JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 30/7/2008, passed by the learned Sessions Judge, Jorhat, in Sessions Case No. 31(JJ)/2007. By the impugned judgment and order, the learned Sessions Judge, held the appellant guilty of the offence under section 302 Indian Penal Code (hereinafter referred to as the 'IPC') and sentenced him to suffer imprisonment for life and pay fine of Rs. 1,000/-, in default suffer imprisonment for another period of one month. Aggrieved by the said conviction and sentence, the convict, as appellant, has come up with this appeal. We have heard Mr. Ujjwal Kumar Das, learned Legal Aid Counsel appearing for the appellant and Mr. K. Mazumdar, learned Additional Public Prosecutor, for the State of Assam. 2. The prosecution case, as revealed at the trial, is that, on 16/10/2006, at about 3 P.M., a quarrel had taken place between Shri Madhab Bora (hereinafter called the deceased) and his brother Sri Rubul Bora @ Sunu (hereinafter called the appellant) in their house and in the said quarrel the appellant assaulted the deceased with a sharp iron sheet, causing injuries to the deceased as a result of which the deceased succumbed to the injures. On the same date, the father of the deceased and the appellant lodged an FIR with the Police. During the investigation, the Police visited the place of occurrence, prepared inquest report of the dead body, forwarded the dead body for post mortem examination and took the appellant into custody, who appeared in the Police Station, seized a piece of iron sheet and a hoe from the place of occurrence and examined the witnesses. At the close of the investigation, Police submitted charge sheet, against the appellant, under section 302 IPC. 3. The offence being exclusively triable by the Court of Sessions, the learned Additional Chief Judicial Magistrate, Jorhat, committed the case to the Court of Sessions and the learned Sessions Judge, framed charge under section 302 IPC. The charge was read over and explained to the accused person and they pleaded not guilty. 4. In order to prove their case, prosecution examined, as many as, ten witnesses, including the Investigating Police Officers (PW8 and PW9), the Medical Officer (PW1), who performed the autopsy and the Judicial Magistrate (PW10) who recorded the confessional statement of the appellant. The charge was read over and explained to the accused person and they pleaded not guilty. 4. In order to prove their case, prosecution examined, as many as, ten witnesses, including the Investigating Police Officers (PW8 and PW9), the Medical Officer (PW1), who performed the autopsy and the Judicial Magistrate (PW10) who recorded the confessional statement of the appellant. Considering the evidence, on record, the learned Sessions Judge convicted and sentenced the appellant as indicated above. 5. Mr. U Das, learned Legal Aid Counsel, appearing for the appellant, has submitted that, except the confessional statement made by the appellant, there is no other substantive evidence against the appellant and as such the learned Sessions Judge committed error by convicting and sentencing the appellant only on the basis of the confessional statement, made by the appellant. He has further submitted that the deceased, who was an insane person had chased the appellant to attack and as such, apprehending harm to his person, with a view to protect himself from being attacked by the deceased, the appellant had to assault the deceased. Therefore, it is submitted that the appellant cannot be held guilty of the offence under section 302 IPC. It is also submitted that the appellant is entitled to be acquitted and set at liberty for want of evidence against him. 6. Controverting the said argument, advanced by the learned legal aid counsel, Mr. Mazumdar, learned Additional Public Prosecutor, has submitted that the confessional statement, made by the appellant, which is found to be voluntarily made and reliable, can be basis for conviction and as such the learned Sessions Judge committed no error by relying on the said confessional statement. The learned Additional Public Prosecutor, supporting the impugned conviction and sentence, has also submitted that from the evidence, on record, more particularly the medical evidence adduced by PW1, it has been clearly established that the appellant died due to cut injuries sustained by him, on his neck and that the appellant made extra judicial confession before PW2 and PW5. It is submitted that, in view of the fact that the deceased died due to injuries sustained by him, on the neck, coupled with the extra judicial statement and the confession made under section 164 Cr.P.C., it has been sufficiently established that the appellant caused the death of the deceased. It is submitted that, in view of the fact that the deceased died due to injuries sustained by him, on the neck, coupled with the extra judicial statement and the confession made under section 164 Cr.P.C., it has been sufficiently established that the appellant caused the death of the deceased. Therefore, the learned Additional Public Prosecutor has submitted that the learned Trial Judge committed no error by convicting and sentencing the appellant as indicated above. 7. Having heard the learned counsel for the parties and considering the evidence on record, it is found that the deceased died, on 16/10/2006, due to injuries sustained by him. The Medical Officer, who performed the post mortem examination, in respect of the dead body of the deceased, on 17/10/2006, found the following injuries:- 1. I/W over left parietal region of scalp. 4"x1/2"x1/4" 2. I/W over front of neck. 4"x3"x3". 3. I/W over left thigh medially. 4"x1"x2". 4. I/W over left scrotum 1/4"x1/2"x1/4" The Medical Officer opined that, except the injury No. 2, which is a grievous injury, the other injuries i.e. injury No. 1, 3 and 4 were simple in nature. He opined that the deceased died due to syncope as a result of the injury sustained by him. He further opined that the injury No. 2 was sufficient to cause death of a person, instantly. The Medical Officer aforesaid also opined that the incised injuries could have been inflicted either by a spade or a sharp iron sheet. From the above medical evidence, it is found that the deceased died due to the injury caused on his neck, which was grievous in nature. As the other injuries were simple in nature, it can be understood that the appellant had inflicted only one fatal blow i.e. the injury on the neck. In the FIR, which was lodged immediately after the incident, it has been clearly mentioned that the injury was caused with a sharp iron sheet. Therefore, it can be concluded that the fatal injury aforesaid was caused by a sharp iron sheet. 8. According to the prosecution witness, Sri Purnima Bora (PW6), sister of the deceased was an eye witness to the occurrence. Though PW6, while making statement under section 161 Cr.P.C., before the Police, implicated the appellant with the death of the deceased, she refused to support the prosecution version at the time of giving evidence in Court. 8. According to the prosecution witness, Sri Purnima Bora (PW6), sister of the deceased was an eye witness to the occurrence. Though PW6, while making statement under section 161 Cr.P.C., before the Police, implicated the appellant with the death of the deceased, she refused to support the prosecution version at the time of giving evidence in Court. In her evidence, given as PW6, this witness stated that she found the deceased, lying in the backside of their house and out of fear she had called her father's elder brother. However, she stated that the deceased was a mentally sick person. This witness was declared hostile and cross-examined by the prosecution. In her cross examination, made on behalf of the prosecution, this witness stated that the appellant had confessed before their father and that on being advised by the villagers to produce the appellant before the Police, the appellant was handed over to the Police. However, in her cross-examination made on behalf of the defence, she stated that she did not know as to how the deceased sustained the injuries and as to how he died. 9. Sri Ratneswar Bora deposing as PW7, stated that he saw the dead body of the deceased, lying in the backside of their house. He was also declared hostile and cross-examined on behalf of the prosecution, but nothing incriminating could be elicited from his evidence. 10. Sri Lohit Bora, who was an independent witness, deposing as PW3, stated that he found the dead body of the deceased in injured condition. 11. Sri Pranab Borgohain deposing as PW4 stated that the dead body of the deceased, who was an insane person, was lying outside the kitchen. 12. Shri Rupeswar Bora (PW5), father of the deceased, stated that the deceased was a mentally sick person and that the appellant was plucking tea leaves with him(PW5) at the time of occurrence. This witness refused to support the prosecution version. He was cross-examined, on behalf of the prosecution, after declaring him hostile. This witness stated that, he had told the Police that the deceased had chased the appellant and he (appellant) having no alternative, had struck the deceased with an iron strip. This witness further stated that the deceased, who was an insane, used to chase people in order to assault. 13. PW3 also stated that the deceased used to chase people. This witness stated that, he had told the Police that the deceased had chased the appellant and he (appellant) having no alternative, had struck the deceased with an iron strip. This witness further stated that the deceased, who was an insane, used to chase people in order to assault. 13. PW3 also stated that the deceased used to chase people. In tune with PW3 and PW5, Shri Pranab Borgohain (PW4), an independent witness stated that the deceased, who was an insane, used to chase people for killing. He stated that he also had experience of being chased by the deceased. 14. From the above evidence, it is clearly found that the deceased was an insane person and he used to chase people for attacking them. 15. Sri Hem Kanta Chutia, a co-villager, deposing as PW2, stated that, after the occurrence, the appellant, along with his father (PW5) visited his house and informed about the incident. According to this witness, the appellant had confessed that he had killed the deceased. His evidence regarding extra judicial confession remains unchallenged. There is nothing, on record, to show that this witness had any adverse interest to falsely implicate the appellant. The said extra judicial confession, alleged to be made by the appellants, is fortified by the confession made by the appellant, before the Magistrate under section 164 Cr.P.C. 16. Sri Mridul Kumar Saikia (PW10) who was the Judicial Magistrate, First Class, Jorhat, at the relevant time, stated that the appellant was produced before him for recording his confessional statement and that he had recorded the confessional statement after observing all the necessary formalities and also being satisfied that the appellant wanted to make confession voluntarily. The said Judicial Magistrate was cross-examined, on behalf of the defence, but nothing could be elicited to show that the confessional statement, recorded by him, was not voluntarily made. The confessional statement recorded by the Magistrate has been exhibited as Exhibit 6. The said confessional statement and the evidence, given by the Judicial Magistrate (PW10), indicates that the same was recorded observing all the necessary formalities and taking precaution that the same was voluntary. Therefore, the confession being a voluntary one, we find no reason not to accept the said confessional statement as evidence. The said confessional statement and the evidence, given by the Judicial Magistrate (PW10), indicates that the same was recorded observing all the necessary formalities and taking precaution that the same was voluntary. Therefore, the confession being a voluntary one, we find no reason not to accept the said confessional statement as evidence. In the said confessional statement, the appellant has clearly stated that the deceased, who was mentally ill, charged at him and as such, finding an iron rod, he had assaulted the deceased. Though the said confessional statement has been retracted by the appellant, in his statement made under section 313 Cr.P.C., the subsequent retraction cannot negate the evidentiary value of the confession, which is found to be voluntary. 17. Law is well settled that if a confessional statement is found to be voluntarily made, the same cannot be thrown out only on the ground that the accused person retracted the same subsequently. Therefore, the plea of the appellant, taken in his statement made under section 313 Cr.P.C., that he did not make confessional statement cannot negate the evidentiary value of the said confessional statement, which is found to be voluntarily made and properly recorded by the learned Judicial Magistrate, First Class. The said confessional statement coupled with the extra judicial statement made before the PW3 lead to believe that the appellant had caused the fatal injury. This proposition is further fortified by the circumstance that the appellant had appeared before the Police, along with his father, after the incident. In view of what has been discussed above, it has been clearly established that the appellant caused the death of the deceased. Now the question is whether the appellant is guilty of committing the offence of murder i.e. the offence under section 302 IPC. From the evidence on record, it has been established that the deceased was an insane person and he used to chase people with a view to attack. The appellant in his confessional statement stated that, on the date of occurrence, he was chased by the deceased with a view to assault and in order to save himself, he (appellant), finding an iron rod nearby, had picked up the same and assaulted the deceased. As we have accepted the confessional statement with regard to assaulting the deceased, we find, no reason not to accept the said plea of private defence taken by the appellant. As we have accepted the confessional statement with regard to assaulting the deceased, we find, no reason not to accept the said plea of private defence taken by the appellant. There is nothing on record to show that the appellant, who was the brother of the deceased, living in the same family, had any grudge or adverse interest against the deceased. Therefore, the plea of the appellant that, he being chased by his insane brother, had assaulted the deceased after picking up an iron rod, which was found nearby, is acceptable. The medical evidence, rendered by PW1 also indicates that the deceased sustained only one fatal injury i.e. on the neck and that other injuries (three in number) were simple in nature. If the appellant had any intention to cause death of the deceased, he could have inflicted more than one vital blow on other vital parts of the body of the deceased. The fact that he had inflicted only one fatal injury, that too on being chased by the deceased, indicates that he had no intention to cause death of the deceased and that he had acted for the purpose of protecting himself from being attacked by the deceased. Therefore, considering entire facts and circumstances of this case, the plea taken by the appellant does not appear to be absurd and improbable. We find it safe to accept the plea taken by the appellant, which goes in his favour. Therefore, we find that the appellant, had acted in good faith of right of private defence of himself. There is nothing on record to show that he had any premeditation or intention of causing the death of the deceased. Hence, we hold that the act, committed by the appellant falls under exception No. (2) of section 300 IPC. Therefore, the offence committed by the appellant was not an offence under section 300 IPC, but it was an offence under section 304 IPC. From the above discussed evidence, considering the facts and circumstances of the case, we are inclined to hold that the appellant had no intention either to cause the death of the deceased or to cause the fatal injury, sustained by the appellant. From the above discussed evidence, considering the facts and circumstances of the case, we are inclined to hold that the appellant had no intention either to cause the death of the deceased or to cause the fatal injury, sustained by the appellant. Therefore, the offence committed by the appellant does not fall under section 304 Part-I. As the appellant had caused the injury with an iron rod/iron sheet, on the neck, which was a vital part of the body, there is no difficulty in understanding that he had the knowledge that the injury caused by him was likely to cause death. However, as discussed above, he is not found to have the intention to cause death or to cause such bodily injury as was likely to cause death. In view of the above, considering entire facts and circumstances of the case and the nature of the injury sustained by the deceased, we have no hesitation in holding that the appellant committed the offence punishable under section 304 Part-II. In the light of the above discussion, we find that the conviction and sentence recorded under section 302 IPC cannot be maintained and the same is liable to be modified to one under section 304 Part-II IPC. Accordingly, the said conviction, under section 302, is set aside and modified to one under section 304 Part-II and consequently the sentence of life imprisonment is modified requiring the appellant to suffer rigorous imprisonment for seven years. No interference is made in respect of the sentence regarding the fine. With the above modification in respect of the conviction and sentence the appeal is partly allowed. Return the lower Court records.