JUDGMENT : Narasimham, C.J. - This is an appeal by the State of Orissa against the judgment of the Sessions Judge of Koraput, acquitting the Respondent who was tried in his court for an offence u/s 304/34 Indian Penal Code. The Respondent's brother Khora Lachmi was also tried for the same offence, but the learned Sessions Judge convicted him u/s 323, Indian Penal Code. In acquitting the Respondent the learned Sessions Judge observed that he was satisfied that he had the right of private defence of person. 2. The facts alleged by the prosecution are as follows. The parties belong to village Muktipalli P.S. Mlalkangiri in Koraput district. On the 3rd March 1961 at about 7 p.m. p.ws. 1 to 5 were sitting in front of the house of P.W. 4 after taking Salpa juice. Apparently they were all somewhat intoxicated. A petty quarrel and scuffle ensued between P.W. 4 and P.W. 2 on account of the former demanding a sum of Re. 1/- which was taken from him by the latter. The scuffled to an altercation and just then Respondent Gagaru was said to have arrived there and given a blow with his stick to P.W. 2 who ran away from the place. Thereafter when P.W. 1 wanted to intervene he was also given a blow by the Respondent. The deceased Khillo Ghasi who was the uncle of P.W. 2 was then said to have come to the spot and given a blow on the head of the Respondent. Thereupon the latter gave him some blows on his head in consequence of which he fell down and subsequently died of fracture of the skull bone. 3. The Respondent made no secret of the part played by him in the occurrence. Both before the villagers and in his judicial confession before the Magistrate recorded on 13th March 1961, he admitted that he gave blows to the deceased in consequence of which the latter died. But in his confession he gave a clear picture as to how the incident took place. First of all there was a quarrel between p.ws. 4 and 2, then when he wanted to intervene he was slapped by P.W. 2, then he assaulted him with a lathi and assaulted Jogi (P.W. 1) also. Thereafter p.ws. But in his confession he gave a clear picture as to how the incident took place. First of all there was a quarrel between p.ws. 4 and 2, then when he wanted to intervene he was slapped by P.W. 2, then he assaulted him with a lathi and assaulted Jogi (P.W. 1) also. Thereafter p.ws. 1 and 2 went back to their respective houses and the Respondent also was returning to his own house when the deceased came there and gave him two blows whereupon he hit him with a stick and brought him down. The eye-witnesses namely p.ws. 1, 3, 4 and 5 have not given a consistent version as to how the trouble took place. P.Ws. 1 and 5 have practically supported the judicial confession by saying that during the course of the quarrel the Respondent came and gave a blow to P.W. 2 and then to P.W. 1. Thereupon the deceased who was the uncle of P.W. and who had gone to his house ?01' taking his meal came there with a lathi and gave a blow to the Respondent on his head. Then the Respondent gave him three blows with a lathi in consequence of which the deceased fell down and eventually died. It will be noticed that this version of p.ws. 1 and 5 is not at variance with the version given in the confession of the Respondent though these witnesses have not stated expressly that after the first assault by Respondents. P.Ws. 1 and 2 went away to their houses and that the Respondent was returning to his house when he was attacked by the deceased. But they have not said anything to the contrary. Their evidence therefore does not in any way conflict with the confession. 4. But the other two witnesses, namely p.ws. 3 and 4 "have given a slightly different version. According to them, after the deceased had given a blow on the head of the Respondent the latter snatched away his stick and then gave him blows on his head with that stick. This story, if true, definitely negatives the plea of right of private defence because after the deceased had been disarmed the Respondent had no right to hit him on his head in exercise of his right of private defence. Such an attack on the deceased would be by way of retaliation and would not be justified. This story, if true, definitely negatives the plea of right of private defence because after the deceased had been disarmed the Respondent had no right to hit him on his head in exercise of his right of private defence. Such an attack on the deceased would be by way of retaliation and would not be justified. But the aforesaid story put forward by p.ws. 3 and 4 has not been spoken to be p.ws. 1 and 5, nor was such a version given by P.W. 3 in the earliest information lodged before the police (Ext. 11). It must be rejected as an after thought, meant to deprive the Respondent of his right of private defence of person. 5. Thus on the judicial confession of the Respondent coupled with the evidence of p.ws. 1 and 5 it must be held that there was an appreciable interval between the assault by the Respondent on p.ws. 1 and 2 and the subsequent assault on him by the deceased and his hitting him back with a lathi on the head of the deceased. P.W. 4 has also, in a way, admitted that there was some interval by saying that after the first two assaults were over the deceased came for his meals at Chellia's (P.W. 2's) house and then he snatched away the stick and assaulted the Respondent on his head. The house of the deceased is nearly 70 feet from the house of the Respondent. Therefore some interval must have elapsed between the arrival of the deceased at his house for taking his meals and then his coming to the spot to assault the Respondent for having attacked nephew Chellia (P.W. 2). The deceased had thus no justification to continue a quarrel which had already terminated and to assault the Respondent; and so long as the deceased had a weapon with him the Respondent had a reasonable apprehension that further assault on him may take place. In fact the first blow by the deceased was given on the head of the Respondent as proved by the evidence of Dr. Kunda (P.W. 10). With such an injury on his head there was a reasonable apprehension of grievous hurt and the Respondent was entitled to give severe blows on the head of the deceased with a view to disable him, though unfortunately the man died subsequently. Kunda (P.W. 10). With such an injury on his head there was a reasonable apprehension of grievous hurt and the Respondent was entitled to give severe blows on the head of the deceased with a view to disable him, though unfortunately the man died subsequently. The Doctor (P.W. 10) who held the postmortem examination on the corpse of the deceased certified that the deceased could have survived and the injury though grievous was not always fatal. In these circumstances we cannot say that the Respondent exceeded the right of private defence of person conferred on him by law. The order of acquittal was therefore justified. 6. The learned Sessions Judge is not right in saying that a confession recorded by a Magistrate u/s 164, Code of Criminal Procedure is inadmissible unless he is examined as a witness in Court. The Privy Council pointed out, in the well known AIR 1936 253 (Privy Council) case that the Magistrate who recorded a confession need not be examined as a witness provided the necessary certificate required by law was given, and this view was endorsed by their Lordships of the Supreme Court in Kashmira Singh Vs. State of Madhya Pradesh. It is true that this Court has held in some decisions that it is desirable that the Magistrate who records a confession should be examined as a witness so that the accused may get an opportunity to cross examine him with a view to bring out any circumstances which may show that the requirements of law were not complied with or else that the confession was otherwise not voluntary. But it is not correct to say that the confession is inadmissible in evidence. In the present case the learned Government Advocate very properly insisted on our looking into the confession which we think contained a true version as to what had happened and has mainly influenced us in holding that the Respondent had the right of private defence of person. 7. The appeal is therefore dismissed and the order of acquittal is upheld. Barman, J. 8. I agree. Final Result : Dismissed