Bhaskar Raj Pradhan, J.

1. The facts are not much in dispute in the present appeal. The interpretation and the application of the law is however, contested. There is a solitary eye witness to the offence of culpable homicide not amounting to murder, on proof of which, the learned Sessions Judge, has sentenced the Appellant to simple imprisonment for a period of three years and to pay a fine of Rs. 25,000/- for the offence under Section 304 Part II, Indian Penal Code, 1860 (IPC). In default, a further incarceration of simple imprisonment of six months.

2. Heard Mr. Udai P. Sharma, learned Counsel for the Appellant and Mr. S.K. Chettri, learned Assistant Public Prosecutor for the State.

3. Mr. Udai P. Sharma, would admit the assault on the deceased but would submit that it was done accidentally and in exercise of his right of private defence. He would draw the attention of this Court to the statement of the solitary eye witness, Chandra Subba, in cross-examination and submit that the said prosecution witness having not been declared hostile, the evidence in cross-examination, as above was binding on it. To counter the objection of the State-Respondent to the Appellant’s additional plea of private defence not urged in the memorandum of appeal, Mr. Udai P. Sharma, would draw the attention of this Court to the answer to question No. 69 of the statement of the Appellant under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) The Appellant was asked: “do u have any statement to make in your defence?” to which he answered: “I am innocent, I have assaulted the deceased on my private defence under the sudden provocation without any intention to kill him.” He would thus argue that private defence plea having been taken by the Appellant himself during the trial, this Court could examine the said plea and in any case additional grounds of private defence has been sought for vide the Appellant’s application being I.A. No. 2 of 2017. Mr. Udai P. Sharma, would rely upon the following authorities in support of his submissions:- 1. Munshi Ram & Ors. v. Delhi Administration, AIR 1968 SC 702; 2. Mohinder Pal Jolly v. State of Punjab, (1979) 3 SCC 30; 3. Buta Singh v. State of Punjab, (1991) 2 SCC 612; 4. Sekar Alias Raja Sekharan v. State Represented by Inspector of Police, T.N., (2002) 8 SCC 354; 5. James Martin v. State of Kerala, (2004) 2 SCC 203; 6. Prakash Subba v. State of Sikkim, 2017 CRI. L. J. 2713. He would further submit that the prosecution evidence of Chandra Subba clearly stating that the Appellant had assaulted the deceased only once, the multiple injuries on the head ought to have been explained by the prosecution but instead vide the impugned judgment the onus has been shifted to the accused dehors the settled principles of law. Mr. Udai P. Sharma, would draw the attention of the Court to the evidence of Nirmal Chettri, the brother of the deceased. He testified that his deceased brother had gone to Singring, Lachung to collect ration but did not return. On the following day some Police Personnel from Lachung Police Station along with his employer, Palzor Lama came to the jungle where they were working and his employer told him that “Police had assaulted my brother Mahesh.” Mr. Udai P. Sharma would urge that as the prosecution had failed to explain the multiple injuries on the head sustained by the deceased, contrary to the clear and cogent evidence of the sole eye witness, Chandra Subba, that the Appellant had hit the deceased only once, it is quite clear that two views were possible. He further urged that in view of the fact that Nirmal Chettri was also not declared hostile two views were discernible from his evidence too and in such cases it is settled law that the one in favour of the accused must be accepted. (Anne Nageswara Rao v. Public Prosecutor, Andhra Pradesh, (1975) 4 SCC 106). He would submit that the learned Sessions Judge had faulted in not appreciating that in criminal trials the standard of guil