JUDGMENT : A.M. Bujor Barua, J. Heard Mr. A.M. Barbhuya, learned counsel for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor for the State. 2. An Ejahar dated 27.01.2016 was lodged by Amrul Islam Laskar before the Officer-in-Charge of Hilakandi Police Station inter-alia alleging that at about 8 am on 27.01.2016, when his father went out from the house to pull his rickshaw, and when he as a auto rickshaw driver was in the stand near the SS College, was informed by another auto-rickshaw driver that a dead body of a rickshaw puller was lying near the bypass of NH 158. When the informant went to the place of occurrence he saw that the dead body belonged to his father and the time was 11 am in the morning. In the Ejahar the informant stated that his father had solemnized second marriage but about a year back the accessed named therein Sahab Uddin Laskar had taken away the second wife of his father and when his father wanted to bring back his second wife, the person accused did not release her and rather threatened to kill his father at any moment. He further stated that at about 10 am on 27.01.2016, on being instigated by the named accused No.2, namely, Rushna Begum Laskar, i.e. the second wife of the deceased, the accused No.1 Sahab Uddin Laskar had inflicted fatal injuries on the nape, right hand and left cheek of his father. Upon the Ejahar being lodged, Hailakandi P.S. Case No.52/2016 was registered under Sections 302/34 of the IPC. Upon completion of investigation, the charge-sheet No.148/2016 dated 25.06.2016 was submitted before the learned Chief Judicial Magistrate, Hailakandi. Upon being committed to the Court of Sessions, the following charges were framed against the accused appellant Sahab Uddin Laskar and Rushna Begum Laskar @ Ruksana Begum which is extracted as below: “….That your, on 27.01.2016 at 10 Sri Ajay Mura(PW-8) at Gangpar Dhumkar Pt. IV on N.H. No. 154 in furtherance of your common intention committed murder intentionally causing the death of Abdul Jalil Laskar, the father of the complainant and your thereby committed the offence punishable under Section 302/34 of the IPC and within(3) the cognizance of this court.” 3. IV on N.H. No. 154 in furtherance of your common intention committed murder intentionally causing the death of Abdul Jalil Laskar, the father of the complainant and your thereby committed the offence punishable under Section 302/34 of the IPC and within(3) the cognizance of this court.” 3. A reading of the charge framed against the appellant goes to show that he was charged of having committed the offence punishable under Sections 302/34 of the IPC inasmuch as on 27.01.2016 at 10 am Gangpar Dhumkar Pt. IV on N.H. No. 154, in furtherance of their common intention had committed murder by intentionally causing the death of Abdul Jalil Laskar. 4. In course of the trial, the prosecution examined as many as 13 witnesses. 5. PW-1 Nazrul Islam Laskar in his deposition stated that upon hearing a hue and cry from the house of the deceased Abdul Jalil Laskar, he rushed to the house of the deceased and was told by his niece that Abdul Jalil Laskar had died at Hailakandi Town. He then boarded an auto rickshaw and came to the place of occurrence near the bridge by the side of NH 154 and found the deceased lying dead in the side of the road. The witness also stated that near the dead body, a dao was found lying. PW-1 also stated that from the people gathered on the place of occurrence he came to know that the accused Sahab Uddin Laskar had killed the deceased by a dao. The witness also stated that the accused Sahab Uddin Laskar had eloped with the wife of the deceased and later on when the deceased had brought back his wife, there was a quarrel between the deceased and the accused. The witness specifically stated that the investigating police upon reaching the place of occurrence had seized the dao that was lying beside the dead body. Reading of the cross examination of PW-1 shows that the aforesaid evidence rendered by him remain un-rebutted although in fact the PW-1 was cross examined. 6. PW-2, Amrul Islam Laskar, the informant in his deposition stated that at 9:30 am on 27.01.2016, he had seen his deceased father washing his rickshaw in front of B.Ed. College, Hailakandi and he had also saw that the accused Sahab Uddin Laskar was sitting in a shop in front of B.Ed. College. 6. PW-2, Amrul Islam Laskar, the informant in his deposition stated that at 9:30 am on 27.01.2016, he had seen his deceased father washing his rickshaw in front of B.Ed. College, Hailakandi and he had also saw that the accused Sahab Uddin Laskar was sitting in a shop in front of B.Ed. College. While he was in the auto rickshaw stand at Hailakandi, another auto rickshaw driver told him that a murder had taken place on the bypass and one rickshaw puller was cut on his neck by someone. The PW-2 further stated that upon hearing such information he made a phone call to his father but his father had not received the phone. On the other hand the phone was received by the accused Sahab Uddin and the witness could know from the voice of the person who had received that he was his neighbour Sahab Uddin Laskar. He also stated that the accused Sahab Uddin Laskar uttered the word “hello, hello” twice but, thereafter disconnected the mobile phone of his deceased father. Upon reaching the place of occurrence he found the dead body and there were cut marks on the back side of the neck, left cheek and in the left hand and two fingers of the left hand were chopped off. The witness also deposed that on the previous day, the accused had quarreled with his deceased father regarding his wife being taken away. The witness also stated that one cousin of theirs had heard that the wife of the deceased had said to the accused Sahab Uddin Laskar that she would marry him if Sahab Uddin Laskar was able to kill his father, as because, otherwise, if she married him, the deceased father of the witness may again bring her back. It is also stated that a dao was found near the dead body of the deceased and there were blood stains. 7. With regard to the evidence of PW-2 that the witness had made a phone call in the mobile phone of the deceased which he did not received and on the other hand the accused Sahab Uddin Laskar had received the phone, which the witness realized from the voice, in cross the only question that was put was whether the said aspect was stated in the ejahar and the reply given was that it was not stated in the ejahar. 8. 8. PW-3 Noor Uddin Laskar in his evidence stated that upon hearing a hue and cry raised by the people saying that the rickshaw puller Abdul Jalil Laskar was murdered by the accused Sahab Uddin Laskar near the bypass of Hailakandi, he immediately went to the place of occurrence and found that the deceased was lying on the gound with cut injuries on the back of his neck, cheek, and other parts of the body. The said witness is also a witness to the seizure made by police of the blood stained dao that was lying besides the dead body of the deceased. The witness also refers to the incident of the wife of the deceased having been taken away by the accused. Although, the witness was cross examined nothing relevant was extracted thereof. 9. We have perused the evidence of PW-4 Foyaz Uddin Sekh, but do not find any relevant material therein for the purpose of this appeal. 10. PW-5 Sayad Faruk Ahmed had also not deposed anything beyond that he came to know that the deceased Abdul Jalil Laskar was murdered near the bypass by someone and that Rushna Begum was married to the deceased Abdul Jalil Laskar at the relevant point of time was at the parents house and that later on she was seen as the wife of the accused Sahab Uddin Laskar. 11. PW-6 Abdul Jalil Laskar in his deposition stated that he knows the accused Sahab Uddin Laskar who was seen in the police station for the first time about two years back and that at that relevant point of time he was a driver in the police station. 12. PW-7 Sajon Hussain Mazumdar in his deposition stated that a sub-inspector of the police station had told him that he had brought an accused of a murder case and he requires certain signature to be put on a paper, which accordingly he did. 13. PW-8 Dr. M.R. Mazarbhuiya is one of the doctors who had conducted the post mortem examination on the dead body of the deceased. As per the deposition, the following injuries were found: (1) One incised wound of size 10cmX5cmx5cm in the left side of middle portion of neck running transversely with cutting of multiple haemorrhage from the area. (2) Head is partially amputed at the neck in its middle portion. As per the deposition, the following injuries were found: (1) One incised wound of size 10cmX5cmx5cm in the left side of middle portion of neck running transversely with cutting of multiple haemorrhage from the area. (2) Head is partially amputed at the neck in its middle portion. (3) One incised wound of size 10cmX4cmX3cm on left lateral portion of left eye. (4) One incised wound of size 7cmx4cmx3cm on left side nose running from tip to route of the nose. (5) One incised wound of size 9cmX5cmX5cm at the base of thumb in between left thumb and index finger direction oblique. There are cutting of C5,C6 Vertebrae with cutting of jogular vein and carotid artery All the findings described above are anti-mortem in nature. Multiple incised wounds on the body – cutting of carotid artery, jogular veins, neck muscles – massive hemorrhagic – irreversible neurogenic and hemorrhagic shock – cardio respiratory failure – death. In our opinion the cause of death is due to irreversible hemorrhagic shock due to cutting grievous injuries in neck by sharp hard heavy forceful object. Ext. 4 is the said post mortem report and Ext. 4(1) is my signature. 14. PW-9 Dr. Samarjit Chakraborty, who was also one of the member of the three members Medical Board, who had performed the post-mortem examination on the dead body describes the injuries on the dead body which is same as that of PW-8. Apart from describing the injuries, the two witnesses being the doctors, who had performed the post-mortem examination, had not expressed any further opinion on the injuries. 15. PW-10 Ranjoy Rajbongshi is the Investigating Officer, who was entrusted with the investigation. In his evidence PW-10 stated that upon receipt of a telephonic information that a rickshaw puller was killed near the bye-pass he had reached the place of occurrence and found one dead body lying on the side of the road. The witness also stated that he had prepared a rough sketch map of the place of occurrence and Exhibit-5 is the sketch map. He also stated that he seized one dao and one rickshaw from the place of occurrence and the seizure list was exhibited as Exhibit-1. The witness also stated that he had seized certain blood stained cotton, by which the blood of the deceased was collected from the place of occurrence. He also stated that he seized one dao and one rickshaw from the place of occurrence and the seizure list was exhibited as Exhibit-1. The witness also stated that he had seized certain blood stained cotton, by which the blood of the deceased was collected from the place of occurrence. The witness also stated that the Executive Magistrate Sri S. Hoque came to the place of occurrence and conducted the inquest over the dead body and that the dead body was sent for post-mortem to the hospital. The blood samples were sent for FSL analysis. The witness also stated that he had recorded the statement of the witnesses and had arrested the accused persons Sahab Uddin Laskar and Rushna Begum. The witness stated that the confessional statement of the accused Sahab Uddin Laskar was recorded by the Magistrate. Thereafter, as he was transferred, he had handed over the Case Diary to sub-inspector of police Amiya Bhushan Dey. 16. In cross examination, the investigating officer raised certain contradictions that although the time of occurrence in the FIR is written as 10.00 A.M., the inquest report states it to be 9.45 A.M. In cross examination, the witness states that he does not know the owner of the seized dao. 17. PW-11 Amiya Bhushan Dey, who investigated the matter subsequently on the transfer of PW-10, in his deposition stated that when he took over the investigation, he found that the matter was pending only for the receipt of the FSL report and the post-mortem report. Accordingly, when he received the FSL report and the post-mortem report, where the post-mortem report provided a positive report for the presence of human blood Group-A, he had submitted the charge-sheet against the accused persons Sahab Uddin Laskar and Rushna Begum. 18. PW-12 Dr. Subendu Chakrobarty, is the third member of the three Member Medical Board, who had conducted the post-mortem examination and the said witness also described the injuries found on the dead-body, which is same as that of PW-8. 19. PW-13 Sri Ghajen Daimari was the Judicial Magistrate 1st Class, Hailakandi on 20.01.2016 when the confessional statement of the accused Sahab Uddin Laskar was recorded. The Judicial Magistrate deposed that the accused was explained regarding the implication of a confessional statement and the accused had made such statement upon understanding the implication and the related law thereof and appropriate reflection time was also given. The Judicial Magistrate deposed that the accused was explained regarding the implication of a confessional statement and the accused had made such statement upon understanding the implication and the related law thereof and appropriate reflection time was also given. The witness further deposed as regards the content of the confessional statement that the accused had made before him and the confessional statement itself was exhibited as Exhibit-9. The witness in cross examination stated that at the time of recording the confessional statement, he had ensured that the police personnel were not present and had found the accused to be mentally fit for the purpose of confession. The witness in cross examination also stated that although he cannot speak the Bengali language properly, but he understands the language for the purpose of recording of the confessional statement. 20. In his statement under Section 313 Cr.P.C. in response to the question No.3, the accused had given the reply that the evidences with regard to the said question are false. 21. We specifically take note of that in respect of question No.3, the evidence was pertaining to the PW-3 having made a phone call in the mobile phone of the deceased and that the deceased had not received the phone call, but on the other hand it was received by the accused Sahab Uddin Laskar and that from the voice the PW-2 could understand that it was the voice of the accused Sahab Uddin. It was also put before the accused that the evidence further reveals that PW-2 could understand his voice as because he was a neighbor and was used to his voice. In respect of questions No. 12 and 13, the accused was also referred to the evidences that were available as regards the confessional statement he had made on 29.01.2016, where he had voluntarily confessed to the guilt of having given the dao blow on the deceased as because there was an enmity between the accused and the deceased on the incident of the accused having married the wife of the deceased. The evidence was also brought to the notice of the accused that in the confessional statement, the accused had stated that in order to save himself from the dao blow, he had caught hold of the hand of the deceased and snatched the dao and out of anger, had inflicted the dao blows on the deceased Abdul Jalil Laskar as a result of which he died and that Exhibit-9 was the confessional statement. But in answer to question No. 13, the accused stated that he did not understand the language of the Magistrate and that he had not made any such statement. The answers given by the accused under Section 313 Cr.P.C. is construed to be that the accused had retracted of his confessional statement, whereas on the other hand, the prosecution relies upon it to raise the contention that although it may have been retracted, but the prosecution can still rely upon such confessional statement as because the statements made in the confessional statement can also be corroborated through other evidences. 22. Even the evidence of PW-1 Nazrul Islam Laskar, PW-2 Amrul Islam Laskar and PW-3 Noor Uddin Laskar establishes that there was an enmity between the deceased Abdul Jalil Laskar and the accused Sahab Uddin Laskar to the extent that the accused Sahab Uddin Laskar had taken away the wife of the deceased Abdul Jalil Laskar and that was a cause of quarrel and enmity between the two. From the statement of the accused under Section 313 Cr.P.C. it would also reveal that there was a divorce between the deceased and his wife and after three years of the divorce, the accused had married the wife of the deceased. The said evidences also establish that there was an enmity and quarrel between the accused and the deceased as because the accused had taken away the wife of the deceased. 23. In the aforesaid circumstances, by the judgment impugned dated 13.02.2019 of the learned Sessions Judge, Hailakandi, the accused appellant has been convicted under Section 302 of IPC and was accordingly sentenced to a rigorous imprisonment for life and to pay a fine of Rs.5000/- and in default thereof, a further rigorous imprisonment for three months. Being aggrieved, the present appeal is instituted. 24. Mr. Being aggrieved, the present appeal is instituted. 24. Mr. A.M. Barbhuiya, learned counsel for the appellant has raised the contention that apart from the confessional statement made by the accused on 29.01.2016, no further evidence is available on record for the prosecution to prove it beyond all reasonable doubt that it is the accused Sahab Uddin Laskar, who had committed the offence of causing the death to the deceased Abdul Jalil Laskar. 25. We have perused the evidences of the prosecution witnesses as narrated above, and we have not found any evidence to show that it is the accused Sahab Uddin Laskar, who had caused the death to the deceased Abdul Jalil Laskar by giving blows to him with a dao that was found lying beside the dead body of the deceased. In fact, none of the witnesses are eye witnesses and the only relevant evidence in this respect we find is that of PW-2 Amrul Islam Laskar, who is also the son of the deceased as well as the informant. Even the evidence of PW-2 does not in any manner reveals as to who had caused the death to the deceased Abdul Jalil Laskar by giving him blow with the dao that was found lying beside the dead body. 26. In the circumstances, as contended by Ms. S. Jahan, learned Additional Public Prosecutor, the only material that is available on record to establish that the accused Sahab Uddin Laskar had caused death to the deceased Abdul Jalil Laskar by inflicting blows with the dao that was lying beside the dead body, is the confessional statement. But again, it is the contention of Mr. A.M. Barbhuiya, learned counsel for the appellant that the accused had retracted the confessional statement and therefore, the confessional statement also cannot be the appropriate evidence to be relied upon to prove the involvement of the accused Sahab Uddin Laskar. 27. But Ms. S. Jahan, learned Additional Public Prosecutor contends that the law in this respect is that if any further evidence is available on record to corroborate the statements that may have been made in the confessional statement, in spite of such retraction, the confessional statement can still be relied upon to arrive at a conviction against an accused. 28. But Ms. S. Jahan, learned Additional Public Prosecutor contends that the law in this respect is that if any further evidence is available on record to corroborate the statements that may have been made in the confessional statement, in spite of such retraction, the confessional statement can still be relied upon to arrive at a conviction against an accused. 28. With regard to such contention, we go through the evidence once again to examine as to whether any such evidence may be available, which may corroborate the statement made in the confessional statement. The only relevant evidence that can be found, which may give some corroboration to the statement made in the confessional statement is the evidence of PW-2 Amrul Islam Laskar, wherein he had stated that he had made the phone call in the mobile phone of his deceased father, but the deceased had not received the phone and in fact, on the other hand, the phone was received by the accused Sahab Uddin Laskar by uttering the word “Hello Hello” and from the voice, the witness could arrive at his conclusion that it was the voice of the accused Sahab Uddin Laskar as he knew his voice inasmuch as, the accused Sahab Uddin Laskar was his neighbor, and the said piece of evidence had not been rebutted. 29. The implication of the said piece of evidence of PW-2 would be that the accused Sahab Uddin Laskar was in possession of the mobile phone of the deceased immediately after the death of the deceased, meaning thereby, that the accused Sahab Uddin Laskar was connected in some manner with the offence, so as to be in possession of the mobile phone of the deceased immediately after his death. As the accused Sahab Uddin Laskar was in possession of the mobile phone of the deceased immediately after his death, the same gives a veracity to the statements made by the accused in his confessional statement dated 29.01.2016 that it is he who had inflicted the dao blows on the deceased. From such point of view, we accept the contention of the learned Additional Public Prosecutor Ms. S. Jahan that corroborating materials are available to accept the confessional statement of the accused, even though subsequently the same may have been retracted. 30. From such point of view, we accept the contention of the learned Additional Public Prosecutor Ms. S. Jahan that corroborating materials are available to accept the confessional statement of the accused, even though subsequently the same may have been retracted. 30. Having accepted that corroborating materials are available in the evidence-on-record to support the statement made in the confessional statement by the accused on 29.01.2016, inspite of finding no other materials on evidence to implicate the accused person, we accept the contention of the learned Additional Public Prosecutor that the conviction can also be based on the confessional statement made by the accused on 29.01.2016. In other words, we examine the case of the prosecution to establish the offence committed by the accused solely on the basis of the confessional statement. The confessional statement of the accused is available in Exhibit-9 which is extracted as below: “(No oath of affirmation shall be administered) (THE BACKSIDE OF THE PAGE MAY BE USED FOR RECORDING STATEMENT) My name is Sahab Uddin Laskar. I am resident of village Borjurai, which is about 3 k.m. away from the Hailakandi Town. I married twice. My first wife died about 7 years ago at the time of delivery of a child. Then I again married to one Rusna Begum about four years ago, Who happened to be the wife of Abdul Jolil Laskar, who I murdered. The hatred started between me and Abdul Jalil since the day of married to his wife. Truly speaking I did not hate Abdul, but he used to hate me. Out of grudge and out of hatred, Abdul Jolil, one day, with his associately forcefully poisoned me, but, somehow, I saved by the grace of Allah and at that time I was admitted at hospital for two days. On the day of occurrence i.e. on 27/01/2016 at about 10 a.m. I was coming on foot to my nephew’s house situated nearby Satsangh Mandir and at that time Abdul Jolil armed with a dao came to me with his rickshaw and suddenly started giving dao blow upon me. To save myself from the dao blows I suddenly caught his hand and snatched away the dao and out of anger I gave him dao blow (I cannot say how many dao blows I gave) and he died.” 31. To save myself from the dao blows I suddenly caught his hand and snatched away the dao and out of anger I gave him dao blow (I cannot say how many dao blows I gave) and he died.” 31. A reading of the confessional statement goes to show that the accused had confessed that after the death of his earlier wife, he married Rushna Begum, who happened to be the wife of the deceased Abdul Jalil Laskar, whom he had murdered. In other words, it is an admission and confession of the accused that he had murdered the deceased Abdul Jalil Laskar. The confessional statement further provides that the hatred between the accused and the deceased started since the day the accused had married the wife of the deceased. The accused further confessed that he did not hate the deceased but on the other hand, the deceased used to hate him. He further confessed that out of the grudge and hatred, the deceased Abdul Jalil Laskar had poisoned him one day but somehow by the grace of God he saved himself. The second part of the confessional statement is that on the day of the occurrence at 10:00 AM i.e. on 27.01.2016 while the accused was going on foot towards his nephew’s house, at that time the deceased Abdul Jalil Laskar armed with a dao came to him in his rickshaw and suddenly started giving the dao blows upon the accused. The accused in order to save himself from the dao blows, suddenly caught hold the hand of the deceased and snatched away the dao and out of the anger, he had given the dao blows because of which the deceased had died and that the accused did not know how many dao blows were given by him. 32. True, the confessional statement reveals that there is a confession by the accused that he had caused death of the deceased by inflicting blows with the dao, but at the same time under the law, the whole of the confessional statement has to be taken into account and we cannot segregate the part of the confessional statement, where the confession of committing the offence is available and ignore the other part of the confessional statement where the accused states as to how and in what manner and under what circumstance, he had committed the offence to which he had confessed. 33. 33. Ms. S. Jahan, the learned Additional Public Prosecutor raises a contention at this stage that only the inculpatory part of the confessional statement has to be taken into consideration and the Court has to ignore the exculpatory part of the statement. According to the learned Additional Public Prosecutor, the part of the confessional statement where the accused states that he was attacked by the deceased with a dao and in defence thereof, he had caught hold the hand of the deceased, snatched the dao and had given the blows would be exculpatory part of the confessional statement. 34. To clarify the aspect, we look into the meaning of the words ‘inculpatory evidence’ and ‘exculpatory evidence’. The Black’s Law Dictionary (Ninth Edition) defines “inculpatory evidence’ to be an evidence showing or tending to show one’s involvement in a crime or wrong. On the other hand, ‘exculpatory evidence’ is defined to be an evidence tending to establish criminal defence of innocence. 35. Taking the meaning of the expression inculpatory evidence and exculpatory evidence as provided hereinabove and understanding the meaning thereof, we examine the confessional statement of the accused made on 29.01.2016. One part of the confessional statement is that the accused had committed the offence of giving blows with the dao to the deceased which had caused his death, and the other part of the confessional statement is that the accused had given blows inasmuch as it is the deceased who had attacked him with the dao and in order to save himself from such attack, he had caught hold of the hand of the deceased, snatched the dao and in a fit of anger had given the dao blows on the body of the deceased. 36. Exculpatory evidence means the evidence tending to establish a criminal defence of innocence, but in the instant case, we find that the further part of the confessional statement where the accused states that the deceased came with a dao and attacked him and in order to save himself from such dao, he caught hold the hand of the deceased and snatched the dao and in the fit of anger gave blows on the deceased is not an evidence which tends to establish the innocence of the accused, but it is an evidence which establishes that the accused had exercised his right of self defence. It being so, the said part of the evidence cannot be called to be exculpatory evidence and therefore, the principle of law relied upon by the learned Additional Public Prosecutor that the exculpatory part of the confessional statement is to be excluded is found to be unacceptable in the present circumstance. 37. Now, when we further examine the evidence of the accused from the confessional statement dated 29.01.2016, we find that when the deceased attacked the accused with a dao, he had caught hold of the hand of the deceased, snatched the dao and in the fit of anger had given the fatal blows on the deceased. To the extent that the accused had caught hold of the hand of the deceased and had snatched the dao would be an act that was done by the accused in his self defence. But after being in full control of the situation with the dao in his hand after snatching it away, the accused is in a dominant position to attack the deceased and from that moment onwards it cannot be said that the accused was exercising his right of private defence. It is not a case where to save himself from the attack by the deceased, the accused had counter attacked, which had caused the death of the deceased. 38. In other words, now we are required to examine the implication of the further evidence that in the fit of anger the accused had inflicted the fatal blows on the deceased with the dao which he had already snatched. 39. The mind of the accused to arrive at the state of being in a fit of anger can be understood from the preceding evidence where the deceased had attacked the accused with a dao with the intention to cause injuries upon him. 40. Committing an offence of giving fatal blows with a dao in a state of fit of anger can be brought in within the provisions of Exception 4 to Section 300 of the Indian Penal Code which provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The circumstance under which the fit of anger arose and the fatal blows were given in the instant case, were in a situation where just prior to it, it was the deceased who was attacking the accused with a dao in his hand and such circumstance clearly comes within the purview of the act being done without a premeditation in a sudden fight in a heat the passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 41. We are not oblivious of the aspect that where the plea of private defence is taken, such plea ought to be duly established by the accused who takes the plea. In ordinary circumstance when in course of trial the plea of private defence is taken by the accused, all the aforesaid provisions of law would be a requirement and there has to be evidence to be led by the accused to establish that he had exercised the right of private defence. But in the instant case, the circumstance is different to the extent that it is the plea of the accused that no evidence is available to establish that it is the accused alone who had given the fatal blows which had caused the death of the deceased. 42. The relevance of the private defence in the instant case comes only upon the stand of the prosecution that the conviction can be sustained on the basis of the confessional statement. In the circumstance, we have examined the confessional statement and found that the statement itself has two parts, where one part shows the confession of the offence being committed by the accused and the second part shows as to why he had committed the offence, which raises the question of private defence. As the question of private defence flows on the basis of the confessional statement which had been relied upon by the prosecution for conviction of the accused, we are of the view that the application of the right of private defence can be examined from the statement in the confessional statement itself without requiring the provision of the general law to be made applicable regarding the plea of exercising of right of private defence to be proved by the defence. 43. 43. Having arrived so, we are of the view that the appellant accused had committed an offence of culpable homicide not amounting to murder and which is an act that may have been done with the knowledge that it is likely to cause death but without any intention to cause death or any such bodily injury as it likely to cause death. 44. Although the conduct of the accused in taking away the wife of the deceased cannot be appreciated in any circumstance but we also take note that after such incident there was a constant quarrel and enmity between the deceased and accused. 45. We have been told that taking the period of the detention during the investigation stage and the period after conviction, the total period the accused appellant being in custody is three years one month. 46. Although Mr. A.M. Barbhuiya, learned counsel for the appellant makes a submission that the appellant can be convicted for the period already undergone, but considering the grievous manner in which the offence was committed, we are of the view that the conviction of five years of rigorous imprisonment would be appropriate by retaining the earlier fine of Rs.5000/-(Rupees Five Thousand) with further rigorous imprisonment of three months in default thereof. 47. Appeal stands disposed of in the above terms. 48. Send back the LCR immediately.