Supreme Court of India

KASAM ABDULLA HAFIZversusSTATE OF MAHARASHTRA

Citation: 1997 INSC 790
Decided: 4 December 1997
Disposal: Dismissed
Bench: G N RAY

Holding

The Supreme Court upheld the conviction of the accused under Section 304 Part I IPC and Section 324 IPC, finding the prosecution case proved beyond reasonable doubt and rejecting the plea of private defence.

Summary

Kasam Abdulla Hafiz, a former assistant public prosecutor, was charged with murder (Sec. 302 IPC) and attempt to murder (Sec. 307 IPC) after he allegedly threw a brick and stabbed Manohar Deshmukh, the father of a colleague, resulting in Deshmukh's death, and also injured Sanjay Patil. The Sessions Court convicted him of murder and attempted murder, sentencing him to life imprisonment and five years rigorous imprisonment respectively. The Bombay High Court reduced the murder conviction to culpable homicide not amounting to murder (Sec. 304 Part I) and sentenced him to five years, also convicting him under Sec. 324 IPC for the injury to Patil. On appeal, the Supreme Court examined the credibility of eye‑witnesses, the significance of the accused’s minor injuries, and the applicability of the right of private defence. It held that the witnesses were trustworthy, the minor injuries did not undermine the prosecution case, and there was no evidence of apprehended danger to justify private defence. Consequently, the Court affirmed the conviction under Sec. 304 Part I and Sec. 324 IPC and dismissed both appeals, leaving the sentence unchanged.

Issues considered

The non‑explanation of minor injuries on the accused – whether it defeats the prosecution case.
Whether the accused can invoke the right of private defence under Sec. 100 IPC.
Whether the appropriate charge is murder (Sec. 302), culpable homicide not amounting to murder (Sec. 304 Part I), or culpable homicide amounting to murder (Sec. 304 Part II).
Whether the injury to PW‑2 should be punished under Sec. 307 IPC or Sec. 324 IPC.
The propriety of the five‑year sentence for conviction under Sec. 304 Part I.

Legislation cited

Constitution of Indias. Article 13
Indian Penal Code, 1860s. 100, s. 302, s. 304(Part I), s. 304(Part II), s. 307, s. 324
Probation of Offenders Act

Subjects

murderculpable homicideprivate defenceinjury explanationeye‑witness reliabilitysentencingIPC sections 302 304 324 307 100article 13

Judgment

A KASAM ABDULLA HAFIZ
v.
STATE OF MAHARASHTRA

DECEMBER 4, 1997

B (G.N. RAY AND G.B. PATTANAIK, J.J.)

Indian Penal Code, 1860:

Section 304 and 324-Accused hit the victim on abdomen by a brick
C and stabbed him in the stomach-Victim died after JO day.1~Accused also
stabbed hand of another who was discharged after first aid-Sessions Judge
convicted accused under Sections 302 and 307 /PC for murder and attempt
to murder and sentenced him to life-However, High Court reduced the
sentence and convicted accused under Section 304 Pa1t 1, !PC and Section
324 /PC for culpable homicide not amounting to murder and causing hwt by
D dangerous weapon, respectively, taking into consideration the sudden fight
and size of knife used - Plea in cross appeals that no explanation of injuries
on accused by prosecution--Held - injuries simple-Not such that must have
been noticed and explained by witnesses-Their non-explanation not fatal to
prosecution case-In any case surviving victim gave reasonable explanation.
E Section JOO-Right of self defence---Not sustainable where accused
examined as witness but did not say anything about apprehending giievous
injury to himself-Nor anything on record to indicate existence of such
apprehension.

Sentence-Conviction under Section 304 Pa1t I IPC-Held-Sentence
F
of only 5 years R.!. ordinarily not proper-Howevel'---Conside1ing reasons
given by High Court-Not interfered with.

Constitution of India, 1950 :

Article 13fr--Nonnally this court does not look illlo concurrent findings
G
of evidence-In view of contentions raised, it carefully scrutinized evidence of
eye witnesses----Found evidence of Pfl12 and fW-3 to be t1ustworthy and held
prosecution case proved beyond reasonable doubt.

The prosecution case, based on statements of PW2 and PW3, was
H that the accused and PW-3 were advocates attached to the chambers of a
168
KASAMABDULLAHAFIZ v. STATE 169

particular senior advocate and living in the same building. When the A
accused became an assistant public prosecutor he left the chambers of the
senior advocate. The relationship between the accused and PW-3 was
cordial. However, in March 1990 PW-3 complained to the District Judge
that the accused had spread false rumours about her that PW-3 had taken
Rs. 50,000 in the name of the Additional Sessions Judge before whom PW-3 B
had argued a criminal case. In a meeting called by the District Judge, the
accused stated that he had not said that money had been collected in the
name of a judge but had merely stated that PW-3 had taken Rs. 50,000
from her client. After the meeting, PW-3 was very agitated and on reaching
home, narrated the incident to her father. PW-2, the so~ of her senior also
happened to come to the house of PW-3 and heard PW-3 narrating the C
incident. Just then PW-3 heard that the accused was downstairs and she
rushed down, followed by her father, the deceased, and PW-2. PW-3
confronted the accused, who was sitting in the car, about the false rumours
0

he was spreading, upon which the accused rush ed towards PW-3, but, her
father pulled her back. The accused then threw a brick towards the father D
of PW-3 which hit his abdomen and thereafter, pulled out a pen knife and
stabbed him in the abdomen. The second blow missed the victim and in
the meanwhile, PW-2 c;mght the hands of the accused and pushed him
against the compound wall. The accused however, managed to stab PW-2
on his left hand and then drove away.
E
PW-2, after receiving first aid, gave an FIR in the afternoon on 19th
March 1990. The injured father of PW-3 was taken to doctor, PW-7, who
opined that an emergency operation was necessary and thereafter, since
his condition was serious, he was, taken to Bombay, where he died on
29.3.90. F

The defense version, based on the complaint lodged by the accused
and the evidence of the accused was that PW-3 and her family, including
her maid servant, rushed down and started assaulting the accused while he
was still in the car. When the accused came out of the car, the maid servant G
handed a knife to PW-2. While PW-2 was attacking the accused with the
knife, he pushed the deceased due to which the deceased received injuries,
after which the accused drove away. He narrated the incident to the District
Judge who advised him to inform the police. An FIR was also registered by
the police on the Complaint of the accused. The counter case, however,
ended in ac11uittal. H
170 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A On the basis of FIR filed by PW-2, the accused was charged under
Section 302 IPC with murder of father of PW-3 and under Section 307 IPC
for attempt to murder and causing injuries to PW-2. The Sessions Court
found that the charges been proved and accordingly, convicted the ac-
cused on both counts and sentenced him to imprisonment for life on first
count and R.I. for 5 years on second count. In appeal, the High Court,
B relying upon the evidence of PW-2 and PW-3, concurred with the Sessions
Cou~t that the accused had caused injuries on the deceased and on PW-2
with a knife. However, considering the instrument used and the fact that
the relationship between the parties was cordial till the incident, which was
on the spur of the moment, the High Court held that it could not be said
C that the accused had the intention to cause the death of the deceased.
Accordingly, the accused was convicted under Section 304 Part-I IPC and
sentenced to five years R.I. As regards the conviction under Section 307
IPC for causing injuries to PW-2, the High Court considered the size of
the knife and the manner in which the incident was alleged to have
D occurred and concluded that the accused was punishable under Section
324, and sentenced him to rigorous imprisonment of 2 years.

Appeals were filed by the accused and also by the State before this
court.

E The accused contended that: (i) the evidence of PW-2 and PW-3
cannot be relied upon since several injuries sustained by accused have not
been explained by them; (ii) the prosecution evidence as also the injuries
sustained by the accused show that the accused apprehended danger to his
life and gave the single blow in exercise of his right of private defence; (iii)
F even assuming the correctness of prosecution case, offence is only made
out under Section 304 Part II since a single blow was given and also, since
deceased was operated upon and survived for 10 days, there may be
reas.ons not connected with the injury that caused the death; (iv) the
prosecution has not examined independent witnesses though available.

G The prosecution contended that the accused had the intention of
causing death and hence his acquittal of the charge under Section 302 IPC
by the High Court was unjustified. Furthermore, even if he can be said to
be rightly convicted under Section 304 Part-I IPC, the sentence awarded
by the High Court is unjustified and should be enhanced. Dismissing both
H the appeals, this Court
KASAMABDULLAHAF1Z v. STATE 171
HELD : 1. Though normally this court does not scrutinize the A
evidence of witnesses where two courts have believed the witnesses and the
prosecution story, in view of the contentions raised, this court has itself
scrutinized the evidence of the eye witnesses, PW-2 and PW-3. On going
through their evidence, it has been found to be wholly trustworthy and
reliable. On their evidence, it must be held that the prosecution case has B
been proved beyond reasonable doubt that it is the accused who caused
injury on the abdomen of the deceased which ultimately led to his death.
[182-G-H; 183-A-B]

2. The nature of the injuries sustained by the deceased and the
evidence of the doctor, PW-7, who examined the deceased immediately after C
the occurrence lead to the conclusion that death was caused by acts of the
accused done with the intention of causing such bodily injury as is likely
to cause death aud hence, the offence is within the 1st part of section 304
IPC. The Doctor, PW-7, clearly stated that he was of the opinion that the
patient would have died if the operation had not been undertaken and
furthermore, the injuries are sufficient in the ordinary course of nature to D
cause death. 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. Hence, the High Court has rightly convicted the appellant
under Section 304 Part I IPC. [184-A-C; E-F]

3.1. The injuries on the accused indicate that they are simple in E
nature. They are such that the non-explanation of them could not be fatal
to the prosecution case. The principle that non-explanation of injury on
the accused would be fatal to the prosecution case would apply only where
injuries are such that the witnesses cannot but notice them. However, it
cannot be said that injuries were such as must have been noticed and
explained by the witnesses. [180-E-H; 181-A] F

3.2. Besides, the prosecution has offered an explanation for such
minor injuries on the accused. PW-2 has stated that while the accused was
attempting to give a second blow to the deceased, PW-2 caught the wrist of
the accused and pushed him against the compound wall. It is possible that G
on that account some minor injuries were caused to the accused. [181-B-C]

State of Gujarat v. Bai Fatima, [1975] 2 SCC 7, relied upon.

Lakshmi Singh & Ors. v. State of Bihar, [1976] 4 SCC 394, referred
to. H
172 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A 4. As regards the right of private defence, since the accused himself
chose to be examined as a witness but has not said a word about ap-
prehending grievous injury to himself by the prosecution witnesses, it is
difficult to sustain the plea of private defence now raised before this Court.
That apart, no evidence has been shown on record from which it can be
said that the so called assault by the prosecution witnesses might have
B reasonably caused apprehension of grievous hurt to the accused; and in
view of the positive evidence of the doctor, PW-10, the plea of self defence
cannot be available to the accused. [182-A-B; E-F]

5. PW-2 can not be held to be interested in the prosecution and
C inimical to the accused and is, therefore, a wholly disinterested witness.
The relationship between PW-2 and the accused was very cordial, and
neither has the accused stated nor is there any material on record to show
that there was any animosity between PW-2 and the accused. Furthermore,
the evidence on record does not disclose that there were any independent
witnesses available but withheld by the prosecution, and hence no adverse
D inference can be drawn against the prosecution. Infact, in the complaint
filed by the accused he has not indicated that there were any outsiders
present who had witnessed the occurrence. Hence, this Court cannot
interfere with the conclusion of the courts below that the defence version
with regard to the manner in which the deceased could have been injured
E is unsustainable, and on the other hand, it must be held that the evidence
of PW2 and PW-3 is unimpeachable and the prosecution case is proved
beyond reasonable doubt. [183-C-E]

6. As re_gards the State appeal, no doubt, there is substance in the
contention that ordinarily for conviction under Section 304 Part-I, sen-
F tence of 5 years can not be held to be proper. However, consider}ng the
facts and circumstances of the case and the reasons advanced by the High
Court in giving such sentence, this Court is not inclined to interfere with
it. [185-\-B]

G CRIMINAL APPELLATE .JURISDICTION : Criminal Appeal No.
551 of 1993 etc.

From the .Judgment and Order dated 3.4.93 of the Bombay High
Court in Cr!. A. No. 671 of 1992.

H Shanti Bhushan, l.G. Shah, Makarand D. Adkar, S.D. Singh, S.
KASAMABDULLAHAFIZ v. STATE[G.B.PATIANAIK,J.] 173

Malik, Sudhanshu Atreya, D.M. Nargolkar and B.V. Desai for the appear- A
ing parties.

The Judgment of the Court was delivered by

G.B. PATIANAIK, J. This appeal is directed against the conviction B
and sentence of the appellant under Sections 304 Part-I and 324 l.P.C.
passed by the Division Bench of the Bombay High Court in Criminal
Appeal No. 671 of 1992. The appellant who was the Assistant Public
Prosecutor at the relevant point of time stood charged under Section 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 C
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 D
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 E
Sanjay Patil, PW-2 by means of a knife but taking into consideration the
fact that relationship ~etween 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 F
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 LP .C. and sen-
tenced 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 G
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 con-
clusion that the offence should be one punishable under Section 324 1.P.C.
and nol under Section 307 1.P.C. For his conviction under Section 324
l.P.C. the appellant was sentenced to undergo rigorous imprisonment for
two years and it was further directed that both the sentences would run H
174 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A concurrently. Hence the present appeal.

Against the acquittal of the accused - appellant of the charge under
Sections 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
B 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.

c 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 ap-
pointed 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
D occurred. Nanda· Deshmukh - PW 3, 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
E 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 at t4e 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
F 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
G Nanda Deshmukh heard about this statement made by the accused she met
the District Judge, Alibag, Mr. Vazalvar and complained against the ac-
cused - appe.Jlant that he is unnecessarily spreading false rumours. It
appears that the District Judge called a meeting of some of the lawyers
and Additional Sessions Judge Shri Joshi and in that meeting the ~istrict
H Judge commented upon the conduct of the accused as to why he has been
KASAMABDULLAHAFIZ v. STATE[G.B.PATIANAIK,J.] 175

spreading rumours ~bout Nanda Deshmukh that she had taken money in A
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 Di~trict Judge that since B
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 c
account of what happened in the c.hambers of the District Judge and to
her father's query 'as to why she was in a agitat~d 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 senior Shri D.N. Patil
was passing by that area and on seeing Nanda's car parked down stair came D
to Nanda's house and heard all that she was telling to her father. It is at
that point of time Nanda's daughter - Sona! who was standing near the
window of the flat stated that accused has come. On hearing from Sona!
that accused has come, Nanda Deshmukh, PW-3 rushed to the ground
~
floor followed by her father Manohar Deshmukh (the deceased) and E
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. F
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 G
the accused against the compound wall. The accused, however, attacked
~
Sanjay and gave a stabbing blow with the knife which 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 San.jay to the
dispensary of Dr. Deshpanda where some first-aid was given. Thereupon H
r

176 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A 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 cri1r.inal case was registered and the police took up investigation
and finally submitted the charge-sheet against the accused whereafter the
accused was tried for the offences as already stated. Injured Manohar was
B taken to_ Dr. Hashing, 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, Bom-
C bay 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 occur-
rence 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.
D 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 l
E given to the prosecution witnesses and statement of the accused under
Section 313 LP. C. is that the Deshmukr 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
F 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.
G
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 Desh-
mukh had been operated upon and PWs 8 and 10 are also the doctors
H attached to the said hospital at Alibag. Said PW-10, Dr. Adhatrao had also
KASAMABDULLAHAFIZ v. STATE(G.B. PATTANAIK,J.] 177

examined the accused a~d had issued the Injury Certificate (Ex. 61). A
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 and was Associate Professor in Pathology
and he had examined the viscera~of the deceased. PW-13 is the investigat-
ing officer and he had recorded the statement of deceased Manohar at the B
_ Civil Hospital, Alibag in the evening of 19th of March, 1990 which has been
treated to be the 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
Mai:;iar the learned Sessions Judge recorded a finding that Manohar met
with a homicidal death and the said finding has not been assailed either in C
the High Court or in this Court. On 19th of March, 1990 an 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 D
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 ac- E
count 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 F
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.
G
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 injures could be sustained by the accused, the entire prosecution case
as unfolded through the evidence of PWs 2 and 3 become vulnerable and H

-\
-
• 178 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A 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
B 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
c prosecution case as unfolded through the evidence of PW s 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
D
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.

E 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
F 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 su~tained
G some injuries. The learned counsel also urged that looking at the injury
caused by the accused and the part of the body of the deceased where such
injury was caused it must be reasonably held that the accused had the
intention of causing such bodily injury which is likely to cause death and
medical evidence clearly supports that view and consequently the accused
H was convicted by the High Court under Section 304 Part-I I.P.C. In support
KASAMABDULLAHAFIZ v. STATE[G.B.PATIANAIK,J.] 179

of the State's appeal, the learned counsel urged that the order of acquittal A
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 it 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 B
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 c
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 others v. State of
Bihai; [1976) 4 SCC 394 in support of his contention that non-explanation
of the injuries on the accused by the prosecution is fatal to the prosecution
case. In the aforesaid case this Court held that in a murder case the non- D
explanation of the injuries sustained by the accused at about the time of
the occurrence or in the course of altercation is a very important cir-
cumstance from which the court can draw the following inferences :

(1) that the prosecution has suppressed the genesis and the origin E
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;
F
(3) that in case there is a defence version which explains the
injuries on the person of the accused it is rendered probable
so as to throw doubt on the prosecution case.

While observing this the Court hasten to add as held by this Court
in State of Gujarat V. Bai Fatima, (1975] 2 sec 7 ; "there may be cases G
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 credit worthy, that it far outweighs the effect of H
180 SUPREME COURT REPORTS (1997) SUPP. 6 S.C;R.

A 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 was found to have sustained the
following injuries :

B "(1) Contusion on back right scapular region vertically directed
10.3 cm x 2 cm red discoloration.

(2) Contusion on back right scapular region vertically directed 6
cm x 2 cm red discoloration.

c (3) Abrasion on left ring figure proximal Phalank dorwal aspect
1cmx1 cm.

(4) Contusion on forehead middle region vertically directed 3cm
x 1/2 cm red discoloured.
D (5) Abrasion at bridge of nose 1/2 cm.

(6) Contusion on right side of cheek inner aspect 2 cm x 1/2 cm
red discoloration.

Simple blunt object."
E
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
F in Bai Fa_tima'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
G 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._notic.e the same. But the injury on the person of the
H accused even on the forehead which was found by the doctor is such that
KASAMABDULLAHAFIZ v. STATE[G.B.PATIANAIK,J.] 181

it would be difficult to hold that the prosecution witnesses must be held to A
have noticed the 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 µnable
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 B
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 the accused was attempting a
second blow at the deceased he caught hold of 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 C
minor injuries on the person of the accused could have been possible. That
apart 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 D
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 the blow on the abdomen of the deceased while E
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 F
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 G
.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 H
182 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A 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.
B That apart from the materials available on record namely the 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 a 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
C while the accused was pushed by Sanjay and was dashed against the
compm~nd 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 stabbing on the abdomen of the deceased has not
occurred while the accused was inside the car but on the other hand while
D 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
E 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
F doctor referred to, it is 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 score. Though normally this court does not scrutinise the
evidence of witnesses in a case where the two courts below have believed
G 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
H brought out in their cross-examination to impeach their testimony. On their
KASAMABDULLAHAFIZ v. STATE[G.B.PATIANAIK,J.] 183

evidence, in our considered opinion it must be held that the prosecution A
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 B
behalf of the accused - appellant that the prosecution have not examined
independent witnesses though available and have chosen to examine only
the interested 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 C
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 D
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 prosecution
from being examined, consequently no adverse inference can be drawn
against the prosecution on that score. In this connection, it may be E
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
F
version with regard to the manner in which the injury could have been
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 proved beyond all reasonable doubts. G

Mr. Shanti Bhushan's last argument on the question as to what
offence can be said to have been caused requires 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 H
.
184 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A injury as is 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
B
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
C and the injuries can 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
D na~ure 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 1st part of Section 304 l.P.C. The guilty intention of the
E 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 it 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-I I.P.C.
F
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
G 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 conten-
H tion of Mr. Shah the learned senior. counsel appearing for the State on the

•
KASAMABDULLAHAFIZ v. STATE[G.B.PATIANAIK,J.] 185

question of sentence has some substance as ordinarily for conviction under A
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.
B
In the net result, therefore, 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.

S.K. Appeals dismissed.

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