This appeal under section 374 CrPC is directed against the judgment and order passed by the Sessions Judge, Dhemaji in Sessions Case No. 31(JN) of 1993 whereby the accused appellant Rana Borah was convicted under section 304 Part II, IPC and sentenced to imprisonment for five years and fine of Rs. 2,000 in default further imprisonment for two months. 2. The prosecution case as disclosed during trial is that the accused appellant Rana Borah, the deceased Gautam Pegu and the co-accused Minaram Das (since acquitted) were all Govt employees and the incident took place at the official quarter of Minaram Das. There was a quarrel between the deceased and the accused. It is alleged that the accused assaulted the deceased with a spade causing injury on the head. As there is no hospital or dispensary nearby and lack of communication/conveyance the injured was removed to hospital on the next day and while he was treated at the Primary Health Centre, the deceased succumbed to the injuries. Thereafter FIR (Ext 1) was lodged. Police recovered the weapon of assault on being produced by the wife of the accused appellant. Post mortem was held by Dr. Utpal Kumar Das (PW 3) and the doctor found the following five injuries on the person of the deceased:. “(1) Lacerated injury of the scalp of left parietal region 2" x W x V4". (2) Abrasion on the lateral side of the right eye 1" x 1". (3) Abrasion on the left side of the forehead 1" x W. (4) Bruise on dorsal aspect of left fore arm. (5) Abrasion on the left side on the back Vi" x Vi". On dissection of the scalp there is fracture of the left parietal bone size 2" area. After removing the skull bone there is a haematoma below the fracture bone and these are connected with injury No. 1.” In the opinion of the doctor, the death was due to the head injury sustained by the deceased. 3. In the case the occurrence is of 153.1993 wherein the deceased sustained injury on his person is not disputed one. It has been admitted by the accused in his statement under section 313, CrPC and the defence plea is of right of private defence. 4. 3. In the case the occurrence is of 153.1993 wherein the deceased sustained injury on his person is not disputed one. It has been admitted by the accused in his statement under section 313, CrPC and the defence plea is of right of private defence. 4. The prosecution case rests on the testimony of the two eye witnesses, namely, Niva Doley (PW 2) an young girl aged about 18 years and another college student Indira Yen (PW 4). As stated above, the incident took place in the official quarter of Minaram Das which was also shared by the accused appellant Rana Bora. PW 2 along with PW 4 had gone to Majulipur farm to procure 'Nooni' (Mulberry) leaves. The deceased asked for Rs.2 per leaf whereas co-accused Minaram Das asked for Rs.5 per leaf and there was a quarrel between them. In the meantime accused Rana Borah picked up a spade and assaulted Gautam Pegu with that spade. The deceased sustained injury on his person and fell down. The accused continued to assault. So far the presence of PW 2 and PW 4 at the place of occurrence at the relevant time is concerned there was no suggestion even that they were not present. Further another employee of the said farm Jatin Mushahary (PW 5) states that on hearing hulla and commotion he rushed to the place of occurrence and saw the accused appellant pouring water on the head of the deceased and he asked him something. But the deceased was not in a position to reply. PW 5 also saw bleeding injury on the head and forehead. Thereafter he was reported by the girls who had gone there to fetch 'Polu' leaves, PW 2 and PW 4 stated that the accused appellant Rana 3orah had assaulted the deceased Gautam with the help of a spade. PW 2 and PW 4 ace two young girls and they are independent and disinterested witnesses. Their presence at the relevant time is also well established. There is no reason on their part to falsely implicate the accused persons with whom they had no enmity. They also reported the incident to PW 5 wife reached the place of occurrence immediately afterwards. 5. The defence plea in this case is that this accused Raifeorah while sleeping in his room, due to his sickness was assaulted by the deceased with a spade. They also reported the incident to PW 5 wife reached the place of occurrence immediately afterwards. 5. The defence plea in this case is that this accused Raifeorah while sleeping in his room, due to his sickness was assaulted by the deceased with a spade. The said Rana Bora sustained injury and the accused appellant thereafter in order to save himself pushed the deceased where upon the deceased; of down on a wooden box lying in the room, sustained injury and became senseless. Thereafter the accused persons brought out the deceased from the room and poured water. The injured was removed to hospital on the next day where he died. This witness categorically states that he never assaulted the deceased with a spade. 6. Now the first question is whether the injury No.l which proved fatal can be caused by a fall on the wooden box. The wooden box was kept in the room for rearing worms and as such one can visualise as to what type of wooden box it will be. The Doctor (PW 3) has stated that the injury No. 1 may be caused by a fall on hard substance. But the defence did not ask categorically whether it can be sustained by falling on wooden box. Further according to the accused he merely pushed the deceased and the latter fell down and sustained injury on the head as a result of injury on the wooden box as stated above the injury No: 1 is on the left parietal region but the deceased also sustained four other injuries, one on the right eye, one on the forehead, one on the forearm and one on the back. Thus these injuries on different parts of the body could not have been sustained by one fall. Further there was a fracture on the left parietal bone and the doctor also found that below the fractured bone there was a haemotoma also. Thus it could not have been caused by a simple fall from a standing position on a wooden box used for rearing worms. The impact must have been with sufficient force. Further if he had fallen on the left side of his head he would not have suffered injury on the right eye which means that there was more than one assault. Thus the medical evidence supports the prosecution allegation that the deceased was assaulted with a spade. The impact must have been with sufficient force. Further if he had fallen on the left side of his head he would not have suffered injury on the right eye which means that there was more than one assault. Thus the medical evidence supports the prosecution allegation that the deceased was assaulted with a spade. The learned trial Judge on consideration of the evidence on record and relying on the testimony of the two eye witnesses and other prosecution witnesses came to the finding that it was accused appellant Rana Borah who caused the injury to the deceased. 7. In view of the material evidence on record and in the light of the foregoing discussion, I also hold that there is no reason to disbelieve the testimony of the two eye witnesses, that is, PW 2 and PW 4 and corroborated by the evidence of PW 5. The prosecution has been able to discharge its burden satisfactorily to establish the guilt on the person by stating that the occurrence had taken place in the manner as stated by the prosecution witnesses. 8. The principles concerning right of private defence and the burden of proving the same was considered by the Hon'ble Supreme Court in the case of Deo Narayan vs. State of UP, AIR 1973 SC 473 and Pratap vs. State of UP, AIR 1976 SC 966 . The law on the above two principles was laid down by the Hon'ble Supreme Court in the case of Yogendra Morarji vs. State of Gujarat, AIR 1980 SC 660 : “The general principles embodied in the Penal Code, governing the exercising of the right, of private defence are as follows : The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under: Firstly, there is no right of private defence against an act which is not in itself an offence under the Code. Secondly, the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension (section 102). Secondly, the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension (section 102). That is to say, right avails only against a danger imminent, present and rash. Thirdly, it is defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence, (section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh 'with golden scales' what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender if he with the instinct of self - preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack.” It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack. Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the catrocious crimes enumerated in the six clauses of section 100. The combined effect of the first two clauses is that taking the life of the assailant, would be justified on the plea of private defence if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of, losing his life or limb may, in the exercise of right of self defence inflict any harm, even extending to death, on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to .avert the danger is not substantially disproportionate to and incommensurate with the guilt and charter of the perilous act of threat intended to be repelled. This principle is also subject to the preceding rule that the harm or death inflicted to .avert the danger is not substantially disproportionate to and incommensurate with the guilt and charter of the perilous act of threat intended to be repelled. Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to live or of grave bodily harm, except by inflicting death on the assailant. Sixthly, the right being in essence, a defensive right, does not accrue and avail where there is 'time to have recourse to the protection of the public authority.” The principle governing the burden of proof where the accused sets up a plea of private are as follows : Section 105, Evidence Act enacts and exception to the general rule whereby in a criminal trial the burden of proving everything necessary to establish the charge against the 'accused beyond reasonable doubt, rests on the prosecution. According to the section, the burden of proving the existence of circumstances bringing the case within any of the General Exception in the Penal Code, or within any special exception or proviso contained in any other part of the Code or in any other law, shall be on the accused person, and the Court shall presume the absence of such circumstances. But this section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in section 299 of the Penal Code. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises under section 105, read with the definition of 'shall presume' in section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of on Exception (such as the one on which right of private defence is claimed), as proved unless after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, the act upon the supposition that they did exist, the accused to rebut the presumption envisaged in the last line of £ section 105, by bringing on record evidential material before the Court sufficient for to prudent man to believe that the existence of such circumstances, if probable. In other words, even under section 105, the standard of proof required to establish these circumstances is that of a prudent man as laid down in section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused was discharged his burden the establishing a mere balance of probabilities even in his favour with regard to the said circumstances. AIR 1964 SC1563, para 14. The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross examination, presumption, and the statement of the accused recorded under section 313 of the CrPC, 1973.” 9. The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross examination, presumption, and the statement of the accused recorded under section 313 of the CrPC, 1973.” 9. In the case the accused claims that he was first assaulted by the deceased with a spade and he sustained injury and thereafter in order to save himself, he merely pushed the deceased who fell down and sustained the fatal injury. Causing of injury by the deceased on the person of the accused appellant was not suggested to the two eye witnesses of the prosecution and this plea was first taken in the statement under section 313 CrPC. No doctor has been examined to prove the alleged injuries on the person of the accused person. During trial also the defence did not bother to produce the doctor to support the defence plea that the accused Rana Borah did assault the injured at the time of incident with the spade. The defence has, however, cross-examined PW 9 the Investigating Police Officer who has stated in his cross examination that at the time of arrest accused appellant Rana Borah had injuries on his person and he got the accused treated by a doctor and a medical certificate was attached with the charge sheet. No such medical certificate is proved. However, on perusal of the materials, I find a Medical Certificate which says that the accused Rana Borah was examined at 11-45 AM on 16.3.1993 by Dr. Padmeswar Pegu who found a swelling 2" x 3" on the upper part of neck on the right side. The swelling is radish and black. The accused was arrested by PW 9 and forwarded to Court. Padmeswar Pegu who found a swelling 2" x 3" on the upper part of neck on the right side. The swelling is radish and black. The accused was arrested by PW 9 and forwarded to Court. The forwarding report is available in the file and in the said forwarding report the IO (PW 9) has stated as below: “During investigation it is also gathered that just after occurrence on hearing the incident some villagers from No. 2 Majulipurcame to the spot and on revenge the accused have been manhandled by the villagers as a result the accused person received simple injury on their person and they had been rendered medical examination and treatment.” Thus the alleged swelling found on the person of accused appellant stands explained and that may be the reason for the defence in not examining the doctor because if the accused appellant was assaulted by the deceased with the help of spade it would not have result in a minor swelling only. I, therefore, hold that the defence has failed to establish the right of private defence and also that the said right of private defence extended to kill a person. 10. Considering the facts and circumstances which led to the death of the deceased the learned trial Judge held that there was no intention as such to kill the deceased and the act of the accused constitutes an offence under Part II of section 304, IPC. Further accused Minaram Das was given the benefit of doubt and he was acquitted. The accused appellant was also dealt with leniently in awarding the sentence. 11. In the result the appeal is devoid of any merit and it is accordingly dismissed. The conviction and sentence of the accused appellant is affirmed. The accused appellant who is on bail is given 45 days time to surrender before the Sessions Judge, Dhemaji to serve out the sentence and pay the fine. In case he fails to do so the learned Sessions Judge shall proceed in accordance with law.