B.K. Patra, J.
1. This is an appeal by the State against an order of the Sessions Judge, Koraput acquitting the respondent of a charge under Section 302 Indian Penal Code for having committed the murder of his uncle Golari Dasarathi on the night of 2nd August. 1968. The respondent Gollari Damo and the deceased were residents of village Urabir. The house of the respondent is very near that of the deceased. On the date of occurrence one of the hens of the deceased was found missing in the evening. The deceased therefore raised a hulla over it and declared that he who had taken his hen should return it immediately. That night while the deceased was sleeping on his outer verandah, there was pelting of stones inside his house. The deceased got up, raised an alaram and went towards the backyard of his house to find out who the culprit was. His son P. W. 1 and the latter's maternal uncle P. W. 10 Fagu Sisa who were sleeping in a nearby cottage also got up and proceeded towards the backyard of the house of the deceased. As they were so proceeding, they heard the the deceased shouting ' ' (MARI GALI). No sooner had P. W. 1 heard his father saying so. he reached the spot and found the accused-respondent assaulting the deceased with a Tangia on the latter's head as a result of which the deceased fell down with bleeding injuries. P. W. 1 caught hold of the accused and as the two were struggling with each other, P. W. 10 snatched away the Tangia M.O. 1 from the accused, who immediately thereafter ran away from the spot. Meanwhile, many other persons of the neighbourhood had reached the spot one of whom P. W. 9 who happened to come to the spot earlier saw also a part of the occurrence. The deceased who had received the bleeding injuries was removed to his verandah. That night, a Panchayat was convened In the village to which the accused was called and he came and confessed having assaulted the deceased with the Tangia. Early next morning P. W. 1 left for the Police Station where he lodged the F.I.R. Ext. 11 at 11 a.m. and also produced the Tangia M.O. I which had been recovered from the accused. The very same evening the Sub-Inspector of Police P. W. 16 came to the village by which time the deceased was already dead. Investigation was taken up and the dead body of Gollari Dasarathi was sent for post-mortem examination. The doctor who conducted the autopsy found two injuries on the person of the deceased, namely,
(1) One Incised wound 2' x 1' x 2' to the left angle of the mouth directed from above downwards.
(2) One incised wound 1' x 1' x 2' behind ' above the left ear directed from above downwards.
On dissection he found blood clots under the skin and muscle and there was fracture of the mandible 3/4' in front of the left angle corresponding to the external injury No. 1. Corresponding to the external injury No. 2 there were blood clots under the skin and bone. He found the left mastoid bone cut in the length of 1' and there was depressed fracture in the area 2' from before back-wards and 1' from the above downwards. There was blood clot in the area between the left side of the brain and meninges. All the injuries according to the Doctor were ante-mortem in nature and in his opinion, death was due to shock and haemorrhage as a result of the above injuries.
2. It may be stated here that shortly before P. W. 1 lodged the F.I.R., the accused himself had gone to the Police Station and complained to the Sub-Inspector of Police that he was assaulted on the previous night by Gollari Dasarathi. The S.I. made a Station Diary entry Ext. 12 and sent the accused to the Medical Officer P. W. 8 for examination. The latter on examining the accused had found the following injuries:
(1) A bruise 1' x scalp deep x' over the occipital region 3' above the left ear.
(2) A bruise 1' x scalp deep x 1/3' over the frontal bone 2' above the left eye-brow.
(3) A bruise 1' x scalp deep x ' over the right side of injury No. 2. As all the injuries were on the head he had reserved the opinion about the nature thereof, Ext 5/1 is the injury, report.
3. During the course of investigation, the S.I. had seized a bloodstained Dhoti from the accused. The Tangia. wearing apparel of the deceased were sent to the Chemical Examiner; who detected blood on all those articles. The blood stains on the Tangia having been disintegrated, their origin could not be known. But the blood stain on the Dhoti recovered from the accused was found to be human blood. On completion of the investigation, the accused was placed on trial on the charge of murder of Gollari Dasarathi.
4. In the Court of the Committing Magistrate, during his examination under Section 342. Criminal Procedure Code, the accused had stated that as he was assaulted by Gollari Dasarathi, he in self-defence assaulted him with an axe. In the Court of Session, however he stated that he was assaulted with a Thenga on his head by the deceased as a result of which he fell down unconscious and that he did not assault the de-deased.
5. That the death of Gollari Dasarathi was homicidal has been satisfactorily established by the prosecution evidence and it is so found by the learned Sessions Judge. He then considered the evidence of the two eye-witnesses P. Ws. 1 and 9, but did not record a clear finding as to whether he had accepted or rejected their testimony which is to the effect that it was the accused who dealt the fatal blow on the deceased which resulted in the latter's death. He then adverted to the testimony of the witnesses who spoke about the extra-judicial confession made by the accused on the night of occurrence wherein he appears to have stated that as he was assaulted with a lathi on his head by the deceased he in self-defence gave two blows on the head of the deceased with a Tangia. Discussing this aspect of the case with reference to the Injuries which the Medical Officer P. W. 8 had found on the person of the accused, he arrived at the conclusion that the action of the accused in inflicting blows on the deceased with Tangia was done by him in exercise of the right of private defence and as such he cannot be held to have committed any offence. He. therefore, found him not guilty of the charge and acquitted him.
6. Of the 16 witnesses examined for the prosecution, the material witnesses are P. Ws. 1 and 9 who claim to be eye-witnesses to the occurrence, P. Ws. 1, 2, 6, 10 and 11 who speak about the extra-Judicial confession, said to have been made by the accused before them on the night of occurrence. P. W. 8 the Medical Officer who examined the injuries on the person of the accused and P. W. 16, the Investigating Officer. P. W. 1 is the son of the deceased. As already indicated, his father the deceased raised a hulla on the night of of occurrence that somebody had pelted stones inside his house and then proceeded towards the backyard of his house to find out who the culprit was. P. Ws. 1 and 10 who were sleeping in an adjoining cottage also woke up and went towards the backyard. P. W. 1 stated that while he was proceeding towards the backyard, he heard his father crying 'Mari Gali' and immediately afterwards found the accused dealing three blows with a Tangia on the head of the deceased as a result of which the latter fell down. To the same effcet is also the evidence given by P. W. 9 Khora Ratan whose house, as the spot map Ext. 18 shows, is situated adjacent to that of the deceased. On hearing the hulla raised by the deceased that somebody had pelted stones inside his house, he also woke up and proceeded towards the house of the deceased and saw the latter being assaulted by the accused. The learned Sessions Judge did not accept the evidence of P. Ws. 1 and 9 because they stated that the accused gave three blows with the Tangia on the head of the deceased, whereas the post-mortem certificate Ext. 13 shows the presence of two external injuries on the person of the deceased and also because P. W. 9 stated that the accused gave blows with the blunt side of the Tangia whereas the two external injuries found on the deceased were incised wounds. But it should be remembered that this occurrence took place at night and both P. Ws. 1 and 9 had seen the occurrence from a distance of 10 cubits. Consequently. If P. Ws. 1 and 9 had stated that three blows were given, whereas, the Medical Certificate indicated the presence of only two external injuries and if P. W. 9 said that the blows were given with the blunt edge of the Tangia, their evidence cannot be rejected merely because of such discrepancies especially when there is very satisfactory evidence to establish that immediately after the occurrence, the accused was' caught hold of by P. W. 1 and P. W. 10 snatched away the Tangia from him. That apart, the accused had admitted in the Court of the Committing Magistrate that he had assaulted the deceased with a Tangia. although according to him, he did so as a measure of self-defence. Even in the Court of Session the accused did not deny his presence at the spot because when the evidence given against him by P. Ws. 1 and 9 was put to him. he stated that he was assaulted with a Thenga on his head by the deceased and he fell down unconscious. Having regard therefore, to the evidence and circumstances adverted to above, I have no manner of doubt left in my mind that it is the accused who dealt blows with the Tangia on the head of the deceased on the night of occurrence and that the latter died as a result of the injuries so caused on the following day. Although evidence regarding extra-judicial confession is normally considered to be a weak piece of evidence still the evidence given by P. Ws. 1, 2, 6, 10 and 11 that the accused admitted in the Panchayat that he assaulted the deceased wih a Tangia can be believed in this case having regard to the satisfactory direct testimony given by the two eye-witnesses P. Ws. 1 and 9.
7. The injuries were inflicted by the accused with a Tangia on a vital part of the body of the deceased. There cannot be any doubt that such injuries were sufficient in the ordinary course of nature to cause death and death has actually been caused in this case. If the case, therefore, does not fall under any of the exceptions of Section 300, Indian Penal Code, or if it is found that the plea of private defence is not available to the accused, he should be found guilty of the charge of murder. No attempt has been made by the accused to bring the case within any of the exceptions enumerated in Section 300. I.P. Code nor has he in the trial Court specifically taken up the plea of self defence. It is. however, well settled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from material on record. The burden of establishing that plea is on the accused and it can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. The Injury certificate Ext. 5/1 discloses that the accused had three bruises. one on the occipital region and two over the frontal bone. At the earliest opportunity, that is. on the very night of occurrence when he was summoned to the Panchayat, he had stated that he assaulted the accused with Tangia because the latter assaulted him on his head with a lathi. This is deposed to by P. Ws 6 and 11 and P. W. 11 says that at that time he saw some injuries on the person of the accused. It may be remembered that P. W. 1 caught hold of the accused and P. W. 10 snatched the Tangia from him and that immediately thereafter the accused freed himself from the grip of P. W. 1 and ran away to his house. P. Ws. 1 and 10 have stated that while so running away, he fell down on a stone and sustained injuries on his head. The Medical Officer P. W. 8 who examined the accused, however, opined that the injuries which he found on the accused could not have been caused by a fall and they were likely to be caused by the blow of a lathi. In the circumstances therefore, the plea of the accused that the injuries found on his head were caused by a blow with the lathi given by the deceased appears to have some ring of truth in it, although it cannot be said to be duly established. But this circumstance by itself is not sufficient to establish the plea of private defence so as to exonerate the accused completely, in the absence of circumstances to indicate that had he not dealt the blows on the deceased, the latter either would have caused his death or would have inflicted grievous injuries on his person. There is nothing in the evidence or circumstances of the case to support such a plea. A reference to the sketch map Ext. 8 would show that the assault on the deceased took place near his house. As the house of the accused is at a short distance from the house of the deceased it follows that at that late hour of the night the accused armed with a Tangia had come near the house of the deceased. Immediately before the occurrence somebody had pelted stones inside the house of the deceased. It may be that when the deceased came out and found the accused near his (deceased's) house, he gave him a stroke on his head with a lathi. There is no evidence to show that having given a stroke with a lathi, the deceased was making further attempt to, assault the accused to prevent which the latter dealt Tangia blows on the head of the deceased. The deceased was about 55 years old and the accused who is his nephew is much younger in age being about 35 years old. If the deceased assaulted him with a lathi, the accused could have easily snatched it away from him, if at all he anticipated any further assault by the deceased. There wag absolutely no justification for him to use his Tangia and deal the blows on the head of the deceased which proved to be fatal. In the circumstances, even if the right of private defence was available to the accused, he had far exceeded it In dealing the fatal blows on the head of the deceased. He must, therefore, be held guilty under the first Part of Section 304, I.P.C.
8. In the result, we would allow this appeal, set aside the order of acquittal passed by the learned Sessions Judge and convict the respondent under the first part of Section 304, I.P.C. The respondent belongs to the tribe of Adibasis, who being inflammable in nature, commit on the slightest provocation, the most diabolical murder even of close relations. This is one such case. We therefore, feel that the interests of justice would be served if he is sentenced to rigorous imprisonment for five years and we order accordingly. The accused should surrender to his bail bond forthwith.
S. K. Ray, J.
9. I agree.