1997 Supreme(SC) 1594

1997(10) Supreme 212
SUPREME COURT OF INDIA
(From Bombay High Court)
G.N. Ray and G.B. Pattanaik, JJ.
Kasam Abdulla Hafiz etc. -Appellants
versus
State of Maharashtra -Respondent
Criminal Appeal No. 551 of 1993
With
Criminal Appeal No. 1163 of 1997
S.L.P. (Crl.) No. 3039 of 1994
Decided on 4-12-1997
Counsel for the Parties :
For the Appearing Parties : Shanti Bhushan, I.G. Shah, Sr. Advocates, Makarand D. Adkar, S.D. Singh, S. Malik, Sudhanshu Atreya, D.M. Nargolkar, B.V. Desai, Advocates.

IMPORTANT POINT
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.

Headnote:(i) Indian Penal Code, 1860-Sections 304 Part I and 324-Conviction under-Appeal-Appellant, Assistant Public Prosecutor was charged u/s 302 and 307 IPC for having committed murder of father of PW3 and injuring PW2-PW2 and PW3 being eye witnesses of the occurrence-Independent witnesses not available-Defence version with regard to the manner in which injury could have been caused on deceased is wholly unsustainable-assault given by accused cannot be said to be one in exercise of right of private defence on his person-Minor injuries caused to accused-Non explanation-Not fatal-Prosecution case held proved beyond all reasonable doubts. (Para 10)

       (ii) Indian Penal Code, 1860-Sections 304 Part I and 324-Conviction under-Appeal-Homicidal death-Eye witnesses-Accused gave stabbing blow on abdomen of deceased-He even tried to give a second blow which missed-Medical evidence that injuries were sufficient in ordinary course of nature to cause death in ordinary circumstances-Held, death was caused by acts of accused done with intention of causing such bodily injury as was likely to cause death-Offence would come within 1st part of Section 304 IPC-High Court rightly convicted appellant u/s 304 Part I IPC-Considering facts and circumstances, sentence of 5 years held not improper.

       Held : 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 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 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 1st 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 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. (Para 11)

       Further held, as ordinarily for conviction under Section 304 Part-l 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. (Para 13)

       (iii) CRIMINAL TRIAL-Evidence-Homicidal death-Plea of right of private defence-Available to accused even though plea not taken by accused provided materials on record justify such a plea.

       Held : 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 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. (Para 9)

       (iv) CRIMINAL TRIAL-Homicidal death-Non-explanation of injury on person of accused-Fatal when.

       Held : 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 hold that the prosecution witnesses must be held to 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. (Para 8)