Baharul Islam, J.
1. The appellant, Madan Chandra Dutta, was convicted by the Sessions Judge, Jorhat, under Section 304(1) of the Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay a fine Rs. 500/-in default, to suffer rigorous imprisonment for six months more.
2. The prosecution case is that there was a land dispute between the deceased Bhadreswar and the appellant. They were relatives, the deceased being the uncle of the appellant. The occurrence took place on 11-11-1969. A quarrel continued since the previous day. On the date of occurrence, they were challenging each other. The appellant then gave a dao blow on the neck of the deceased; the deceased fell down and died.
3. The first information Report was lodged at the Sibsagar Police Station by P.W. 1, Bheknath Dutta. Police registered a case and after investigation submitted charge-sheet against the appellant under Section 302 of the Penal Code. After preliminary enquiry the committing Magistrate committed the appellant to the Court of Session to stand his trial under Section 302 of the Penal Code. In the Sessions Court also the appellant stood charged for the same offence.
4. The appellant pleaded not guilty. He has admitted the occurrence and has also admitted that he gave the blow. But he pleaded that he did it in exercise of his right of his private defence of his person.
5. The only eye witness in this case is P.W. 3. He supports the prosecution case and deposes that when the appellant and the deceased were challenging each other, the deceased Bhadreswar gave a blow on Madan (the appellant) with a lathi. The lathi in question, as it appears from the seizure list, was a lathi of 'nahar' wood. So it was solid and heavy. P.W. 3 further deposes that the appellant averted the blow with his dao. The lathi broke. Thereupon the appellant gave a dao blow on the neck of Bhadreswar.
P.W. 1 who lodged the First Information Report, deposes that after hearing the outcry he came to the place of occurrence. On arrival at the place of occurrence he found the deceased lying. He saw the appellant going towards him with a dao. He also deposes that he saw the lathi broken into pieces and lying near the deceased. The appellant was still waiting there near Bhadreswar, He further says that he snatched away the dao from the hands of Madan. The appellant was examined at 9 A.M. on 11-11-1969 by D.W. 1 Dr. Chandra Kamal Phukan, who was the Medical Officer in charge of Dimow Primary Health Unit. D.W. 1 found the following injuries on the person of the appellant.
1. One incised wound measuring 3' X 2' X bone deep. The wound passed through the skin. Superficial fossa and cutting incisor tendon and cutting the first metacarpal bone through and through on the dorsum of the left hand.
2. One bruise measuring 2' X l' on the back. This injury was caused by blunt weapon and it was simple in nature.
In his opinion injury No. 1 was caused by sharp cutting weapon and it was grievous in nature.
6. The prosecution has proved a statement of the accused, Ext. 3, which has been called by the prosecution a confessional statement. The relevant portion of the statement is in the following terms:
Yesterday at about 7 a.m. I went to my 'bari' (orchard). The 'bari' (orchard) will be about one furlong away from my house. While I returned home from the 'bari' at about 8 A.M. Bhadreswar Dutta started to assault me with 'dao' and 'lathi' on the P.W. D. road. At his dao and lathi blows, I sustained injuries on my back, left shoulder, left hand and joint of the right hand. In order to save my life I also cut and killed Bhadreswar with my 'dao'. My dao hit Bhadreswar's neck and cut his gullet. Immediately he fell down on the ground and died. Bhadreswar is my own paternal uncle. He attacked me first on the road as there was a quarrel between us regarding land etc.
7. In our opinion above is not a confessional statement; it is clearly a plea of the right of private defence of person. The appellant was sticking to the statement before the Magistrate as well as before the Sessions, Judge.
8. The point for our decision is whether the appellant committed any offence at all. Homicide to the deceased has been admitted. The law is well settled that when an accused takes the plea of the right of private defence, the burden is on him to establish the existence of the right of private defence; but he need not prove the existence of the right of private defence beyond reasonable doubt. In our opinion in the instant case the appellant has established the existence of the right of private defence, as the lathi with which the first assault was given by the deceased on the appellant was a solid heavy weapon and dangerous. That apart, the incised wound received by the appellant was grievous. The police also seized two daos lying near the dead body of Bhadreswar. From the same place the lathi was also seized. It therefore, clearly shows that the appellant and the deceased were both armed with daos. P.W. 1 tried to explain the grievous injury on the person of the appellant. His evidence is that after causing the injury On the neck of the deceased, the appellant was fleeing away towards his home. He was chased by P.W. 7 and that P.W. 7 gave dao blows on his person. But the injury on the person of the appellant, as deposed to by P.W. 1, has been belied by P.W. 7. P.W. 7 has stated that he was the adopted son of the deceased. He was sitting in the varandah of the house with the boy. After hearing the outcry, he came to the place of occurrence. He does not say that the deceased caused any injury on the person of the appellant. As such, the explanation given by the prosecution of the injury on the person of the appellant is false. The defence version is corroborated by the medical evidence.
9. Section 96 of the Penal Code provides
Nothing is an offence which is done in the exercise of the right of private defence.
Relevant portion of Section 100 of the Penal Code may also be extracted:
The right of private defence of the body extends, under the restrictions mentioned in the last preceding section to the voluntary causing of death ..., if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:..
Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
Section 100. 'Secondly', provides that the accused may not even wait till the causing of the grievous injury; apprehension of grievous injury is enough for the exercise of the right. In the instant case the deceased being armed with dao caused grievous injury to the appellant. Therefore, the appellant undoubtedly had the right granted by law under Section 100 and as in exercise of that right, he killed the deceased, in our opinion, he has committed no offence.
10. In the result we set aside the order of conviction and sentence passed by the learned Sessions Judge and allow this appeal. The appellant shall be set at liberty forthwith
K. Lahiri, J.
11. I agree.