{"id":31217,"date":"1997-12-04T00:00:00","date_gmt":"1997-12-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kasam-abdulla-hafiz-etc-vs-state-of-maharashtra-on-4-december-1997"},"modified":"2015-03-03T19:57:58","modified_gmt":"2015-03-03T14:27:58","slug":"kasam-abdulla-hafiz-etc-vs-state-of-maharashtra-on-4-december-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kasam-abdulla-hafiz-etc-vs-state-of-maharashtra-on-4-december-1997","title":{"rendered":"Kasam Abdulla Hafiz Etc vs State Of Maharashtra on 4 December, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kasam Abdulla Hafiz Etc vs State Of Maharashtra on 4 December, 1997<\/div>\n
Author: G Pattanaik<\/div>\n
Bench: G.N. Ray, G.B. Pattanaik<\/div>\n
           PETITIONER:\nKASAM ABDULLA HAFIZ ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT:\t04\/12\/1997\n\nBENCH:\nG.N. RAY, G.B. PATTANAIK\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t       THE 4TH DAY OF DECEMBER, 1997
\nPresent:\n<\/p>\n
\t\t Hon’ble Mr.Justice G.N.Ray
\n\t\t Hon’ble Mr.Justice G.B.Pattanaik
\nShanti\tBhushan,  I.G.Shah,  Sr.  Advs.,  Makarand  D.Adkar,
\nS.D.Singh,   S.Malik,\tSudhanshu   Atreya,   D.M.Nargolkar,
\nB.V.Desai, Advs. with them for the appearing parties.\n<\/p>\n
\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:\n<\/p>\n
\t\t\t    WITH
\n\t      Criminal Appeal No.1163 of 1997
\n\t       S.L.P. (Crl.) NO. 3039 OF 1994
\nG.B. PATTANAIK, J.\n<\/p>\n
     This appeal  is directed  against\tthe  conviction\t and
\nsentence of  the appellant  under Section 304 Part-I and 324
\nI.P.C. passed by the Division Bench of the Bombay High Court
\nin Criminal Appeal No. 71 of 1992. The appellant who was the
\nAssistant Public  Prosecutor at\t the relevant  point of time
\nstood charged under Sections 302 and 307 of the Indian Penal
\nCode  for   having  committed  the  murder  of\tone  Manohar
\nDeshmukh, father  of PW-3  Nanda Deshmukh  and injuring\t one
\nSanjay\tPatil,\tPW-2,  respectively.  The  learned  Sessions
\nJudge, Raigad  – Alibag,  in Sessions  case No.\t 102 of 1990
\nconvicted the  appellant of the charge under Section 302 for
\nhaving committed  the offence  of murder of Manohar Deshmukh
\nand  sentenced\t him  to  imprisonment\tfor  life.  He\talso
\nconvicted  the\tappellant  under  Section  307\tfor  causing
\ninjuries and  attempt to commit murder of Sanjay Patil, PW-2
\nand sentenced  him to  suffer rigorous imprisonment for five
\nyears, both  the  sentences  having  been  directed  to\t run
\nconcurrently. ON  appeal, the  Division Bench  of the Bombay
\nHigh  Court  agreed  with  the\tconclusion  of\tthe  learned
\nSessions Judge,\t that it  was the  appellant who  caused the
\ninjury on  the deceased\t Manohar who ultimately succumbed to
\nthe injury  and also  caused injury  on the person of Sanjay
\nPatil, PW-2  means of  a knife but taking into consideration
\nof the\tfact the  relationship between\tthe accused  and the
\ndeceased and  his family  members were cordial till the date
\nof the incident and further that the incident took place all
\nof a  sudden on\t the spur  of the  moment and the instrument
\nthat was used by the accused is such that the accused cannot
\nbe said\t to have  the intention\t to cause  the death  of the
\ndeceased the  High  Court  held\t the  accused  guilty  under
\nSection 304  Part-I I.P.C.  and\t sentenced  him\t to  undergo
\nrigorous imprisonment for a period of five years thereunder.
\nSo far\tas conviction of the appellant under Section 307 for
\ncausing injuries  on the  person   of PW-2  is concerned the
\nHigh Court  took into  consideration the  size of  the knife
\nthat was  used and  the manner\tin which  the  incident\t was
\nalleged to have occurred and came to the conclusion that the
\noffence should\tbe one\tpunishable under  Section 324 I.P.C.
\nand not\t under Section\t307 I.P.C.  For his conviction under
\nSection 324  I.P.C. the\t appellant was\tsentenced to undergo
\nrigorous imprisonment  for two\tyears  and  it\twas  further
\ndirected that  both the\t sentences would  run  concurrently.
\nHence the present appeal.\n<\/p>\n
     Against the  acquittal of\tthe accused-appellant of the
\ncharge under  Section 302  and 307  as well  as against\t the
\nsentence  awarded   by\tthe   High  Court  for\tfive  years’
\nimprisonment  for  the\toffence\t under\tSection\t 304  Part-I
\nI.P.C., the  State of  Maharashtra has\talso  preferred\t SLP
\n(Crl.) No.  3039 of  1994, wherein Court had passed an order
\n“issue notice” and tagging the same with the Criminal Appeal
\nNo. 551 of 1993. In the said SLP also leave is being granted
\nherein and  the matter\tis heard  along with Criminal Appeal
\nNo. 551 of 1993.\n<\/p>\n
     The prosecution  case in  nutshell is  that the accused
\nand PW-3  belong to  the legal\tprofession and\tboth of them
\nwere attached  to the  chambers of senior advocate Shri D.N.
\nPatil. The accused-appellant on being appointed as Assistant
\nPublic Prosecutor in the year 1988 left the chambers of Shri
\nD.N. Patil  and was  residing in  Sneha Apartment  where the
\nincident occurred.  Nanda Deshmukh  –  PW  3,  a  lawyer  by
\nprofession was\tcontinuing as  junior to Shri D.N. Patil and
\nwas a divorcee. She was also staying in the  same building –
\nSneha Apartment\t on the\t first floor along with her parents.
\nThe  relationship  between  Nanda  Deshmukh,  PW-3  and\t the
\naccused –  appellant was  all  along  cordial.\tIt  was\t the
\nfurther prosecution  case that a criminal case under Section
\n395 I.P.C. was being tried by the Additional Sessions Judge-
\nShri P.M.  Joshi and  D.N. Patil,  Advocate was\t the defence
\nlawyer along with Smt. Nanda Deshmukh and the fag end of the
\ntrial Shri  Patil could\t not attend  to the  proceeding\t and
\nhanded over  the case to Smt. Nanda Deshmukh. Ultimately, in
\nthat case  the learned\tAdditional Sessions  Judge convicted
\nthe accused but released the accused on bond by applying the
\nprovisions of  Probation of Offenders Act. In March, 1990 in
\na get-together\tof some lawyers the accused made a statement
\nthat he had heard that Nanda Deshmukh had taken Rs. 50,000\/-
\nin the\tname of\t the Judge  in\twhose  court  the  aforesaid
\ncriminal proceeding  was pending.  When Nanda Deshmukh heard
\nabout this  statement  made  by\t the  accused  she  met\t the
\nDistrict Judge,\t Alibag, Mr. Vazalvar and complained against
\nthe accused-appellant  that he\tis  unnecessarily  spreading
\nfalse rumours.\tIt appears  that the District Judge called a
\nmeeting of  some of the lawyers and Additional Session Judge
\nShri Joshi  and in that meeting the District Judge commented
\nupon the  conduct of  the accused  as to  why  he  has\tbeen
\nspreading rumours  about Nanda\tDeshmukh that  she had taken
\nmoney in  the name  of\tthe  Judge.  The  accused  thereupon
\nreplied the  District Judge  that he had never said that the
\nmoney was  collected in\t the name of the Additional District
\nJudge, Shri  Joshi but\the had only said that Nanda Deshmukh
\nhad taken a sum of Rs. 50,000\/- from the accused. The senior
\nlawyers who  were present  in that meeting told the District
\nJudge that  since the  accused had  not made  any allegation
\nagainst the  District Judge, Shri Joshi but he merely stated
\nthat Nanda  had taken money from the accused, the dispute is
\none between two individual lawyers and the Judges should not
\nbe brought  into the  dispute. Thereafter  the\tmeeting\t was
\ndispersed and  Nanda came  home. She  was in a very agitated
\nand disturbed  mood on\taccount\t of  what  happened  in\t the
\nchambers of  the District Judge and to her father’s query as
\nto why\tshe was\t in a agitated mood’ she narrated the entire
\nincident that  had  taken  place  in  the  chambers  of\t the
\nDistrict Judge.\t Shri Sanjay  Patil, PW-2, who is the son of
\nNanda’s senor  Shri D.N.  Patil was passing by that area and
\non seeing  Nanda’s car\tparked down  stair came\t to  Nanda’s
\nhouse and  heard all  that she was telling to her father. It
\nis at  the point  of time  Nanda’s daughter  – Sonal who was
\nstanding near the window of the flat stated that accused has
\ncome. On  hearing from\tSonal that  accused has\t come, Nanda
\nDeshmukh, PW-3\trushed to  the ground  floor followed by her
\nfather Manohar Deshmukh (the deceased) and Sanjay Patil, PW-\n<\/p>\n
2. Nanda  Deshmukh asked  the accused who was sitting in the
\ncar as\tto why\the has been spreading rumours against her to
\nwhich the accused reiterated that she had given money to the
\nJudge –\t Shri P.M.  Joshi. The\tfurther prosecution  case is
\nthat accused  then came\t out of\t the car  and rushed towards
\nNanda but  deceased Manohar  pulled Nanda  back. The accused
\nthen throw  a brick  towards the  Manohar which\t hit in\t his
\nabdomen thereupon the accused brought out a knife and gave a
\nblow on\t the abdomen  of the deceased – Manohar and while he
\nwas trying  to give a second blow on the deceased it somehow
\nmissed and  Sanjay Patil,  PW-2 rushed\tto the\taccused\t and
\ncaught him  by his  hands. Sanjay  then pushed\tthe  accused
\nagainst the  compound wall.  The accused,  however, attacked
\nSanjay and  gave to  stabbing blow with the knife hit Sanjay
\non his\tleft hand.  Accused thereafter left the place in his
\ncar. PW-9, one of the occupants of the said building reached
\nthe place and took Sanjay to the dispensary of Dr. Deshpanda
\nwhere some first aid was given. Thereupon Sanjay went to the
\nPolice Station\tand gave  a report  at 3.10  p.m. on 19th of
\nMarch, 1990  which was\ttreated as  F.I.R. (Ex\t30). On\t the
\nbasis of  said F.I.R. a criminal case was registered and the
\npolice took  up\t investigation\tand  finally  submitted\t the
\ncharge-sheet against  the accused whereafter the accused was
\ncharge-sheet against  the accused whereafter the accused was
\ntried for  the offences\t as already  stated. Injured Manohar
\nwas taken  to Dr.  Hoshing, PW-7  who examined\thim at about
\n2.30 p.m.  on  19.3.1990.  Looking  at\tthe  injury  on\t the
\nabdominal region  doctor took the decision that an emergency
\noperation is  necessary and  accordingly operated  upon\t the
\ninjured –  Manohar. Manohar  became  serious  in  the  Civil
\nHospital at  Alibag and\t therefore he  was taken  to Hinduja
\nHospital, Bombay  on 27.3.1990 and ultimately died in Bombay
\non 29.3.1990.  It may  be stated  at this stage that accused
\nhimself after  leaving the  place of  occurrence came to the
\ncourt of  the District Judge and narrated his version of the
\nincident to  him. The  District Judge then called the Public
\nProsecutor and\tadvised him to inform the police immediately
\nabout the  occurrence. The  police was\tthen called  and the
\naccused himself\t gave a report in writing giving his version
\nof the occurrence which was treated as F.I.R. of the counter
\ncase. The  said counter\t case, however,\t ultimately ended in
\nacquittal. The defence version of the incident as transpired
\nfrom the  complaint lodged by the accused himself on 19.3.90
\nas well\t as from  the suggestions  give to  the\t prosecution
\nwitnesses and  statement of  the accused  under Section\t 313
\nI.P.C. is  that the  Deshmukh family  including\t Nanda,\t her
\nparents and  the maid  servant Chhaya  rushed from the first
\nfloor of  the house and started assaulting the accused while
\nhe was\tstill inside  the car,\teven some dung was spread on
\nhis clothes  and face,\tthe accused then came out of his car
\nand at\tthat point  of time  the maid  servant Chhaya handed
\nover a\tknife to Sanjay, PW-2 and while Sanjay was attacking
\nthe accused with the knife he pushed the deceased on account
\nof which the deceased received the injury on his abdomen and
\nthe accused came away from the place by driving his vehicle.\n<\/p>\n
     The prosecution examined 13 witnesses in all in support
\nof its case of whom PWs 2 and 3 are the eye witnesses to the
\noccurrence. PW-7  is the  Civil Surgeon\t of Civil  Hospital,
\nAlibag where  the injured Manohar Deshmukh had been operated
\nupon and  PWs 8\t and 10 are also the doctors attached to the
\nsaid hospital  at Alibag.  Said PS-10, Dr. Adhatrao had also
\nexamined the  accused and  had issued the Injury Certificate
\n(Ex. 61).  PW-11 is  the Medical  Officer who  had performed
\nautopsy on  the dead  body of deceased Manohar and the post-
\nmortem report  given by\t him is\t Ex.68. PW-12  also  is\t the
\ndoctor had  was Associate  Professor in Pathology and he had
\nexamined  the\tviscera\t of   the  deceased.  PW-13  is\t the
\ninvestigating office  and he  had recorded  the statement of
\ndeceased Manohar  at  the  civil  Hospital,  Alibag  in\t the
\nevening of  19th of March, 1990 which has been treated to be
\ndying declaration (Ex. 79). From the evidence of the doctors
\nwho had\t conducted the operation on deceased Manohar as well
\nas the\tdoctor who conducted the autopsy on the dead body of
\nthe deceased  Manohar the  learned Sessions Judge recorded a
\nfinding that  Manohar the  learned Session  Judge recorded a
\nfinding that Manohar met with a homicidal death and the said
\nfinding has not been assailed either in the High Court or in
\nthis Court.  On 19th  of March,\t 1990 and  incident happened
\nnear Sneha Apartment is also not disputed nor is it disputed
\nthat on\t account of  sustaining injury\tby means  of a knife
\nManohar father of PW-3 ultimately died and Sanjay Patil, PW-
\n2 also received some injuries. The dispute centres round the
\nquestion as  to what  manner the  incident  occurred.  While
\naccording to the ocular statements of eye-witnesses of PWs 2
\nand 3  deceased Manohar\t and Sanjay  Patil PW-2 received the
\ninjuries on  their person  on account of stabbing blow being
\ngiven by  accused, according  to the  defence version it was
\nSanjay who was rushing towards the accused with the knife in
\nhis hand  which he  got from  the maid\tservant\t Chhaya\t and
\naccused then  pushed the  deceased. Manohar  on\t account  of
\nwhich deceased sustained the injury and ultimately succumbed
\nto the\tsame in\t the hospital. The learned Sessions Judge as
\nwell as\t the High  Court relying  upon the evidence of PWs 2
\nand 3  have concurrently  found that  the prosecution  story
\nunfolded through the evidence of these two witnesses is true
\nand reliable and the defence version of the incident has not
\nbeen accepted.\tThe  learned  Sessions\tJudge  came  to\t the
\nconclusion that the accused caused an injury on Manohar with
\nthe intention  to kill\thim but the High Court reversed that
\nfinding and  came to hold that there was no intention on the
\npart of\t the accused to kill Manohar and accordingly altered
\nthe conviction of Section 302 to Section 304 Part-I I.P.C.\n<\/p>\n
     Mr. Shanti Bhushan the learned senior counsel appearing
\nfor the\t accused –  appellant  contended  that\tthe  accused
\nhaving sustained  several injuries  on his  person  and\t the
\nprosecution having  not explained  as to  how those injuries
\ncould be  sustained by\tthe accused,  the entire prosecution
\ncase as\t unfolded through the evidence of PWs 2 and 3 become
\nvulnerable and as such no reliance can be placed on the said
\ntestimony  and\tprosecution  case  must\t fail.\tThe  learned
\ncounsel further contended that from the prosecution evidence
\nitself as well as from the injuries sustained by the accused
\nit transpires  that the\t accused was  being assaulted by the
\ndeceased, his daughter Nanda, his wife, his maid servant and
\nSanjay, PW-2  while the accused was still sitting in his car
\nand at\tthat point  of time  the accused  having apprehended
\ndanger to his life or at least danger of sustaining grievous
\ninjury in hands of the deceased and his family members, gave
\nthe single  blow on  the abdomen of the deceased in exercise
\nof right  of private defence on his person and therefore the
\nconviction of  the appellant  is unsustainable.\t Mr.  Shanti
\nBhushan lastly\tsubmitted that even assuming the prosecution
\ncase as\t unfolded through  the evidence\t of PWs\t 2 and\t3 is
\nwholly correct\tthen yet  the offence  should be  one at the
\nmost under  Section 304\t Part – II and not under Section 304
\nPart-I inasmuch as the act of the accused by which the death
\nwas ultimately\tcaused cannot be said to have been done with
\nthe intention  of causing  death or  of causing\t such bodily
\ninjury as  is likely  to cause\tdeath. This  is apparent not
\nonly from  the fact  that the single blow was given but also
\nfrom the  fact\tthat  the  injured  was\t operated  upon\t and
\nsurvived thereafter  till 29.3.1990  and there\tmight  be  a
\nvariety of reasons for such death which may not be connected
\nwith directly  to the  injury that was caused by the accused
\non the abdomen of the deceased.\n<\/p>\n
     Shri Shah\tthe learned senior counsel appearing for the
\nState on  the other  hand repelled  the contention raised by
\nMr. Shanti  Bhushan and\t urged that  there is  no  materials
\navailable on  record from  which it  can be  said  that\t the
\naccused caused\tthe injury  in exercise\t of right of private
\ndefence. He further contended that in law the prosecution is
\nnot obliged  to explain\t minor and  superficial injuries  on
\naccused and  non-explanation of\t such  superficial  injuries
\nwill not  fatal to  the prosecution. But in the case in hand
\naccording to the learned counsel the prosecution has offered
\nan explanation\tfor the\t so-called  minor  injuries  on\t the
\naccused inasmuch  as PW-2 Sanjay stated in his evidence that
\nhe pushed  back the  accused towards the wall and on account
\nof such\t conduct he  might have sustained some injuries. The
\nlearned counsel also urged that looking at the injury caused
\nby the accused and the part f the body of the deceased where
\nsuch injury  was caused\t it must be reasonable held that the
\naccused had  the intention  of causing\tsaid  bodily  injury
\nwhich is  likely to cause death and medical evidence clearly
\nsupports  that\t view  and   consequently  the\taccused\t was
\nconvicted by  the High Court under Section 304 Part-I I.P.C.
\nIn support  of the State’s appeal, the learned counsel urged
\nthat the  order of acquittal of the charge under Section 302
\nis unjustified\tas evidence  reveals that  accused with\t the
\nintention of  causing murder  brought out  the pen knife and
\npushed in  inside the  deceased Manohar. At any rate even if
\nthe accused can be said to have been rightly convicted under
\nSection 304  Part-I by\tthe High Court, the sentence awarded
\nthereunder is  wholly  unjustified  and\t this  Court  should
\nenhance the sentence.\n<\/p>\n
     In view  of the  rival submissions at the Bar the first
\nand foremost  question\tthat  arises  for  consideration  is
\nwhether the  non-explanation of\t the injuries  found on\t the
\naccused can  be said to be fatal to the prosecution case and
\nfurther whether\t the prosecution has offered any explanation
\nwhich can  be said  to be acceptable. Mr. Shanti Bhushan the
\nlearned senior\tcounsel appearing  for the accused-appellant
\nstrongly relied\t upon the decision of this Court in the case
\nof LAKSHMI  SINGH AND OTHER Vs. STATE OF BIHAR, (1976) 4 SCC
\n394 in support of his contention that non-explanation of the
\ninjuries of  on the  accused by\t the prosecution is fatal to
\nthe prosecution\t case. In the aforesaid case this Court held
\nthat in\t a number  case the  non-explanation of the injuries
\nsustained by the accused at about the time of the occurrence
\nor  in\t the  course  of  alteration  is  a  very  important
\ncircumstance from  which the  court can\t draw the  following
\ninferences:\n<\/p>\n
(1)  that the prosecution has suppressed the genesis and the
\n     origin of the occurrence and has thus not presented the
\n     true version;\n<\/p>\n
(2)   that the witnesses who have denied the presence of the
\n     injuries on  the person  of the  accused are lying on a
\n     most material  point and  therefore their\tevidence  is
\n     unreliable;\n<\/p>\n
(3)   that in case there is a defence version which explains
\n     the injuries  on  the  person  of\tthe  accused  it  is
\n     rendered probable\tso to throw doubt on the prosecution
\n     case.\n<\/p>\n
     While observing this the Court hasten to add as held by
\nthis Court  in STATE OF GUJARAT Vs. BAI FATIMA, (1975) 2 SCC
\n7 :”there  may be  cases where\tthe non-explanation  of\t the
\ninjuries by  the prosecution  may not affect the prosecution
\ncase. This  principle would  obviously apply  to cases where
\nthe  injuries\tsustained  by  the  accused  are  minor\t and
\nsuperficial or where the evidence is so clear and cogent, so
\nindependent and\t disinterested, so  probable, consistent and
\ncreditworthy, that  it\tfar  outweighs\tthe  effect  of\t the
\nomission on  the part  of the  prosecution  to\texplain\t the
\ninjuries.” Bearing  in mind  the aforesaid principles of law
\nthe contention\tof Mr.\tShanti\tBhushan\t on  this  score  is
\nrequired to  be examined.  The accused\tas  per\t the  Injury
\nCertificate (Ex.61)  given to him as found to have sustained
\nthe following injuries:\n<\/p>\n
1)    Contusion\t on back  right scapular  region  vertically
\n     directed 103 cm x 2 cm red discoloration.\n<\/p>\n
2)    Contusion\t on back  right scapular  region  vertically
\n     directed 3 cm x 2 cm red discoloration.\n<\/p>\n
3)    Abrasion\tof left\t ring figure proximal Phalank dorwal
\n     aspect 1 cm x 1 cm.\n<\/p>\n
4)   Contusion on forehead middle region vertically directed
\n     3cm x 1\/2 cm red discoloured.\n<\/p>\n
5)  Abrasion at bridge of nose 1\/2 cm.\n<\/p>\n
6)    Contusion\t on right  side of check inner aspect 2 cm x
\n     1\/2 red discoloration.\n<\/p>\n
Simple blunt object.”\n<\/p>\n
     The dimension  and nature\tof injuries clearly indicate
\nthat they are simple in nature. There were two abrasions and
\nfour contusions.  These injuries  found on the person of the
\naccused are  such that\tnon-explanation to them could not be
\nfatal to  the prosecution  case as was held by this Court in
\nBAI FATIMA’s  case referred  to supra  (1975) 2\t SCC 7.\t Mr.
\nShanti Bhushan\tno doubt  strenuously urged  that the injury
\nheld by\t the doctor  to be simple is in contradistinction to
\n‘grievous’ but the contusion on forehead though of dimension
\n3 cm  x 1\/2  cm must  be held to be an injury of such nature
\nwhich the  prosecution was  obliged to\texplain and  in\t the
\nabsence of  any explanation  it ought  to be  held that\t the
\nprosecution is\tnot coming  forward with true version of the
\ncase. We are unable to accept this submission of the learned
\ncounsel. The principle that non-explanation of injury on the
\nperson of the accused would be fatal to the prosecution case
\nwould apply  only when\tthe injuries could be of such nature
\nwhich the  prosecution witnesses cannot but notice the same.
\nBut the\t injury on  the person\tof the\taccused even  on the
\nforehead which was found by the doctor is such that it would
\nbe difficult  to held  same and\t must offer  an explanation.
\nSuch minor injuries can be caused for variety of reasons and
\nthe prosecution\t case must not suffer for non explanation of
\nsuch minor  injuries. We  are therefore unable to accept the
\ncontention of Mr. Shanti Bhushan on this score. We also find
\nsufficient force  in the  contention of\t Mr.  Shah,  learned
\ncounsel appearing  for\tthe  State  –  respondent  that\t the
\nprosecution has\t offered explanation for such minor injuries
\non the\tperson of  the accused.\t PW-2, Sanjay  Patil in\t his
\nevidence  has  categorically  stated  that  while  that\t the
\naccused was  attempting a  second blow\tat the\tdeceased  he
\ncaught hold  o wrist of the accused and then pushed him back
\nas a  result of\t which the  accused there dashed against the
\ncompound wall.\tIt is  just possible that on account of such
\ndashing the  minor injuries  on the  person of\tthe  accused
\ncould have been possible. That part the accused was examined
\nhimself as  DW-2 and  has stated  that while  he  was  still
\ninside the car the prosecution party namely deceased Manohar
\nand his\t daughter assaulted  him with  stick, on  that score
\nalso  the  accused  might  has\tsustained  the\tinjuries  in
\nquestion. In  this view\t of the\t matter on  the materials on
\nrecord we  are not in a position to hold that there has been
\nno explanation\tfor the\t minor\tinjuries  sustained  on\t the
\nperson of the accused.\n<\/p>\n
     The next  question that  would  arise  is\twhether\t the
\naccused can  be said  to have  inflicted that  blow  on\t the
\nabdomen of  the deceased  while apprehending grievous injury
\non him from the prosecution party. In that event the benefit
\nof Section 100 of the Indian Penal Code can be given to him.
\nUnder Section  100 of  the Indian  Penal Code  the right  of
\nprivate defence\t of body  extends to  the assailant  if\t the
\noffence which  occasions the exercise of the right be of any
\nof the\tdescriptions enumerated\t in six\t clauses of the said
\nSection. According to Mr. Shanti Bhushan, the learned senior
\ncounsel appearing  for the  appellant when  the accused\t was
\nbeing assaulted\t with the  `tommy’ a reasonable apprehension
\ncould have  been caused that grievous hurt will otherwise be
\nthe consequence of the assault and therefore the accused was
\njustified in  giving the  blow in  exercise of\this right of
\nprivate defence\t on his\t person. It  may be noticed that the
\naccused though himself had been examined as a witness in the
\ncase as DW-2 but he has never uttered a word indicating that
\nhe had\tany apprehension  of a grievous hurt being caused to
\nhim. It\t is of\tcourse true  that in  law a plea of right of
\nprivate defence\t would be  available  to  the  accused\teven
\nthough the  plea has  not been taken by the accused provided
\nthe materials on record would justify such a plea. But since
\nit is  the  apprehension  of  the  accused  which  could  be
\nmaterial to  sustain a\tplea of right of private defence and
\nsince the  accused himself chose to be examined as a witness
\nand has\t not uttered a word about such apprehension it would
\nbe difficult  to  sustain  the\tplea.  That  part  from\t the
\nmaterial available on record namely the prosecution evidence
\nof the\tcase, Mr.  Shanti Bhushan  has not  been prosecution
\nevidence of  the case,\tMr. Shanti Bhushan has not been able
\nto lay\this hand  on any  specific part of the evidence from
\nwhich such  plea can  at all  be said to be available to the
\naccused. As  has been  stated earlier the injuries which the
\naccused has  sustained on  his person might have been caused
\nwhile the  accused was\tpushed\tby  Sanjay  and\t was  dashed
\nagainst the  compound wall  or even  while the\taccused\t was
\nsitting in  his car  and was  said to have been assaulted by
\nthe deceased  and his  daughter by a stick. But the incident
\nof stabling  on the abdomen of the deceased has not occurred
\nwhile the accused was inside the car on the other hand while
\nhe has\tcome out and while the deceased wanted to prevent an
\nattack by  the accused\ton Nanda. Dr. Adhatrao, PW-10 in his
\nevidence has  categorically stated,  after referring  to the
\ninjury certificate  mentioned in  respect of the accused and
\nafter being  shown iron\t tommy of  the motor  vehicle,\tthat
\n“after examining  the article  physically I  state that\t the
\nsaid article  is neither  heavy\t nor  light.  I\t state\tthat
\ninjuries of  such nature  on the person of Kasam Hafiz would
\nnot have  accrued with\tforceful assault with such tommy and
\nwooden stick”.\tIn the\tabsence of any material on record to
\nestablish that the so-called assault by the tommy might have
\nreasonably caused  the\tapprehension  in  the  mind  of\t the
\naccused that  grievous hurt  will otherwise be caused and in
\nview of\t the  aforesaid\t positive  evidence  of\t the  doctor
\nreferred to, its difficult to hold that assault given by the
\naccused can  be said  to be  one in  exercise  of  right  of
\nprivate defence\t on his\t person. We  are therefore  not in a
\nposition to  sustain the contention of Mr. Shanti Bhushan on
\nthis core.  Though normally  this court\t does not scrutinise
\nthe evidence  of witnesses  in a  case where  the two courts
\nbelow have  believed the  evidence of the witnesses and have
\nconcurrently held that prosecution case has been established
\nbeyond reasonable  doubt but  in  view\tof  the\t contentions
\nraised we  have ourselves carefully scrutinised the evidence
\nof two\teye-witnesses PWs  2 and  3. On\t going through their
\nevidence we  find them to be wholly trustworthy and reliable
\nand we\tdo not\tfind anything  brought out  in their  cross-
\nexamination to\timpeach their  testimony. On their evidence,
\nin  our\t  considered  opinion  it  must\t be  held  that\t the
\nprosecution case  has been  proved beyond  reasonable  doubt
\nthat it\t is accused – appellant who caused the injury on the
\nabdomen of  the deceased  –  Manohar  on  account  of  which
\nmanohar died ultimately in the hospital.\n<\/p>\n
     It may  not be  out of place to notice another argument
\nadvanced on  behalf of\tthe accused  –\tappellant  that\t the
\nprosecution have  not examined\tindependent witnesses though
\navailable and  have chosen  to examined only in the interest
\nwitnesses. On  being asked,  the counsel  for the  appellant
\ncould not  justify as  to why Sanjay, PW-2 can be held to be
\nan interested  witness as  the records\tof the\tcase reveal.
\nNanda, PW-3  and  the  accused\tboth  were  working  in\t the
\nchambers of  Shri D.N.\tPatil, father of Sanjay till accused
\nwas  appointed\t as   Assistant\t  Public   Prosecutor.\t The
\nrelationship between  them was\tvery cordial and neither the
\naccused has  stated in\this evidence nor there is an iota of
\nmaterial on  record to hold that Sanjay had any axe to grind
\nagainst the  accused. He can not be held to be interested in
\nthe prosecution\t and inimical  to the  accused and therefore
\nmust be\t held to  be a\twholly dis-interested  witness. That
\napart even  the evidence  on record  does not  disclose that
\nthere were  other independent  witnesses available  and\t yet
\nwithheld   by\tthe   prosecuting   from   being   examined,
\nconsequently no\t adverse inference  can be drawn against the
\nprosecuting on\tthat score.  In this  connection, it  may be
\nworthwhile to  note that  the  accused\thimself\t immediately
\nafter the  occurrence  has  lodged  a  complaint  which\t was
\ntreated as  first information report in the counter case and
\nnowhere in  that complaint  he has indicated as to any other
\noutsider being\tpresent and  seeing the\t occurrence. In\t the
\naforesaid premises,  the conclusion  of the learned Sessions
\nJudge as  well as  the High  Court to  the effect  that\t the
\ndefence version\t with regard  to the  manner  in  which\t the
\ninjury could  have ben\tcaused on deceased Manohar is wholly
\nunsustainable and cannot be interfered by this Court. On the
\nother  hand   it  must\t be  held,   on\t the   reliable\t and
\nunimpeachable evidence\tof PWs\t2 and 3 that the prosecution
\ncase has been provided beyond all reasonable doubts.\n<\/p>\n
     Mr. Shanti\t Bhushan’s last\t argument on the question as
\nto what\t offence can  be said  to have\tbeen caused required
\nconsideration  at  this\t stage.\t According  to\tthe  learned
\ncounsel the acts cannot be said to have caused the injury on
\nthe deceased  with the\tintention  of  causing\tsuch  bodily
\ninjury as  it  likely  to  cause  death\t and  therefore\t the
\nconviction under   Section  304 Part-I is unsustainable. The
\ndoctor PW-7  who examined  the injured\tDeshmukh immediately
\nafter  the  occurrence\tand  who  thought  it  necessary  to
\nundertake an  emergency operation  clearly indicated  in his
\nevidence that  the patient  had stab  wound over the abdomen
\nand probably  omentum was also seen in the wound. He further
\nstated that  he was  of the  view  that\t the  operation\t was
\nimmediately necessary and the patient would have died if the
\noperation had not been undertaken. He also stated looking at
\nthe injury  of the deceased, that the instrument of stabbing
\nmust have  moved inside the intestines and such injury could
\nbe inflicted  with sharp  object like knife and the injuries
\nand be\tcalled dangerous.  He also  opined that the injuries
\nare sufficient\tin the\tordinary course\t of nature  to cause
\ndeath in ordinary circumstances. From the evidence of Sanjay
\nit is  crystal clear  that not\tonly the  accused  gave\t the
\nstabbing blow  on the abdomen of the deceased but even tried
\nto give\t a second  blow which missed and it is on that point
\nof  time  Sanjay  intervened  and  he  was  also  ultimately
\ninjured. Looking  at the nature of injuries sustained by the
\ndeceased and  the  circumstances  as  enumerated  above\t the
\nconclusion is  irresistible that the death was caused by the
\nacts of\t the accused done with the intention of causing such
\nbodily injury  as is likely to cause death and therefore the
\noffence would  squarely come  within the Ist part of Section
\n304 I.P.C. The guilty intention of the accused to cause such
\nbodily injury  as is  likely to cause death is apparent from
\nthe fact  that he  did attempt\ta second blow though did not
\nsucceed in  the same  and is somehow missed. In that view of
\nthe matter  we are  of the  considered opinion that the High
\nCourt has  rightly convicted the appellant under Section 304
\nPart-II I.P.C.\n<\/p>\n
     Mr. Shanti\t Bhushan in  course of his arguments brought
\nto our\tnotice an affidavit filed in this Court by Shri D.N.
\nPatil an advocate of Alibag, District – Raigad, Maharashtra.
\nThe said affidavit is nothing but a character certificate in
\nrespect of  the accused\t and in\t our view  ought not to have
\nbeen filed  by a senior lawyer of which obviously no use can
\nbe made. In the aforesaid premises we do not find any merits
\nin this appeal which is accordingly dismissed.\n<\/p>\n
     Coming to\tthe State appeal, in view of our conclusions
\narrived hereinbefore,  we do not find any merit in the same.
\nNo doubt  the contention  of Mr.  Shah\tthe  learned  senior
\ncounsel appearing  for the State on the question of sentence
\nhas  some  substance  as  ordinarily  for  conviction  under
\nSection 304 Part-I sentence of 5 years can be held to be not
\nproper. But having considered the facts and circumstances of
\nthe case  and reasons  advanced by  the High Court in giving
\nsuch sentence  we are  not inclined  to interfere  with\t the
\nsame. The  appeal arising  out of the SLP filed by the State
\naccordingly also is dismissed.\n<\/p>\n
     In the  net result, both the appeals are dismissed. The
\nbail bond  furnished  by  the  accused\t–  appellant  stands
\ncancelled and  appellant is  directed to  surrender to serve
\nbalance period of sentence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kasam Abdulla Hafiz Etc vs State Of Maharashtra on 4 December, 1997 Author: G Pattanaik Bench: G.N. Ray, G.B. Pattanaik 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-31217","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKasam Abdulla Hafiz Etc vs State Of Maharashtra on 4 December, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kasam-abdulla-hafiz-etc-vs-state-of-maharashtra-on-4-december-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kasam Abdulla Hafiz Etc vs State Of Maharashtra on 4 December, 1997 - 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