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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

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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

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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

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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

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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

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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.

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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

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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

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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.