Judgment:
P.G. Agarwal, J.
1. This appeal under Section 374 CR. P.C. is directed against the judgment and order, passed by the Sessions Judge, Jorhat, on 12-12-1997, in Sessions Case No. 14 of 1997, whereby the accused-appellant, namely, Parasuram Bhumiz was convicted under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 2,000/- and, in default of payment of fine, to suffer further imprisonment for one month.
2. The prosecution allegation, in short, is that on 06.05.1996 at about 5 PM, while the deceased Jagdish Uria was returning from the market and passing through the garden line, the accused-appellant, Parasuram Bhumiz, assaulted him with a naga dao. The deceased snatched away the dao and ran to his house to save his life. He narrated the matter to his wife and other witnesses, who arrived at the place of occurrence on hearing the commotion. The injured was removed to the garden hospital and from there to Nakachari Public Health Centre and, thereafter, to Jorhat Civil Hospital. As his condition deteriorated, the doctor of Jorhat Civil Hospital advised him to be taken to the Dibrugarh Medical Hospital. The wife, however, could not arrange money for taking him to Dibrugarh and brought the injured to his house where he died around 4 AM.
3. The FIR was lodged by Guna Patnaik, the brother-in-law of the deceased. The accused surrendered at the police station and he was sent for recording his confessional statement and a Judicial Magistrate recorded his confessional statement under Section 164 Cr.P.C.
4. PW-1 (Dr. Munindra Mohan Neog) is the doctor who held autopsy over the dead body and found the following injuries on the person of the deceased :
'One incised wound over the left side of the head below the ear, size - 10 cm x 2 cm x 1 cm.
(1) One incised wound over the left shoulder, size - 10 cm x 2 cm x 1 cm.
(2) One incised wound over the left hand, size - 7 cm x 2 cm x 1 cm.
On Dissection
Cranium and spinal - One incised wound over the left side of the skell below the ear, size - 10 cm x 2 cm x 1 cm.'
5. In the opinion of the doctor, the injuries were caused by heavy sharp cutting weapon like dao and the death was due to shock and coma as a result of injuries sustained over the head.
6. The medical evidence was not challenged and there is overwhelming oral evidence of as many as six witnesses regarding the death of the deceased as a result of the injuries sustained by him. The trial Court, in the facts and circumstances of the case rightly held it to be a case of homicide, and we see no reason to take a different view of the matter.
7. In the present case, the sole witnesses of the assault is no more in this world, he having succumbed to the injuries. The learned trail Court has entered into an order of conviction on the basis of the oral dying declaration and the confessional statement recorded under Section 164 Cr.P.C.
8. PW- 3, (Smt Mahalaxmi Uria), is the wife of the deceased Jagdish Urai. She has deposed that on the day of the occurrence, her husband had gone out for shopping and after sometime, her husband returned back home with injuries on his person and a naga dao was in his hand, her husband told her that he had been cut by Parasuram Bhumiz and in order to avoid further assault, he had snatched the dao from Parasuram Bhumiz, (i.e., the accused-appellants). It is in the evidence of PW-3 (Mahalaxmi Uria) that she raised hullah, whereupon PW- 2 (Guna Patnayak), PW- 4 (Yub Vallery) and PW- 5 (Megha Uria), came to her house and she reported the matter to them and, thereafter, the injured was removed to the hospital.
9. PW- 2 was the first person, who arrived at the house of PW- 3 and he also saw the injuries on the person of the deceased. The weapon of assault, i.e., the naga dao, which was snatched away by the deceased from the accused was also shown to PW- 2. PW- 2 also claims that on being asked by him, the deceased informed him about the assault by the accused-appellant. PW- 6 is the Welfare Officer of the Tea Garden and hearing about the occurrence, he came to the house of PW- 3 and he too was reported about the incident of assault by the accused-appellant on the deceased. PW- 7 is the pharmacist of the tea garden hospital, where the deceased was first treated. This witness saw injuries on the neck and he gave first aid and, on being asked by this witness, the deceased made oral dying declaration to the effect that the accused-appellant Parasuram Bhumiz assaulted him.
10. In the present case, we find that the incident of assault as such is not disputed. In his statement under Section 313 Cr.P.C., though the accused admitted about the incident and the fact that he had assaulted the deceased, he took up the plea of right of private defence. The fact that the weapon of assault, M. Ext. 1, was snatched away by the deceased and later on, it was produced before the police and the police seized the same is also admitted by the accused-appellant. The oral dying declaration made by the deceased stands well established from the testimony of the prosecution witnesses and the medical evidence,
11. PW- 9 (Mr. Atual Ch. Sarma) is the Sub-Divisional Judicial Magistrate, who recorded the confessional statement of the accused-appellant. Ext. 6 is the said statement. PW- 9 has categorically stated that the statement was recorded after complying with all the requirements of law and on being satisfied that the statement was made voluntarily. So far as the voluntariness of the statement is concerned, we find that the accused person has also admitted in the statement made under 313 Cr.P.C. that he did make the confessional statement before PW- 9. The relevant portion of the confessional statement reads as follows :-
'When at about 4 p.m. on Monday, the 6th May, 1996, I went to jungle to collect firewood Jagadish accosted me in the middle of the garden's barline and said, 'That day you got away. What about today? Today I will finish you!' Saying so when he was about to assault me, I dealt a blow in his neck with the 'naga dao' which was in my hand. Then he snatched away the dao from my hand and I fled away. Later I came to know that he had died. I did not hit him with the intention of killing him.'
12. The confessional statement goes to show that the accused person has admitted the factum of assault on the deceased by him and snatching away of the dao by the deceased from his possession. The confessional statement stands fully corroborated on material points including the site of the injuries and the weapon used and, hence, we have no hesitation to hold that the confessional statement is voluntary and true and the same meets the requirements of law.
13. Considering the oral dying declaration and the confessional statement, we have no hesitation to hold that the accused-appellant did assault the deceased Jagdish, which led to his death.
14. Now, coming to the question of right of private defence, raised by the accused-appellant, the earlier version of the accused, as reflected from the confessional statement, has been quoted above. However, there seems to be some development made over the confessional statement, when the accused-appellant was examined under Section 313 Cr.P.C. In the statement under Section 313 Cr.P.C., the accused has stated as below :-
'Taking a 'naga dao' I went to cut firewood when Jagadish, upon meeting me on the way, demanded money for taking liquor. As I could not give money, he, Bhaya Rajput, (illegible) Rajput and Suresh Tanti, who were, accompanying him, started assaulting me. Then I brandished the dao. I do not know whom it had hit and where.'
15. The person named by the accused Bhaya Rajput, Suresh Kati and Samer Rajput are all strangers. Their names have not appeared any where in the trial and there was not even a suggestion, at the trial about their presence at the place of occurrence. In this case, we find that at the relevant time, the deceased was unarmed whereas the accused-appellant was, admittedly, armed with a naga dao, the material Ext.1 which was used in assaulting the deceased. The accused claimed that he was assaulted, but, apparently, the accused-appellant did not sustain any injury on his person. There is no oral or medical evidence to that effect and even the accused himself stated that he did not sustain any injury on his person. The law regarding the exercise of right of private defence is more or less crystallised and the burden is on the accused-appellant to establish the plea. This is also true that the burden is not heavy and can be gathered from the description of the occurrence and the defence may succeed if it can show that the defence version of the incident is a probable one. The accused is, however, required to satisfy the Court that the harm intended to be caused, or caused by the deceased, was so severe or grievous that in order to avert the same, the accused was required to use the weapon and cause the injuries. Whether the accused had exceeded his right of private defence or not, can be examined in the light of the weapon used and the gravity of the imminent danger to his life. In the present case, we find that the deceased was unarmed, while he was returning from the market, whereas the accused-appellant was armed with a dao. The story put forward by the accused that other persons were present at the time of incident is in doubt as the has defence failed to establish their presence and the alleged assault on the accused-appellant. The defence did not adduce any evidence in support of the plea and nothing has been brought on record by way of cross-examination. We, therefore, reject the plea of right of private defence.
16. The learned counsel for the appellant has also submitted that the accused person had no intention to cause the death and the injury Nos. 2 and 3 may have been caused, while the deceased was trying to snatch away the M. Ext. 1, i.e., the dao. So far as the injury No. 3 is concerned, we find that the above injury might have been caused in the process of snatching away of the dao as the injury was on the hand. However, the injury No. 1 was on the back of the neck and the injury No. 2 was on the left shoulder. Injury No. 2 was about 7 cm long and this injury on the left should could not have been caused in the process of snatching away the dao. Further, the medical evidence is very specific. According to the doctor, it was the injury No. 1 which proved fatal and it is his further opinion that the injury No. 1 could have caused instantaneous death- This goes to show that the injury No. 1 is in itself was sufficient to cause death in the ordinary course of nature. When the accused used a heavy sharp cutting weapon like dao and that too on the vital organ of a person, the intention to cause death can be safely inferred.
17. In view of the foregoing discussion, we find no merit in this appeal and the appeal is accordingly dismissed.
18. Send down the records to the learned Court below.