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2013 DIGILAW 286 (GAU)

Bikram Munda v. State of Assam

2013-05-08

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. Heard Mrs. A. Devi, learned Amicus Curiae spearing for the appellant Also heard Mr. K.A. Mazumdar, learned Addl. P.P. Assam appearing for the State respondent. This appeal is preferred by convict appellant from jail against the judgment dated 21.11.2007 rendered by the learned Addl. Sessions Judge (FTC), Sivasagar, in Sessions Case No. 52(S-C) 2007 convicting and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default further RI for 1 month for committing offence under Section 302 IPC. 2. The prosecution case, put very shortly, is that on 31.5.2005 at about 5 PM, the appellant committed murder of Satish Kumar Tewari alias Guddu on the road side of Lahdoigarh village, under Sonari P.S. and on receipt of a written FIR on the same day from one Sri Binod Shah, the in-charge of Namtola Police check post, made G.D. Entry No. 519 dated 31.5.2005, took up the investigation and forwarded the FIR to Sonari P.S. for registering a case. Thus, the Sonari P.S. Case No. 82/2005, was registered u/s 302 IPC against the appellant. 3. The I.O. visited the place of occurrence, prepared a sketch map of the place of occurrence, held inquest on the dead body and brought the dead body to the out post. He seized the vest (Ganjee) and sporting which were worn by the deceased at the time of occurrence and forwarded the dead body to Sivsagar Civil Hospital for holding post mortem examination. The I.O. arrested the appellant who confessed his guilt. He then forwarded the appellant to the Court for recording the confessional statement under Section 164 Cr.P.C. He also sent the witness Binod Shah and Nirmal Dev for recording their statement under Section 164 Cr.P.C. The seized dao and sporting ganjee were sent to the Forensic Science Laboratory, Guwahati, through the Sub-Divisional Police Officer, Charaideo for chemical examination. In the meantime, the I.O. (PW 6), was transferred to other place. The case diary was handed over to officer-in-charge and the investigation was handed over to PW 7, Bholaram Bora, who collected the FSL report and on completion of the investigation, submitted the charge sheet. In the meantime, the I.O. (PW 6), was transferred to other place. The case diary was handed over to officer-in-charge and the investigation was handed over to PW 7, Bholaram Bora, who collected the FSL report and on completion of the investigation, submitted the charge sheet. The case, being exclusively triable by the Court of Sessions, was committed by the concerned Magistrate to the court of sessions, whereupon the aforesaid Sessions Case was registered and made over to the learned Additional Sessions Judge, FTC, Sivasagar, for disposal. The learned trial Court framed charge u/s 302 IPC against the appellant. The said charge was read over and explained to the appellant who pleaded guilty staling that on the day of occurrence at about 4 PM, the deceased with three others, assaulted him on the road at Lahdoigarh village and so he killed the deceased. His plea of guilt was recorded. However, considering the nature of offence, learned trial Court proceeded with the trial. The appellant, thus, stood the trial. During trial, the prosecution examined as many as 07 witnesses, including the medical officer, who held autopsy on the dead body. 4. At the closure of recording of evidence of prosecution witnesses, the learned trial court examined the appellant under Section 313 Cr.P.C. putting before him all the incriminating evidence recorded against him. In his statement, the appellant admitted that he killed the deceased Satish Kr. Tiwari alias Guddu but in his explanation, he stated that he killed the deceased because on the previous day of the alleged occurrence, on a Sunday evening, while he was going home with his daughter, the deceased, along with 03 other friends, assaulted him with the iron liver, blows and kicks like a foot ball on the road near the office of the Namtola Tea estate. Due to assault his two teeth in the upper jaw were uprooted and sustained injuries on his head. His little daughter also sustained injuries. For the said reason, on the next day, when the deceased was coming towards Namtola by driving a autorickshaw, he stopped and killed him. He begged for excuse if he had committed any mistake by doing so. His little daughter also sustained injuries. For the said reason, on the next day, when the deceased was coming towards Namtola by driving a autorickshaw, he stopped and killed him. He begged for excuse if he had committed any mistake by doing so. The appellant was asked to enter into his defence but he declined stating that the incident of assault on him on the previous day was not witnessed by any person as there was none on the road except his 04-year old daughter with him. So the appellant adduced no evidence. The learned trial Court vide impugned judgment and order convicted and sentenced the appellant as mentioned above. 5. The prosecution projected PW 1 and 2 as eye witnesses to the occurrence. PW-1 is one Sri Binod Shah. He deposed that he knew the deceased Satish Tewari @ Guddu as he was his neighbour and an autorickshaw driver. The incident took place at 3.30/4 p.m. on 31.5.05. The deceased was driving the autorickshaw and the said autorickshaw belonged to his paternal uncle, Sadhu Shah. He was going from Lahdoigarh to Namtola alongwith Smti. Nirmala Devi (PW-2), wife of his elder brother in the autorickshaw driven by the deceased. After coming 4/5 kms from Lahdoigarh he saw the appellant awaiting near a river along with a girl in his arm and a dao in his right hand. The appellant instructed to stop the autorickshaw and as soon as the autorickshaw halted, the appellant gave two dao blows on the front tyre of the autorickshaw. Thereafter he dealt another dao blow on Satish Tewari from the right side of the autorickshaw but it missed the aim. Then Satish alighted from the left side of the autorickshaw and jumped into the field. He fell down on the field. The appellant chased the deceased and hacked him about four times on his head and other parts of the body. The appellant then openly declared that he had stricken down the victim and proceeded to police station. He further stated that he went to Namtola police out post and saw the appellant in the said outpost. He got an ejahar written and lodged with the police. He proved the FIR and his signature thereon as Ext. 1(1). Police visited the place of occurrence, held inquest on the dead body, seized the Naga dao from the appellant. He further stated that he went to Namtola police out post and saw the appellant in the said outpost. He got an ejahar written and lodged with the police. He proved the FIR and his signature thereon as Ext. 1(1). Police visited the place of occurrence, held inquest on the dead body, seized the Naga dao from the appellant. He put his signature on the seizure list as a witness. The police seized a vest and a sporting worn by the deceased at the time of occurrence. He put his signature on the aforesaid seizure list and proved the same. In cross-examination he stated that he was travelling in the autorickshaw, along with his Bhabi (elder brother's wife) Nirmala Devi and her three sons including a little baby. At the time of occurrence they raised hue and cry but nobody came forward. There was no residence near the place of occurrence. The accident took place at Lahdoigarh Namtola road and the house of the appellant is far from his house. He does not know why the incident took place. He also does not know if the appellant had any dispute with the deceased over some matters. He denied the suggestion that the deceased Satish and two other boys assaulted the appellant badly causing injuries on the head of the appellant's little daughter. He also denied that due to assault two teeth of the appellant were uprooted and his body was swollen. He does not know if the deceased, in collusion with other boys assaulted the appellant on the day preceding the date of occurrence. This witness denied the suggestion that he and two other persons assaulted the appellant and his daughter and in order to save himself the appellant, without any sense of right or wrong, hacked Satish @ Guddu. He also denied that as a result of the their assault the appellant sustained injuries on his head and his teeth were broken. The other eye witness PW 2, Smti. Nirmala Devi, deposed that she knew the deceased Satish @ Guddu. The occurrence took place at around 4 p.m. while they were coming to Namtola in an autorickshaw driven by the deceased Guddu. While crossing half of the road, a person asked to stop the autorickshaw saying that he too would like to go with them. Nirmala Devi, deposed that she knew the deceased Satish @ Guddu. The occurrence took place at around 4 p.m. while they were coming to Namtola in an autorickshaw driven by the deceased Guddu. While crossing half of the road, a person asked to stop the autorickshaw saying that he too would like to go with them. As soon as Guddu stopped the autorickshaw the said person first gave dao blows on the autorickshaw and charged at Guddu and when Guddu came, out of the autorickshaw and running away, the appellant chased him. Guddu fell down on the field. There was water in the field and when Guddu fell down the appellant hacked him with a dao. She saw the appellant hacking the deceased twice. The appellant, after hacking Guddu, left the place of occurrence with his little daughter. She was interrogated by police and taken to Sonari court where her statements were recorded by a Magistrate. She proved her statement and signature marked as Ext. 7 and 7(1) respectively. In cross-examination she reiterated that there was no shop or residence near the place of occurrence. There was only one 'gumti' at some distance. She had no knowledge why the appellant hacked Satish @ Guddu. She denied the suggestion that Satish @ Guddu and few others assaulted the appellant causing injuries on his head and face and also to his little daughter. Further she denied that in order to save himself the appellant hacked Guddu with a dao. 6. PW-3 deposed that he was working in a rice mill and on hearing the hue and cry of people on the road that a man has been hacked he came to the place of occurrence. He saw five cut injuries on the person of the deceased and recognised the dead body. Police had already arrived the place of occurrence. He proved the signature he put on the inquest report as a witness. He testified the seizure of blood stained vest worn by the deceased and also a blood stained Naga dao. In cross examination he stated that he did not see the incident PW-5, Sri Harish Kr. Tewari, is the younger brother of the deceased. He deposed that his deceased to-other drove the autorickshaw on the date of occurrence which took place on 31.5.2005. His deceased elder brother was going to Lahdoigarh driving the autorickshaw with PW-1. In cross examination he stated that he did not see the incident PW-5, Sri Harish Kr. Tewari, is the younger brother of the deceased. He deposed that his deceased to-other drove the autorickshaw on the date of occurrence which took place on 31.5.2005. His deceased elder brother was going to Lahdoigarh driving the autorickshaw with PW-1. While he was going for tuition, he saw some people gathering at Namtola cross road and came to know from them that his elder brother was hacked. When he reached the said cross road he saw the accused going to Namtola police outpost with a dao in his hand. He found the dead body of his brother lying on a field at Lahdoigarh. Police came to the place of occurrence and he identified the dead body as that of his elder brother. He signed the inquest report as a witness. He came to know from the people that the appellant killed his elder brother by hacking with a dao. In cross examination, he stated that he did not know why the appellant hacked his elder brother. He also stated that he did not know whether his elder brother had any quarrel with the appellant. 7. The PW-5, Dr. Diganta Kr. Das is the medical officer. His evidence is that he was working as Medical & Health Officer No. 1 at Civil Hospital, Sibsagar on 1.6.2005. He testified that he conducted the post mortem examination over the dead body of Satish Kr. Tewari on police requisition. He proved the post mortem report. He recorded his findings in the post mortem report as under: 1. One deep incised wound of neck extending from the back of left ear to the whole circumference of neck size 6" x 3" x 2" cutting the skin muscles, spinal cord and 2nd cervical vertebrae, trachea and esophagus at the level of 2nd cervical vertebrae for cutting the 3rd cervical vertebrae and left side of temporal bone and occipital bone and cutting the great vessels. 2. One deep incised wound about 5" x 1" in size present was left side of cheek extend from the level of left maxilla towards occipital region and cutting the cheek muscles and left ear horizontally and dividing ear in two pieces and cutting scalp and fracture occipital bone. 3. 2. One deep incised wound about 5" x 1" in size present was left side of cheek extend from the level of left maxilla towards occipital region and cutting the cheek muscles and left ear horizontally and dividing ear in two pieces and cutting scalp and fracture occipital bone. 3. One deep incised wound present over back of left side 1" below the left shoulder about 3" x 1" in size and cutting the skin and muscles. 4. One incised wound about 2" x " in clotted blood found adherent to the side of injury and a big haematoma present in the cranial cavity. Cranium and Spinal Cord: Fracture of left temporal and left side of occipital bone and fracture of 2nd and 3rd cervical vertebrae. Membrane: Pale Brain and Spinal Cord: Swollen and pale and spinal cord severed at the level of 2nd cervical vertebrae. Thorax: Walls, ribs and cartilages, vessels are healthy. Plurae: Pale, larynx, trachea both lungs-pale. Heart-both chamber empty. Abdomen Walls, peritoneum, stomach, intestine, bladder and organs of generation are healthy. Mouth, pharynx, esophagus, liver, spleen and kidneys-pale. Stomach-contains digested food particles muscles, bones and joints as described in column No. 1. In his opinion the cause of death of the deceased was due to shock and hemorrhage as a result of above mentioned injuries sustained by the deceased. 8. The 10 of the case, Sri Ghanakanta Bhuyan, was examined as PW-6. His evidence is that soon after he received the ejahar, the appellant, whose name was mentioned as accused in the ejahar, appeared at the police station with a blood stained dao in hand leaving the appellant at the out post, he immediately proceeded to the place of occurrence. He found the dead body lying on the field close to the road running from Namtola to Lahdoigarh. The dead body was identified by PW-4, brother of the deceased. He held the inquest and prepared the report. He proved the said inquest report, Ext. 2 and his signature Ext. 2(1). He drew a sketch map of the place of occurrence, seized the blood stained vest and sporting and prepared the seizure lists. He also sent the dead body for post mortem examination. As per his evidence, the appellant confessed his guilt before him and sent him to court with prayer for recording his confessional statement. The blood stained articles seized by police were sent to FSL. He also sent the dead body for post mortem examination. As per his evidence, the appellant confessed his guilt before him and sent him to court with prayer for recording his confessional statement. The blood stained articles seized by police were sent to FSL. He handed over the case diary to the officer-in-charge of Sonari police station as he was transferred to other place. In cross-examination he stated that he received the ejahar at 5.30 p.m. and while visiting the place of occurrence, he found the dead body lying on the field. He admitted that in the sketch map he did not make any mention about it According to him, accused told him that a few days prior to the occurrence an altercation took place between the appellant and the deceased. PW-7 is the Incharge of Namtola police Outpost. He stated that the O/C Sonari police station asked him to complete the investigation of the case. Upon going through the case diary he found that the investigation had already been completed except collection of post mortem examination and FSL reports. He collected the said reports and submitted the charge-sheet against the appellant under Section 302 IPC. 9. The learned trial Court examined the appellant and recorded his statement under Section 313 Cr.P.C. placing all the incriminating evidence tendered by the prosecution witnesses. The defence stand is that he did not deal any blow on the deceased. The deceased did not fall down on the field. He hacked the deceased when he tried to hold him. He explained the situation as under: In the evening time of Sunday, on the previous day of occurrence, I along with my daughter, was going home from Towkak. When Satish and his three accomplices, whom I did not know, assaulted me with iron liver and hand, kicked me like a football on the road near Namtola tea garden. My daughter was also hurt. As a result of the assault one tooth of my upper jaw was broken and my head hurt That was why, the next day when Satish was coming on the auto towards Namtola I made the auto stopped and killed Satish. I am guilty. I may be excused. 10. As the appellant took the above stand, he was asked if he wanted to examine any witness. I am guilty. I may be excused. 10. As the appellant took the above stand, he was asked if he wanted to examine any witness. He declined to examine any witness saying that: No body saw when the deceased along with three boys had assaulted me on the previous day of occurrence. Because nobody was there on the road at that time. Only my 4(four) years old daughter was with me. 11. We have carefully gone through the LCRs. The IO, PW-6 claimed that the appellant confessed before him that he killed the deceased. He recorded the statement of the appellant in this regard u/s 161 Cr.P.C. He also claimed that the appellant desired to make statement on oath before a Magistrate and accordingly he produced the appellant before the SDJM Charaideo, Sonari on 2.6.2005. It is reflected from the order dated 2.6.2005 passed by the said SDJM that the appellant declined to confess and as such his confessional statement could not be recorded. The appellant, however, pleaded guilty. At the time of pleading guilty the appellant stated that on the day of occurrence at about 4 p.m. the deceased along with 3 other assaulted him on the road of Lahdoigarh village and so he killed the deceased. 12. The appellant, while pleading guilty, referred to an incident that took place prior to the present incident. In the previous incident the deceased along with three other persons attacked and assaulted the appellant while he was going home with his little daughter. In the said assault one tooth of his upper jaw was broken and he received injuries on his head. Even his daughter got hurt. The eye witnesses, PWs 1 and 2, denied that there was no previous incident as stated by the appellant. Defence has adduced no evidence to prove the aforesaid previous incident which is related to or a fall out of the present incident. The learned trial Court, for the ends of justice provided the opportunity to the appellant to face the trial without convicting the appellant solely on the basis of his pleading of guilt. 13. It is the evidence of PW-1, an eye witness that while they were proceeding towards Namtola in an autorickshaw driven by the deceased, the appellant signalled and stopped it. 13. It is the evidence of PW-1, an eye witness that while they were proceeding towards Namtola in an autorickshaw driven by the deceased, the appellant signalled and stopped it. As soon as the autorickshaw was stopped the appellant gave two blows on the front tyre of the autorickshaw with a dao. From records it appears that the IO seized the autorickshaw in question but no mention has been made about the condition of the front wheel tyre of the seized autorickshaw. Even in his evidence, the IO did not make any statement in that regard. The prosecution, therefore, failed to prove the fact that in the dao blow the front wheel tyre or any tyre of the said autorickshaw, as claimed by one of the eye witnesses, was damaged or cut into pieces by the dao blow. It is the case of the prosecution that the appellant first dealt dao blow on the front wheel tyre so that the deceased could not speed away to escape from the assault of the appellant. The IO who visited the place of occurrence and seized some articles like blood stained vest, sporting and Naga dao made no statement regarding the said front wheel tyre or the condition of the autorickshaw. Even the other eye witness, PW-2, did not state that the appellant gave dao blow on the front wheel tyre of the autorickshaw. What she stated is that the appellant stopped the autorickshaw and then gave dao blows on it and charged the deceased. The frightened autorickshaw driver, Guddu, came out from the auto and ran away. The appellant chased the deceased and when he fell down on the field, the appellant hacked him with a dao twice. The evidence of PW-1 in regard to hacking the front wheel tyre of the autorickshaw has not been corroborated by PW-2. 14. As per evidence of PW-1 the appellant first gave two blows on the front wheel tyre of the autorickshaw and then dealt another blow on the deceased from the right side of the autorickshaw but it missed. As against this evidence PW-2 stated that the appellant stopped the autorickshaw and charged the deceased after giving dao blows on the autorickshaw. PW-2 has mentioned nothing in her evidence that the subsequent dao blow missed to hit the deceased. She has also not stated that the deceased fell down on the field. As against this evidence PW-2 stated that the appellant stopped the autorickshaw and charged the deceased after giving dao blows on the autorickshaw. PW-2 has mentioned nothing in her evidence that the subsequent dao blow missed to hit the deceased. She has also not stated that the deceased fell down on the field. She simply stated that the appellant stopped the autorickshaw with a dao in his hand. The other details about the manner in which the appellant attacked and dealt the dao blows on the deceased, as given by PW 1 & 2, eye witnesses, in their deposition are not corroborated to each other. On the face of the admitted position that the appellant stepped the autorickshaw in the midway with a dao and also gave the dao blow on the deceased, the learned trial Court believed the prosecution story and found the appellant guilty of offence of committing murder of the deceased. Beyond that the learned trial court has considered nothing. Is there any possible view other than the one taken by the learned trial court that could be taken in the facts and circumstances of the case? An obligation is cast on the court to examine the other possible view and the acceptability or sustainability of the same having regard to facts and circumstances of the case and evidence on record. 15. The medical evidence on record has proved the fact that the deceased sustained several injuries caused by a sharp weapon. All the injuries fit in the injuries that might be caused by a sharp dao. The appellant has not denied the fact of giving daos blows on the deceased who was not carrying any arms. On the face of the evidence on record, there is no doubt that the appellant hit the deceased by the crime dao with the knowledge that his act was likely to cause death or he knew that the bodily injury intended to be inflicted on the deceased was sufficient in the ordinary course of nature to cause death to him. To bring the act of the appellant under the fold of culpable homicide within the meaning of Section 299 IPC, it is necessary to prove the intention of the accused. Did the appellant intend to cause death to the deceased? To bring the act of the appellant under the fold of culpable homicide within the meaning of Section 299 IPC, it is necessary to prove the intention of the accused. Did the appellant intend to cause death to the deceased? In order to answer this question, it is deemed proper to take into account the following facts and situation:- (i) The appellant is a illiterate daily wage earner of a tea garden. (ii) On the day of occurrence his 4-year old daughter was with him and he was standing by the road side with a dao in his hand. (iii) A tea garden labourer normally carries a dao almost all the time. (iv) As per evidence of PW 1(eye witness) appellant instructed the auto rickshaw driven by the deceased to stop at the place where he was waiting with his little daughter. Again as per evidence of another eyewitness (PW 2), the "appellant asked to stop the auto saying that he, too, would go". (v) Although PW 1 deposed that the appellant hit by his dao at the front wheel tyre of the auto rickshaw, the prosecution failed to prove that there was any damage caused to any tyre of the auto rickshaw. (vi) There is no proof that the auto rickshaw driven by the deceased with PW 1 and 2 on board was stopped forcefully by the appellant by causing damage in any manner, to the autorickshaw. It has not been proved that the Naga dao was used by the appellant to stop the auto rickshaw. He used the same to strike at the deceased. 16. In the aforesaid background it can be inferred that the appellant was waiting for a lift and he asked the deceased to stop the auto rickshaw at the time when the deceased stopped the auto rickshaw. The appellant had no intention to kill the deceased because he was with his little daughter and he would not have indulged in an act of killing anybody in presence of his daughter. If he really intended to kill the deceased, he would have chosen a different occasion or opportunity without taking along his little daughter. 17. The appellant had no intention to kill the deceased because he was with his little daughter and he would not have indulged in an act of killing anybody in presence of his daughter. If he really intended to kill the deceased, he would have chosen a different occasion or opportunity without taking along his little daughter. 17. Both the eyewitness, PW 1 and 2, in our considered view, are interested ones, inasmuch as the auto rickshaw in question belonged to maternal uncle of PW 1 while PW 2 is the sister-in-law of PW 1, being wife of his elder brother. As both PW 1 and 2 are related to owner of the auto rickshaw, they had inclination to give evidence in a manner favourable to the driver of the said vehicle i.e. the deceased. There is, of course, no evidence in support of this point. But one thing is sure that the appellant had no intention to kill the deceased at the moment he stopped the auto rickshaw for a lift until some thing had happened subsequently between them. What had happened subsequently between them which led the appellant to strike dao blow is not known to anybody. No evidence is available on record in this regard. However, some lights have been thrown by the appellant while answering the question put by the Court under Section 313 Cr.P.C. Some relevant questions and answers are reproduced below: Q. PW 1 has further stated in evidence that when you instructed to stop the auto, the auto stopped; that as soon as the auto was stopped you gave two blows in the front tyre of the auto with the dao in your hand. What do you say in this regard? Ans. As stated I did not give two blows in the tyre of the auto. Q. PW 1 has stated in evidence that you gave a blow to auto driver Satish from the right side of the auto but when it was missed Satish got down from the auto in the left side and jumped to the field. Do you have anything to say in this regard? Ans. I did not deal any blow to him. He fled for nothing. Q: PW 1 has stated in evidence that Satish tell down on the field; that you chased Satish and dealt about 4 blows in his head and body. Do you have anything to say in this regard? Ans. I did not deal any blow to him. He fled for nothing. Q: PW 1 has stated in evidence that Satish tell down on the field; that you chased Satish and dealt about 4 blows in his head and body. Do you have anything to say in this regard? Ans. As stated above Satish did not fell down on the field. I hacked him when he tried to catch me. Q. PW 2 has further stated that when the auto was stopped the person first gave blows in the auto with the dao; that after that when the person made attempt to assault Guddu, he (Guddu) came out of the auto and ran; that you chased him; that as there was water in the field Guddu fell down; that the person hacked Guddu with dao; that she saw two blows inflicted on him. What do you say in this regard? Ans. I did not give blow in the autorickshaw. But I chased Satish. He did not fell down. When he tried to hold me I hacked him. 18. What transpires from the above clarification/explanation given by the appellant is that he did not give dao blow on the autorickshaw to stop it. Auto driver (deceased) stopped the vehicle and started fleeing away. The appellant chased him. The deceased did not fall down while being chased but he tried to hold the appellant and then only he hacked him by the dao. This is only an explanation to the circumstances or situation appearing in the evidence against him that he hacked the deceased. The appellant has led no evidence in support of his above stand. The explanation given by the accused during the examination under Section 313 Cr.P.C. cannot be used or regarded as a piece of legal evidence yet they have to be received in evidence and treated as evidence and be duly considered at the trial. It was so held by the Apex Court in a judgment rendered in Hate Singh Vs. State of Madhya Bharat, reported in AIR 1953 SC 468 . The reasons for stating the said law are available in paragraph 8 of the said judgment which is reproduced below for better appreciation: 8. Now the statements of an accused person recorded under Ss. State of Madhya Bharat, reported in AIR 1953 SC 468 . The reasons for stating the said law are available in paragraph 8 of the said judgment which is reproduced below for better appreciation: 8. Now the statements of an accused person recorded under Ss. 208, 209 and 342, Criminal P.C. are among the most important matters to be considered at the trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be tree to state in his own way in the witness-box. They have to be received in evidence and treated as evidence and be duly considered at the trial (Ss 287 and 342) This means that they must be treated like any other piece of evidence coming from the mouth of a witness and matters in favour of the accused must be viewed with as much deference and given as much weight as matters which tell against him. Nay more. Because of the presumption of innocence in his favour even when he is not in a position to prove the hum of his story, his version should be accepted if it is reasonable and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false. We feel that this fundamental approach has been ignored in this case. 19. It is noteworthy that the appellant in the present case, is not pleading innocence. He had rather, pleaded guilty for hacking the deceased by a dao. He had explained the reasons in his statement under Section 313 Cr.P.C. as quoted earlier. On the day proceeding the present incident, the deceased along with 3 friends assaulted the appellant. In the said assault his one tooth in the upper jaw was broken. Even his little daughter also got hurt. He had explained the reasons in his statement under Section 313 Cr.P.C. as quoted earlier. On the day proceeding the present incident, the deceased along with 3 friends assaulted the appellant. In the said assault his one tooth in the upper jaw was broken. Even his little daughter also got hurt. The appellant made statement to that effect before the I.O. On perusal of the records, it is found that the said statement were recorded by the I.O. during investigation under Section 161 Cr.P.C. It appears that the I.O. made no enquiry about the previous incident disclosed by the appellant to find out whether such incident took place. The prosecution totally ignored the previous incident as because the appellant lodged no FIR with the police. As per statement recorded under Section 161 Cr.P.C. the appellant had no money to buy medicine for treatment of his injuries sustained in the said assault. The deceased assured to pay some money for treatment but avoided. On the day of occurrence when the deceased came across the appellant stopped the auto rickshaw and jumped into the paddy field. The appellant got infuriated and dealt dao blows on the deceased. He immediately surrendered himself before the police station with the dao. 20. We are aware that the statement recorded under Section 161 Cr.P.C. has no evidentiary value and it cannot be used as a valid piece of defence. The reference to statement under Section 161 Cr.P.C. has been made only to make a point that the present incident has a relevance to the said previous incident. Unfortunately, as we have noticed, the defence counsel, while cross-examining the I.O. during trial did not put any question on the said statement under Section 161 Cr.P.C., either to confront or confirm the same. Our purpose in referring to the statement of the appellant under Section 161 Cr.P.C. is to find out whether his statement probabilises the defence taken by the accused appellant during trial and after taking the same into consideration the accused appellant could be acquitted of the charge. What we have found is that a conjoint reading of statements made under Section 161 and 313 Cr.P.C. probabilises the defence taken by the appellant to be more precise, appellant's stand is to be taken as the 'other possible view' that could be taken in the facts and circumstances of the present case. What we have found is that a conjoint reading of statements made under Section 161 and 313 Cr.P.C. probabilises the defence taken by the appellant to be more precise, appellant's stand is to be taken as the 'other possible view' that could be taken in the facts and circumstances of the present case. If this 'other possible view' is accepted the appellant would be entitled acquittal on benefit of doubt. The instant case is not one of acquittal in as much as the appellant has pleaded guilty. There are two eye witnesses and their evidence has already been appreciated above. Even in his statement under Section 313 Cr.P.C., the appellant has admitted that he struck the deceased by the dao he was carrying at the time of occurrence. The question is as to whether he indulged in the act of killing the deceased as an aftermath of the previous incident in which he was allegedly assaulted by the deceased and his friends and the deceased avoided payment of money for buying medicine as assured to him. There is no evidence on record regarding the previous incident as disclosed by the appellant and in absence of such evidence whether the version of the appellant could be taken as correct or true. We have found that the appellant is an unsophisticated and a simple living illiterate person of a working class and he voluntarily surrendered before the law immediately after committing the murder on the deceased and he had the courage to admit his guilt. We find no reason why his story of previous incident of being assaulted by the deceased should be disbelieved. There is nothing improbability in his story of previous incident and the promise held out by the deceased offering money for purchasing medicine for treatment of the injury he sustained, which was backed out by the deceased that infuriated the appellant and took the extreme act of hacking him by a dao. We are totally convinced that the appellant's Statement under Section 313 Cr.P.C. has probabilised his defence justifying his conviction under Section 304 Part II IPC in place of Section 302 IPC inasmuch as the prosecution failed to prove the intention of the appellant to kill the deceased. We, therefore, hold the appellant guilty and liable to be convicted and punished under Section 304 Part II IPC. We, therefore, hold the appellant guilty and liable to be convicted and punished under Section 304 Part II IPC. The conviction and sentence as awarded by the learned trial Court under Section 302 IPC vide impugned judgment and order is, hereby, set aside and quashed. The appellant stands convicted under Section 304 Part II IPC and sentenced to under go R.I. for 10 years with fine of Rs. 500/-, in default further R.I. for one month. 21. The appeal stands partly allowed with modification in the conviction and sentence as indicated above. The appellant shall serve out the sentence of 10 years. He be given benefit of set off of the period of detention during investigation and trial as provided under the existing law. 22. The learned Amicus Curiae be paid Rs. 5,000/- for his valuable assistance Tendered to this Court. Return the LCR.