Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 325 OF 2007
NISHAN SINGH …Appellant
Versus
STATE OF PUNJAB …Respondent
WITH
CRIMINAL APPEAL NO. 326 OF 2007
AND
CRIMINAL APPEAL NO. 467 OF 2007
J U D G M E N T
S.B. SINHA, J :
1. These Appeals arising out of a common judgment.
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2. We would, at the outset, place on record that three trials were held
one after the other and the judgments therein were delivered also one after
the other in relation to an incident which took place one after the other but
wherefor only one First Information Report had been lodged.
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3. On or about 30 June, 1999 at 2.30 p.m., Rachhpal Singh along with
Sawinder Singh and Hardev Singh had an altercation with one Resham
Singh S/o Subeg Singh. Rachhpal Singh inflicted a knife injury on the right
wrist and chest of Resham Singh. He picked up the knife from which was
with Pargat Singh II S/o Shangara Singh who was accompanying him.
Resham Singh fell down. Hardev Singh and Sawinder Singh also
allegedly inflicted ‘dang’ blows on Resham Singh. An alarm was raised by
Resham Singh’s father Subeg Singh. Resham Singh died on the spot.
The said incident is the subject matter of Criminal Appeal No. 326 of
2007.
4. As an off shoot to the murder of the said Resham Singh for which
the said Rachhpal Singh was tried and convicted, another incident took
place on the same day. Hardev Singh, Dilbagh Singh and Baljit Singh were
in their house when Savinder Singh came there armed with a gandasi and
started hurling abuses on them. It was objected to by Dilbagh Singh.
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Sawinder Singh inflicted a gandasi blow on the head of Dilbagh Singh, who
purportedly in exercise of his right of private defence inflicted a blow on
Sawinder Singh. Pargat Singh –II s/o of Shangara Singh who was a
witness to the murder of Resham Singh arrived there with his brother
Mehal Singh. Whereas Pargat Singh –II was armed with a rifle, Mehal
Singh came empty handed. Baljit Singh allegedly climbed on the roof of a
nearby Gurudwara and started hurling brickbats. A exhortation was given
by Mehal Singh asking Pargat Singh-II to shoot Baljit Singh
whereupon a shot was fired by him hitting the left shoulder of Baljit Singh.
He was brought to his house in an injured condition. Mehal Singh and
Pargat Singh-II are said to have run away from the said place of occurrence.
6. The third incident took place when brother of Baljit Singh, Hardev
Singh and Dilbagh Singh (PW 4) after arranging a tractor trolley were
proceeding with the injured persons to Amritsar. The tractor was being
driven by Hardev Singh. When they were passing through Jasraur and
reached near the house of one Karaj Singh, Pargat Singh-I s/o of Subeg
Singh, the appellant in Criminal Appeal No. 467 of 2007, and Nishan
Singh, the appellant in Criminal Appeal No. 325 of 2007, arrived. They
were accompanied by Major Singh. Nishan Singh is said to have been
armed with a .12 bore gun.
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Pargat Singh-I exhorted that as Hardev Singh had murdered his
brother Resham Singh, he should not be allowed to go alive. Nishan
Singh fired a shot from his gun which hit Hardev Singh on his left ear as a
result whereof the tractor went out of control and dashed against the house
of Jagtar Singh. Hardev Singh died on the spot. More shots were fired as
a result whereof Sudagar Singh, Chowkidar, and another person of Sheikh
Bhatti were injured. Baljit Singh, Dilbagh Singh and the chowkidar were
taken by Swaran Singh to Guru Nanak Dev Hospital in a mini Bus. A First
Information Report was recorded by the sub inspector Ajit Singh PW 11.
8. Nishan Singh was charged for commission of an offence under
Section 302 and 307 of IPC; whereas Pargat Singh-I was charged under
Section 307 and 302/34 IPC. Major Singh was charged for commission of
alleged offence under section 302 read with Section 34 of the Indian Penal
Code.
9. Whereas Nishan Singh was acquitted of the charges under Section
307 IPC, he was convicted for commission of the offence under Section 302
of the Indian Penal Code. Pargat Singh-II was convicted for commission of
the offence under Section 302/34 and acquitted for commission of offence
under Section 307 IPC. Major Singh was acquitted of the charges framed
against him.
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10. Originally, however, no charge sheet was filed as against Pargat
Singh-I PW1, Swaran Singh was examined before the learned Sessions
Judge in the Sessions Case on 12.9.2000. On the basis of the statements
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made by him, an application was filed on 25 September, 2000 for
summoning Nishan Singh on which was allowed.
11. Upon appearance of Nishan Singh, fresh charges were framed against
all the three accused persons.
12. Statement of PW 1 was recorded again and he was cross examined as
PW3. Although three eye-witnesses were examined on behalf of the
prosecution, the learned Additional Sessions Judge did not place any
reliance on the evidence of PW 5 constable Inder Singh. Reliance has been
placed both by the Sessions Judge as also High Court on the testimonies of
PW3, Swaran Singh and PW4, Dilbagh Singh.
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13. Three appeals have been filed, two in relation to the 3 incident and
one preferred by Rachhpal Singh in relation to first incident.
14. Mr. Uma Datta, learned counsel appearing on behalf of the
appellants in Criminal Appeal No. 325 of 2007 and 467 of 2007, would,
inter alia, submit :
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1) As after summoning Nishan Singh in terms of Section 319 of the
Code of Criminal Procedure, Swaran Singh was not examined-in-
chief afresh by the prosecution and was only tendered for cross
examination, the entire trial as against him became vitiated in law as
the provision contained in sub-section 4 of Section 319 of Code of
Criminal Procedure was not complied with, which is mandatory in
nature.
2. The learned courts below committed a serious error in regard to the
identity of the appellants, namely, Pargat Singh who had nothing to
do with the first incident.
3. The learned courts below failed to take into consideration the effect
of the deposition of Sudagar Singh, chowkidar, who admittedly was
one of the persons injured in the incident as he categorically stated
that neither of the appellants was present when the incident took
place.
4. Although Nishan Singh was named in the examination in chief by
PW1, as in his cross examination he has attributed the overt act of
firing the shot to Pargat Singh-I, no case can be said to have been
made out as against the appellant in Criminal Appeal No.325 of 2007.
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5. Reliance placed on the evidence of Dilbagh Singh by the learned
courts below is wholly misplaced inasmuch as keeping in view the
nature of injuries suffered by him as was described by D.W.2 Dr.
Gurmanjit Rai, evidently he was not in a position to witness the
occurrence.
6. The prosecution case being commission of overt acts of Pargat Singh-
I to extortion, the evidence of the prosecution that Nishan Singh had
fired a shot cannot be accepted.
15. Mrs. Manjeet Chawla, Ld. Counsel appearing on behalf of Rachhpal
Singh, the appellant in Criminal Appeal No. 326 of 2007, submitted :
1) Having regard to the fact that the appellant was not armed with any
weapon and as he is said to have snatched the knife from Pargat Singh –
II, he cannot be said to have any intention to cause the murder of Resham
Singh and, thus, his conviction under Section 302 of the Indian Penal
Code is not sustainable.
2) The statement of the witnesses having been recorded by the investigating
officer six hours after the incident, no reliance could have been placed
thereupon thereupon by the courts below.
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3) All the prosecution witnesses examined in the matter being interested
witnesses, the Courts below misdirected themselves by placing explicit
reliance on them.
4) The effect of acquittal of Sawinder Singh having not been considered by
the Courts below while appreciating the evidence brought on record by
the prosecution, the impugned judgment is liable to be set aside.
16. Mr. Kuldip Singh, learned counsel appearing on behalf of the State,
on the other hand, submitted
1. The judgment of acquittal in favour of Sawinder Singh was passed by
the learned sessions judge as no evidence could be brought on record
against him and inasmuch as the prosecution had established that it
was appellant Rachhpal Singh who caused all the injuries upon
Resham Singh, there is no infirmity in the impugned judgments.
2. It is incorrect to contend that Sawarn Singh was not examined again
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after summoning of Nishan Singh. As charges were framed on 30
November 2001 and he was examined afresh on 5.9.2003 as PW3; the
requirements of sub-section 4 of Section 319 were fully complied
with.
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3. In any event, keeping in view the provisions contained in Section 465
of the Code of Criminal Procedure, the judgment of conviction should
not be reversed, unless a real prejudice is shown to have been
suffered by the accused.
4. Nishan Singh and Pargat Singh having been charged for commission
of an offence under Section 302/34 IPC and the same having been
established, it was not necessary to prove any specific overt act on the
part of each of them.
5. There is nothing to show as to why the evidence of Dilbagh Singh
shall not be accepted inasmuch as he suffered a brain injury and was
examined by DW2 after three years of the incident.
17. Indisputably, Nishan Singh and Pargat Singh-I were named in the
F.I.R. The first informant attributed overt acts to them. They had the
motive to commit the offence. Offences were committed one after the other
with a view to take revenge.
18. Nishan Singh however was not charge sheeted for reasons best
known to the investigating officer. PW -1 Sawinder Singh’s evidence
categorically attributed the role played by him in respect of the death of
Hardev Singh and causing injuries to Dilbagh Singh PW 4.
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19. Deposition of PW 1 was recorded on 12.9.2000. After summoning
Nishan Singh in terms of Section 319 of the Code of Criminal Procedure,
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charges were framed afresh on 30 November, 2001. He was examined in
chief again on 5.9.2003 as PW3. It is, therefore, not correct to say that he
was not examined in chief afresh. Requirements of sub-section (4) of
section 319 of Code of Criminal Procedure, therefore, have been complied
with in this case.
Strong reliance has been placed by Mr. Datta on a decision of this
Court in Shashikant Singh v. Tarkeshwar Singh and Ors. [(2002) 3 SCR
400]. It was held therein :
“The intention of the provision here is that where
in the course of any enquiry into, or trial of, an
offence, it appears to the court from the evidence
that any person not being the accused has
committed any offence, the court may proceed
against him for the offence which he appears to
have committed. At the stage, the court would
consider that such a person could be tried together
with the accused who is already before the Court
facing the trial. The safeguard provided in respect
of such person is that, the proceedings right from
the beginning have mandatory to be commenced
afresh and the witnesses re-heard. In short, there
has to be a de novo trial against him. The
provision of de novo trial is mandatory. It vitally
affects the rights of a person so brought before the
Court. It would not be sufficient to only tender the
witnesses for the cross-examination of such a
person. They have to be examined afresh. Fresh
examination in chief and not only their
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presentation for the purpose of the cross-
examination on the newly added accused is the
mandate of Section 319(4) . The words 'could be
tried together with the accused' in Section 319(1) ,
appear to be only directory. 'Could be' cannot
under these circumstances be held to be 'must be'.
The provision cannot be interpreted to mean that
since the trial in respect of a person who was
before the Court has concluded with the result that
the newly added person cannot be tried together
with the accused who was before the Court when
order under Section 319(1) was passed, the order
would become ineffective and inoperative,
nullifying the opinion earlier formed by the Court
on the basis of evidence before it that the newly
added person appears to have committed the
offence resulting in an order for his being brought
before the Court.”
20. In that case, two separate trials were held in the sense that the
examination in chief and the cross examination of the prosecution witnesses
were over, when the trial restarted. It was in that factual matrix, this court
laid down the afore-mentioned proposition of law.
Sub-section 4 of Section 319 Cr.P.C., however, must be read with the
residuary provision contained in of Section 375 thereof. Complaint in
regard to non compliance of statutory provisions must be made at the
earliest opportunity. When a judgment is pronounced; a case must be made
out that by reason of a procedural irregularity, failure of justice has
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occurred. Section 465 of the Code of Criminal Procedure seeks to achieve a
salutary principle.
21. What would constitute ‘failure to justice’ came up for consideration
before this Court in State of Madhya Pradesh v. Bhooraji & Ors. [(2001) 7
SCC 679], wherein, inter alia, it was held that :
“We conclude that the trial held by the Sessions
Court reaching the judgment impugned before the
High Court in appeal was conducted by a court of
competent jurisdiction and the same cannot be
erased merely on account of a procedural lapse,
particularly when the same happened at a time
when the law which held the field in the State of
Madhya Pradesh was governed by the decision of
the Full Bench of the Madhya Pradesh High
Court.”
In Dr. M.C. Sulkunte v. State of Mysore [AIR 1971 SC 508], this
Court held :
“It has been emphasized in a number of decisions
of this Court that to set aside a conviction it must
be shown that there has been miscarriage of justice
as a result of an irregular investigation.”
22. In Central Bureau of Investigation v. V.K. Sehgal & Anr. [(1999) 8
SCC 501], it was held :
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“ 10. A court of appeal or revision is debarred from
reversing a finding (or even an order of conviction
and sentence) on account of any error or
irregularity in the sanction for the prosecution,
unless failure of justice had been occasioned on
account of such error or irregularity. For
determining whether want of valid sanction had in
fact occasioned failure of justice the aforesaid sub-
section (2) enjoins on the court a duty to consider
whether the accused had raised any objection on
that score at the trial stage. Even if he had raised
any such objection at the early stage it is hardly
sufficient to conclude that there was failure of
justice. It has to be determined on the facts of each
case. But an accused who did not raise it at the
trial stage cannot possibly sustain such a plea
made for the first time in the appellate court.”
It was observed :
“11. In a case where the accused failed to raise the
question of valid sanction the trial would normally
proceed to its logical end by making a judicial
scrutiny of the entire materials. If that case ends in
conviction there is no question of failure of justice
on the mere premise that no valid sanction was
accorded for prosecuting the public servant
because the very purpose of providing such a
filtering check is to safeguard public servants from
frivolous or mala fide or vindictive prosecution on
the allegation that they have committed offence in
the discharge of their official duties. But once the
judicial filtering process is over on completion of
the trial the purpose of providing for the initial
sanction would bog down to a surplusage. This
could be the reason for providing a bridle upon the
appellate and revisional forums as envisaged in
Section 465 of the Code of Criminal Procedure.”
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It does not appear that even any contention was raised in that behalf.
{See also State of Haryana v. Ram Singh [2002 (1) SCR 208]}.
However, in view of the factual matrix obtaining herein, it is not
necessary to delve deep into the said question as in this case the statutory
requirements have been complied with.
23. The Courts below have clearly noticed the supportive role Pargat
Singh-I and Pargat Singh-II. They have proceeded on that basis. Whereas
Pargat Singh-II was connected with the first occurrence, the appellant
Pargat Singh-I was connected with the third occurrence with which we are
concerned herein. The courts below had not committed any mistake
whatsoever in that behalf.
34. The fact that the injured persons were being removed to a hospital in
a tractor trolley is not in dispute. It is also not in dispute that as a result of
being hit by a shot fired by Nishan Singh, the tractor dashed into the wall of
Jagtar Singh’s house and the got damaged. Sudagar Singh who was a
Chowkidar was also injured in the incident.
25. Both the appellants herein had been named in the FIR. They were
tried together. Evidently, they came at the spot with a common intention.
Both of them had weapon in their hands. The prosecution witnesses had
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to take the injured Dilbagh Singh to the hospital by arranging a mini bus.
Whereas Baljit Singh died in the hospital, PW 4 Dilbagh Singh survived.
26. The First Information Report was lodged at 8.30 p.m. by Subeg
Singh. One First Information Report was lodged in respect of all the three
incidents. Three murders, as noticed hereinbefore, took place one of after
the other. Some other persons also received injuries. When three instances
occurred one after the other, keeping in view the fact that each had a link
with the other, it is difficult for us to know that the appellants would be
falsely implicated by Subeg Singh whose son was one of the deceaseds.
27. It has not been denied or disputed that Pargat Singh-I and Nishan
Singh had a motive to commit the offence.
It is true that Sudagar Singh had stated that he could not identify the
assailants, but no reliance can be placed on the said statement that the death
of Hardev Singh was caused by a gunshot injury is not denied by Sudagar
Singh. He was a prosecution witness. He was given up by the prosecution
presumably on the basis that he had been won over.
Strangely, the Public Prosecutor did not confront him with his earlier
statements. It demonstrates how poorly the prosecution case was
conducted.
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28. Dilbagh Singh is an injured witness. He has given a complete
account of the entire occurrence. We do not see any reason to disbelieve
his testimony. He had been put to stringent cross examination. Even no
suggestion was made to him that he could not have witnessed the incidence.
If it was within the knowledge of the defence that Dilbagh Singh was not in
a position to speak about the occurrence, he should have been accosted
therewith. He could have given an explanation. If his being carried to
the hospital in an injured condition is accepted and if furthermore it stands
established that all injured persons were brought to the hospital together, it
is difficult to accept the contention of the learned counsel that PW 4
Dilbagh Singh could not be present at the time when the occurrence took
place. In his cross examination, Dilbagh Singh categorically stated that he
was fully conscious at the time of the death of Baljit Singh.
29. DW 2, Dr. Gurmanjit Rai who was examined on behalf of the
defence in his deposition stated that he had examined Dilbagh Singh at 5.30
p.m on 2.7.1999 and to the said extent, he corroborated the statements PW1,
Rishi Ram and PW2 Dr. Ashok Chanana.
30. Furthermore, according to DW2, he examined Dilbagh Singh on
2.7.1999. How he could depose in regard to the condition of the patient as
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on 13 June, 1999 is not known. He declared the injury as grievous only
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after he received the report of the radiologist and that of the surgeon. His
right upper limb function was found to have been impaired.
31. Reliance has been placed on Prem Sagar v. Dharambir & Ors. [(2004)
1 SCC 113] by Mr. Datta to contend that Section 34 of the Indian Penal
Code is not attracted. We are not in a position to agree with the said
submission. Both Pargat Singh-I and Nishan Singh came together; at least
one of them armed with a fire arm. One of them exhorted and another
fired. It is accepted by the defence that at least one person was killed and
two other were injured in the said firing. Evidently, more than one shot was
fired.
32. The question is as to whether common intention was formed for
commission of an offence or not and it depends upon the fact of each case.
It was in the factual scenario obtained therein, this court in Prem
Sagar (Supra) opined that the accused was not proved to be linked in the
manner so as to bring the applicability of Section 34 of the Indian Penal
Code. The common intention of the accused persons was not found to be
present therein, when the incident took place, in the backdrop of the facts of
the said case. It was submitted that the court should be slow to interfere
with a judgment of acquittal. {See Suresh & Anr. v. State of U.P. [(2001) 3
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SCC 673] followed in Rotash v. State of Rajasthan [2006 (13) SCALE
186]}.
Reliance has also been placed on State of Haryana v. Ram Singh
[(2002) 1 SCR 208] wherein this Court held :
“While it is true that the law is well settled in
regard to the issue that in an appeal against
conviction for the offence of murder Supreme
Court would be rather slow to intervene in the
event of there being a concurrent finding of fact
but it is equally settled that in the event the
finding, which suffers from the vice of perversity
of any fundamental rules or even a definite
procedural injustice going to the root of the
prosecution case question of the Apex Court being
slow in intervention would not arise.”
We have herein proceeded on applying the principles laid down
therein.
34. So far as the case of Rachhpal Singh is concerned, it may be true that
no independent witness was examined. But that by itself is not sufficient to
disregard the statements of the prosecution witnesses totally.
PW3 Swaran Singh and PW 4 Dilbagh Singh were the eye-witnesses.
Both the Ld. Trial Judge as also the High Court considered their depositions
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in great details. No contention has been raised that the said findings are in
any way perverse or not in conformity with the evidences or record.
35. One of the accused may be acquitted as the prosecution witness might
not have attributed any overt act to him. But it is well settled that acquittal
of one accused itself would not lead to the conclusion that the entire
prosecution case was false.
In Sukhdev Yadav & Ors. v. State of Bihar [(2001) 8 SCC 86], this
Court held :
“It is now well-settled that the Court can sift the
chaff from the grain and find out the truth from the
testimony of the witnesses. The evidence is to be
considered from the point of view of
trustworthiness and once the same stands satisfied,
it ought to inspire confidence in the mind of the
Court to accept the stated evidence.”
It was further held by this Court while relying upon appabhai & Anr.
v. State of Gujarat [1988 Supp.1 SCC 241], that discrepancies which do not
shake the basic version of the prosecution case may be discarded.
36. The deceased Resham Singh suffered as many as four injuries. The
folllwing injuries have been shown in the autopsy report :
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1) “An oblique incised wound 4 x 1.2
cm with clotted blood was present on
the front and right side of chest, 7.00
cm below and medical to right nipple
at 4 O’ clock position.
2) An oblique incised wound 4.3 x 1.00
cm with clotted blood was present on
the left infra scapular region.
3) An oblique incised wound 3 x 1.2 cm
with clotted blood was present on the
back and left side of the chest, 7.00
cm below and medical to injury no.2.
4) A slashed incised wound 3.5 x 2.8 cm
with clotted blood was present on the
posterior lateral aspect of right wrist.”
37. The injuries were inflicted on the vital parts of the body and some of
them were sufficient in the ordinary course to cause death or likely to cause
death, Part II of Section 304 of the Indian Penal Code shall have, thus, no
application in this case. Rachhpal Singh might have been unarmed, but
with a view to inflict injury on the deceased, he snatched the knife which
was being carried by Pargat Singh-II. Dilbagh Singh saw the entire
occurrence. He examined himself as PW 4. If a person snatches a weapon
carried by someone else and brutally kills another, it cannot be said that he
did not have any intention to cause death. Whether the accused had any
intention to kill the deceased must be judged upon taking into consideration
the fact situation obtaining in each case. {See Harendra Nath Mishra & Ors.
21
v. State of Bihar [JT 2002 (10) SC 157] relying upon Suresh (supra);
Ramashish Yadav v. State of Bihar [(1999) 8 SCC 555]; Gajjan Singh v.
State of Punjab and Pandurang [(1976) 3 SCC 391]; Tukia and Bhillia v.
The State of Hyderabad [(1955) 1 SCR 1083]}. [See also Rotash (Supra)]
The matter has been considered in some details by Vivian Bose J, in
Virsa Singh v. State of Punjab [AIR 1958 SC 465] wherein it was opined :
“In considering whether the intention was to inflict
the injury found to have been inflicted, the enquiry
necessarily proceeds on broad lines as, for
example, whether there was an intention to strike
at a vital or a dangerous spot, and whether with
sufficient force to cause the kind of injury found to
have been inflicted. It is, of course, not necessary
to enquire into every last detail as, for instance,
whether the prisoner intended to have the bowels
fall out, or whether he intended to penetrate the
liver or the kidneys or the heart. Otherwise, a man
who has no knowledge of anatomy could never be
convict, for, if he does not know that there is a
heart or a kidney or bowels, he cannot be said to
have intended to injure them. Of course, that is not
the kind of enquiry. It is broad-based and simple
and based on commonsense; the kind of enquiry
that 'twelve good men and true' could readily
appreciate and understand.”
{See also Hari Yadav v. State of Bihar [2007 (14)
SCALE 656]}
38. For the reasons above mentioned, there is no merit in these appeals,
which are hereby dismissed.
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……………………..…J.
[S.B. Sinha]
……………………..…J.
[Harjit Singh Bedi]
New Delhi.
March 7, 2008.