1976 SC 1084.
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630
SUPREME COURT REPORTS
[ 1977 j ] S.C.R.
A
the drinking habit which begins with enjoyment of exuberance csc~1lates into consumption of intemperate potions by
tempting
degrees
ultimately holding the bacchanalian votary captive.
The deleteriou,
nexus between alcohol and violent crime is fairly obvious and these
days, when drunken delicts and delinquencies are alarmingly on th~
increase, the State must be doubly concerned to control intoxicating
liquors as part of the strategy of defusing crime
cxplo>ion and as
B
proof of bearing true faith and allegiance to Art. 4 7 of the Directive
Principles of State Policy.
MR
Appeal dismissed.
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