JUDGMENT AND ORDER (CAV) Indira Shah, J. This is an appeal against the judgment dated 22.9.2008 passed by learned Sessions Judge, Sivasagar in Sessions Case no. 29 (S-S)/2009 convicting the appellant under Sections 302/3241.P.C. and sentencing him thereby to undergo imprisonment for life with fine of Rs. 5000/-, in default of payment of fine, further rigorous imprisonment for 6 months for his conviction u/s 302 I.P.C. For the offence committed by the appellant under Section 324 I.P.C., he has been sentenced to undergo rigorous imprisonment for 1 year. Both the sentences have been said to be run concurrently. 2. We have heard Ms. B. Sarma, learned amicus curiae, appearing on behalf of the appellant as well as Ms. S. Jahan, learned Additional Public Prosecutor appearing for State respondent. 3. The prosecution case, in brief, is that on 22.09.2008 at around 8 P.M. Ranjan Boraik (deceased) along with his friend Moina Bakti after enjoying 'Karam Puja' were returning home and when they reached in front of the house of the accused, the accused inflicted a blow on the neck of Ranjan by means of sharp weapon causing his death. He also struck a blow in the head of Moina Bakti causing grievous injury to him. Krishna Boraik, Ranjan's uncle lodged information at Haluwating Police Station, immediately after the incident, which was entered in the general diary, as G.D. Entry no. 469 dated 22.9.2008 (Ex. 9). Police visited the place of occurrence' and the dead body of Ranjan was found under a banana plant, behind the house of accused. Moina Bakti who was found lying injured in the house of Pulin Gowala was sent to hospital for treatment. Inquest on the dead body of Ranjan was held and it was subjected to post mortem examination. Accused was arrested and the weapon of assault i.e. Tlaga dao' was recovered at his instance. The accused confessed his guilt and his confessional statement was recorded by a Magistrate under Section 164 Cr.P.C. On completion of investigation police submitted the charge-sheet under Sections 302/324 I.P.C. against the accused appellant. 4. During the trial, the learned trial court found prima facie case under Sections 302/ 3241.P.C. and accordingly charges under the aforesaid Sections of law were framed to which the accused pleaded not guilty and claimed to be tried. 5. The prosecution, in order to substantiate its case, examined 17 witnesses. 4. During the trial, the learned trial court found prima facie case under Sections 302/ 3241.P.C. and accordingly charges under the aforesaid Sections of law were framed to which the accused pleaded not guilty and claimed to be tried. 5. The prosecution, in order to substantiate its case, examined 17 witnesses. The accused in his statement recorded under Section 313 Cr.P.C., took the plea of private defence. He stated that the deceased Ranjan Boraik and Moina Bakti came to his house armed with dao and when Ranjan (deceased) attempted to assault him, he (accused) dealt a blow on his head by means of bamboo lathi. When Moina Bakti attempted to assault him the accused struck him on his head with the bamboo lathi. He admitted that his confessional statement was recorded by a Magistrate. No evidence was adduced on behalf of defence. 6. Ms. B. Sarma, learned amicus curiae, appearing on behalf of the appellant, submits that the learned trial court failed to consider that the incident occurred due to provocation. The stand taken by the accused in his confessional statement recorded u/s 164 Cr.P.C. and statement recorded u/s 313 Cr.P.C. was that the deceased and the injured armed with a dao came to his courtyard and attempted to assault him and he, in exercise of private defence, assaulted them by means of a bamboo. The prosecution case that while the victims were proceeding towards their house were assaulted by the accused, is not a true version, as P.W. 8, Smti Agni Boraik in her cross-examination, clearly admitted that just before the occurrence, Moina Bakti, Ranjan Boraik and her son Ganesh Boraik had returned home after watching jhumur dance. 7. Ms. S. Jahan, leaned Additional Public Prosecutor submits that the statement of the accused clearly reveals that he docs not dispute having fatally assaulted the deceased, but has pleaded self-defence. The prosecution evidence, therefore, has to be judged in the light of the admission made by the accused. Relying on the case of Kheshoram Bora v. State of Assam reported in (1978) 2 SCC 407 , she urged that Court can accept the inculpatory part of the admission or confession and reject the exculpatory part if that is false. 8. The prosecution evidence, therefore, has to be judged in the light of the admission made by the accused. Relying on the case of Kheshoram Bora v. State of Assam reported in (1978) 2 SCC 407 , she urged that Court can accept the inculpatory part of the admission or confession and reject the exculpatory part if that is false. 8. Exception 1 appended to Section 300 I.P.C. provides that culpable homicide would not be murder if the offender is deprived of the power of self-control by grave and sudden provocation and causes the death of the person who gives provocation. The said Exception is, however, subject to following provisions. "First - That the provocation is not sought or voluntarily provoked by the offender as on excuse for killing or doing harm to any person. Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant." 9. On perusal of evidence on record it transpires that the injured Moina Bakti (P.W. 7) is the sole eye witness. He deposed that he along with Ranjan and Ganesh were proceeding towards their home after attending Karam Puja. The accused suddenly attacked them. Ganesh left the place out of fear. He saw the accused dealt with dao blow on Ranjan. P.W. 7 fell down sustaining injuries and then Pulin Gowala, Ranjan Karmakar and Boloram Boraik (P.W. 6) came. The accused threatened them as well and out of fear they left the place. P.W. 7 somehow took shelter in the house of Pulin Gowala where he lost his senses. Corroborating the evidence of P.W. 7, P.W. 6 Boloram Boraik deposed that getting the information from mother of Ranjan Boraik he along with Rajen Karmakar and Pulin Gowala went to the place of occurrence i.e. gateway of the house of the accused. They saw the accused standing there with a dao in his hands. Moina Bakti was lying injured. The accused threatened them and they out of fear left the place. Moina thereafter ran away raising hue and cry to save him. They took Moina to the house of Pulin Gowala and offered him water. Moina told them that accused has cut Ranjan Boraik. 10. Moina Bakti was lying injured. The accused threatened them and they out of fear left the place. Moina thereafter ran away raising hue and cry to save him. They took Moina to the house of Pulin Gowala and offered him water. Moina told them that accused has cut Ranjan Boraik. 10. It is in the evidence of P.W. 8, Smti Agni Boraik that at about 9 P.M. her son Ranjan Boraik entered in the house in a run and went outside by back door: He was injured and he shouted that Bishnu Karmakar (accused) had cut him. P.W. 8 then came out. Her daughter Malati went in search of her younger brother Ganesh, but she returned home as accused attempted to assault her with a dao. She told that Maina Bakti has also been hacked and has been lying injured on the road. P.W. 8 then informed Pulin Gowala and Baloram Boraik. Police came after an hour and dead body of Ranjan was recovered from under a banana plant. She in her cross-examination stated that before the occurrence her brother Moina Bakti, her son Ranjan Boraik and Ganesh had returned home after watching jhumur dance. 11. Thus it appears from the evidence of P.W. 8 that the victims returned home and thereafter they had gone to the house of the accused. The evidence of P.W. 7 that while they were returning home after attending 'Karma Puja' they were assaulted, is not corroborated by P.W. 8. 12. P. W. 3, Krishna Boraik is a reported witness. One Kiron Gowala informed him about the occurrence. He stated that he immediately came to the courtyard of accused and found him there holding a dao. Thereafter, he went to the house of Pulin Gowala where he saw Moina Bakti lying injured. P.W. 3 then lodged verbal information to police at Haluwating Police Station. Police came and found the dead body of Ranjen Karmakar. On the next day P.W. 3 lodged a formal written ejhar. 13. P.W. 1, Nagen Boraik, P.W. 4 Prodip Das and P.W. 5 Ranjit Kumar had seen the injuries sustained by the victims. Inquest on the dead body of Ranjan was held in their presence. 14. P.W. 10, Binod Boruah, P.W. 11, Ram Prasad Bakti, P.W. 12, Ajit Boraik and P.W. 13, Shankar Marar are seizure witnesses. 13. P.W. 1, Nagen Boraik, P.W. 4 Prodip Das and P.W. 5 Ranjit Kumar had seen the injuries sustained by the victims. Inquest on the dead body of Ranjan was held in their presence. 14. P.W. 10, Binod Boruah, P.W. 11, Ram Prasad Bakti, P.W. 12, Ajit Boraik and P.W. 13, Shankar Marar are seizure witnesses. They stated that police brought the accused to his house and the wife of the accused produced a Naga dao from under a bed. It was seized by the police in their presence. P.W. 13 stated in his cross-examination that Bishnu asked his wife and then his wife produced the Naga dao. Thus the dao was recovered at the instance of the accused. 15. P.W. 16 Smti Rashmita Das, the then Judicial Magistrate 1st Class exhibited the statement of Moina Bakti recorded u/s 164 Cr.P.C. P.W. 15 Sri Manash Boruah, the then S.D.J.M. (S), Sivisagar recorded the confessional statement of the accused under Section 164 Cr.P.C. 16. The accused was produced before P.W. 15 on 23.09.2008. He was sent to judicial custody for reflection of his mind. On 24.9.2008 the accused was again produced before the learned SDJM. Learned SDJM explained him of the consequences of his confessional statement and informed him that he was not bound to confess before him. On being satisfied that the accused was making confessional statement voluntarily, his confessional statement was recorded. The accused in his confessional statement took the plea that there was quarrel between the deceased and his elder brother Ganesh. On the date of occurrence, Ranjan attempted to assault his brother Ganesh. Deceased Ranjan and Moina Bakti came to his house and attempted to assault him with a bamboo. The accused then assaulted them with a bamboo lathi. He categorically stated that he did not assault them with an intention to kill them. Since they assaulted him, he in retaliation, assaulted them. 17. It is indeed settled principle of criminal jurisprudence that even if the accused does not plead the right of private defence, but in case if there is sufficient evidence to show the existence of the said right, the trial court should consider the said aspect. In the present case, the accused stated that there was previous quarrel between his elder brother and the deceased. In the present case, the accused stated that there was previous quarrel between his elder brother and the deceased. Though the accused did not adduce any evidence, the previous enmity has been admitted by P.W. 8, mother of the deceased. She had stated that Ranjan (deceased) had an affair with Bishnu's daughter and for that Bishnu picked up a quarrel with Ranjan and hacked him. It is also in her evidence that the deceased and the injured Moina had returned home, meaning thereby they again went to the house of accused and then the occurrence took place. 18. The accused in his confessional statement as well as in statement u/s 313 Cr.P.C. stated that he assaulted the deceased and the injured by means of a bamboo. From the evidence of victim Moina Bakti it appears that the accused inflicted injuries to him and the deceased by means of a dao. A 'Naga dao' was also recovered at the instance of the accused. 19. Dr. Hemanta Kumar Boruah held post-mortem examination on the dead body of the deceased and found 'one cut injury on the right side of the neck, placed obliquely about 4" x 2" inches x muscle deep'. The injury was ante mortem and homicidal in nature. The doctor admitted that the injury may be caused by a weapon like dao (Mat. ex. 1). 20. Dr. Anupam Phukan (P.W. 2) examined the victim Moina Bakti and found as follows: (i) One deep cut-injury of size 4 cm x 1 cm on the left side of the neck, on the middle part. (ii) one cut-injury 2 cm x 0.5 cm on the left upper forehead. The doctor opined that the in juries were simple cut injuries inflicted by sharp cutting weapon. 21. Apart from the medical evidence and evidence of the victim Moina Bakti, P.W. 6 Bolaram Boraik stated that he saw the accused holding a dao in his hands. The discovery of the dao at the instance of the accused in terms of Section 27 of the Evidence Act also supports the prosecution story that the victims were assaulted by means of dao. 22. The accused in this case does not dispute having assaulted the victims but has pleaded self-defence. The discovery of the dao at the instance of the accused in terms of Section 27 of the Evidence Act also supports the prosecution story that the victims were assaulted by means of dao. 22. The accused in this case does not dispute having assaulted the victims but has pleaded self-defence. In the cited case of Keshoram Bora (Supra) it was held that: "it is well settled that where a confession or an admission is separable there can be no objection to taking one part into consideration which appears to be true and reject the other part which is false". 23. In the present case, prosecution has proved that the deceased Ranjan and Moina Bakti were assaulted by means of a sharp weapon, as a result of which, Ranjan died and Moina sustained simple injuries. It appears from the evidence of P.W. 8 that there was some previous quarrel between the accused and the deceased. The accused has also staled about previous quarrel between the deceased and his elder brother. It also appears form the evidence of P.W. 8 that the victims went to the house of accused. Therefore, the defence plea that the victims came to the house of accused and attempted to assault him which provoked the accused to assault them in self defence, cannot be ruled out. The accused, however, did not receive any injuries, and the victims sustained injuries on vital parts of the bodies i.e. neck, therefore, there can be no doubt that the accused exceeded the right of private defence. 24. For the reasons discussed above, the accused can be convicted under Section 304 Part-II of I.P.C. Therefore, the conviction of the accused under Section 302/324 I.P.C. is modified to conviction u/s 304 Part 11/324 I.P.C. and sentence of imprisonment for life is reduced to imprisonment for 7 years while maintaining the sentence of imprisonment for 1 year for conviction u/s 324 I.P.C. Both the sentences shall run concurrently. The appeal is accordingly allowed to the extent as indicated above. 25. We appreciate the valuable assistance rendered by Ms. B. Sarma, learned amicus curiae and therefore, we direct the State Legal Service Authority to pay her Rs. 7,500/-, for the assistance. 26. Send down the LCR along with a copy of this judgment.