JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Ms. S.K. Nargis, learned counsel for the appellants. Also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam and Mr. T. Deori, learned counsel for respondent No. 2, informant. 2. These appeals are directed against a common judgment and order dated 29.11.2014, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 54/2011. By the impugned judgment and order, the learned Sessions Judge, convicted the accused appellants, under Sections 302 IPC and sentenced them to suffer rigorous imprisonment for life and to pay fine of Rs. 10,000/- each in default, to undergo further rigorous imprisonment for 1(one) year. 3. Aggrieved by the said judgment and order, the appellants have come up with the present criminal appeals and the same are being taken up together by this common order. 4. Although a GD entry dated 15.05.2011 at 9.30 A.M. is available wherein one Ananta Deori, a resident of Dighalbori village had informed the police over phone that there was a quarrel in the house of his neighbor Dibudhar Deori and two persons are lying in his courtyard, where one of them had already died, but we are disinclined to accept the GD entry to be an FIR in the case. 5. An ejahar was lodged by one Anju Bordoloi before the Officer-in-Charge of Morigaon Police Station stating that on 15.05.2011 at about 7 P.M. one Dibudhar Deori had caused serious injuries to Madhab Bordoloi on his head by stabbing him with a spear. Further when the deceased Namanta Bordoloi and Budhen Bordoloi had enquired about the incident, Jugal Deori son of Rameshwar Deori had killed Namanta Deori by stabbing him with a dao and in the same incident Siva Deori had caused grievous injuries to Budhen Bordoloi by assaulting him on his head with a pedal stick (Dheki-thura). Further when the deceased Namanta Bordoloi and Budhen Bordoloi had enquired about the incident, Jugal Deori son of Rameshwar Deori had killed Namanta Deori by stabbing him with a dao and in the same incident Siva Deori had caused grievous injuries to Budhen Bordoloi by assaulting him on his head with a pedal stick (Dheki-thura). After investigation, upon the matter being sent for trial, the accused persons, namely, Siva Deori, Jugal Deori and Dibudhar Deori were charged firstly that on 15.05.2011 at 7.00 P.M. they had voluntarily caused grievous hurt to Madhab Bordoloi with a pointed rod, secondly, on the same date they assaulted Budhen Bordoloi with a piece of timber (Dheki-thura) and caused grievous hurt and further on the same day, Jugal Deori had attacked Namanta Bordoloi with a dao to kill him and the other accused person, namely, Siva Deori had inflicted dao blows and committed the murder of Namanta Bordoloi. 6. Before the trial court, Newala Bordoloi, while deposing as PW-1 had stated that while he was coming home on the given day, he heard a commotion in the house of Siva Deori and saw that Budhen Bordoloi and Namanta Bordoloi were there at the place of occurrence. He deposed that Siva Deori came and assaulted Budhen Bordoloi and his younger brother Namanta Bordoloi by striking them on their head from back side. He further deposed that Siva assaulted Budhen with a pedal stick, while Jugal hacked Namanta Bordoloi with a dao. In cross-examination, the said witness stated that as it was not visible due to darkness, he could not say how many persons were present at the place of occurrence. But he saw the incident of cutting and striking. PW-1 has also stated in his cross that he had not raised any hue and cry and had seen the incident from the front side of the house. 7. PW-2, Anju Bordoloi had stated that upon hearing hue and cry on the road near Madhabs house, he went inside. The witness deposed that Dibudhar Deori had stabbed Madhab in his head with a fishery spear. 8. PW-2 further deposed that thereafter, he was sitting in his house and Newala Bordoloi came running to him and informed that elder brother Namanta was cut by Jugal Deori with a dao and Siva Deori had assaulted Budhen Bordoloi with a pedal stick. The witness deposed that Dibudhar Deori had stabbed Madhab in his head with a fishery spear. 8. PW-2 further deposed that thereafter, he was sitting in his house and Newala Bordoloi came running to him and informed that elder brother Namanta was cut by Jugal Deori with a dao and Siva Deori had assaulted Budhen Bordoloi with a pedal stick. In cross-examination, PW-2 stated that he did not see the incident and he had deposed on the basis of what he had heard. 9. PW-3, Manju Bordoloi, who also stated in cross that she did not see the incident had deposed that Dibudhar Deori used to beat his wife Rina Deori everyday and her husband Namanta Bordoloi went to their house to counsel them and that Rina was the younger sister of Namanta. On the given day, Dibudhar Deori was looking for his wife Rina with an intention of cutting her. Dibudhar Deori, thereafter, went looking for Madhab Bordoloi, but was assaulted because of which he became unconscious and after regaining sense, Dibudhar Deori had struck Madhab with a spear. The witness further stated that when Namanta Bordoloi came, Siva had assaulted him as a result of which Namanta became unconscious and was lying there.When Budhen came, Siva had assaulted Budhen and had left him there. Thereafter, Jugal had cut Namanta. 10. Although several other witnesses have deposed but we are not inclined to record the entire evidence for it being not very relevant for the purpose. 11. There is also a confessional statement of the accused, Siva Deori dated 19.05.2011 which was recorded after following due procedure of law. The confessional statement of the accused Siva Deori is as follows: "On last Sunday i.e. on 01.05.2011 an altercation took place between my elder brother, Dibudhar Deuri and my sister-in-law Rina Deuri. Sister-in-law Rina Deuri left for her maternal home. All the family members of Rina Deuri came to our house. Rinas elder brother Budhen Bordoloi, younger brother Madhab Bordoloi and kisna Bordoloi came to our house. They brought dao and lathis in their hands and damaged our house. Our house was a tin roofed one and it was made of bamboo. All that time, I was at the courtyard of our house alone. My mother Subheswari Deori, my wife Phuleswari Deori, sister-in-law, Tarali Deuri and my aunt (mothers younger sister) Ruhini Pator were inside our house. They brought dao and lathis in their hands and damaged our house. Our house was a tin roofed one and it was made of bamboo. All that time, I was at the courtyard of our house alone. My mother Subheswari Deori, my wife Phuleswari Deori, sister-in-law, Tarali Deuri and my aunt (mothers younger sister) Ruhini Pator were inside our house. When Budhen, Madhab and Kisna destroyed the house, all my family members came out who were inside of our house. Madhab pushed my mother. My mother is an aged woman. After pushing my mother, Madhab, Budhen, Kisna left to their houses. A little later Budhen and my sister-in-laws uncles son Namanta Bordoloi came to our house. The verandah of the other house where my mother used to sleep was broken by Namanta and Budhen. Namanta was carrying a spear and a stick in his hand. Budhen also carried one bamboo stick in his hand. Thereafter, Jugal Deuri (my uncleson) came there. Jugal said to Namanta "No need to break the house of aunty as bisar will be held tomorrow". Immediately on hearing that Budhen assaulted Jugal on his head with a bamboo stick. At that time, it was around 7.30 PM at night. Jugal kicked Budhen. Budhen immediately fell down. Thereafter, Namanta felled Jugal with an attempt to stab with a spear. Then I dealt a dao blow on the head of Namanta from his back. I dealt the first blow in the neck of Namanta. Namanta fell down when Namanta fell down I dealt some more blows on his body. Namanta died in my courtyard due to the injuries caused by me. I inflicted several dao blows on Namanta. As a result of my blows, Namanta died at the P.O. Thereafter I asked elder brother Jugal, "I killed the man, call at the P.S." Many people gathered at the P.O. I fled away from the P.O. along with the dao to the P.S. While coming towards the P.S at Bejoguri it started raining. I stopped at Bejoguri. At Bejoguri Chariali I saw Police vehicle. At chariali, infront of the Police, I surrendered myself. Thats all I got to say. Now Namantas brothers family member does not allow my sons going to school. They keep on threatening to kill them." 12. I stopped at Bejoguri. At Bejoguri Chariali I saw Police vehicle. At chariali, infront of the Police, I surrendered myself. Thats all I got to say. Now Namantas brothers family member does not allow my sons going to school. They keep on threatening to kill them." 12. According to the prosecution, the conviction of the accused Siva Deori and Jugal Deori had been made based upon the aforesaid confessional statement which also finds corroboration from the deposition of PW-1, who is stated to be an eye witness. 13. As the prosecution case is based mostly on the confessional statement, we are, therefore, examining the same in detail as to what had been confessed by the accused Siva Deori. Although in his confessional statement, the accused Siva had stated that he had dealt a dao blow on the head of the deceased Namanta from his back and that it was the first blow in the neck of Namanta and, thereafter, Namanta fell down, but if we rely upon the confessional statement of the accused, Siva, we also have to take into account the circumstances as stated by Siva when he confessed that he had dealt the blow on the neck of Namanta and cannot read the confession in isolation, only with regard to his statement that he had dealt with the blow on the deceased Namanta from his back. The confessional statement of Siva states that his sister-in-law Rina had left for her maternal home after having an altercation with her husband Dibudhar Deori, who is the elder brother of Siva. Thereafter, the brothers of Rina, i.e., Budhin, Madhab and Kisna went to their house with dao and lathis in their hand and damaged his house and at that time, his mother Subheswari Deori, his wife Phuleswari Deori, sister-in-law, Tarali Deori and his aunt (mothers younger sister) Ruhini Pator were inside the house. When Budhin, Madhab and Kisna destroyed the house, all the family members came out from inside the house. At that stage, Madhab had pushed his mother, who was an aged woman and thereafter left the house. After some time, Budhen and Namanta again went to their house and had broken the verandah of his house, where his mother used to sleep. He further states that Namanta was carrying a spear and a stick in his hand and Budhen was also carrying a bamboo stick. After some time, Budhen and Namanta again went to their house and had broken the verandah of his house, where his mother used to sleep. He further states that Namanta was carrying a spear and a stick in his hand and Budhen was also carrying a bamboo stick. Thereafter Jugal Deori tried to counsel Budhen and Namanta by stating that there was no requirement to break the house as a bichar will be held on the next date. Immediately therafter, Budhen assaulted Jugal on on his head with a bamboo stick and when Jugal kicked at Budhen, Budhen fell down. Thereafter Namanta fell Jugal by stabbing him with a spear, at that stage the accused Siva had dealt a blow on the head of Namanta from his back which was his first blow and Namanta fell down. 14. In the circumstances, we notice a mitigating circumstances for Siva in his confessional statement that he had dealt with a dao blow on the head of Namanta from his back to the extent that the deceased Namanta and Budhen were aggressors against the accused persons and Jugal who was along with Siva had been assaulted on his back with a spear and further Namanta was also carrying a spear in his hand. From the aforesaid circumstances, when taken in its totality as stated in the confessional statement, an element of private defence accrues in favour of the accused, Siva Deori, although it cannot be denied that Siva had exceeded the right of private defence by dealing the fatal blow with a dao in the back side of the head of the deceased. In the circumstance, we are of the view that in respect of Siva Deori, he would be covered by Exception 2 to Section 300 of the IPC resulting in a culpable homicide not being a murder. Accordingly the accused Siva Deori would be guilty of committing an offence under Section 304 Part II of the IPC. Thus, we modify the conviction of the accused Siva Deori to that of Section 304 Part II IPC. 15. It has been informed that the accused, Siva Deori has been under imprisonment from the date of the judgment of the learned Sessions Judge, Morigaon dated 29.11.2014 and accordingly he had already undergone imprisonment of about 4 years 11 months. Thus, we modify the conviction of the accused Siva Deori to that of Section 304 Part II IPC. 15. It has been informed that the accused, Siva Deori has been under imprisonment from the date of the judgment of the learned Sessions Judge, Morigaon dated 29.11.2014 and accordingly he had already undergone imprisonment of about 4 years 11 months. Thereafore, we sentence the accused, Siva Deori for the period of imprisonment already undergone by him and order that he be released forthwith, if not required in connection with any other case. 16. As regards the accused, Jugal Deori, we have taken note of that there were several incised wounds as per the post mortem report and the inquest report done on the body of the deceased, Namanta. But we have also taken note of that none of the injuries although they are incised wounds were of such nature which on its own could have caused death of the deceased. There are evidences by the prosecution witnesses which shows that there was assaults and counter assaults between the deceased and the accused persons where the accused Jugal Deori had also participated with sharp weapons in his hand. We have also taken note of that the incised cut injuries found on the deceased also do not come within the purview of grievous hurt as provided under Section 320 of the IPC. Accordingly, we convict the accused Jugal Deori under Section 324 of the IPC. It is stated that the accused, Jugal Deori was under imprisonment for a period of 2 years one month 24 days prior to he being released on bail. Accordingly, we sentence the accused Jugal Deori for the period already undergone under imprisonment and set him at liberty forthwith. 17. Criminal appeal stands partially allowed to the extent indicated hereinabove.