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2013 DIGILAW 126 (GAU)

Rina Garh v. State of Assam

2013-02-22

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. A sentence serving woman is before us in appeal. An order of conviction under Section 302 IPC and sentence of imprisonment for life and payment of fine of Rs. 5000/- with default stipulation has been handed down upon her vide judgment and order dated 27.2.2012 rendered by the learned Sessions Judge, Sibsagar in Sessions Case No. 188(S-S) of 2010. As per prosecution story a quarrel took place between accused Sunu Garh and his brother Satnarayan Garh in their house. The appellant, wife of accused Sunu Garh, who was present at home at that time, dealt blows with an iron rod on the person of Satnarayan Garh causing death to him. An Ejahar was lodged by one M. Mallick, brother-in-law of deceased Satnarayan Garh. The police registered a case, being Amguri P.S. Case No. 82/10 under Sections 302/34 IPC and started the investigation. Inquest on the dead body of the deceased was conducted by an Executive Magistrate. The IO visited the place of occurrence, prepared the sketch map and sent the dead body of the deceased to Sibsagar Civil Hospital for holding the post mortem examination. He also seized the crime weapon, namely a piece of iron pipe, which was produced by the accused appellant Smti Rina Garh. Both the accused persons were arrested and produced before the Court. On completion of investigation, the IO submitted the charge-sheet against the accused persons under Section 302/34 IPC. On committal of the case, and on the basis of materials found, learned Sessions Judge framed charge under Section 302/34 IPC. The aforesaid charges being read over and explained, both accused persons, including the present appellant, pleaded not guilty and claimed to be tried. They accordingly stood the trial. 2. The prosecution examined as many as 13 witnesses while the defence examined none. At the closure of the prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.PC putting before them all the incriminating evidence against them. They accordingly stood the trial. 2. The prosecution examined as many as 13 witnesses while the defence examined none. At the closure of the prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.PC putting before them all the incriminating evidence against them. Accused Sunu Garh denied his involvement in the commission of murder of his brother Satnarayan Garh but the present accused appellant, Smti Rina Garh, confessed her guilt for committing murder of her brother-in-law Satnarayan Garh by dealing blows on his person with an iron pipe as he attempted to outrage her modesty on the night of occurrence at about 9 PM while she was in the bath room for taking bath. The learned trial Court, on consideration of the material and evidence on record and upon hearing the parties, acquitted the accused Sunu Garh and convicted the present appellant and sentenced her to suffer imprisonment for life and payment of fine with default stipulation vide the judgment which is under challenge in this appeal. 3. We have heard Mr. B. Prasad, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, Assam, for the State. 4. We have been taken through the evidence of prosecution witnesses. PW-1 is the informant and brother-in-law of the deceased. He is a reported witness. He filed the FIR as reported by others. He proved the FIR, Ext.1, PW-2 is Dr. Amrit Saikia, who testified that he was working as senior Medical and Health Officer in Sibsagar Civil Hospital and he performed the post mortem examination on the dead body of the Satnarayan Garh on police requisition. He also testified that he prepared the post mortem report and proved the said post mortem report and his signature thereon as Ext.2 and Ext.2(2) respectively. As per the said post mortem report he found the followings: External Appearance: Average built, not emaciated, body decomposed, rigor-mortis- present- Injuries: i) Cut mark of sizes 3 1/2 " X 1/2' X 1" over the forehead horizontally- ii) Cut mark of sizes 2 1/2" X 1/2" X 1" below the left eye ball; iii) Cut-mark of sizes 2 " X 1/2" X 1" over the left cheek & iv) Cut-mark of the sizes 1 1/2" X 1/2" X 1 "over the left cheek, below the eye. No mark of bruise or ligature is found. No mark of bruise or ligature is found. Cranium and spinal canal: Scalp, skull, vertebrae- Injury No. (1) is found there; Membrane is healthy; Brain and spinal cord-black coloured liquid blood is found inside the brain -matter. Thorax: Heart is empty in both sides. All other organs are healthy. Abdomen: Stomach and its contents- a foul smell of the stomach is found. All other organs of the abdomen are healthy. 5. The Medical Officer (PW 2) opined that the cause of death of the deceased was due to shock and hemorrhage as a result of injury sustained by the deceased. He also opined that the above injuries were sufficient to cause death of a person in the ordinary course of nature. However in his cross-examination he clarified that out of four injuries found on postmortem examination, none could individually and independently cause the death of the deceased but the injuries collectively could cause death of a person. He further stated that deceased could have survived had he been taken to a neurologist within half an hour of the occurrence. As per his evidence he did not notice any administration of medicine to the deceased before his death. He noticed that all the injuries were in the left side of the body and the injuries might have been caused by sharp cutting weapon. 6. PW 3 and 4 are reported witnesses and they have no personal knowledge about the alleged occurrence. PW-5, Boloram Mallick is the brother in law of the deceased. He is also a reported witness and he does not know how the deceased died or who killed him. PW-6 and PW-8 are VDP Secretary and Naik respectively. PW-9 is a neighbour of the deceased and an inquest witness. They are all reported witnesses only. PW-10 is the scribe of the Ejahar (Ext. 1). He proved his signature on the Ejahar as a scribe. He stated that he did not know the accused and the deceased and he wrote the FIR on request of the informant Mukesh Mallick. PW-11 is one Sri Deepak Tasa. He stated that police called him to the place of occurrence on the next day of the occurrence. He saw the dead body of Satnarayan in the courtyard. He also stated that police seized an iron rod from the place of occurrence in his presence and prepared the seizure list. PW-11 is one Sri Deepak Tasa. He stated that police called him to the place of occurrence on the next day of the occurrence. He saw the dead body of Satnarayan in the courtyard. He also stated that police seized an iron rod from the place of occurrence in his presence and prepared the seizure list. He also stated that he had seen the seized material Ext.1, iron pipe, in the Court. PW-12, Sri Kami Praja is an inquest witness. He proved his signature, Ext. 4(3), appearing on the inquest report. 7. PW-13, Sri Lohit Chetia, is the IO of the case. He stated that one Lohit Dutta informed him over phone about the incident of murder. He made GD entry and proceeded to the place of occurrence at 7.10 AM and saw the dead body of the deceased in the courtyard. He interrogated the accused persons and drew the sketch map of the place of occurrence. Accused Sunu Garh is the brother of deceased Satnarayan and the accused appellant Rina Garh is the wife of accused Sunu Garh. Both the accused went to their Garden officer along with weapon (iron pipe) used for assaulting the deceased. The said iron pipe was seized by him and the said seized iron pipe was shown to him in the Court. The dead body was sent to Sibsagar Hospital by challan and the accused were arrested on 29.6.2010. A formal Ejahar was filed by Mukesh Mallick. He proved the said Ejahar (Ext. 1) and his signature, Ext. 1(3). On completion of investigation he submitted the charge-sheet against both the accused persons under Section 302/34 IPC. He proved the charge-sheet, Ext.6, and his signature Ext.6(1). According to his evidence both the accused admitted their guilt. In cross examination, he stated that, he took the statement of the garden people but he did not take the statement of the Manager. He denied the suggestion that both the accused persons did not present themselves in the garden office after the occurrence. He also denied the suggestion that the accused persons did not admit their guilt and he submitted the charge-sheet against the innocent persons. 8. He denied the suggestion that both the accused persons did not present themselves in the garden office after the occurrence. He also denied the suggestion that the accused persons did not admit their guilt and he submitted the charge-sheet against the innocent persons. 8. We have also gone through the statement of the appellant recorded under Section 313 Cr.P.C. The learned trial Court, amongst other, put the following question- Witness Bipin Munda had stated in his evidence that next day morning to the date of occurrence, a boy from Bagan informed him that last night there was a quarrel between you, your husband and Satnarayan and Satnarayan died. The police seized an iron pipe form the place of occurrence. The appellant answered- on the night of occurrence my husband was not in the house. At about 9 pm I was taking bath. Then the elder brother of my husband tried to outrage my modesty and I inflicted blows with an iron pipe and he died. The police seized the said iron pipe from the place of occurrence as shown by him. same question was put to the accused Sri Sunu Garh during examination under Section 313 Cr.P.C. His answer is- I was not present in the house on the night of occurrence. On reaching my house I saw my brother Satnarayan lying in the courtyard with injuries. My wife accused Rina Garh told me that at about 9 pm in the night when she was bathing, Satnarayan tried to outrage her modesty. She inflicted blows with iron pipe as a result of which Satnarayan died. Later myself and Rina Garh went to the garden office along with iron pipe and narrated the incident. The garden office detained us and handed over to the police. I have not committed any offence. The police seized the iron pipe. 9. On being convicted, the appellant was heard on sentence. She was asked if she had anything to say about the complaint. She replied- On the date of occurrence, at about 9 PM, my husband Sri Sunu Garh was not at home. He had gone to a shop. At that time, I was taking bath in the bathroom. The elder brother of my husband, namely, Satnarayan Garh came drunk. When he tried to outrage my modesty I inflicted blows with an iron rod and he died (translated from Assamese) 10. Mr. He had gone to a shop. At that time, I was taking bath in the bathroom. The elder brother of my husband, namely, Satnarayan Garh came drunk. When he tried to outrage my modesty I inflicted blows with an iron rod and he died (translated from Assamese) 10. Mr. Prasad, learned Amicus Curiae, submits that the impugned conviction and sentence is largely based on the confessional statement of the appellant inasmuch as there is no eye witness to the alleged occurrence, nor is mere a strong circumstantial evidence backing the impugned conviction and sentence. In the aforesaid circumstances, the learned Amicus Curiae, placing a decision of the Apex Court in Champa Rani Mondal Vs. State of West Bengal, reported in (2000) 10 SCC 608 submits that the statement of the appellant appears to be confessional in nature but in real sense, it is not a confessional statement inasmuch as she tried to explain under what situation she had dealt the blows on the deceased. The statement of the appellant, according to Mr. Prasad, if read as a whole, cannot be treated as inculpatory; rather it should be treated as exculpatory. 11. We have gone through the order in the above cited case. The facts of the said case are that the appellant/prosecutrix committed murder of her brother in law and she was convicted by the trial Court and the said conviction was affirmed by the High Court. Against the orders of trial and appellate Courts, the prosecutrix filed an appeal before the Apex Court. It has been found by the Apex Court that the brother-in-law of the prosecutrix tried to rape her and with that ill motive he dragged her to the cot by putting cloth in her mouth and she gave two blows upon him with a katari as a result of which he fell down. She also gave him another blow and went out of the room and disclosed the entire incident to her relations. It was observed in the said case that the statement so made by the convict appellant cannot be said to be a confessional one as the circumstances under which she caused the death to her brother in law would clearly exculpate her in view of Section 100 IPC. It was observed in the said case that the statement so made by the convict appellant cannot be said to be a confessional one as the circumstances under which she caused the death to her brother in law would clearly exculpate her in view of Section 100 IPC. It was, therefore, held that such statement of the convict/appellant could not be entertained in evidence, much less could it be pressed into service to make it the basis of conviction. The convict appellant was acquitted of the charge of murder. 12. In order to give benefit of the above judgment of the Apex Court, we would indulge in a discussion to find out as to whether the facts and circumstances of the present case is similar to the ones mentioned in the above cited case. In the case at hand, the alleged occurrence, as disclosed in the FIR, took place at night. The police received the information and made an entry in the GD in the night itself. As per the evidence, the informant PW-1, resides at a distance of 2/3 km from the house of the appellant. As per his own evidence he had no knowledge about the occurrence. He was informed by the police and came to Sibsagar Civil Hospital with the dead body of the deceased. But in the FIR he had stated that a quarrel ensued between the deceased and the accused Sri Sunu Garh. In the said quarrel, the appellant Rina Garh inflicted blows with an iron rod on the deceased. The source of his knowledge is not disclosed and nothing has been indicated in his evidence that there was a quarrel between the deceased and the co-accused Sunu Garh and his wife inflicted blows on the deceased. There is not an iota of evidence to the effect that co-accused Sunu Garh or any other person was present in the house of the appellant where the alleged occurrence took place. Rather it has been proved that Sunu Garh was not present at the time of the occurrence. From the evidence on record it is found that the house of the appellant is surrounded by houses of different families. None of the neighbours had deposed that on the date and at the time of occurrence there was some other person present in the house of the appellant. From the evidence on record it is found that the house of the appellant is surrounded by houses of different families. None of the neighbours had deposed that on the date and at the time of occurrence there was some other person present in the house of the appellant. The fact that the appellant was alone at home on the fateful night in her house has been proved in evidence. The deceased is the elder brother of the appellant's husband. As per evidence of PW-1, the deceased used to live in the same premises along with the co-accused Sunu Garh as brothers. The deceased Satnarayan married the sister of the informant PW-1. As per evidence of PW-1, his sister i.e. wife of the deceased Satnarayan was not at home. His evidence is that the appellant was alone at the time of occurrence. The deceased, as brother of the co-accused Sunu Garh, is expected to be present at home unless it is proved otherwise. 13. There is no evidence on record that deceased was drunk and in a drunken state he attempted to outrage the modesty of his sister in law (appellant), who is the wife of his own younger brother. This has been disclosed and alleged by the appellant in her statement under Section 313 Cr.P.C. while explaining the situation under which she allegedly dealt several blows on the person of the deceased, causing his death. Earlier to that, she never made any statement in this regard before the police or any Magistrate. This serious allegation against the deceased was brought by the appellant only at the belated stage. She has adduced no evidence in this regard in her defence. In absence of any evidence to that effect whether her statement could be taken as true. In any case the appellant has not proved her case that the deceased while he was in a drunken state, attempted to outrage her modesty. 14. We have carefully perused the evidence of the 10, PW 13. His evidence is that on the next day of occurrence, he visited the place of occurrence. In any case the appellant has not proved her case that the deceased while he was in a drunken state, attempted to outrage her modesty. 14. We have carefully perused the evidence of the 10, PW 13. His evidence is that on the next day of occurrence, he visited the place of occurrence. According to his evidence the accused persons including the present appellant, appeared before the garden officer along with weapon, iron pipe which was used for committing the offence and, thereafter, the OC of Amguri Police Station took the accused persons to the place of occurrence along with iron pipe which was used by them in committing the offence. Interestingly the prosecution did not examine the garden officer before whom the accused person appeared with the crime weapon. The garden officer has not been cited as an witness in the charge-sheet. Nobody from the garden office was examined as a witness to testify the fact that the appellant and her husband as accused persons appeared with the crime weapon before the garden officer. The prosecution did not even examine any garden worker/employee who saw the appellant and her husband being present before the garden officer. If it was a fact that the appellant appeared before the garden officer along with her accused husband, some garden workers must have seen them and it would have been found mention in the case diary but no report is found about the same in the case diary. In any case, the prosecution has failed to prove the fact that the appellant and her husband, after committing the alleged murder, appeared before the garden officer along with the crime weapon. Besides, it may be noted that the prosecution examined PW-3, Sri Krishna Mudi, headman of the village and several other tea garden workers/employees namely, PW-4, PW-5, PW-6, PW-7, PW-9, PW-11 and PW-12 but none of them had deposed about the appearance of the accused person with the iron rod before the garden officer. We are, therefore, not prepared to accept the evidence of the IO regarding the aforesaid fact of appearance of the accused person before the garden officer. 15. We have perused the lower Court records. The IO of the case made a prayer before the learned SDJM, Sibsagar, for recording confessional statement of the appellant. We are, therefore, not prepared to accept the evidence of the IO regarding the aforesaid fact of appearance of the accused person before the garden officer. 15. We have perused the lower Court records. The IO of the case made a prayer before the learned SDJM, Sibsagar, for recording confessional statement of the appellant. Accepting the said prayer the learned SDJM directed a 2nd class Magistrate to record the appellant's statement under Section 164 Cr.P.C. On production of the appellant on before the said Magistrate 30.6.2010 the IO of the case was directed to produce the appellant on 1.7.2010 in his Court at 1 PM. The appellant was accordingly produced before the Court on 1.7.2010 but she refused to make the confessional statement. On record, till the appellant was examined under Section 313 Cr.P.C. there is no confessional statement of the appellant. 16. In several other cases, including the case of Rattan Singh Vs. State of Himachal Pradesh as reported in (1997) 4 SCC 161 the importance and utility of examination of the accused under Section 313 Cr.P.C. and the value of the answer derived from him has been discussed. In the said case the Apex Court held that: examination of the accused under Section 313 of the Code is not a mere formality. Answers given by the accused to the question put to him during such examination have a practical utility for criminal Courts. Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the Court in appreciating the entire evidence adduced in the Court during trial. It is trite and accepted in law that a confession which is not retracted even at a later stage of the trial and accepted by the accused in his examination under Section 313 Cr.P.C. can be fully relied upon. Further it is accepted in law that a retracted confession may be acted upon provided materials have been brought on record lending assurance to the Court in regard to truthfulness of the confession made by the accused. We are facing with a different situation in the instant case. There is no confessional statement of the appellant recorded by a Magistrate, although as stated earlier, she at one point of time, before the trial commenced, purportedly wanted to make confession of her guilt but declined ultimately. We are facing with a different situation in the instant case. There is no confessional statement of the appellant recorded by a Magistrate, although as stated earlier, she at one point of time, before the trial commenced, purportedly wanted to make confession of her guilt but declined ultimately. The reason why she declined to make confession is not available to the Court but we take note that the appellant is an illiterate rustic lady from a socially and economically backward community. As a simple living person, she, from the very initial stage desired to make confession of guilty and, in fact, her confessional statement, as testified by the IO in his evidence, was recorded under Section 161 Cr.P.C. We may not be misunderstood that we are trying to put reliance of her said statement under Section 161 Cr.P.C. What is sought to be conveyed by us is that the appellant was either influenced or tutored not to make the confessional statement. During investigation and at the initial stage of trial the appellant had a confused and conflicting mind and by the time the trial came almost to an end, her mind settled down and as soon as the incriminating evidence on record was placed and explained to her by the Court, she, may be, out of regret and to ease out her guilt feeling, ultimately gathered courage to tell what she actually did to the deceased in a given situation. 17. In her statement under Section 313 Cr.P.C. the appellant tried to explain the circumstances under which she committed the alleged offence. She has taken the plea of private defence. The deceased, according to the appellant, tried to outrage her modesty while she was at home alone taking bath. First of all, it is felt necessary, to examine whether the circumstance was such necessitating extreme act of assault on the deceased with an iron rod several times causing injury and death to him. As discussed earlier there was no eye witness. As per appellant's own statement, the deceased, being influenced by alcohol, attempted to commit sexual abuse on her. If he really did so, his action definitely provoked the appellant to pick up a weapon available at the sight to hit at him. The provocation received from the deceased was sudden, unexpected and unethical. As per appellant's own statement, the deceased, being influenced by alcohol, attempted to commit sexual abuse on her. If he really did so, his action definitely provoked the appellant to pick up a weapon available at the sight to hit at him. The provocation received from the deceased was sudden, unexpected and unethical. Amarried woman who is conscious of her self respect, took the deceased's misadventure seriously and it provoked her to react violently and compelled her to assault the deceased. Due to such provocation she might have lost or was deprived of the power of self control over her act and action. The attending circumstances, namely, that she was alone at home when the deceased attempted to outrage her modesty, leads the court to draw an inference that it was only the appellant who could, or who had assaulted the deceased to death. In the said facts and circumstances there is no scope for taking other view on the matter. In other words no two views are possible in the present case to hold a view of innocence in favour of the appellant. It is pertinent to note here that the learned trial Court acquitted the appellant's husband who was a co-accused in this case, having found that he was not present at home at the time of occurrence, although it was alleged and tried to prove his presence and involvement in physical fight with the deceased. The said finding of innocence of co-accused Sunu Garh by the learned trial Court cannot be disturbed. We are referring to this finding of innocence of the co-accused arrived at by the learned trial Court in the context of absence of third person at the time of occurrence. We have the reason to hold that the appellant was indeed alone at home at the time of occurrence. 18. The law does not permit the Court to use the inculpatory statement of the accused against him and make it a basis for conviction but it can be taken in to consideration at trial against accused for the purpose of arriving at guilt or otherwise of the accused. In this regard reference may be made to Gobin Saikia Vs. State of Assam, reported in 2006 Cri.LJ. 1815 (Gau). The appellant in the present case accepted the incriminating evidence against her and also accepted the position that she assaulted the deceased in private defence. In this regard reference may be made to Gobin Saikia Vs. State of Assam, reported in 2006 Cri.LJ. 1815 (Gau). The appellant in the present case accepted the incriminating evidence against her and also accepted the position that she assaulted the deceased in private defence. The inculpatory part of her statement under Section 313 Cr.P.C. cannot be disregarded although it is not to be regarded as an evidence. The appellant has been convicted and sentenced largely because of the inculpatory statement and circumstantial evidence. It is our turn to examine whether such conviction and sentence is permissible under the law. 19. Answer to the above question depends upon a finding as to whether the appellant was confronted with a situation of taking recourse to private defence and whether she exceeded the limit of private defence in the said given situation. As per medical evidence she dealt several blows causing as many as four injuries on the person of the deceased and the said injuries, as per opinion of the medical officer (PW-2), were sufficient to cause death of a person in the ordinary course of nature. Since there was no eye witness to the occurrence, we have no evidence to the effect that the deceased fell down or rendered incapacitated after he received the first blow or he was still bent upon to meet his sexual lust even after receiving the assault/injury till he fell down in a serious state and could not move to fulfill his nasty desire. A woman is always considered to be a physically weaker person than the manfolk and a frightened woman, in the course of preventing the ugly advance of the manfolk, would naturally try hard to hit back with the maximum force and energy to force him to stop. There being no evidence to that effect it would be unfair to take a definite view against the deceased inasmuch as he was no longer alive to face the cross-examination. 20. Now we come to the law of private defence. It is the general rule that a plea of right of private defence cannot be based on surmises and speculation. The defence has to establish that the injuries caused on the accused probabilises the accused's version of right of private defence. 20. Now we come to the law of private defence. It is the general rule that a plea of right of private defence cannot be based on surmises and speculation. The defence has to establish that the injuries caused on the accused probabilises the accused's version of right of private defence. The Court is cast with a duty to examine carefully and take a view in its proper setting to justify that the right of private defence is available to the accused. The law regarding right of private defence of the body and the property is provided under Section 97 of the IPC. For ready reference and proper appreciation of provision of law, the same is quoted hereunder: 97. Right of private defence of the body and of property- Every person has a right, subject to the restrictions contained in Section 99, to defend- First - His own body, and the body of any other person, against any offence affecting the human body; Secondly - The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. 21. The appellant in the present case claims to have taken resort to right of private defence of her own body against immoral and illegal act of the deceased who attempted to outrage her modesty. Enough has been discussed earlier and we have already arrived at a conclusion that the deceased did really attempt to outrage the modesty of the appellant while she was alone at home. Situation was such that the appellant was bound to prevent the deceased from doing the outrageous act to protect her own body. If the deceased succeeded in his attempt, it would have affected her body. There were circumstances giving rise to reasonable apprehension in the mind of the appellant that either the deceased would cause death or grievous injury to her. The right of private defence stood accrued to the appellant as soon as the deceased made advance to outrage her modesty. If the deceased succeeded in his attempt, it would have affected her body. There were circumstances giving rise to reasonable apprehension in the mind of the appellant that either the deceased would cause death or grievous injury to her. The right of private defence stood accrued to the appellant as soon as the deceased made advance to outrage her modesty. The appellant, being a lady and there being no other person present at home, was at an imminent danger and so long she was in such a position, her right of private defence continued, until she felt sure that there was no more danger to her. This view of ours may find support from the observations made in Jaidev Vs. State of Punjab reported in AIR 1963 SC 612 , wherein it is observed that as soon as the cause for reasonable apprehension disappears and threat has either been destroyed or has been put to rout there can be no occasion to exercise the right of private defence. No evidence is available on record as to when the reasonable apprehension disappeared or the threat was destroyed or put to rout. The present is not a case of ordinary physical fight arisen on sudden provocation. The deceased provoked the appellant by an unwanted and unethical sexual advance towards her. A man who is determined to outrage the modesty of a woman is not expected to abandon his desire halfway, of his own, unless he is prevented by force or by some factor. A manfolk who is physically stronger than the womanfolk cannot be over powered or prevented so easily and no presumption could be drawn that the appellant stopped the outrageous act destroying the apprehension of the victim woman and the threat of being ravished by the deceased got routed. As per law, a person who seeks right of private defence cannot exceed the limit. Normally limit in taking action under the law of private defence may be applicable universally in respect of physical fight between two persons or groups but such limit may not be applicable to a crime against woman of present nature. No limit could be imposed on the action of the persons under attack from the perpetrator who has a design to outrage the modesty of a woman. No limit could be imposed on the action of the persons under attack from the perpetrator who has a design to outrage the modesty of a woman. The woman, in order to protect herself from sexual onslaught, in all probability is supposed to lose control over her action or mind and she is not supposed to know her limit. She may exceed her limit and cause grievous physical injuries or death to the perpetrator. It might have happened so in the present case. We can not rule out these probabilities and reject the plea of private defence of the appellant inasmuch as we cannot completely ignore or disregard the explanation offered by the appellant while she was put to incriminating evidence of the prosecution during her examination under Section 313 CrPC. 22. We take aid from the decision in Rizan & Anr. Vs. State of Chhatisgarh reported in (2003) 2 SCC 661 wherein it is held that an accused taking the plea of the right of private defence is not required to call evidence: he can establish his plea by reference to the circumstances transpiring from the prosecution evidence itself and the question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. The appellant, admittedly did not adduce any evidence in support of her plea of private defence. She remained satisfied with her explanation given at the time of examining her under Section 313 Cr.P.C. There are some mitigating circumstances emerged from the evidence of the prosecution to the effect that (i) the appellant's husband, who was made a co-accused, was acquitted after trial; (ii) it was proved in the trial that he was not present at home at the time of occurrence, (iii) no other member of the family was present at home at the time of occurrence, (iv) the appellant was in the bath room for taking bath and (v) the deceased, taking the advantage of the situation, attempted to outrage the modesty of the appellant. These established factual positions have remained undisputed and non- adducing of evidence by the appellant would not be fatal to her defence on the plea of private defence. These established factual positions have remained undisputed and non- adducing of evidence by the appellant would not be fatal to her defence on the plea of private defence. Although the appellant adduced no evidence, it is found proved that there was a provocation from the deceased by way of attempting to commit outrage on her modesty. It needs no elaboration that provocation is one of such situations which sometimes deprives a person of the power of self control of his/her mind, act and action. The appellant, out of extreme anguish, annoyance and resentment over the unethical, immoral and illegal act of the appellant resorted to private defence to save herself, no matter she might be condemned for exceeding the limit and convicted for the same. 23. The fall out of the above discussion is that the appellant is not liable to be convicted under Section 302 IPC. It is established by sufficient evidence on record that the appellant, in exercise of good faith of the right of self defence of her own person against the real threat of sexual abuse, dealt the blows with intention of causing bodily injury intended to be inflicted, which as per the medical evidence were not sufficient to cause death in the ordinary course of nature attracting the situation contemplated under the provision "secondly" to Section 300 IPC. In our considered view, the appellant committed culpable homicide not amounting to murder within the meaning of Exception 2 to Section 300 IPC. The appellant is liable to be convicted under Section 304 Part II IPC. Considering the entire facts and circumstances of the case, we hold that the ends of justice would be met, if the appellant is, accordingly sentenced to undergo RI for 3 years without fine for the offence committed by her. The appellant is sentenced to undergo RI for 3 years with no fine and the period of sentence already undergone shall be set off from the total sentence. The impugned conviction and sentence stand modified to the extent indicated above. The appeal stands partly allowed. In appreciation of the legal assistance rendered by Sri B. Prasad, learned Amicus Curiae, he paid an amount of Rs. 5,000/- as legal fee. Return the LCR.