Conviction of the appellant is impugned on the ground that without there being any iota of evidence that the appellant assaulted upon the face of the decased and caused his death, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. The case of the prosecution, in brief, is that deceased Praboth Tirkey was brother-in-law of the accused Dilip Tirkey. On 21-4— 2005 at about 11.00 a.m. they went to the house of Alexendar <3? Tirkey, uncle of the deceased and on account of some quarrel, the appellant/accused assaulted upon the face of the deceased by a wooden plank’(Moongra) as a result of which Praboth Tirkey succumbed to the injuries. Anil Tirkey (PW/1) went to Police Station and lodged FIR vide Ex.P/2. Merg intimation was recorded vide Ex.P/1. Investigating Officer left for scene of occurrence and after summoning the witnesses prepared inquest over the body of the deceased vide EXP/6. Blood stained clothes were seized vide Ex.P/5. Blood stained soil and plain soil, one axe from the possession of the deceased were seized vide EX.P/7. Dead body of the deceased was sent for autopsy to Primary Health Centre, Sann‘a, vide EXP/10. PW/6/Dr. Sunil Kumar Lakre conducted postmortem. vide Ex.P/8 and found the following injuries; i) lacerated wound over right side of eye-brow in the size of 3 x 1 x 1/2, clooted blood was discharged from nose and nasal bone was fractured; ii) abrasion wound in the size of 4 x 2” in the left side of forearm; iii) Blisters present all over the body and abrasion wound on both knees in the size of 2 x 1” and iv) front bone over right side was fractured. Cause of death was due to haemmarahage and coma and homicidal in nature- The appellant was taken into custody and he made a disclosure statement. On his memorandum statement (EXP/3), a wooden plank (Moongra) was seized vide EX.P/4. The spot map was prepared by Patwari vide EX.PJ12. Blood stained shirt and pant were seized from the accused vide EXP/13. a a After completingvthe investigation, charge sheet was filed against the appellant» in the Court of Judicial Magistrate First Class, s Jashpur, who in turn committed the case to the Court of Sessions Judge, Jashpur. Learned Sessions Judge, received the case on transfer, who framed charge under Section 302 of the lndian Penal Code against the appellant who abjured the guilt. Prosecution in order to establish the charge against the appellant examined seven witnesses in all. Thereafter the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. The accused has taken specific defence that he ‘ was not present on the spot at the time of incident The trial Court after hearing counsel for the respective parties, l convicted and sentenced the appeilant as mentioned in paragraph one of the judgment. Mr. Vinod Tekam, learned counsel appearing for the appellant vehemently argued that in the light of evidence of prosecution Onthe‘other hand, Ms. Madhu Nisha Singh, Panel Lawyer appearing on behalf of the State supported the impugned s judgment and submits that the court below after considering all the aspects of the case has rightly convicted and sentenced the accused/appellant. She further submits that cross examination of PW/2 Sutri Bai, wife of the deceased clearly reveals that the $ deceased has not tried to cause any assault to the appellant although he was having axe and has not caused any injury, therefore, right of private defence was not available to the appellant. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment ln Order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 13. in the present case, homicidal death of the deceased Praboth Tirkey as a result of injujries is not substantially disputed by the appellant. On the other hand, it is established from the witnesses, the accused has not caused any injury/homicidal death of deceased Praboth Tirkey. Learned counsel further submits that the evidence of Sutri Bai (PW/2), wife of deceased Praboth Tirkey is sufficient for drawing inference that in exercise of right of private defence, the appellant has caused single injury to the deceased and has not exceeded his right of private defence, therefore, the act of the accused/appellant squarely falls within the ambit of exceptions under Sections 102 and 105 of the IPC. t“ postmortem report (EXP/8) of Dr. S.K.Lakra (PW/6), death of Praboth Tirkey was homicidal in nature. As regards complicity of the appellant in the crime in question is concerned, prosecution examined Anil Tirkey (PW/1), Sutari Bai (PW/2), wife of the deceased, Ropna (PW/3) and their evidence is sufficient for drawing inference that the present appellant caused single blow by wooden plank (Moongra) upon the face of the deceased. As regards the exercise of right of private defence and mode of causing such injury by appellant is concerned, prosecution has examined Sutari Bai (PW/2) who has deposed in para 3 of her evidence that quarrel took place between her husband — deceased and the present appellant. She has specifically admitted in para 2 of her cross examination that the deceased took out axe for causing injury to the appellant which she along with Neelima, wife of the accused, snatched from the deceased. Para 3 of evidence of this witness further reveals that the deceased again took out another axe but has not made any assault to the appellant. Vin para 4 of her cross examination she has further deposed that the appellant assaulted her husband by Moongra but the deceased has not tried to cause any injury to the appellant. 14. Taking into consideration the first instance whereby the deceased picked up an axe for causing injury to the appellant which was snatched by the witnesses present on the spot (Sutri Bai and Neelima) as admitted by Sutri Bai (PW/2) who was wife of the deceased and thereafter, he again took out another axe, it is n § —E" sufficient for presuming the eminent danger of the Iife of accused and the accused/appellant has the right to exercise his right of private defence. Appellant was not having any weapon or Moongra on the spot but the evidence of this witness reveais that during the course of altercation he picked up the Moongra‘lying on the spot which shows that the present appellant has no intention to cause death of deceased. ‘Thus, it is clear that appellant r attacked the deceased in exercise of his right of private defence without any intention to cause his death. Therefore, the act of the appellant squarely falls within the ambit of Section 304 Part ii of £ the IPC. x After appreciating the evidence available on record, learned Sessions Judge has convicted the appellant under Section 302 of the IPC, without considering the aforesaid aspect, the importance of ingredients i.e., motive, circumstances and exercise of right of private defence available to the appellant and thereby committed illegality. For the foregoing reasons, we are of the considered view that the act of the appellant squarely falls within the ambit of Section 304 Part ii of the Indian Penal Code. In the result, the appeal is partly allowed. Conviction of the appellant undergSection 302 of the IPC is altered to Section 304 v Part ii of the IPC. Considering the circumstances and period of 3 detention of the appellant, he is sentenced to undergo rigorous imprisonment for 6 years and 1 1/2, months i.e., for the period of detention since 21-4-2005 till today. He may be released forthwith, if not required in any other case. ’i 'T.P. SHARMA. sw- . gifts \ 5d]- 1 i Judge w i *R.N. Chandrakar Judge .- \ i. ‘- // \ , ,. i7) i ‘5