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2004 DIGILAW 363 (GAU)

Ganesh Bora v. State of Assam

2004-05-25

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. By the judgment and order dated 5.6.95, passed by the learned Sessions Judge, Nagaon, the accused-Appellant, Ganesh Bora, stands convicted under Section 304 (Part-I) and 326 of the Indian Penal Code and sentenced, for his conviction under Section 304 (Part-I) IPC, to suffer, rigorous imprisonment for six years and to pay a fine of Rs. 1000/- and, in default of payment of fine, rigorous imprisonment for a further period of one year and also to suffer, for his conviction under Section 326 IPC, rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- and, in default of payment of fine, suffer imprisonment for a further period of 15 (fifteen) days, both the sentences running concurrently. 2. The case of the prosecution, as unfolded at the trial, may in brief, be stated as follows: Iftikar Ahmed (P.W. 4), Bipin Bora and Narayan Kundu were friends, they all being petty shopkeepers, having their shops at Nehrubali, Nagaon, Bipul Bora, brother of Bipin Bora (P.W. 5), an employee of the Assam State Electricity Board, was a visitor to the said shops. On the day of the occurrence, i.e. on 24.12.87, after closing their shops, Narayan Kundu (since deceased) and Iftikar Ahmed (P.W. 4) went alongwith Bipul Bora (P.W. 5) to Bipul Bora's house and after having tea there, when Iftikar and Narayan started coming back, at about 8.30 p.m., they were accompanied by Bipul Bora. When these three persons reached near the shop of the accused-Appellant, Ganesh Bora, situated at Telia Borjoha, Narayan Kundu went inside the shop of Ganesh Bora, but P.W. 4 and P.W. 5 remained waiting outside the shop. After some time, P.W. 4 and P.W. 5 saw accused Ganesh Bora assaulting Narayan Kundu with a dagger and jathi (i.e. javelin). Narayan Kundu came out of the shop and fled away. The accused-Appellant, Ganesh Bora, then, assaulted Bipul Bora with the jathi. In the meanwhile, Iftikar intervened and he too was assaulted by the accused-Appellant. Thereafter, the accused-Appellant tied Iftikar and Bipul with rope. Narayan Kundu came out of the shop and fled away. The accused-Appellant, Ganesh Bora, then, assaulted Bipul Bora with the jathi. In the meanwhile, Iftikar intervened and he too was assaulted by the accused-Appellant. Thereafter, the accused-Appellant tied Iftikar and Bipul with rope. After so tying up by rope Bipul and Iftikar, the accused-Appellant went to the house of his uncle and aunt and came from there to the Nagaon police station and lodged there an information, based on which GD Entry No. 1003, dated 25.12.87, was made and S.I. Sardar Rajendra Singh (P.W. 8), acting upon the information so received, came to the place of occurrence and found both Iftikar as well as Bipul tied with rope and kept confined under a shed in front of the house of the accused-Appellant. Both Iftikar and Bipul were untied and taken to the Police Station. The rope and the hurricane lamp, which was kept lit there, were seized. The dead body of Narayan Kundu was found lying nearby. After holding inquest over the said dead body, the same was sent for postmortem examination, which revealed penetrating and incised wounds having been caused, amongst others, at the abdominal region of the said deceased, the cause of death being, according to the doctor, shock and haemorrhage resulting from the injuries sustained. Bipul Bora and Iftikar were also medically examined. Ganesh Chandra Kundu, brother of deceased Narayan Kundu, also lodged an Ejahar, in writing, before the police on 25.12.87 and, based on this Ejahar and treating the same as FIR, Nagaon Police Station Case No. 809/87 was registered. Another Ejahar, in writing, was lodged by Akanman Bora, brother of Bipul Bora (P.W. 5), at Nagaon Police Station and treating the same too as FIR, Nagaon Police Station case No. 811/87 was registered. On completion of the investigation, police submitted chargesheet against the accused-Appellant under Section 302 / 326 IPC in connection with Nagaon Police Station Case No. 809/87. Another charge sheet under Sections 342 / 326/ 323 IPC was also laid against the accused-Appellant in connection with Nagaon Police Station Case No. 811/87 aforementioned. As both the cases, namely. Sessions Case No. 46(N) 91 and 50(N) 87 arose out of the same occurrence, both the cases were tried by the learned Sessions Judge, Nagaon. 3. Another charge sheet under Sections 342 / 326/ 323 IPC was also laid against the accused-Appellant in connection with Nagaon Police Station Case No. 811/87 aforementioned. As both the cases, namely. Sessions Case No. 46(N) 91 and 50(N) 87 arose out of the same occurrence, both the cases were tried by the learned Sessions Judge, Nagaon. 3. During trial, in Sessions Case No. 46(N) 91, the accused-Appellant pleaded not guilty to the charge framed against him under Sections 302 and 326 IPC. In support of their case, prosecution examined altogether 11 witnesses. The accused-Appellant was, then, examined under Section 313 Code of Criminal Procedure and in his examination aforementioned, the accused-Appellant denied that he had committed the offences alleged to have been committed by him, the case of the defence being, in brief, thus: on the night of occurrence, while he was sleeping inside the shop at about 2 a.m., two persons entered into his house by breaking open the shop door, he raised alarm and the two persons fled away, the neighbours arrived, they caught hold of both the persons and he was sent to the police station, he came to the police station and reported the matter there. The accused, however, could not say as to how the victims aforementioned had sustained injuries. 4. None appeared on behalf of the accused-Appellant at the time of hearing. However, I heard Mr. F.H. Laskar, learned Additional Public Prosecutor, appearing on behalf of the Respondents. 5. In tune with each other, P.W. 4 (Iftikar Ahmed) and P.W. 5 (Bipul Bora) have deposed that both of them alongwith Narayan Kundu (since deceased) came to the house of Bipul Bora at about 6.30 p.m. and when they were returning, at about 8.30 p.m., from the house of Bipul Bora and reached the shop of the accused-Appellant, deceased Narayan Kundu went inside the shop, but P.W. 4 and P.W. 5 remained standing outside the shop. It is also in evidence of P.W. 4 and P.W. 5 that after some time, both of them heard Narayan Kundu's cries, "marile aoi" (i.e. "I am being assaulted/killed"). It is also in evidence of P.W. 4 and P.W. 5 that after some time, both of them heard Narayan Kundu's cries, "marile aoi" (i.e. "I am being assaulted/killed"). On hearing the cries so raised, when P.W. 5 focussed his torch-light towards the direction from where the cries were raised, P.W. 4 and P.W. 5 saw the accused-Appellant assaulting Narayan Kundu with a dao and Narayan Kundu, on sustaining injuries, running out of the shop, whereupon accused Ganesh Bora picked up a spear and thrust the same into the abdomen of Bipul Bora (P.W. 5) and when Iftikar (P.W. 4) attempted to intervene, the accused-Appellant assaulted P.W. 4 too. The evidence given by P.W. 4 and P.W. 5 further shows that P.W. 5 fell unconscious, the accused- Appellant, thereafter, raised alarm and got P.W. 4 and P.W. 5 tied with rope, P.W. 4 regained consciousness after the police arrived and P.W. 5 came back to his senses at Civil Hospital, Nagaon. What is also pertinent to note is that the occurrence took place at around mid-night and except P.W. 4, P.W. 5, deceased Narayan Kundu and accused-Appellant, Ganesh Bora, none else was present at the place of occurrence at the time of the occurrence. 6. Coupled with the above evidence of P.Ws. 4 and 5, there is a statement of the accused-Appellant made before the police, immediately, after the occurrence. P.W. 8, who is one of the Investigating officers of this case, has deposed that between 24th and 25th December, 1987 at about 1.15 a.m., accused Ganesh Bora appeared at Nagaon Sadar Police Station and verbally informed there that he was engaged in the business of liquor and that on that very night three unknown persons came to his shop and took liquor, there was a quarrel regarding payment and thereupon, the (accused) brought out a 'sel' (spear) and assaulted them and as a result thereof, two of the persons fell down, he (accused) raised alarm and his uncle, Umesh Bora, his aunt and others came and they kept confined the two persons after tying them. Accordingly to the evidence of P.W. 8, the accused also informed the Police that the spear by which the injuries were caused had been kept in front of the house of his Uncle, Umesh Bora. Accordingly to the evidence of P.W. 8, the accused also informed the Police that the spear by which the injuries were caused had been kept in front of the house of his Uncle, Umesh Bora. The information, so given by the accused, was, according to the evidence of P.W. 8, recorded as G.D. Entry No. 1003, dated 25.12.87, Ext. 12(1) being the said entry. Notwithstanding the fact that Ganga Bora, the then Officer-incharge of Nagaon Police Station, who recorded Ext. 12(1), has not been examined at the trial, as a witness, the fact remains that P.W. 8 had, admittedly, worked under Ganga Bora, P.W. 8 had deposed that he was conversant with the hand-writing of Ganga Bora and Ext. 12(1) is in handwriting of Ganga Bora. It is, therefore, clear, as correctly noted by the learned trial Court, that Ext. 12(1) has been proved, as required under the law, as an information given by the accused-appellant himself to the police and reduced into writing. 7. It is worth noticing that Ext. 10 is, admittedly, a written Ejahar (i.e. complaint) lodged by Ganesh Chandra Kundu, brother of deceased Narayan Kundu, at Nagaon PS on 25.12.87. As this informant, Ganesh Ch. Kundu, died, he could not be examined as a witnesses at the trial. Ext.7 is yet another Ejahar lodged by Akonman Bora (P.W. 6), the same having been received by police on 26.12.87. 8. It is evidence of P.W. 8 that on the basis of the information recorded as Ext. 12(1), he went to the place of occurrence and found there P.Ws. 4 and 5 tied with rope, P.W. 5 was lying injured and unconscious, P.W. 8 untied them, seized the rope as well as the lighted hurricane lamp hanging under the shed, where P.W. 4 and P.W. 5 were found kept, P.W. 4 sent the injured for treatment and recorded their statements and, later on, submitted supplementary case diary to the Officer-in-charge of the said Police Station. 9. From the evidence of P.W. 8, it transpires that the investigation had already commenced on the strength of Ext. 12(1) before Ext. 7 and Ext. 10 were received and, hence Exts. 7 and 10 are nothing but statements made to the police under Section 161 Code of Criminal Procedure during investigation of the case and, therefore, being hit by Section 162 of the Code of Criminal Procedure, neither Ext. 7 nor Ext. 12(1) before Ext. 7 and Ext. 10 were received and, hence Exts. 7 and 10 are nothing but statements made to the police under Section 161 Code of Criminal Procedure during investigation of the case and, therefore, being hit by Section 162 of the Code of Criminal Procedure, neither Ext. 7 nor Ext. 12 is admissible in evidence. It also follows from the above discussion that it is Ext. 12(1), on the basis of which the investigation commenced, which shall be treated, and was rightly treated by learned trial Court, as the FIR of this case. 10. The law regarding value and use of the first information report lodged by accused has been succinctly laid down by the in Aghnoo Nagasia v. State of Bihar (AIR 1996 SC 119), wherein the relevant observations read as follows: The first information report recorded under Section 154 Code of Criminal Procedure as such is not substantive evidence, but may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness, where the accused himself gives the first information the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of Section95 of the Evidence Act. Where the first information report is given by the accused to a police officer and amounts to a confessional statements proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence, but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27. The test of severability, namely that if a part of the report is properly severable firom the strict confessional part. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27. The test of severability, namely that if a part of the report is properly severable firom the strict confessional part. Then the severable part could be tendered in evidence is misleading and the entire confessional statement is hit by Section 25 and save and except as provided by Section 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered m evidence. 11. A carefiil reading of the above observations made in Aghnoo Nagasia (supra) reflects the position of law thus: First Information Report, recorded under Section 154 Code of Criminal Procedure is not substantive evidence, but the same maybe used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness at the trial. Where the accused himself gives the First Information, the fact of his giving the information will be admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant; but if the first information report given by the accused to a police officer is confessional in nature, the same cannot be used against him in view of the bar imposed under Section 25 of the Evidence Act. Such confession will include not only the admission of the offence, but all other admissions of incriminating facts relating to the offence contained in the confessional statement. No part of such confessional statement can be received in evidence except to the extent that the ban of Section 25 is lifted by Section 27 of the Evidence Act. 12. Such confession will include not only the admission of the offence, but all other admissions of incriminating facts relating to the offence contained in the confessional statement. No part of such confessional statement can be received in evidence except to the extent that the ban of Section 25 is lifted by Section 27 of the Evidence Act. 12. Explaining the concept of severability of a confessional statement into incriminating and non-incriminating components, the Apex Court in Aghnoo Nagasia (supra) has also laid down that the test of severability, namely, that if a part of the report is properly severable from the strict confessional part, then, the separable part could be tendered in evidence against the accused is misconceived and that such a confessional statement will, in its entirely, be hit by Section 25 save and except the extent to which the ban imposed by Section 25 is lifted by Section 27. That apart, save and except the formal part of such confession, which identifies the accused as the maker of the report, no part of such confessional statement can be tendered in evidence. 13. In the light of the above, when Ext. 12(1) is examined, it transpires that apart of Ext. 12(1) contains confession of the accused regarding assault made by him. In view of the restrictions imposed by Section 25 of the Evidence Act, the FIR i.e. Ext. 12(1) becomes relevant, under Section8 of the Evidence Act, as such conduct of the accused-Appellant and it remains to be seen whether Section 27 of the Evidence lifts, in the present case, the bar imposed by Section 25 on the use of the confessional statement made by the accused before the police. 14. Before answering the questions as to whether the confessional statement appearing in Ext. 12(1) can be used against the accused-Appellant and, if so, how far such statement is admissible, let me deal with other aspects of the evidence on record. 15. P.W. 11 (Dr. Kamal Bora) is the one, who held the autopsy over the said dead body and found as follows: External injuries: Two penetrating injuries over ventral aspect of right arm about 1" apart each injury situated medically 1"x4"x1". Injury situated laterally 1"x1/4"x1". Both are incised cut injuries. Margin regular. One punctured would over lower abdomen about 1/4" laterally to mid line. Kamal Bora) is the one, who held the autopsy over the said dead body and found as follows: External injuries: Two penetrating injuries over ventral aspect of right arm about 1" apart each injury situated medically 1"x4"x1". Injury situated laterally 1"x1/4"x1". Both are incised cut injuries. Margin regular. One punctured would over lower abdomen about 1/4" laterally to mid line. The size of the injury is about 1/4" through which loop of mesentery has come out which is dried and on examination of the peritoneal cavity haemorrhage was found from the mesenteric vessels. 16. In the opinion of the doctor, the injuries were ante-mortem in nature and the death was caused due to shock and haemorrhage as a result of the injuries sustained. The doctor has further opined that the injuries were sufficient to cause death in the normal course. 17. Though the prosecution did not question P.W. 11 as to the nature of the weapon, which was possibly used, the fact remains that deceased Narayan Kundu sustained penetrating wounds on his arm and punctured wounds on his abdomen. It was not disputed by the defence that 'set' (spear), which the accused-Appellant had, according to the evidence on record, used in assaulting the said deceased, could have caused the kind of injuries found on the said dead-body. That apart, it cannot be disputed that spear can cause the kind of injuries, which the said deceased had sustained. The learned trial Court was, therefore, not incorrect in holding that the penetrating would can be caused by a spear. 18. It may also be noted that P.W. 7 (Dr. Bipul Barua) is the doctor, who admittedly examined P.W. 5 at 2.20 a.m. on 25.12.87 and found the following injuries: 1. One perforating injury in left iliac fossa 2 x 1 cm in margin everted. 2. One perforating injury in left buttock 2 x 1 cm in margin everted. Further finding of P.W. 7 were as follows: Patient was semi conscious. Pulse 96 per minute. Blood pressure 90/60. 19. In the opinion of the doctor (P.W. 7), the injuries on the person of Bipul Bora could have been caused by a spear. 20. On the same day, i.e. on 25.12.87 and at around the same time, the same doctor i.e. P.W. 7 examined Iftikar Ahmed (P.W. 4) and found two abrasions - one on right index finger and another on right forearm. 21. 20. On the same day, i.e. on 25.12.87 and at around the same time, the same doctor i.e. P.W. 7 examined Iftikar Ahmed (P.W. 4) and found two abrasions - one on right index finger and another on right forearm. 21. From the undisputed evidence of the doctor (P.W. 7), it is transparent that P.W. 5 (Bipul Bora) sustained grievous injuries on his person, which were caused by sharp pointed weapon, such as 'sel' (i.e. spear), and P.W. 4 (Iftikar Ahmed) sustained simple injuries. 22. The learned trial Court was, thus, correct in holding that the prosecution's case as regards the nature of the injuries sustained and the weapon used stand fully supported by the medical evidence on record. The occurrence took place, it may be pointed out, at about midnight in the shop of the accused-Appellant. Besides the four persons, namely, P.W. 4, P.W. 5 and Narayan Kundu (since deceased) and the accused-Appellant no one else was present there and no one can be expected to be present there at the middle of the night. Out of the three persons, one person died and the remaining two persons, namely, P.W. 4 and P.W. 5 have deposed that it was accused Ganesh Bora, who had caused injuries to all of them including the said deceased. 23. Situated thus, the evidence of P.W. 4 and 5 becomes most material. While considering the veracity of their evidence, it is pertinent to note that none of these two witnesses is alleged to have any previous enmity with the accused-Appellant. As a matter of fact, the deceased and P.W. 4 did not know the accused from before the occurrence. P.W. 5 knew the accused, because he (accused-Appellant) had married a girl from the locality of P.W. 5. Thus, there is, as noticed by the learned trial Court, no earthy reason for P.W. 4 and P.W. 5 to falsely implicate the accused-Appellant. Moreover, in the case at hand, the witnesses were the victims of assault in the same occurrence and their injuries were confirmed by the doctor. It is, therefore, not possible to infer that P.Ws. 4 and 5 would allow the real culprit to escape and involve the accused falsely. No serious discrepancy is discernible from the evidence of P.W. 4 and/or P.W. 5. It is, therefore, not possible to infer that P.Ws. 4 and 5 would allow the real culprit to escape and involve the accused falsely. No serious discrepancy is discernible from the evidence of P.W. 4 and/or P.W. 5. There are, undoubtedly, some omissions and discrepancies in the evidence of these two witness, but the same were natural, when the witnesses had deposed after 6/7 years of the occurrence. If fact, such inconsistencies are hallmark of the truth. None of the discrepancies or contradictions, which emerge from the evidence of P.W. 4 and P.W. 5, destroy the root of the prosecution's case or the core of the evidence of these witnesses. 24. Let me, now, turn to the other aspects of the evidence on record. P.W. 1 is the brother of the accused-Appellant. P.W. 2 and P.W. 3 are the aunt and uncle respectively of the accused- Appellant. P.W. 1 has deposed that on the night of occurrence, at about 12.30/1.00 a.m., the accused came to his house and informed that he had apprehended and kept two thieves in his shop and they (P.W. 1 and his family members) should go there. P.W. 2 and P.W. 3 have also given evidence to the same effect. It is also in the evidence of P.W. 2 and P.W. 3 that the accused further told them that he would proceed to the police station. As P.W. 2 and P.W. 3 were declared hostile by the prosecution and cross-examined, their previous statements made before the police to the effect that the accused had made extra-judicial confession before them (P.W. 2 and P.W. 3) regarding his assaulting of a person with a spear is not substantive evidence and may be ignored. What, however, emerges from the evidence of these witnesses, despite their reluctance to support the case of the prosecution, is that the accused, soon after the occurrence, came to their house and reported to them about the occurrence, the accused also admitted to have kept tied two persons in his shop and declared his intention to proceed to the police Station. 25. 25. From Aghnoo Nagasia (Supra), it is clear that the conduct of the accused, who lodges the FIR, is relevant under Section 8 of the Evidence Act and in the context of the facts, as surfaced from the evidence on record, the learned trial court was, I hold, wholly justified in concluding that it was the accused-Appellant, who had, soon after the occurrence, gone to the house of P.Ws. 1, 2 and 3, narrated the occurrence to them and, thereafter, the accused-Appellant went to the police station and lodged the information, which was recorded as Ext. 12(1). So far the confession made in Ext. 12(1) is concerned, the same is, as already indicated hereinabove, hit by Section 25 of the Evidence Act. 26. In Aghnoo Nagasia (supra), the Supreme Court has, as already pointed out hereinabove, further held that where the First Information Report made by an accused contains confessional statement, it is hit by Section 25 of the Evidence Act and nothing is admissible save and except what is provided by Section 27 of the Evidence Act and the formal part of such statement can be used for identifying the accused as a maker of the report. In Ext. 12(1), the accused is shown to have stated that two persons have been kept tied at his place and the spear used in the incident has been kept in front of the house of Umesh Bora. P.W. 8 has deposed that acting on the said information, he went to the place of occurrence at 1.30 a.m. and under a shed, located in front of the shop of the accused, he found P.W. 4 and P.W. 5 kept tied, he united them and seized, vide seizure list (Ext. 1), the rope as well as the lighted lamp and, thereafter, he seized, vide seizure list (Ext. 1), the spear from the house of P.W. 3. Thus, the fact discovered is the knowledge of the accused as to where the two injured and the weapon of assault were. Hence, the statement contained in Ext. 12(1), to the extent as to where the two injured aforementioned and the spear were, is admissible in evidence (See Md. Ennatulla v. State of Maharastra 1976 Cri.L.J. 481). 27. The learned trial court also took into account the question as to whether, at the time of making of the statement, which is Ext. Hence, the statement contained in Ext. 12(1), to the extent as to where the two injured aforementioned and the spear were, is admissible in evidence (See Md. Ennatulla v. State of Maharastra 1976 Cri.L.J. 481). 27. The learned trial court also took into account the question as to whether, at the time of making of the statement, which is Ext. 12(1), the accused was under police custody or not. Admittedly, at the time of making of the statement aforementioned, the accused-Appellant was not under police custody. In the case of State of UP v. Deomond Upadhaya ( AIR 1960 SC 1125 ), the Apex Court has held, "When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact having a bearing on the charge, which may be made against him, he may appropriately be deemed to have surrendered himself to the police and may be deemed to be in the "custody" of the police officer within the meaning of Section 27 of the Evidence Act. In the case of Aghnoo (supra), it was assumed that the Appellant was constructively in police custody. 28. What becomes abundantly clear from the law laid down in Deomond Upadhaya (supra) is that when a person, not being in custody, approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, which has abearing on the charge, which may be made against him, he maybe deemed to have surrendered himself to the police and may be deemed to be in the "custody" of the police officer within the meaning of Section 27 of the evidence Act and such a person can be assumed to be constructively, in police custody. 29. In the light of the law laid down in Deomond Upadhaya (Supra), it was correctly held by the learned trial Court that accused Ganesh Bora was in constructive custody of the police, when he made the statement, which is Ext. 12(1), and hence, as already pointed out herein above, his statement, contained in Ext. 12(1), showing as to where the two injured and the spear were, was admissible in the evidence. 30. In the case at hand, as pointed out by the learned trial Court, the defence had no consistent plea. 12(1), and hence, as already pointed out herein above, his statement, contained in Ext. 12(1), showing as to where the two injured and the spear were, was admissible in the evidence. 30. In the case at hand, as pointed out by the learned trial Court, the defence had no consistent plea. It was contended, at the trial, that the act of the accused would be in excess of the right of private defence of the person and properties. No such suggestion was, however, given to either P.W. 4 and P.W. 5, when they were under cross-examination by the defence. 31. While considering the plea of the private defence raised by the accused, it is of immense importance to note that the burden of the defence to establish its plea is not as onerous as that of the prosecution. In Md. Ramjani v. State of Delhi ( AIR 1980 SC 1341 ) the Apex Court held thus, "The onus, which rests on an accused person under Section 105 of Evidence Act to establish its plea of private defence is not as onerous as the un-shifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. A person faced with imminent peril of life and limb of himself or another is not expected to weigh in (golden scales) the precise force needed to repel the danger. Even if he at the heat of the moment carried his defence little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it". 32. In Charan Singh v. State of Punjab 1979 SCC 989, it has been held that once there is a probability of the accused having acted in self defence, the same is sufficient to entitle him to acquittal. 33. In the present case, the accused-Appellant examined himself under Section 315 Code of Criminal Procedure and he deposed that on the night of occurrence, while he was sleeping inside the shop at about 2 a.m., two persons entered into his house by breaking open the shop door, he raised alarm and the two persons fled away, the neighbours arrived, they caught hold of both the persons and he was sent to the police station, he came to the police station and reported the matter there. 34. 34. The accused, however, could not say as to how the victims aforementioned had sustained injuries. 35. While considering the above evidence of the accused-Appellant, it is noteworthy that the accused claimed that the P.Ws. 4 and 5 had entered into his shop by breaking open the door, but there is absolutely no evidence on record that the door of the shop of the accused-Appellant was found broken. The Investigating police officer did not state that he had found the door of the shop of the accused-Appellant broken. There was no cross-examination of the Investigating officer in this regard. This apart, the accused, in his evidence, claimed that on alarm being raised, the neighbours came and tied P.Ws. 4 and 5, but none of the neighbours came forward to support such assertions of the accused. On the contrary, P.Ws. 1, 2 and 3, who are all close relations of the accused-Appellant, have deposed that it was the accused, who had told them that he himself had apprehended and tied the two persons. Moreover, not only P.Ws. 4 and 5, but also the deceased was unarmed. Two of these persons were petty shop keepers and the third one was an employee of the ASEB. There is not even an iota of evidence on record to show that P.Ws. 4 and 5 and/or the said deceased were thieves and/or at the relevant time, they were carrying any arms with them. Far from this, P.W. 8 found them tied and he found no weapon with them or any other apparatus or instruments for forcing their entry into the shop. Hence, the learned trial court justifiably refused to hold that P.Ws. 4 and 5 and/or the said deceased were thieves and/or that they had broken open the shop of the accused-Appellant. Furthermore, the accused-Appellant has, nowhere, claimed that P.Ws. 4 and 5 and/or the said deceased tried, at any point of time, to assault the accused. The accused also, nowhere, claimed that he had caused assault on P.W. 4 and/or P.W. 5 and/or the said deceased to save his own property or person, rather, accused-Appellant claimed iimocence by stating that he was not aware as to how these persons sustained injuries. The learned trial Court, therefore, correctly held that no right of private defence accrued to the accused-Appellant. 36. Relying on the evidence of the two witnesses, namely, P.Ws. The learned trial Court, therefore, correctly held that no right of private defence accrued to the accused-Appellant. 36. Relying on the evidence of the two witnesses, namely, P.Ws. 4 and 5 coupled with the medical evidence and the information admissible under Section 27 of the Evidence Act, the learned trial court held that, an occurrence, as alleged by the prosecution did take place, wherein accused Ganesh Bora killed Narayan Kundu and voluntarily caused grievous hurt to Bipul Bora. 37. As, in the present case, there was no prior enmity between the parties, the occurrence took place without pre-meditation, the learned trial court held that the act of the accused-Appellant falls within Exception 4 of Section 300 IPC and punishable under Section 304 part-1 of the IPC so far the death of Narayan Kundu is concerned. So far as the injuries sustained by Bipul Bora (P.W. 5) is concerned, the same was held to be a case of grievous injuries caused by a sharp pointed weapon and the offence falls under Section 326 IPC. I see no reason to interfere with the conclusions so reached by the learned trial Court. The conviction of the accused-Appellant under Sections 302 and326 IPC, therefore, needs no interference. This apart, even the sentence passed against the accused-Appellant is not, in the facts and attending circumstances of the case, harsh or unreasonable. 38. In the result and for the reasons discussed above, I find no merit in this appeal. This appeal fails and the same shall accordingly stand dismissed. 39. The accused-Appellant is directed to surrender, forthwith, in the Court of the Chief Judicial Magistrate, Nagaon, to serve out the sentences of imprisonment passed against him. 40. Send back the LCRs. Appeal dismissed.