Crl.A. 84/2001 BEFORE THE HON’BLE MR JUSTICE D.BISWAS THE HON’BLE SMT. JUSTICE A. HAZARIKA JUDGMENT AND ORDER (ORAL) Biswas, J By this judgment we propose to dispose of Criminal Appeal No.67/ 2001 and Criminal Appeal No.84 (J)/2001 as both the appeals from jail were direc ted against the judgment dated 6.2.2001 passed by the learned Sessions Judge, Di brugarh, in Sessions Case No.159/2000. By the impugned judgment, the appellant M on Gogoi @ Debananda Gogoi has been convicted under Section 302 IPC and sentence d to imprisonment for life and fine of Rs.500/-, in default, further imprisonmen t for one year. 2. None appeared for the appellant when the matter was taken up for hearing. We have heard Mr. K.C. Mahanta, learned Public Prosecutor. 3. An ejahar was lodged with the Officer-in-Charge of Khowang Polic e Station on 17.12.1997 alleging that on 16.12.1997 at about 8-30 P.M. the appel lant had killed Badan Gogoi of Na-Pathar Gaon. Police after investigation submit ted charge-sheet against the appellant. On commitment, the learned Sessions Judg e framed charge against the appellant under Section 302 IPC and on denial of the charge proceeded with the trial. The learned Sessions Judge examined as many as 8 prosecution witnesses and after conclusion of the trial, convicted and senten ced the appellant as stated above. 4. It would appear from the evidence of Dr. R. Chaliha (PW-2) that the deceased has sustained following ante mortem injuries on his person. Injuries: 1. An incised wound over the left side of the face extending from below the nose up to the left occipital region measuring 22 x 5 cm and cutt ing skin, soft tissues, muscles, vessels, nerves mandible maxilla and second cer vical vertebrae. 2. An incised wound across the occipital region extending up to the righ t ear and cutting the upper part of the right ear measuring 20 x 3 cm and brain deep. 3. An incised wound over the right buttock measuring 6 x 3 cm situated 3 cm below the inferior angle of the scapula. Thoracic organs are healthy. Abdomi nal organs are healthy. Stomach was healthy and contains rice. Cranium and spinal canal: The injuries to the scalp, skull and vertebrae and brain are already des cribed. 5. PW-2 also evinced that the death was instantaneous as a result o f injuries sustained by the deceased. Ext-2 is the post mortem report rendered i n the evidence of PW-2. The evidence of PW-2 stands established that Badan Gogoi succumbed to the injuries caused on his person as alleged by the prosecution. 6. Sri Benudhar Gogoi (PW-1) is a signatory to the inquest report. His evidence is of no help in assisting and establishing the prosecution evidenc e. His evidence has no significance for the prosecution except that the inquest report was prepared by police in his presence. The only statement, he made in hi s cross-examination is that he had seen a window of the house of the accused was broken. Sri Hinduram Gogoi (PW-3) on being informed by his wife came back home and saw B adan lying dead in his house with cut injuries on his person. This witness has s tated on oath that his wife informed him that deceased Badan Gogoi had grabbed h er inside her house. Smt. Jonali Gogoi (PW-4) stated that after hearing the outcries of her mother-in -law she went to her house and saw Badan lying dead with injuries. She also stat ed that her husband was also present in the house. From the evidence of this wit ness, we find that Badan was found lying dead with injuries inside the house of the accused and further we find that deceased entered into the house and grabbed the mother of the accused. 7. Smt. Binu Gogoi (PW-5) is the mother of the accused. Her evidenc e is quoted below. The accused is my third son. I have been living in a house with my husb and. The accused lives with his family in a separate house. Deceased Badan was m y ’dewar’ (husband’s brother). He died about three years ago. At night, on the d ay of occurrence, I had been alone at my home. My husband had gone to attend a f unction with his first wife. At 10 P.M., Badan Gogoi entered my house cutting op en the window and grabbing me, pointed dagger at me. When I cried out my son, th e accused came, saw the occurrence through the window and entered my house throu gh it. Then Badan rushed at the accused to attack him whereupon the latter hande d the dao that he was carrying with him. Otherwise, Badan would have finished us . We came out opening the door after that and went to inform my husband and the gaonburrah. Badan had tried to rape me twice earlier. A ’bichar’ (an extra-Judicial trial) had been held over that and a fine of Rs.500/- had been imposed on him. T he wife and the son of the deceased came at night and took away the torch and th e dagger. 8. From the evidence of PW-5 it is clear that Badan had entered the ir house by cutting open the window, grabbed her and pointed a dagger towards he r. She raised alarm and in response thereof the accused came and saw the occurre nce through the window. The deceased then rushed towards the accused to assault him and in the process the accused had assaulted Badan with the dao. Otherwise, Badan would have killed PW-5 and her son, the accused. From his evidence in cros s-examination, we find that deceased had tried to commit rape twice earlier upon her. In a ’bichar’ (mel), the deceased was also fined Rs.500/. The evidence of PW-5 stands supported by the evidence of Benudhar Gogoi (PW-1), who had seen the broken window in the house of the accused as well as by the evidence of Phulesw ar Gohain (PW-6). PW-6 in his evidence stated that on the night of occurrence, t he accused came to his house and informed him that a thief had sneaked into his mother’s room and when he went there to save his mother the deceased rushed towa rds him with a dagger. At that time he had thrown a dao towards the deceased. Be ing hit by the dao, the deceased fell down on the ground. The evidence of PW-6 f urther augments the defence case that the deceased had entered the house of the accused with a view to commit rape upon his mother. Sri Akali Gogoi (PW-8) corro borates the evidence of PW-6 by saying that twice earlier he was fined Rs.500/- by village ’mel’ for indecent behaviour towards women. 9. From the evidence of the witnesses discussed above it stands est ablished that the deceased had entered into the bed room of the mother of the ac cused in the night by breaking open a window and tried to commit rape upon her. The accused came and saw the occurrence through the broken window on being attra cted by the cries of his mother. The deceased rushed towards him with a dagger a nd in retaliation the accused had assaulted the deceased. The factual details th at emerged from the above discussion leads to the conclusion that the accused ha d applied force in order to save the prestige of his mother and he assaulted the deceased when he was chased by the deceased with a dagger. The conduct of the a ccused in our considered opinion was in exercise of his right of private defence and by no stretch of imagination it can be concluded that the accused had any i ntention on his part to kill the deceased and in furtherance of the intention as saulted the deceased. The prosecution also proves that the accused acted in exer cise of his right of self defence. The accused had not acted beyond the limitati on and in excess so as to hold him guilty under any provision of law. We are of the opinion that the accused is thus entitled to acquittal in the instant case. 10. In the result, both the appeals are allowed and the conviction a nd sentence passed in Sessions Case No.159/2000 are hereby set aside and the acc used thus shall be set at liberty forthwith, if not wanted in connection with an y other case.