JUDGMENT : G.K. Misra, J. - The Appellant has been convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life. The prosecution case may be stated in brief. The Appellant was admittedly the field servant of the deceased. He took an advance of Rs. 80/- and there was an agreement that he would work under the deceased for years. The deceased was also to supply him with food and clothing. A few days prior to the occurrence there was theft of a gold necklace from the house of the deceased. The Appellant was suspected. He offered to give a Salap tree towards the price of the necklace. The deceased did not accept this offer, but insisted that the Appellant should work for 10 years more. This led to some ill-feeling. On the date of occurrence, that is, on 28-6-1965 there was some altercation between the Appellant and the deceased as the former did not regularly attend to work. That day in the night the deceased and his wife (P.W. 7) slept on the is verandah after taking this evening meals. The Appellant left for his house. Sometime after the deceased was killed with his own Tangia. After hearing the groaning sound P.W. 7 got up and found somebody running away. Some of the witnesses gathered on the spot after hearing the hulla and found the Tangia sticking on the head of the deceased. The Appellant admits most part of the prosecution story. His main defence before the Sessions Judge was that he was massaging the legs of the deceased at about 10 P.M. When he wanted to go back home, the deceased gave him a kick on his chest. He fell down. The deceased got up, caught hold of his Tangia and wanted to kill him. In self defence he snatched away the Tangia from the hand of the deceased and dealt a blow on his head. The Tangia remains sticking on head or the deceased. 2. The learned Sessions Judge after elaborate discussion of the evidence came to the conclusion that death was homicidal. Before us the fact that death was homicidal is not disputed. The prosecution wants to establish its case through the extra-judicial confession made before P.Ws. 1, 2 and 3, the judicial confession (Ext. 2. The learned Sessions Judge after elaborate discussion of the evidence came to the conclusion that death was homicidal. Before us the fact that death was homicidal is not disputed. The prosecution wants to establish its case through the extra-judicial confession made before P.Ws. 1, 2 and 3, the judicial confession (Ext. 4) made before a magistrate, second class (P.W. 10), and the statement of the Appellant before the committing Court where he did not take to any plea of right of private defence. 3. The Appellant now admits that he has murdered the deceased. The onus is on the Appellant to establish the right of private defence. u/s 105 of the Evidence Act the Court shall presume the absence of circumstances leading to the right of private defence. There are no eye-witnesses to the occurrences and accordingly whether the plea of right of private defence has been established or not would be found out from the other materials on record. In this statement u/s 342, Code of Criminal Procedure the Appellant admits that he made extra-judicial confession before P.Ws. 1, 2 and 3. P.Ws. 1 and 3 clearly stated that the Appellant told them that he had quarrelled with the deceased who threatened him to assault with shoes and to wreak his vengeance the Appellant killed the deceased with the Tangia. A suggestion was made to them in cross-examination that the Appellant resorted to the plea of right of private defence as narrated by him. Both the witnesses clearly denied it. To the same effect was the evidence of P.W. 2 who however clearly stated that the Appellant did not speak of the assault with shoes. Excepting that there is no other difference. On this evidence it is very clear that at the earliest stage the Appellant did not take the plea of right of private defence. In the committing Court the Appellant clearly stated that as the deceased threatened to assault him with shoes he killed him with the Tangia at 10 P.M. in the night. There also he did not advance the story regarding private defence. The aforesaid evidence is sufficient to is card the plea of right of private defence as being belated and not true. If the defence would have been true, Borne injuries were expected on the body of the Appellant. There also he did not advance the story regarding private defence. The aforesaid evidence is sufficient to is card the plea of right of private defence as being belated and not true. If the defence would have been true, Borne injuries were expected on the body of the Appellant. Had he taken this plea at the earliest stage be would have been also sent for examination by the doctor. We accordingly reject the plea of right of private defence. 4. It is to be noted that the Appellant made also a judicial confession before P.W. 10 who is a magistrate, second class. He deposes that be was especially empowered to record confession u/s 164, Code of Criminal Procedure. A question of law arises whether in the absence of any notification proving the authority his evidence would be sufficient to bold that he bad the authority. In view of the fact that there is abundant evidence otherwise on the basis of which the conviction can be upheld we express no opinion on this legal question in this case and do not rest our judgment on the judicial confession. 5. On the aforesaid discussion the conviction of the Appellant is well founded. The appeal fails and is dismissed. Patra. J. 6. I agree. Final Result : Dismissed