JUDGMENT Dr. Indira Shah, J. 1. The judgment and order dated 22.12.2006 passed by the learned Sessions lodge, Jerhat in Sessions Case No. 118 (J-J) of 2005 convicting the accused-appellant under Section 304 (Part-II) IPC and sentencing her to undergo rigorous imprisonment for 2 years has been impugned in this appeal. The prosecution case in brief is that on 18.09.2002 at about 5.30 AM, the accused-appellant in absence of her husband dealt with dao blow on her mother-in-law Makan Saukadhara causing her death. After assaulting her mothe-in-law, she along with the dao, went to the house of Gaonburah and Panchayat President and confessed that she had assaulted her mother-in-law by means of a dao. She was kept confined by the Gaonburah and Panchayat President. Her husband Loken Saukadhara lodged art FIR and on the basis of the said FIR, Pulibar P.S. Case No. 156 of 2002 under Section 302 IPC was registered. The dao was seized from the possession of the accused during investigation. On completion of the investigation, charge sheet under Section 302 IPC was laid against the accused appellant. 2. The accused-appellant pleaded not guilty to the charges flamed against her wider Section 302 IPC and claimed to be tried. 3. The prosecution examined altogether 10 witnesses in support of its case. 2 witnesses i.e. daughter and husband of the deceased were examined as Court witnesses. The accused in her statement recorded under Section 313 Cr.P.C. denied the allegations levelled against her and stated that the deceased used to quarrel with her. However, she denied that she killed the deceased. No defence evidence was adduced. On conclusion of the trial, the learned trial Court held that the accused committed culpable homicide not amounting to murder as she committed the offence out of grave and sudden provocation and therefore she is liable to be punished under Section 304 (Part-II) IPC. Accordingly, she was convicted and sentenced as stated above. 4. I have heard Mr. S.S.S. Rahman, learned counsel for the appellant and Ms. A. Begum, learned Public Prosecutor appearing on behalf of the State of Assam. 5. It is submitted by the learned counsel for the appellant that the accused committed the offence while exercising her right of private defence and hence, she ought not to have convicted under Section 304 (Part-II) IPC. 6. S.S.S. Rahman, learned counsel for the appellant and Ms. A. Begum, learned Public Prosecutor appearing on behalf of the State of Assam. 5. It is submitted by the learned counsel for the appellant that the accused committed the offence while exercising her right of private defence and hence, she ought not to have convicted under Section 304 (Part-II) IPC. 6. Per contra, the learned Public Prosecutor has submitted that accused-appellant inflicting the dao blow on the neck of the deceased, which her intention to cause the death of the deceased. Even if her plea for right of private defence is accepted; she exceeded her rights by inflicting blow by a heavy sharp weapon on the vital part of the body of the deceased. She has been rightly convicted under Section 304 (Part-II) IPC and the findings of the learned trial Court therefore need not be interfered. 7. PW-1, Sri Bongchidhar Hazarika was the Govt. Gaonburah of the area. He saw the accused sitting along with a dao on the door-step of the residence of Panchayat President Bharati Neog. It is in his evidence that while he was working in his paddy field, his family members informed him that the accused alter assaulting her mother-in-law, has come to his house. However, he came back to his house and was informed that the accused had gone to the house of Panchayat President. The inquest of the dead body was held in his presence. In cross-examination, he admitted that he cannot say how the incident occurred. 8. PW-2, Sri Ganesh Hazarika is another Govt. Gaonburah, whose evidence is consistent with the evidence of PW-1 and he deposed in the similar line. The dao was seized by the police in his presence. He also stated that while he was returning home, he saw the accused along with dao running towards the house of Panchayat President. In his cross-examination, he stated that a day ahead to the incident, the accused called him to her house and complained that her mother-in-law had quarrel with her. 9. PW-3, Sri Loken Saukadhara is the husband of the accused and son of the deceased. He deposed that while he was bathing his sister reported him that his mother and wife along with a dao are scuffling with each other. 9. PW-3, Sri Loken Saukadhara is the husband of the accused and son of the deceased. He deposed that while he was bathing his sister reported him that his mother and wife along with a dao are scuffling with each other. Immediately he rushed to the site of occurrence and found his mother lying on the ground with injury on her neck. He did not see his wife. He came to know that she has gone to the house of Panchayat President namely Bharati Neog. Thereafter, he lodged the FIR. He identified the material exhibit dao and stated that the dao belongs to his house. In his cross-examination, he admitted that there were frequent quarrel between the accused and the deceased prior to the occurrence. He also admitted that his mother used to abuse and assault the accused. He further stated that the accused has been residing with him after her release on bail. 10. PW-4, Smti Bharati Nego was the president of Pulibar Gaon Panchayat at the relevant time. She deposed that on the date of incident at about 5.30 AM, the accused along with a dao came to her house and informed her that she had cut her mother in-law. She also identified the materials exhibit-1, i.e. the weapon of assault. She asked the accused to sit there and called the Gaonburah of the village. Police also came and seized the dao from the possession of the accused. 11. Sri Aran Chandra Bora (PW-5) saw the accused in the house of PW-4, Her deposed that the accused confessed before the people gathered there that she killed her mother-in-law. He also witnessed the seizure of dao from the possession of the accused. PW-6, Sri Lalit Beog is also the seizure witnesses. However, he deposed that he did not see any dao while seized PW-7, Smti Lilymai Hazarika is the wife of Ganesh Hazarika, Gaon Burah of the village. She deposed that the accused came to her house and stated that she killed her mother-in-law. According to her, the accused came to confess her guilt before her husband and as he was not available, she asked the accused to go to the house of the President of Gaon Panchayat. She reported the matter to her husband. PW-8 Sri Jatindra Nath Neog witnessed the inquest on the dead body. 12. According to her, the accused came to confess her guilt before her husband and as he was not available, she asked the accused to go to the house of the President of Gaon Panchayat. She reported the matter to her husband. PW-8 Sri Jatindra Nath Neog witnessed the inquest on the dead body. 12. Smt. Chenimai, Bora, daughter of the deceased and examined as Court witness No. 1. She deposed in her evidence that on the date and time of the incident, she saw her mother (deceased) came out to the courtyard of the house Holding a dao. She also saw the accused sweeping the courtyard. Her brother (informant) was bathing at some distance, nearby a pond. She saw the scuffle between her mother and the accused. She went to call her brother and when she came back along with her brother, she saw her mother lying on the ground. The accused was not available there and the dao was lying near the dead body She however, stated that the accused and the deceased had frequent quarrel. The accused has been residing with her husband and her father even after the incident. In cross-examination, she stated that her mother used to abuse the accused. 13. PW-9 is Dr. Pulakanahda Bharali, who conducted the inquest on the dead body of the deceased (Makan Saukadhara) on 18.08.2002 and his findings are as follows:- "A sharp cutting wound higher up in the right side of the neck above thyroid cartilage extending from midline anteriorly to the midline posteriorly and is transversely placed. Size about 15 c.m. x 4 c.m. and deep enough involving vertebrae, oropharynx, all muscles of right side of neck and vessels in the right side of the neck, including carotid and jugular vessels". In the opinion of doctor, the injury was ante-mortem in nature and the cause of death is coma as a result of the injury sustained by the deceased. The doctor admitted that such injury may be caused due to impact of the material Ext. 1 (Dao) as shown to him. He was not cross-examined by the defence. 14. PW-10, Sri Munin Das was attached officer at Pulibar Police Station at the relevant time. He stated that Ganesh Hazarika, Gaon Burah of the village lodged the information over telephone that the accused had killed her mother in-law by means of a dao. 1 (Dao) as shown to him. He was not cross-examined by the defence. 14. PW-10, Sri Munin Das was attached officer at Pulibar Police Station at the relevant time. He stated that Ganesh Hazarika, Gaon Burah of the village lodged the information over telephone that the accused had killed her mother in-law by means of a dao. His information was entered in the General Diary and he (PW-10) visited the place of occurrence. On the same day formal FIR was lodged by the husband of the accused. He found that the accused in the house compund of Bharati Neog, Gaon Panchayat President. He seized the dao from the possession of the accused. He visited the place of occurrence and held the inquest on the dead body. He also drew the sketch map of the site of the occurrence and the dead body sent for post-mortem examination. 15. CW-2, Sri Bhola Saukadhara, the husband of the deceased did not see the occurrence. However, he admitted that there were frequent quarrel between the accused and the deceased. The accused in her statement recorded under Section313 Cr.P.C. stated that the deceased came out from the house holding a dao and she cannot say what happened thereafter. In her reply to the question put to her that she proceeded to the house of Gaon Panchayat President, Bharati Nego holding a dao, she stated that she went to the house of Gaon Burah and also to the house of Bharati Nego to inform them about the quarrel initiated by her mother-in-law. However, she denied that she went there along with a dao. It appears from her own admission that prior to the incident, there was a quarrel between the accused and the deceased. The fact that the accused went to the house of the Gaon Burahs (PW-1 & PW-2), but she did not find PW 1 & PW-2, in their house and she went to the house of Bharati Neog, Gaon Panchayat President (PW 4) has not been disputed. She confessed before (PW-4) & others that she had dealt with a dao blow on the neck of her mother-in-law. The seizure of the dao from the possession of the, accused while she was in the house compound PW 4 has been confirmed by the seizure witnesses. She confessed before (PW-4) & others that she had dealt with a dao blow on the neck of her mother-in-law. The seizure of the dao from the possession of the, accused while she was in the house compound PW 4 has been confirmed by the seizure witnesses. Although; there is no eyewitness to the occurrence, the extrajudicial confession made by the accused before the PW-4, and other witnesses and other circumstantial evidence clearly leads to the conclusion that it was the accused who caused death of the deceased. The death of the deceased caused by the accused has not been disputed in this appeal. 16. The finding of the trial Court has been challenged on the ground that the learned trial Court failed to appreciate the fact that the accused did the act in exercise of her right of private defence. CW 1, (Chenimai), daughter of the deceased, stated that her mother (deceased), who came out of the housing holding a dao. The deceased pushed the accused on the ground and there was a scuffle between the accused and the deceased. According to defence, the deceased was an aggressor, and therefore, the accused is entitled to get the benefit of right of private defence. 17. In the case of Mano Dutta & Anr vs. State of Uttar Pradesh, reported in 2012(4) SCC 79 , in para-20, it has been observed as under:- "20. When a person claims exercise of right of private defence, the onus lies on him to show that there were circumstances and occasions for exercising such a right. In other words, these basic facts must be established, by the accused. Just because one circumstance exists amongst the various factors, which appears to favour the person claiming right of self-defence, does not mean that he gets the right to cause the death of the other person. Even the right of self-defence has to be exercised directly in proportion to the extent of aggression" 18. In another case of Arjun Vs. State of Maharashtra, reported in 2012 (5) SCC 530 , wherein it has been observed in paragraphs 22, 23, 24 & 25 as under:- "22. The law clearly spells out the right of private defence is available only when there is reasonable apprehension of receiving injury. In another case of Arjun Vs. State of Maharashtra, reported in 2012 (5) SCC 530 , wherein it has been observed in paragraphs 22, 23, 24 & 25 as under:- "22. The law clearly spells out the right of private defence is available only when there is reasonable apprehension of receiving injury. Section 99 IPC explains that the injury which is inflicted by a person exercising the right should commensurate with the injury with which he was threatened. True, that the accused need not prove the existence of the right of private defence beyond reasonable doubt and it is enough for him to show as, in a civil case that preponderance of probabilities is in favour of his plea. The right of private defence cannot be used to do away with a wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence. 23. It is for the accused claiming the right of private defence to place necessary materials on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution, if a plea of private defence is raised. (Munshi Ram V. Delhi Admn., State of Gujarat V. Bai Fatima, State of U.P. V. Mohd. MusheerKhan, Mohinder Pal Jolly V. State of Punjab and Salim Zia v. State of U.P.; 24. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find out whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. 25. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property of the person exercising the right or of any other person, and the right may be exercised in the ease of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences relation to the property." 19. In an another case of Ranjitham vs. Basavaraj & Ors. In an another case of Ranjitham vs. Basavaraj & Ors. reported in (2012) 1 SCC 414 , it was held that right of private defence cannot be weighed in a golden scale and even in absence of physical injury, in a given case, such a right may be upheld by the Court, provided there is reasonable apprehension to life or reasonable apprehension of a grievous hurt to a person. 20. In the case of v. Subramani vs. State of T.N., (2005) 10 SCC 358 , it was held that whether a person legitimately acted in exercise of his right of private defence is a question of fact to be determined on the facts and circumstances of each case. In a given case it is open to the Court to consider such a plea even if the accused has not taken it, but the surrounding circumstances establish that it was available to him. The burden is on the accused to establish his plea. The burden is discharged by showing preponderance of probabilities in favour of that plea. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and whether the accused had time to have recourse to public authorities are all relevant facts to be considered. In paragraphs 28, 30 and 31, it was held as under:- 28. In Hari Ram v. State of Haryana mere was an altercation between the appellant and the deceased. The appellant had remarked that the deceased must be beaten to make him behave. He thereafter ran inside the house brought out a jeli and thrust it into the chest of the deceased. This Court observed that (SCC p. 194, para 3) in the heat of altercation between the deceased on the one hand, and the appellant and his comrades on the other the appellant seized a jeli and thrust it into the chest of the deceased. This was preceded by the remark that the deceased must be beaten the make him behave. Therefore, it does not appear that there was any intention to kill the deceased. This Court, therefore, set aside the conviction of the appellant under Section 302 IPC and instead convicted him under Section 304 Part II IPC and sentenced him to suffer rigorous imprisonment for five years. 30. Therefore, it does not appear that there was any intention to kill the deceased. This Court, therefore, set aside the conviction of the appellant under Section 302 IPC and instead convicted him under Section 304 Part II IPC and sentenced him to suffer rigorous imprisonment for five years. 30. In Hem Raj V. State (Delhi Admn.) the appellant and the deceased had suddenly, grappled with each other and the entire occurrence was over within a minute. During the course of the sudden quarrel, the appellant dealt a single stab which unfortunately landed on the chest of the deceased resulting in his death. This Court observed that (SCC p. 295, para 14) as the totality of the established facts and circumstances show that the occurrence had happened most unexpectedly, in a sudden quarrel and without premeditation during the course of which the appellant caused a solitary injury to the deceased, he could not be imputed with the intention to cause death of the deceased though knowledge that he was likely to cause an injury which is likely to cause death could not be imputed to him. This Court, therefore, set aside the conviction under Section 302 IPC and convicted the appellant under Section 304 Part II IPC sentenced him to undergo rigorous imprisonment for seven years. 31. In V. Subramani there was some dispute over grazing of buffaloes. Thereafter, there was altercation between the accused and the deceased. The accused dealt a single blow with a wooden yoke oh the deceased. Altering the conviction from Section 302 IPC to Section 304 Part II IPC, this Court clarified that it cannot be laid down as a rule of universal application that whenever death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case. Thus, the part of the body on which the blow was dealt, the nature of the injury and the type of the weapon used will not always be determinative as to whether an accused is guilty of murder or culpable homicide not amounting to murder. The events which precede the incident will also have a bearing on the issue whether the act by which death was caused was done with an intention of causing death or knowledge that it is likely to cause death but without intention to causing death. The events which precede the incident will also have a bearing on the issue whether the act by which death was caused was done with an intention of causing death or knowledge that it is likely to cause death but without intention to causing death. It is the totality of circumstances which will decide the nature of the offence." 21. Here in this case, the deceased received a single blow on her neck. Undoubtedly, the injury was serious in nature inflicted on the vital part of the body and it was caused by heavy sharp cutting weapon. It might be that the accused inflicted the dao blow on the neck of the deceased without premeditation on a sudden fight and heat of passion but the appellant-accused knew that by the act may cause death of deceased even if she had no intention to cause the death of the deceased. The trial Court rightly held that the accused is liable to be convicted for offence of culpable homicide not amounting to murder and sentenced her under Section 304 Part-II IPC. Finding of the learned trial Court, therefore, needs no interference. 22. It is submitted by the learned counsel for the appellant that the accused-appellant is a woman and mother of two children, she has been maintaining cordial relationship not only by her husband as well as her father-in-law and sister-in-law. Her sentence, therefore, may be reduced to the period already undergone. 23. Section 360 Cr.P.C. provides that when any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which she is convicted, regard being had to the age, character, or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing her at once to any punishment, direct that she be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behavior. Under Section 361Cr.P.C., the Court has to record its reasons, the Court has not dealt with the provision of Section 360 Cr.P.C. or the Probation of Offenders Act, 1958. 24. Considering the circumstances leading to the commission of offence, nature and character of the accused, it is a fit case that the accused may be released on probation of good conduct and sentence imposed on her may be suspended for 3 years, She is directed to enter into a bond with sureties of Rs. 10,000/- (Ten thousand) to the satisfaction of the learned trial Court and in the meantime, she will maintain peace and good behavior and in default, she will appear and receive the sentence When called upon. With the aforesaid modification, this appeal stands disposed of. Send down the LCRs to the Court below with a copy of the judgment and order