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
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
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
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
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
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.
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
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
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.