JUDGMENT : 1. Heard Mr. T. Lalnunsiama, learned Amicus Curiae for the appellant and Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State respondent. 2. This is an appeal from jail against the Judgment & Order dated 19.11.2018, passed by the Sessions Court, Lunglei in Crl. Tr. No.45/2016 under Section 302 IPC arising out of Lawngtlai P.S Case No.33/2016 dated 10.06.2016, by which the appellant has been convicted under Section 304 IPC (altered charge) and sentenced to undergo R.I for a period of 8 years with a fine of Rs.2,000/- in default S.I. for 6 months. 3. Prosecution case in a nutshell is that on 10.06.2016 while the appellant/accused was at Lawngtlai Bazar he had offered Lalnunziri, wife of deceased victim Lalhmunzauva to have sexual intercourse on the payment of Rs.1,000/-. The appellant/accused had gone downstairs of nearby building and forcefully had sexual intercourse with the wife of deceased. At this point the deceased victim Lalhmunzauva came and he entered into altercation with the accused. During the altercation the accused allegedly stabbed the deceased and fled but was later apprehended by the local people. The victim Lalhmunzauva succumbed to his injuries and his brother Zakaria submitted FIR at the Lawngtlai Police Station and Lawngtlai P/S C/No. 33/2016 dated 10.06.2016 u/s 302/376(1) IPC was registered and duly investigated. The deceased victim was sent for PME. On collection of all material evidences and on examination of the witnesses, a prima facie case u/s 302 IPC was found against the appellant/accused and charge sheet was submitted accordingly on 16.06.2016. 4. On 20.01.2017 the charge under section 302 IPC was framed and read out to the appellant/accused in the language know to him to which he pleaded not guilty. During trial the prosecution examined 12 witnesses, the appellant/accused was examined under 313 Cr.P.C. The appellant/accused had no defense witness. The learned trial court after considering the evidences altered the charge under section302 IPC to section 304 IPC and convicted the appellant under section 304 IPC on 19.11.2018, sentencing him to undergo R.I for a period of 8 years with a fine of Rs.2,000/-in default S.I. for 6 months. Aggrieved the appellant has filed the instant jail appeal. 5. Mr. The learned trial court after considering the evidences altered the charge under section302 IPC to section 304 IPC and convicted the appellant under section 304 IPC on 19.11.2018, sentencing him to undergo R.I for a period of 8 years with a fine of Rs.2,000/-in default S.I. for 6 months. Aggrieved the appellant has filed the instant jail appeal. 5. Mr. T. Lalnunsiama, the appointed Amicus Curie representing the appellant submits that that the learned Court of District & Sessions Judge has erred in sentencing the appellant under section 304 IPC by not mentioning or specifying to whether it is the first part or the second part of section 304 IPC under which the appellant is convicted. In support of his submission, he has relied upon the decision of the Apex Court in State of Andhra Pradesh -Vs-Rayavarapu Punnayya & Anr. reported in 1976 Vol 4 SCC 382 para 12 . 6. The learned Amicus Curiae further submits that the appellant had acted in private defence since the victim had approached him with the Log and therefore he may be acquitted as provided under section 96 & section 100 IPC. The evidence of PW 3 & PW 8 shows that the victim and the appellant were fighting and that the appellant had acted in self defence. The appellant on examination under 313 Cr.PC has also clarified that the reasons for stabbing the victim was because he had approached with a wooden log and he had stabbed the victim as private defence which clearly comes under general exception. In support of his point he has cited in the case of Subramani & Ors. Vs. State of T.N. reported in (2002) Vol VII SCC 210 para 19 & 22. 7. The learned Addl. Public Prosecutor on the other hand submits that the learned Lower Court has not cause any prejudiced to the appellant in not mentioning which part of section 304 IPC the appellant is convicted and by sentencing him to only 8 years RI with a fine of Rs.2000/-. 8. The learned Addl. Public Prosecutor further submits that the appellant cannot take the plea that he was acting in self defense as none of the PWs had mentioned any log of wood, PW Nos. 5, 6 & 7 have only narrated what they heard from the accused who mentioned that the victim had approached him with a log of wood. The learned Addl. Public Prosecutor further submits that the appellant cannot take the plea that he was acting in self defense as none of the PWs had mentioned any log of wood, PW Nos. 5, 6 & 7 have only narrated what they heard from the accused who mentioned that the victim had approached him with a log of wood. From the nature of the mentioned log of wood, the action of the accused in stabbing the victim several times as seen from the postmortem report cannot be said to be an act of self defence. 9. Having considered the submissions made by the learned counsels representing both the parties, this Court finds that it is not a disputed fact that the appellant had caused the death of the deceased victim by stabbing him to death. The appellant on examination under 313 Cr.P.C has taken the plea that the deceased had come with a log of wood while he was having sex with Lalnunziri and rebuked him. Since the deceased victim had intended to strike him with a log of wood, he immediately got up and attacked the deceased in self defence. 10. The Apex Court in Subramani & Ors. Vs. State of T.N.(supra) held that : “It is well settled that once it is held that the accused had the right of private defence and reasonably apprehended that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised, the right of private defence of property extended under Section 103 IPC to voluntarily causing the death of the aggressor subject to restrictions mentioned in Section 99 IPC. In this case, if the appellants acted in exercise of their right of private defence of property, it cannot be said that they committed a criminal act in furtherance of a common intention, because Section 96 IPC makes it abundantly clear that nothing is an offence which is done in the exercise of the right of private defence. “ 11. In the instant case the evidence adduced by the PWs is examined to see whether the appellant had acted in self defence while of stabbing the victim to death. 12. PW No.1/Zakaria: is the complainant and the victim/deceased is his cousin who on being informed that his brother Lalhmunzauva (deceased) had been stabbed in the Bazar area of Lawngtlai proceeded to the place. 12. PW No.1/Zakaria: is the complainant and the victim/deceased is his cousin who on being informed that his brother Lalhmunzauva (deceased) had been stabbed in the Bazar area of Lawngtlai proceeded to the place. The victim was taken to District Hospital, Lawngtlai where he succumbed to his injuries. He then submitted the FIR. He thus was not an eyewitness and had no knowledge whether the appellant had acted in self defence or not. 13. PW No. 2/T. Tialtlunga : has stated that during the time of incident he was residing at Bazar vena, Lawngtlai immediately next to the place incident. During this time he heard the cry of a woman in distress and immediately opened the window. From the window he saw two persons on the ground of the lowest level of next door building who appeared to be assaulting each other. He saw that one person was on top of the other and saw that the person on top with a knife was repeatedly stabbing the person below him. He shouted out as to who they were and what they were doing. On hearing his voice the person on top immediately got up and put the knife inside his back pocket with the blade sticking out and he ran away. The injured person was taken to the hospital and immediately during this time the attacker was also apprehended and brought to the place of incident by the other bystanders. In his cross-examination he stated that the window from where he looked out and the place of incident is about 12 feet in distances. But he denied the suggestions that he had not seen the alleged weapon with which the accused was attacking. 14. PW No.3/Malsawmi: identified the accused and stated that on the date of incident i.e. 10.06.2016 she had just finished taking her dinner and it was about 5 – 6pm when she heard the cry of a women in distress from the house which was immediately above our residence. She looked up and saw one woman crying and two persons fighting with each other. She saw that one person was sitting on top of the other and was jabbing a knife with his arm on the other person who was lying below him. Cross examination declined. 15. PW No.4/Zomuana: states that he saw one woman with her head cover and a man lying on the ground. She saw that one person was sitting on top of the other and was jabbing a knife with his arm on the other person who was lying below him. Cross examination declined. 15. PW No.4/Zomuana: states that he saw one woman with her head cover and a man lying on the ground. He checked him and found that he was bleeding from his abdomen. He dragged him to the road side and with the help of bystanders helped him into an auto rickshaw and took him to the hospital. They arrived at Civil Hospital where the man was declared dead a few moments afterwards. In his cross examination he stated that he did not witness the act of stabbing by the accused. 16. PW No.5/A. Malsawma stated that during the time of incident he was President of Bazar Veng, YLA, Lawngtlai. He was summoned to the police station on 16.06.2016 in connection with the incident. He was requested by the police to be present while the accused was interrogated. The accused had confessed to having committed the offence. On 10.06.2016 he had entered into an agreement with the wife of the deceased to have consensual sex on payment. While they were having sex in the downstairs of a building under construction the husband (deceased) came down and threatened him witha log of wood. They entered into an argument and physically assaulted each other. During the altercation the accused confessed that he had stabbed the deceased with a knife he was carrying. After the Interrogation by the police the accused led the police and he accompanied them to the place where the accused had allegedly thrown away the knife. The alleged weapon was recovered and he stood as seizure witness. In his cross examination he denied the suggestions that the seized article was seized from the police station, that the accused did not confess to having committed the offence, that the accused did not confess to the place of concealment of the seized article. 17. The deposition of PW No. 6/F. Chanliana & PW No.7/K. Lalfanthanga are more or less similar with the deposition of PW 5 wherein what they know of the incident is what was stated by the accused/appellant on interrogation before the police. 18. 17. The deposition of PW No. 6/F. Chanliana & PW No.7/K. Lalfanthanga are more or less similar with the deposition of PW 5 wherein what they know of the incident is what was stated by the accused/appellant on interrogation before the police. 18. PW No. 8/Lalnunziri; stated that on 10.06.2016 in the evening before dark she was near the Baptist Bookroom, Lawngtlai along with my husband Lalhmunzauva (deceased). The accused was sitting on the step near the Baptist Bookroom and her husband told her to enquire whether the accused had any liquor. She approached the accused who offered her Rs. 1000/-to have sexual intercourse. She went downstairs near the Bookroom and accused thereafter immediately laid down some cardboard on the ground and forcibly had sexual intercourse with her, He strangled her by the throat and she could not shout. After sometime her husband being worried came down the stairs and both the accused and her husband started fighting with each other. Since she was frightened she ran away to some distance and could not look towards them. She could not immediately shout due to fear. After a while she shouted out for help and people gathered and the accused was chased and apprehended by the public. She also went down the stairs with the other people and saw that her husband on the ground and that he was blood stained. She was taken to the police station by the public and her husband was taken to the hospital. Her statement was not shaken during her cross examination. 19. PW No. 9/S.I. Lalawmpuii: stated that she had made requisition for medical examination of the wife of deceased in connection with this case which was initially investigated u/s 376 IPC. However during completion of investigation this section was dropped and the case was proceeded u/s 302 IPC. Cross examination is declined. 20. PW No. 11/Dr. Lalmalsawma : stated that on 11.06.2016 he had received requisition for conducting PME on the body of deceased Lalhmunzauva. On physical examination of the death body he found four injuries – one stab wound on mid -chest and three stab wounds on left upper abdomen. On examination of the internal organs he found intra abdominal wound and perforation of second part of duodenum and laceration of the spleen which had caused haemorrhaged and blood collection in the abdominal cavity. On physical examination of the death body he found four injuries – one stab wound on mid -chest and three stab wounds on left upper abdomen. On examination of the internal organs he found intra abdominal wound and perforation of second part of duodenum and laceration of the spleen which had caused haemorrhaged and blood collection in the abdominal cavity. In his opinion the cause of death was hypovolemic shock as result of haemorrhage to the injuries of duodenum and spleen. 21. PW No. 12 /S.I. K. Lalhluna: is the case I.O who on 10.06.2016 received the FIR was from one Zakaria at Lawngtlai P.S to the effect that his brother and wife who were roaming in Lawngtlai Bazar were forcibly dragged and raped by the accused and further attacked his brother with a knife to which he succumbed to his injuries. He was endorsed with the case to take investigation. He formally arrested the accused who was escorted to the Police station by the local bystanders. He interrogated the accused and recorded his statement. On the next day he conducted inquest on the dead body which was in the custody of the relatives and sent the dead body for PME. He visited the P.O and searched for the alleged weapon used by the accused. He also examined possible witnesses in the vicinity and recorded their statement. The accused made disclosure statement which he recorded in the presence of three civilian witnesses. Based on the disclosure statement the alleged weapon was recovered from the P.O. After he seized the alleged weapon and examining of reliable witnesses he did not make charge against the accused U/S 376 IPC. He found a prima facie case U/S 302 IPC against the accused Lalramenga and filed charge-sheet accordingly. He works further back to state that there was typographical mistake on the brief story of the case where the date of FIR is mentioned as 16.06.2016. This mistake maybe read as 10.06.2016. The Charge-sheet and all relevant documents were exhibited accordingly in the trial court. During cross examination there was no reason to doubt the steps taken during the investigation of the case. 22. This mistake maybe read as 10.06.2016. The Charge-sheet and all relevant documents were exhibited accordingly in the trial court. During cross examination there was no reason to doubt the steps taken during the investigation of the case. 22. On scrutiny of the evidence adduced by the prosecution I find that none of the eye witnesses i.e PW2, PW3, PW4 Pw 8 have mentioned the log of wood as stated by the appellant which was supposedly used by the deceased victim. There was no such log of wood recovered from the P.O. Further from the post mortem report it is seen that the victim had one stab wound on mid -chest and three stab wounds on left upper abdomen. 23. Section 100 of the Indian Penal Code is extracted as under: "100. When the right of private defence of the body extends to causing death. --The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: - First. --Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly. --Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;………….. 24. The Apex Court in Darshan Singh vs State Of Punjab & Anr on 15 January, 2010 in Criminal Appeal NO. 1057 of 2002 held that : “The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate.” 25. In the instant case PW 2, PW 3, PW 4 saw the appellant who was on top of the deceased victim stabbing the deceased victim with a knife. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate.” 25. In the instant case PW 2, PW 3, PW 4 saw the appellant who was on top of the deceased victim stabbing the deceased victim with a knife. There is no evidence that indicated that the appellant was under a reasonable apprehension of receiving the injury. From the nature of injury sustained by the deceased victim as stated in the Post mortem report I find that it appears to be excessive as there is no evidence of the appellant being in a position where he was in a situation of apprehension that death will otherwise be the consequence of such assault by the deceased victim ; For the aforesaid reason I find that the claim of the appellant that he was acting in self defence is not sustainable. 26. With regards to the conviction of the accused under section 304 IPC: Section 304 IPC prescribed punishment for offence of culpable homicide not amounting to murder as defines in section 299 IPC. It reads as under:- “304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 27. The Apex Court in State of Andhra Pradesh -Vs-Rayavarapu Punnayya & Anr. has stated that; “12. In the scheme of the Penal Code, ‘culpable homicide’ is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, culpable homicide’ sans ‘special characteristics of murder’, is ‘culpable homicide not amounting to murder’. The Apex Court in State of Andhra Pradesh -Vs-Rayavarapu Punnayya & Anr. has stated that; “12. In the scheme of the Penal Code, ‘culpable homicide’ is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, culpable homicide’ sans ‘special characteristics of murder’, is ‘culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the greatest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.” 28. The learned trial court in the instant case has not made clear under which part of Section 304 IPC has he convicted the appellant and sentenced him to undergo R.I for a period of 8 years with a fine of Rs.2,000/-in default S.I. for 6 months. However, from the evidence on record it is clearly proved that the appellant has committed culpable homicide not amounting to murder and thus I find that vitiating the case due to this lapse would not meet the ends of justice and thus find it fit to uphold the Judgment & Order dated 19.11.2018, passed by the Sessions Court, Lunglei in Crl. Tr. No.45/2016. 29. Crl.A No.38 of 2019 (J) is thus accordingly dismissed and stands disposed of. 30. In appreciation of the services of the learned Amicus Curiae the State Legal Services Authority shall pay him his remuneration of Rs. 7500/-.