http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: KASAM ABDULLA HAFIZ ETC.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       04/12/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 4TH DAY OF DECEMBER, 1997 Present:                  Hon’ble Mr.Justice G.N.Ray                  Hon’ble Mr.Justice G.B.Pattanaik Shanti  Bhushan,  I.G.Shah,  Sr.  Advs.,  Makarand  D.Adkar, S.D.Singh,   S.Malik,   Sudhanshu   Atreya,   D.M.Nargolkar, B.V.Desai, Advs. with them for the appearing parties.                       J U D G M E N T      The following Judgment of the Court was delivered:                             WITH               Criminal Appeal No.1163 of 1997                S.L.P. (Crl.) NO. 3039 OF 1994 G.B. PATTANAIK, J.      This appeal  is directed  against  the  conviction  and sentence of  the appellant  under Section 304 Part-I and 324 I.P.C. passed by the Division Bench of the Bombay High Court in Criminal Appeal No. 71 of 1992. The appellant who was the Assistant Public  Prosecutor at  the relevant  point of time stood charged under Sections 302 and 307 of the Indian Penal Code  for   having  committed  the  murder  of  one  Manohar Deshmukh, father  of PW-3  Nanda Deshmukh  and injuring  one Sanjay  Patil,  PW-2,  respectively.  The  learned  Sessions Judge, Raigad  - Alibag,  in Sessions  case No.  102 of 1990 convicted the  appellant of the charge under Section 302 for having committed  the offence  of murder of Manohar Deshmukh and  sentenced   him  to  imprisonment  for  life.  He  also convicted  the  appellant  under  Section  307  for  causing injuries and  attempt to commit murder of Sanjay Patil, PW-2 and sentenced  him to  suffer rigorous imprisonment for five years, both  the  sentences  having  been  directed  to  run concurrently. ON  appeal, the  Division Bench  of the Bombay High  Court  agreed  with  the  conclusion  of  the  learned Sessions Judge,  that it  was the  appellant who  caused the injury on  the deceased  Manohar who ultimately succumbed to the injury  and also  caused injury  on the person of Sanjay Patil, PW-2  means of  a knife but taking into consideration of the  fact the  relationship between  the accused  and the deceased and  his family  members were cordial till the date of the incident and further that the incident took place all of a  sudden on  the spur  of the  moment and the instrument

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

that was used by the accused is such that the accused cannot be said  to have  the intention  to cause  the death  of the deceased the  High  Court  held  the  accused  guilty  under Section 304  Part-I I.P.C.  and  sentenced  him  to  undergo rigorous imprisonment for a period of five years thereunder. So far  as conviction of the appellant under Section 307 for causing injuries  on the  person   of PW-2  is concerned the High Court  took into  consideration the  size of  the knife that was  used and  the manner  in which  the  incident  was alleged to have occurred and came to the conclusion that the offence should  be one  punishable under  Section 324 I.P.C. and not  under Section  307 I.P.C.  For his conviction under Section 324  I.P.C. the  appellant was  sentenced to undergo rigorous imprisonment  for two  years  and  it  was  further directed that  both the  sentences would  run  concurrently. Hence the present appeal.      Against the  acquittal of  the accused-appellant of the charge under  Section 302  and 307  as well  as against  the sentence  awarded   by  the   High  Court  for  five  years’ imprisonment  for  the  offence  under  Section  304  Part-I I.P.C., the  State of  Maharashtra has  also  preferred  SLP (Crl.) No.  3039 of  1994, wherein Court had passed an order "issue notice" and tagging the same with the Criminal Appeal No. 551 of 1993. In the said SLP also leave is being granted herein and  the matter  is heard  along with Criminal Appeal No. 551 of 1993.      The prosecution  case in  nutshell is  that the accused and PW-3  belong to  the legal  profession and  both of them were attached  to the  chambers of senior advocate Shri D.N. Patil. The accused-appellant on being appointed as Assistant Public Prosecutor in the year 1988 left the chambers of Shri D.N. Patil  and was  residing in  Sneha Apartment  where the incident occurred.  Nanda Deshmukh  -  PW  3,  a  lawyer  by profession was  continuing as  junior to Shri D.N. Patil and was a divorcee. She was also staying in the  same building - Sneha Apartment  on the  first floor along with her parents. The  relationship  between  Nanda  Deshmukh,  PW-3  and  the accused -  appellant was  all  along  cordial.  It  was  the further prosecution  case that a criminal case under Section 395 I.P.C. was being tried by the Additional Sessions Judge- Shri P.M.  Joshi and  D.N. Patil,  Advocate was  the defence lawyer along with Smt. Nanda Deshmukh and the fag end of the trial Shri  Patil could  not attend  to the  proceeding  and handed over  the case to Smt. Nanda Deshmukh. Ultimately, in that case  the learned  Additional Sessions  Judge convicted the accused but released the accused on bond by applying the provisions of  Probation of Offenders Act. In March, 1990 in a get-together  of some lawyers the accused made a statement that he had heard that Nanda Deshmukh had taken Rs. 50,000/- in the  name of  the Judge  in  whose  court  the  aforesaid criminal proceeding  was pending.  When Nanda Deshmukh heard about this  statement  made  by  the  accused  she  met  the District Judge,  Alibag, Mr. Vazalvar and complained against the accused-appellant  that he  is  unnecessarily  spreading false rumours.  It appears  that the District Judge called a meeting of  some of the lawyers and Additional Session Judge Shri Joshi  and in that meeting the District Judge commented upon the  conduct of  the accused  as to  why  he  has  been spreading rumours  about Nanda  Deshmukh that  she had taken money in  the name  of  the  Judge.  The  accused  thereupon replied the  District Judge  that he had never said that the money was  collected in  the name of the Additional District Judge, Shri  Joshi but  he had only said that Nanda Deshmukh had taken a sum of Rs. 50,000/- from the accused. The senior lawyers who  were present  in that meeting told the District

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

Judge that  since the  accused had  not made  any allegation against the  District Judge, Shri Joshi but he merely stated that Nanda  had taken money from the accused, the dispute is one between two individual lawyers and the Judges should not be brought  into the  dispute. Thereafter  the  meeting  was dispersed and  Nanda came  home. She  was in a very agitated and disturbed  mood on  account  of  what  happened  in  the chambers of  the District Judge and to her father’s query as to why  she was  in a agitated mood’ she narrated the entire incident that  had  taken  place  in  the  chambers  of  the District Judge.  Shri Sanjay  Patil, PW-2, who is the son of Nanda’s senor  Shri D.N.  Patil was passing by that area and on seeing  Nanda’s car  parked down  stair came  to  Nanda’s house and  heard all  that she was telling to her father. It is at  the point  of time  Nanda’s daughter  - Sonal who was standing near the window of the flat stated that accused has come. On  hearing from  Sonal that  accused has  come, Nanda Deshmukh, PW-3  rushed to  the ground  floor followed by her father Manohar Deshmukh (the deceased) and Sanjay Patil, PW- 2. Nanda  Deshmukh asked  the accused who was sitting in the car as  to why  he has been spreading rumours against her to which the accused reiterated that she had given money to the Judge -  Shri P.M.  Joshi. The  further prosecution  case is that accused  then came  out of  the car  and rushed towards Nanda but  deceased Manohar  pulled Nanda  back. The accused then throw  a brick  towards the  Manohar which  hit in  his abdomen thereupon the accused brought out a knife and gave a blow on  the abdomen  of the deceased - Manohar and while he was trying  to give a second blow on the deceased it somehow missed and  Sanjay Patil,  PW-2 rushed  to the  accused  and caught him  by his  hands. Sanjay  then pushed  the  accused against the  compound wall.  The accused,  however, attacked Sanjay and  gave to  stabbing blow with the knife hit Sanjay on his  left hand.  Accused thereafter left the place in his car. PW-9, one of the occupants of the said building reached the place and took Sanjay to the dispensary of Dr. Deshpanda where some first aid was given. Thereupon Sanjay went to the Police Station  and gave  a report  at 3.10  p.m. on 19th of March, 1990  which was  treated as  F.I.R. (Ex  30). On  the basis of  said F.I.R. a criminal case was registered and the police took  up  investigation  and  finally  submitted  the charge-sheet against  the accused whereafter the accused was charge-sheet against  the accused whereafter the accused was tried for  the offences  as already  stated. Injured Manohar was taken  to Dr.  Hoshing, PW-7  who examined  him at about 2.30 p.m.  on  19.3.1990.  Looking  at  the  injury  on  the abdominal region  doctor took the decision that an emergency operation is  necessary and  accordingly operated  upon  the injured -  Manohar. Manohar  became  serious  in  the  Civil Hospital at  Alibag and  therefore he  was taken  to Hinduja Hospital, Bombay  on 27.3.1990 and ultimately died in Bombay on 29.3.1990.  It may  be stated  at this stage that accused himself after  leaving the  place of  occurrence came to the court of  the District Judge and narrated his version of the incident to  him. The  District Judge then called the Public Prosecutor and  advised him to inform the police immediately about the  occurrence. The  police was  then called  and the accused himself  gave a report in writing giving his version of the occurrence which was treated as F.I.R. of the counter case. The  said counter  case, however,  ultimately ended in acquittal. The defence version of the incident as transpired from the  complaint lodged by the accused himself on 19.3.90 as well  as from  the suggestions  give to  the  prosecution witnesses and  statement of  the accused  under Section  313 I.P.C. is  that the  Deshmukh family  including  Nanda,  her

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

parents and  the maid  servant Chhaya  rushed from the first floor of  the house and started assaulting the accused while he was  still inside  the car,  even some dung was spread on his clothes  and face,  the accused then came out of his car and at  that point  of time  the maid  servant Chhaya handed over a  knife to Sanjay, PW-2 and while Sanjay was attacking the accused with the knife he pushed the deceased on account of which the deceased received the injury on his abdomen and the accused came away from the place by driving his vehicle.      The prosecution examined 13 witnesses in all in support of its case of whom PWs 2 and 3 are the eye witnesses to the occurrence. PW-7  is the  Civil Surgeon  of Civil  Hospital, Alibag where  the injured Manohar Deshmukh had been operated upon and  PWs 8  and 10 are also the doctors attached to the said hospital  at Alibag.  Said PS-10, Dr. Adhatrao had also examined the  accused and  had issued the Injury Certificate (Ex. 61).  PW-11 is  the Medical  Officer who  had performed autopsy on  the dead  body of deceased Manohar and the post- mortem report  given by  him is  Ex.68. PW-12  also  is  the doctor had  was Associate  Professor in Pathology and he had examined  the   viscera  of   the  deceased.  PW-13  is  the investigating office  and he  had recorded  the statement of deceased Manohar  at  the  civil  Hospital,  Alibag  in  the evening of  19th of March, 1990 which has been treated to be dying declaration (Ex. 79). From the evidence of the doctors who had  conducted the operation on deceased Manohar as well as the  doctor who conducted the autopsy on the dead body of the deceased  Manohar the  learned Sessions Judge recorded a finding that  Manohar the  learned Session  Judge recorded a finding that Manohar met with a homicidal death and the said finding has not been assailed either in the High Court or in this Court.  On 19th  of March,  1990 and  incident happened near Sneha Apartment is also not disputed nor is it disputed that on  account of  sustaining injury  by means  of a knife Manohar father of PW-3 ultimately died and Sanjay Patil, PW- 2 also received some injuries. The dispute centres round the question as  to what  manner the  incident  occurred.  While according to the ocular statements of eye-witnesses of PWs 2 and 3  deceased Manohar  and Sanjay  Patil PW-2 received the injuries on  their person  on account of stabbing blow being given by  accused, according  to the  defence version it was Sanjay who was rushing towards the accused with the knife in his hand  which he  got from  the maid  servant  Chhaya  and accused then  pushed the  deceased. Manohar  on  account  of which deceased sustained the injury and ultimately succumbed to the  same in  the hospital. The learned Sessions Judge as well as  the High  Court relying  upon the evidence of PWs 2 and 3  have concurrently  found that  the prosecution  story unfolded through the evidence of these two witnesses is true and reliable and the defence version of the incident has not been accepted.  The  learned  Sessions  Judge  came  to  the conclusion that the accused caused an injury on Manohar with the intention  to kill  him but the High Court reversed that finding and  came to hold that there was no intention on the part of  the accused to kill Manohar and accordingly altered the conviction of Section 302 to Section 304 Part-I I.P.C.      Mr. Shanti Bhushan the learned senior counsel appearing for the  accused -  appellant  contended  that  the  accused having sustained  several injuries  on his  person  and  the prosecution having  not explained  as to  how those injuries could be  sustained by  the accused,  the entire prosecution case as  unfolded through the evidence of PWs 2 and 3 become vulnerable and as such no reliance can be placed on the said testimony  and  prosecution  case  must  fail.  The  learned counsel further contended that from the prosecution evidence

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

itself as well as from the injuries sustained by the accused it transpires  that the  accused was  being assaulted by the deceased, his daughter Nanda, his wife, his maid servant and Sanjay, PW-2  while the accused was still sitting in his car and at  that point  of time  the accused  having apprehended danger to his life or at least danger of sustaining grievous injury in hands of the deceased and his family members, gave the single  blow on  the abdomen of the deceased in exercise of right  of private defence on his person and therefore the conviction of  the appellant  is unsustainable.  Mr.  Shanti Bhushan lastly  submitted that even assuming the prosecution case as  unfolded through  the evidence  of PWs  2 and  3 is wholly correct  then yet  the offence  should be  one at the most under  Section 304  Part - II and not under Section 304 Part-I inasmuch as the act of the accused by which the death was ultimately  caused cannot be said to have been done with the intention  of causing  death or  of causing  such bodily injury as  is likely  to cause  death. This  is apparent not only from  the fact  that the single blow was given but also from the  fact  that  the  injured  was  operated  upon  and survived thereafter  till 29.3.1990  and there  might  be  a variety of reasons for such death which may not be connected with directly  to the  injury that was caused by the accused on the abdomen of the deceased.      Shri Shah  the learned senior counsel appearing for the State on  the other  hand repelled  the contention raised by Mr. Shanti  Bhushan and  urged that  there is  no  materials available on  record from  which it  can be  said  that  the accused caused  the injury  in exercise  of right of private defence. He further contended that in law the prosecution is not obliged  to explain  minor and  superficial injuries  on accused and  non-explanation of  such  superficial  injuries will not  fatal to  the prosecution. But in the case in hand according to the learned counsel the prosecution has offered an explanation  for the  so-called  minor  injuries  on  the accused inasmuch  as PW-2 Sanjay stated in his evidence that he pushed  back the  accused towards the wall and on account of such  conduct he  might have sustained some injuries. The learned counsel also urged that looking at the injury caused by the accused and the part f the body of the deceased where such injury  was caused  it must be reasonable held that the accused had  the intention  of causing  said  bodily  injury which is  likely to cause death and medical evidence clearly supports  that   view  and   consequently  the  accused  was convicted by  the High Court under Section 304 Part-I I.P.C. In support  of the State’s appeal, the learned counsel urged that the  order of acquittal of the charge under Section 302 is unjustified  as evidence  reveals that  accused with  the intention of  causing murder  brought out  the pen knife and pushed in  inside the  deceased Manohar. At any rate even if the accused can be said to have been rightly convicted under Section 304  Part-I by  the High Court, the sentence awarded thereunder is  wholly  unjustified  and  this  Court  should enhance the sentence.      In view  of the  rival submissions at the Bar the first and foremost  question  that  arises  for  consideration  is whether the  non-explanation of  the injuries  found on  the accused can  be said to be fatal to the prosecution case and further whether  the prosecution has offered any explanation which can  be said  to be acceptable. Mr. Shanti Bhushan the learned senior  counsel appearing  for the accused-appellant strongly relied  upon the decision of this Court in the case of LAKSHMI  SINGH AND OTHER Vs. STATE OF BIHAR, (1976) 4 SCC 394 in support of his contention that non-explanation of the injuries of  on the  accused by  the prosecution is fatal to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

the prosecution  case. In the aforesaid case this Court held that in  a number  case the  non-explanation of the injuries sustained by the accused at about the time of the occurrence or  in   the  course  of  alteration  is  a  very  important circumstance from  which the  court can  draw the  following inferences: (1)  that the prosecution has suppressed the genesis and the      origin of the occurrence and has thus not presented the      true version; (2)   that the witnesses who have denied the presence of the      injuries on  the person  of the  accused are lying on a      most material  point and  therefore their  evidence  is      unreliable; (3)   that in case there is a defence version which explains      the injuries  on  the  person  of  the  accused  it  is      rendered probable  so to throw doubt on the prosecution      case.      While observing this the Court hasten to add as held by this Court  in STATE OF GUJARAT Vs. BAI FATIMA, (1975) 2 SCC 7 :"there  may be  cases where  the non-explanation  of  the injuries by  the prosecution  may not affect the prosecution case. This  principle would  obviously apply  to cases where the  injuries   sustained  by  the  accused  are  minor  and superficial or where the evidence is so clear and cogent, so independent and  disinterested, so  probable, consistent and creditworthy, that  it  far  outweighs  the  effect  of  the omission on  the part  of the  prosecution  to  explain  the injuries." Bearing  in mind  the aforesaid principles of law the contention  of Mr.  Shanti  Bhushan  on  this  score  is required to  be examined.  The accused  as  per  the  Injury Certificate (Ex.61)  given to him as found to have sustained the following injuries: 1)    Contusion  on back  right scapular  region  vertically      directed 103 cm x 2 cm red discoloration. 2)    Contusion  on back  right scapular  region  vertically      directed 3 cm x 2 cm red discoloration. 3)    Abrasion  of left  ring figure proximal Phalank dorwal      aspect 1 cm x 1 cm. 4)   Contusion on forehead middle region vertically directed      3cm x 1/2 cm red discoloured. 5)  Abrasion at bridge of nose 1/2 cm. 6)    Contusion  on right  side of check inner aspect 2 cm x      1/2 red discoloration. Simple blunt object."      The dimension  and nature  of injuries clearly indicate that they are simple in nature. There were two abrasions and four contusions.  These injuries  found on the person of the accused are  such that  non-explanation to them could not be fatal to  the prosecution  case as was held by this Court in BAI FATIMA’s  case referred  to supra  (1975) 2  SCC 7.  Mr. Shanti Bhushan  no doubt  strenuously urged  that the injury held by  the doctor  to be simple is in contradistinction to ’grievous’ but the contusion on forehead though of dimension 3 cm  x 1/2  cm must  be held to be an injury of such nature which the  prosecution was  obliged to  explain and  in  the absence of  any explanation  it ought  to be  held that  the prosecution is  not coming  forward with true version of the case. We are unable to accept this submission of the learned counsel. The principle that non-explanation of injury on the person of the accused would be fatal to the prosecution case would apply  only when  the injuries could be of such nature which the  prosecution witnesses cannot but notice the same. But the  injury on  the person  of the  accused even  on the forehead which was found by the doctor is such that it would be difficult  to held  same and  must offer  an explanation.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

Such minor injuries can be caused for variety of reasons and the prosecution  case must not suffer for non explanation of such minor  injuries. We  are therefore unable to accept the contention of Mr. Shanti Bhushan on this score. We also find sufficient force  in the  contention of  Mr.  Shah,  learned counsel appearing  for  the  State  -  respondent  that  the prosecution has  offered explanation for such minor injuries on the  person of  the accused.  PW-2, Sanjay  Patil in  his evidence  has  categorically  stated  that  while  that  the accused was  attempting a  second blow  at the  deceased  he caught hold  o wrist of the accused and then pushed him back as a  result of  which the  accused there dashed against the compound wall.  It is  just possible that on account of such dashing the  minor injuries  on the  person of  the  accused could have been possible. That part the accused was examined himself as  DW-2 and  has stated  that while  he  was  still inside the car the prosecution party namely deceased Manohar and his  daughter assaulted  him with  stick, on  that score also  the  accused  might  has  sustained  the  injuries  in question. In  this view  of the  matter on  the materials on record we  are not in a position to hold that there has been no explanation  for the  minor  injuries  sustained  on  the person of the accused.      The next  question that  would  arise  is  whether  the accused can  be said  to have  inflicted that  blow  on  the abdomen of  the deceased  while apprehending grievous injury on him from the prosecution party. In that event the benefit of Section 100 of the Indian Penal Code can be given to him. Under Section  100 of  the Indian  Penal Code  the right  of private defence  of body  extends to  the assailant  if  the offence which  occasions the exercise of the right be of any of the  descriptions enumerated  in six  clauses of the said Section. According to Mr. Shanti Bhushan, the learned senior counsel appearing  for the  appellant when  the accused  was being assaulted  with the  ‘tommy’ a reasonable apprehension could have  been caused that grievous hurt will otherwise be the consequence of the assault and therefore the accused was justified in  giving the  blow in  exercise of  his right of private defence  on his  person. It  may be noticed that the accused though himself had been examined as a witness in the case as DW-2 but he has never uttered a word indicating that he had  any apprehension  of a grievous hurt being caused to him. It  is of  course true  that in  law a plea of right of private defence  would be  available  to  the  accused  even though the  plea has  not been taken by the accused provided the materials on record would justify such a plea. But since it is  the  apprehension  of  the  accused  which  could  be material to  sustain a  plea of right of private defence and since the  accused himself chose to be examined as a witness and has  not uttered a word about such apprehension it would be difficult  to  sustain  the  plea.  That  part  from  the material available on record namely the prosecution evidence of the  case, Mr.  Shanti Bhushan  has not  been prosecution evidence of  the case,  Mr. Shanti Bhushan has not been able to lay  his hand  on any  specific part of the evidence from which such  plea can  at all  be said to be available to the accused. As  has been  stated earlier the injuries which the accused has  sustained on  his person might have been caused while the  accused was  pushed  by  Sanjay  and  was  dashed against the  compound wall  or even  while the  accused  was sitting in  his car  and was  said to have been assaulted by the deceased  and his  daughter by a stick. But the incident of stabling  on the abdomen of the deceased has not occurred while the accused was inside the car on the other hand while he has  come out and while the deceased wanted to prevent an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

attack by  the accused  on Nanda. Dr. Adhatrao, PW-10 in his evidence has  categorically stated,  after referring  to the injury certificate  mentioned in  respect of the accused and after being  shown iron  tommy of  the motor  vehicle,  that "after examining  the article  physically I  state that  the said article  is neither  heavy  nor  light.  I  state  that injuries of  such nature  on the person of Kasam Hafiz would not have  accrued with  forceful assault with such tommy and wooden stick".  In the  absence of any material on record to establish that the so-called assault by the tommy might have reasonably caused  the  apprehension  in  the  mind  of  the accused that  grievous hurt  will otherwise be caused and in view of  the  aforesaid  positive  evidence  of  the  doctor referred to, its difficult to hold that assault given by the accused can  be said  to be  one in  exercise  of  right  of private defence  on his  person. We  are therefore  not in a position to  sustain the contention of Mr. Shanti Bhushan on this core.  Though normally  this court  does not scrutinise the evidence  of witnesses  in a  case where  the two courts below have  believed the  evidence of the witnesses and have concurrently held that prosecution case has been established beyond reasonable  doubt but  in  view  of  the  contentions raised we  have ourselves carefully scrutinised the evidence of two  eye-witnesses PWs  2 and  3. On  going through their evidence we  find them to be wholly trustworthy and reliable and we  do not  find anything  brought out  in their  cross- examination to  impeach their  testimony. On their evidence, in  our   considered  opinion  it  must  be  held  that  the prosecution case  has been  proved beyond  reasonable  doubt that it  is accused - appellant who caused the injury on the abdomen of  the deceased  -  Manohar  on  account  of  which manohar died ultimately in the hospital.      It may  not be  out of place to notice another argument advanced on  behalf of  the accused  -  appellant  that  the prosecution have  not examined  independent witnesses though available and  have chosen  to examined only in the interest witnesses. On  being asked,  the counsel  for the  appellant could not  justify as  to why Sanjay, PW-2 can be held to be an interested  witness as  the records  of the  case reveal. Nanda, PW-3  and  the  accused  both  were  working  in  the chambers of  Shri D.N.  Patil, father of Sanjay till accused was  appointed   as   Assistant   Public   Prosecutor.   The relationship between  them was  very cordial and neither the accused has  stated in  his evidence nor there is an iota of material on  record to hold that Sanjay had any axe to grind against the  accused. He can not be held to be interested in the prosecution  and inimical  to the  accused and therefore must be  held to  be a  wholly dis-interested  witness. That apart even  the evidence  on record  does not  disclose that there were  other independent  witnesses available  and  yet withheld   by   the   prosecuting   from   being   examined, consequently no  adverse inference  can be drawn against the prosecuting on  that score.  In this  connection, it  may be worthwhile to  note that  the  accused  himself  immediately after the  occurrence  has  lodged  a  complaint  which  was treated as  first information report in the counter case and nowhere in  that complaint  he has indicated as to any other outsider being  present and  seeing the  occurrence. In  the aforesaid premises,  the conclusion  of the learned Sessions Judge as  well as  the High  Court to  the effect  that  the defence version  with regard  to the  manner  in  which  the injury could  have ben  caused on deceased Manohar is wholly unsustainable and cannot be interfered by this Court. On the other  hand   it  must   be  held,   on  the   reliable  and unimpeachable evidence  of PWs  2 and 3 that the prosecution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

case has been provided beyond all reasonable doubts.      Mr. Shanti  Bhushan’s last  argument on the question as to what  offence can  be said  to have  been caused required consideration  at  this  stage.  According  to  the  learned counsel the acts cannot be said to have caused the injury on the deceased  with the  intention  of  causing  such  bodily injury as  it  likely  to  cause  death  and  therefore  the conviction under   Section  304 Part-I is unsustainable. The doctor PW-7  who examined  the injured  Deshmukh immediately after  the  occurrence  and  who  thought  it  necessary  to undertake an  emergency operation  clearly indicated  in his evidence that  the patient  had stab  wound over the abdomen and probably  omentum was also seen in the wound. He further stated that  he was  of the  view  that  the  operation  was immediately necessary and the patient would have died if the operation had not been undertaken. He also stated looking at the injury  of the deceased, that the instrument of stabbing must have  moved inside the intestines and such injury could be inflicted  with sharp  object like knife and the injuries and be  called dangerous.  He also  opined that the injuries are sufficient  in the  ordinary course  of nature  to cause death in ordinary circumstances. From the evidence of Sanjay it is  crystal clear  that not  only the  accused  gave  the stabbing blow  on the abdomen of the deceased but even tried to give  a second  blow which missed and it is on that point of  time  Sanjay  intervened  and  he  was  also  ultimately injured. Looking  at the nature of injuries sustained by the deceased and  the  circumstances  as  enumerated  above  the conclusion is  irresistible that the death was caused by the acts of  the accused done with the intention of causing such bodily injury  as is likely to cause death and therefore the offence would  squarely come  within the Ist part of Section 304 I.P.C. The guilty intention of the accused to cause such bodily injury  as is  likely to cause death is apparent from the fact  that he  did attempt  a second blow though did not succeed in  the same  and is somehow missed. In that view of the matter  we are  of the  considered opinion that the High Court has  rightly convicted the appellant under Section 304 Part-II I.P.C.      Mr. Shanti  Bhushan in  course of his arguments brought to our  notice an affidavit filed in this Court by Shri D.N. Patil an advocate of Alibag, District - Raigad, Maharashtra. The said affidavit is nothing but a character certificate in respect of  the accused  and in  our view  ought not to have been filed  by a senior lawyer of which obviously no use can be made. In the aforesaid premises we do not find any merits in this appeal which is accordingly dismissed.      Coming to  the State appeal, in view of our conclusions arrived hereinbefore,  we do not find any merit in the same. No doubt  the contention  of Mr.  Shah  the  learned  senior counsel appearing  for the State on the question of sentence has  some  substance  as  ordinarily  for  conviction  under Section 304 Part-I sentence of 5 years can be held to be not proper. But having considered the facts and circumstances of the case  and reasons  advanced by  the High Court in giving such sentence  we are  not inclined  to interfere  with  the same. The  appeal arising  out of the SLP filed by the State accordingly also is dismissed.      In the  net result, both the appeals are dismissed. The bail bond  furnished  by  the  accused  -  appellant  stands cancelled and  appellant is  directed to  surrender to serve balance period of sentence.