JUDGMENT BURMAN, J. :- The eight appellants herein were convicted under Sec tion 302/149, Indian Penal Code on a charge of murder of two persons mentioned in the charge, as members of an unlawful assembly and sentenced to rigorous imprisonment for life. The five appellants Gundicha Bhoi, Bahuda Bhoi, Benu Bhoi, Bula Bhai and Narasingha Bhoi were convicted under Section 323, Indian Penal Code for causing simple injury and sentenced to rigorous imprisonment for two months. Appellant Bahuda Bhoi was further convicted under Section 325, Indian Penal Code for causing grievous injury and sentenced to rigorous imprisonment for one year. All the sentences are to run concurrently. 2. The case arises out of a certain land dispute resulting in an incident on August 25, 1960 at 4 p.m. at village Uchhupur, Dt. Puri, nine miles from the police station at Nimabara. Several persons were injured on both sides and two persons Bana Bhoi and Naran Bhoi (father and son) of the prosecution party were killed. Narain Bhoi, the son died at mid-night the same day and Bana Bhoi, the father, died on the following morning - both at Balanga dispensary where they were brought immediately after the incident. On August 26, 1960 at 1 P.M. one of the eye-witnesses P.W. 1 Charan Bhoi, son of deceased Bana, Bhoi, lodged First Information Report at the police station and he named all the eight appellants. Thereupon the police investigation started and on August 27, 1960 all the appellants except one were arrested. Subsequently, the remaining appellant was also arrested by the Police. It appears that the defence party had also filed a First Information Report Ext. A, on August 27, 1960 at 4 P.M. and in the said F.I.R. in the counter case filed by appellant Gundicha Bhoi, as many as 25 persons were named including 10 P.Ws. in the present case charging all of them with rioting, assault and house trespass as recorded therein. It is not necessary to decide herein the somewhat controversial point of admissibility of the recitals in the F.I.R. in the counter case. 3. The appellants all belonging to the Bhoi community of the village of incident are inter-related. in the present case charging all of them with rioting, assault and house trespass as recorded therein. It is not necessary to decide herein the somewhat controversial point of admissibility of the recitals in the F.I.R. in the counter case. 3. The appellants all belonging to the Bhoi community of the village of incident are inter-related. Appellant Gundi cha Bhoi and Bahuda Bhoi are brothers; appellants Bula Bhoi and Punia Bhoi are sons of appellant Banchha Bhoi appellant Aparti Bhoi is the father of appellant Narasingha Bhoi; appellant Benu Bhoi though related to the prosecution party being the brother of the deceased Bana Bhoi appears to have sided with the defence party. 4. The genesis of the incident which led to assaults on both sides resulting in the death of two persons on the prosecution side is a land dispute over a cocoanut Bari which one Sashimoni Devi as lessee from intermediary claims to be in possession as the malik thereof whereas appellant Aparti Bhoi (father of appellant Narasingha Bhoi) claims to be in possession of the entire cocoanut Bari as a tenant with occupancy right for thirty years. The prosecution case is that on the date of occurrence P.W. 7 Mangulia Bhoi, - at the instance of his relation (Samudhi) deceased Bana Bhoi, a Mulia of Sashirnoni Devi, - went to plough a piece of land inside the cocoanut bari for growing seedlings some time in the afternoon on the date of incident. Thereupon, appellant Aparti Bhoi who claims to have been in possession of the land in dispute protested. P.W. 7 Mangolia Bhoi accordingly unyoked the plough and was going towards north to his relation deceased Bana's house. On the way, however, Mangolia was confronted by appellant Narasingha at the door and Narasingha gave Mangulia three or four blows with a Tada. Thereupon, P.W. 7 Mangulia further proceeded towards the north for going to his relation's house. On the way he was obstructed by appellant Bahuda Bhoi on the village Danda who also gave Mangulia some blows with a lathi causing fracture of his hand. There after Mangulia somehow managed to run near the house of his Samudhi Bana Bhoi and fell down on the village road unconscious. P.W. 1 Charan Bhoi seeing the incident raised an alarm. There after Mangulia somehow managed to run near the house of his Samudhi Bana Bhoi and fell down on the village road unconscious. P.W. 1 Charan Bhoi seeing the incident raised an alarm. Thereupon his father Bana Bhoi and brother Naran Bhoi came to the Danda and found appellant Bahuda Bhoi stand ing with a lathi in his hand. Bana Bhoi and Naran Bhoi then asked appellant Bahuda Bhoi why he had assaulted Mangulia. Appellant Bahuda Bhoi then called out his asso ciates to come and thereupon all the other appellants ap peared on the scene with lathis in their hands and surround ed Bana Bhoi and Naran Bhoi and mercilessly belaboured them with lathi blows. Bana Bhoi and Naran Bhoi then fell down on the ground and it is said that the appellants gave further lathi blows on the said two victims. The prosecution case further is that the defence party assaulted many other persons and that thereafter in retali ation P.W. 1 Charan Bhoi, P.W. 4 Isuf Khan and P.W. 6 Wahed Khan dealt lathi blows to some members of the defence party. Thereafter Bana Bhoi and Naran Bhoi both in precarious condition lying on the Village Danda were carried in a bullock cart to Balanga dispensary where they died as aforesaid. It was immediately after their death that P.W. 1 Charan Bhoi proceeded to Nimapara Police Station, nine miles away from Balanga and reported the incident in his First Information Report as aforesaid. In the usual course, after investigation the appellants were arrested, committed and sent up for trial. 5. In defence the appellants took the plea of right of private defence of both property and person as alleged. The defence version of the incident is this : Because of previous litigations, deceased Bana and Naran and most of the occurrence witnesses for the prosecution were all siding with Sashimoni Devi. Appellants were on the side of the appellant Aparti Bhoi who is said to have been in pos session of the cocoanut Bari for about thirty years as aforesaid. Sashimoni never possessed the cocoanut Bari although at her instance several false cases are alleged to have been previously instituted. Appellants were on the side of the appellant Aparti Bhoi who is said to have been in pos session of the cocoanut Bari for about thirty years as aforesaid. Sashimoni never possessed the cocoanut Bari although at her instance several false cases are alleged to have been previously instituted. On the date of occurrence, P.W. 7 Mangulia, Samudhi of Bana Bhoi one of Sashimoni's party men, went to plough and take forcible possession of some land inside the co coanut Bari while P.W. 3 Lingaraj, son of P.W. 17 Fakira Das, Gumastha of Sashimoni Devi and others numbering about 50 or 60 persons ail on Sashimoni's side were there standing armed with lathis. Appellant Aparti Bhoi having protested and asked Mangulia not to plough the land inside the cocoanut Bari, the prosecution party started assault whereupon appellant Narasingha out of fear retired to his house but he was dragged out forcibly and was further assaulted. The defence plea is that the prosecution party men had first assaulted some members of the defence party, who by then had come to the scene and then the defence party men, some holding lathis in their hands, brandished their lathis and during such disturbance, Bana Bhoi and Naran Bhoi were struck down and they fell down on the ground inside the cocoanut Bari, and further that Mangulia Bhoi also fell down about 4 cubits away from the Bari. Thus it was in these circumstances that the deceased Bana Bhoi and Naran Bhoi came to be the victims of the lathi blows in course of mutual assaults between the parties which caused their death. 6. Thus it was in these circumstances that the deceased Bana Bhoi and Naran Bhoi came to be the victims of the lathi blows in course of mutual assaults between the parties which caused their death. 6. On possession, the learned trial Judge found that the entire cocoanut Bari had got Kia fences all around it and the house of the appellant Aparti stands within the Kia fence of the cocoanut Bari and held that - "......the action of Mangulia in having gone to the Nadia Bari and in having ploughed a patch of land there on the so-called authorisation of his Samudhi Bana, must be deemed to be an out and out act of trespass, which should give Aparti Bhoi, who was claiming to be in possession of the Nadia Bari, a lawful right of private de fence of his property against the trespass committed there by Mangulia." But on a careful scrutiny of the evidence, the learned trial Judge ultimately came to the conclusion that the deceased Bana and Naran must have been assaulted on the village Danda and having regard to the direct testimony of the eye-witnesses that all the appellants participated in assaulting Bana and Naran with lathis, there could be no semblance of any right of private defence available to the appellants in the facts and circumstances of the case and accordingly the learned trial Judge convicted and sentenced the appellants on various charges in terms as aforesaid. 7. The determination of the question whether there exists the alleged right of private defence is always a question of fact. It is always the accepted principle that the standard of proof necessary on the part of the prosecution to establish the guilt of the accused beyond all reasonable doubt is not what is required of the accused persons to establish their plea under any of the general exceptions of the Indian Penal Code. But if the Court after review of the entire evidence on record, finds that the plea is a plausible theory and if the court entertains a reasonable doubt in his mind as to the guilt of the accused, the ac cused is certainly entitled to the benefit even though the accused person has not been able to fully establish his plea of self-defence or any other plea under the general exceptions in the Indian Penal Code. There are two important facts in every criminal trial that weigh heavily in favour of an accused person; one is that the accused is entitled to the benefit of every reason ble doubt and the other, an off-shoot of the same prin ciple, that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted un less the circumstances indicate that they are false (Aher Raja Khima v. State of Saurashtra, (S) AIR 1956 SC 2l7). 8. The defence stand herein is this : If anybody comes and invades his property he can certainly resist such an aggressor with force, and if in so doing a mutual assault starts he is not responsible for the consequences. The cocoanut Bari was found to be in the possession of the appellant Aparti Bhoi. The prosecution party had no right to plough the field inside the cocoanut Bari or to take forcible possession until whoever is in possession is evicted in accordance with law. In fact, at all material times litigation between the defence party claiming as bhagchasis and Sashimoni Devi as lessee under the ex-Inter mediary was going on. P.W. 7 Mangulia of the prosecution party is said to have pushed Aparti, and thereupon Aparti's son Narasingha came into the picture. It is said that the people who were standing nearby were of prosecution party and some of them beat the de fence party. According to the defence version, the only reasonable inference, which may be drawn from all these, is that the prosecution party had come to take possession forcibly. It was in such state of things that the other appellants came to help the appellants Aparti and Nara singha who were in possession and the defence party did not exceed their right of private defence. 9. In a case like this, location of the place of assault and sequence of events are the two vital considera tions for fixing culpability. As regards location of the place of assault, which resulted in the death of Bana Bhoi and Naran Bhoi, the rival versions are these : The de fence case is that it took place inside the cocoanut Bari of which the appellant Aparti was in possession. As regards location of the place of assault, which resulted in the death of Bana Bhoi and Naran Bhoi, the rival versions are these : The de fence case is that it took place inside the cocoanut Bari of which the appellant Aparti was in possession. The pro secution case is that the defence version is based on a wrong assumption that the entire cocoanut garden in dis pute on plot Nos. 483 and 484 is surrounded by fence, and further that the defence also wrongly assumed the correct ness of the spot map which is wholly misleading. Indeed, when the prosecution witnesses referred to the cocoanut garden they speak about the portion where the cocoanut trees stand and that is why they speak about the existence of kia fences. It is quite clear from evidence that there is no such fencing around the entire plot of cocoanut garden. On this point the evidence of the investigating officer P.W. 21 is that the area from the Sadar door of appellant Bahuda's house to the patch of ploughed land inside the Nadia Bari (cocoanut garden) is an open space : that the distance bet ween the ploughed area and appellant Bahuda's house is about 400'. This is also supported by P.W. 17 Fakira Das who said that the house of appellant Aparti Bhoi stands on plot 484 but outside the Nadia Bari fence. P.W. 12 Pira Behera also said that appellant Aparti has his house near the Nadia Bari but outside it. So also P.W. 2 Balunki said that the house of appellants Aparti and Narasingha stands on one corner inside the cocoanut Bari plot and they have been living there for 8 or 9 years. The entire cocoanut bari on plot Nos. 483 and 484 is divided in three distinct areas namely, fallow land includ ing the ploughed land where P.W. 7 Mangulia went to plough, the homestead land which the appellant Aparti claims to be in possession and the cocoanut Bari proper where the rocoanut trees stand. The entire cocoanut bari on plot Nos. 483 and 484 is divided in three distinct areas namely, fallow land includ ing the ploughed land where P.W. 7 Mangulia went to plough, the homestead land which the appellant Aparti claims to be in possession and the cocoanut Bari proper where the rocoanut trees stand. It is evident from the location of appellant Aparti's house that the first assault could not have been at point 'K' shown in the spot map which is wholly misleading, but on the village Danda itself when P.W. 7 Mangulia, upon protest by appellant Aparti, passed by the side of appellant Aparti's house, while going on the village path to his Samudhi Bana Bhoi's house to wards north. Mangulia could not have gone to appellant Aparti's house to invite further trouble. 10. As regards sequence of events, ultimately result ing in the death of Bana Bhoi and Naran Bhoi, P.W. 7 Mangulia's evidence is that after appellant Aparti Bhoi pro tested and asked him not to further plough the land, Mangu lia unyoked the plough and when he reached the door of appellant Aparti's house he found Aparti's son Narasingha standing at their door; that while he (Mangulia) was passing on the village path there, Narasingha came up to him and gave him three or four blows with a Tada. This was the first assault on Mangulia on the village Path. The very fact that Mangulia had left the plough on the land shows that he wanted to get away from the field after appellant Aparti had protested. The prosecution case regarding this first part of the incident which was the origin of the trouble is further corroborated by the evidence of P.W. 9 Benu Bhoi, a passer by on the village Danda, who was coming from the oppo site side. His evidence is that he was passing through Bhoi Sahi; that P.W. 7 Mangulia Bhoi was then coming from the south towards the Bhoi Sahi; that in front of the door of appellant Narasingha Bhoi, he (Narasingha) gave a few blows with a Tada to Mangulia; so Mangulia ran towards the house of his Sumadhi. As regards the second stage of the assault, the evi dence of the two witnesses P.Ws. As regards the second stage of the assault, the evi dence of the two witnesses P.Ws. 7 and 9 is that while running towards his Sumadhi's house, P.W. 7 Mangulia was obstructed by appellant Bahuda Bhoi who gave him a few blows with a stick. P.W. 1 Charan Bhoi corroborated them. It is the evidence of the investigating officer P.W. 21 that the distance between the house of appellants Aparti and Bahuda is about 125'. Then comes the culminating or the fatal stage of the incident. It is of course to be noticed that the place where Mangulia was assaulted for the second time and the place where Bana and Naran Bhoi were further assaulted would be about the same place, namely, in front of the village Thakurani, as appears from the evidence of P.W 1 Charan Bhoi. It was at this stage, as all the eye witnesses said, that Bana and Naran Bhoi were fatally assaulted in front of the village Thakurani. The evidence of P.W. 2 Balunki is that he was working in his paddy field and upon hearing a hulla he ran from his field to the village Danda and found all the accused persons surrounding Bana Bhoi and Naran Bhoi in front of the village Thakurani and assaulting them with bamboo lathis. This evidence is also corroborated by P.W. 4 Isu Khan. The two independent witnesses are P.Ws. 10 and 11. In fact, P.W. 10 is said to be a stainless witness stating that Bana Bhoi and Naran Bhoi were lying in front of the village Thakurani which is also in front of appellant Bahuda Bhoi's house. 11. Thus, from location and sequence, it is evident that the incident was a continuous one and in different stages, all having taken place on the village Danda. The distance of the place of fatal assaults from the place of the origin of the trouble (400') is indeed a circumstance against the plea of private defence. The question is : Can the right of private defence be stretched to such length ? I think not. There is a limit to its elasticity. In the present case, the defence party has clearly exceeded the limits. 12. The general defence comment on the prosecution witnesses is that they are all partisan witnesses and that in fact they suppressed material portion of facts. I think not. There is a limit to its elasticity. In the present case, the defence party has clearly exceeded the limits. 12. The general defence comment on the prosecution witnesses is that they are all partisan witnesses and that in fact they suppressed material portion of facts. The defence seriously commented on certain omission in the First Information Report of P.W. 1 Charan Bhoi which are these : He did not refer to the first part of the incident. He did not mention that the accused persons were also beaten and suffered injuries nor did he mention that he himself assaulted with lathi which he subsequently admitted in evidence. As regards the partisan character of the prosecution witnesses in general the defence point is that P.W. 1 Charan Bhoi is the son of the deceased Bana Bhoi and brother of the deceased Naran Bhoi who all are said to have been siding with Sashimoni Devi. P.W. 3 Lingaraj is the son of P.W. 17 Fakir Das, Gumastha of Sashimoni Devi; P.W. 4 Isu Khan is the peon of Sashimoni Devi. P.W. 6 Wahed Khan is the father of P.W. 4 Isu Khan, peon of Sashimoni Devi; P.W. 7 Mangulia Bhoi is the sumadhi of deceased Bana Bhoi supporting Sashimoni's side. They are the principal witnesses. They are said to be partisan wit nesses siding with Sashimoni Devi. It was further com mented that the prosecution had suppressed the presence, during the incident, of P.Ws. 4, 5, 6, 8 and 9 in the First Information Report. Thus the F.I.R. version of the case was not stuck to and indeed according to the defence it is significant that there is no mention of the front of the village Thakurani as the place where Bana Bhoi and Naran Bhoi were fatally assaulted. 13. 4, 5, 6, 8 and 9 in the First Information Report. Thus the F.I.R. version of the case was not stuck to and indeed according to the defence it is significant that there is no mention of the front of the village Thakurani as the place where Bana Bhoi and Naran Bhoi were fatally assaulted. 13. It is the settled view that once it is established that eye-witnesses belong to a hostile faction and it is also clear that they are suppressing material portion of the occurrence, it is difficult to accept their evidence as to how exactly the fight took place; doubtless if a consistent story had been put forward, it may be possible for a court even to accept the testimony of partisan witnesses especi ally when the village is divided into two factions and dis interested persons may not be available; but when the F. I. R. version and the case as put forward in the Court do not tally, it will be extremely hazardous for a court to conjecture as to how the fight must have taken place. 14. In the present case, the defence comments on the alleged omissions in the F. I. R. by P.W. 1 Charan Bhoi are unmerited. P.W. 1 Charan Bhoi is the son of the daceased Bana Bhoi and brother of the deceased Naran Bhoi. It was immediately after the death of his father and brother that he had to go to the Police Station to lodge the First Information Report. The omissions are natural omission. These omissions were not mistaken omissions nor were they intended to suppress any material portion of the occurrence. He was then in a high tension of mind - his father and brother having been killed in the incident. It is only the minor points which were not mentioned in the F. I. R. and in my opinion these are excusable emissions having regard the circumstances and the state of mind in which the infor mant was at the time he reported the matter to the police. 15. As regards injuries on the accused persons, Exts. 21 to 27 are the injury certificates regarding various in juries on the seven out of eight, appellants herein. These injury certificates show that they were mostly injuries of simple nature. On the prosecution side also P.Ws. 1 to 7 were injured the injury certificates being Exts. 15. As regards injuries on the accused persons, Exts. 21 to 27 are the injury certificates regarding various in juries on the seven out of eight, appellants herein. These injury certificates show that they were mostly injuries of simple nature. On the prosecution side also P.Ws. 1 to 7 were injured the injury certificates being Exts. 16 to 20, 28 and 19. As regards injury on P.W. 7 Mangulia Bhoi, he appears to have suffered as many as eight injuries in cluding one grievous injury, one lacerated wound and others being bruises on different parts of the body. The injury on P.W. 1 Charan Bhoi, the informant, was a bruise of simple nature. Thus it is apparent that at the last stage of the incident there was mutual assault by one party to the other. It is however evident that the assaults by the prosecu tion party on the members of the defence party were all after the fatal assaults on Bana and Naran Bhoi. The de fence comment is that no questions were put to the ac cused-appellants in course of their examination under Sec tion 342 Criminal Procedure Code regarding injuries on themselves (appellants) although P.Ws. 1, 4 and 6 admitted having assaulted some of the appellants, namely, that P.W. 1 said about his assault on appellant Banchha Bhoi, P.W. 4 about his assault on appellant Gundicha Bhoi and P.W. 6 about his having brandished the lathi. 16. The court, however, should not reject eye-witnes ses, who speak with slight and inconsequential variations, on unsubstantial grounds and on the basis of insignificant discrepancies. In the present case, the case put forward by the prosecution, by and large represents the substantial truth and the incident is true. The reasons, given by the defence for not believing the eye-witnesses who spoke as to what happened, cannot be sustained and the alleged omissions and discrepancies in their evidence were not such as to detract from truthfulness. I am satisfied that the evidence of eye-witnesses is natural and consistent and the alleged omissions and discrepancies relied on by the defence are not either contradictions at all or even if they are so, they are so trivial as not to affect their veracity. 17. Now, we are left with the question : Are the appellants protected by the right of private defence ? 17. Now, we are left with the question : Are the appellants protected by the right of private defence ? The position, on facts, is this : Appellants Aparti and Nara singha were in possession of the cocoanut Bari. The pro secution party went with the deliberate object of taking forcible possession. With this aim in view they went pre pared and P.W. 7 Mangulia commenced ploughing the land. Appellant Aparti protested. Up to this stage the facts are clear. What is not clear is whether the prosecution story is true that appellants Aparti, Narasingha and their compa nions began assaults on P.W. 7 Mangulia and his compa nions or whether appellant Aparti's protest led the prosecu tion party to attack appellants Aparti and Narasingha and their companions who joined them. The defence did not lead any evidence to prove the circumstances on which they rely as a foundation tor the exercise of the right of private defence, namely, that the prosecution party com menced to attack. There is no doubt that it is not neces sary for the defence to lead evidence if they are able to establish what they seek to prove by the evidence that is on the record. If from that evidence it appears probable that the defence version is true, the appellants are entitled to a decision in their favour, even though they have not proved the truth of their version beyond reasonable doubt. The circumstances which have been established by the evidence of the prosecution in the present case do, in my opinion, raise a probability that there is some truth in the defence version. It is in evidence that the prosecution party went to the cocoanut Bari with the deliberate intention of ploughing the field inside the cocoanut Bari, then in possession of the appellant Aparti, and thus causing mischief. The prosecution party appears to have attempted to evade the fact of injuries on the appellants. It is in evidence that the prosecution party went to the cocoanut Bari with the deliberate intention of ploughing the field inside the cocoanut Bari, then in possession of the appellant Aparti, and thus causing mischief. The prosecution party appears to have attempted to evade the fact of injuries on the appellants. The fact that in the beginning, the injuries on the defence party were not mentioned and that the prosecution did not think it necessary to do so suggests the inference that the prosecution was aware of the fact, that if the injuries caused to the defence party were admitted, they have to be prepared to state at what stage of the proceedings these injuries were inflicted, that is to say, whether they were inflicted before the appellants inflicted fatal injuries on Bana Bhoi and Naran Bhoi or after. A consideration of all the circumstances that have been proved, in my view, suggests the probability that the prosecution party may have been in the beginning the aggressors. That, however, does not necessarily exonerate the appellants for the injuries which they inflicted on Bana Bhoi and Naran Bhoi resulting in their death. Although the defence party may have had a right of private defence but they exceeded that right by inflicting fatal blows on Bana Bhoi and Naran Bhoi. The injuries were fatal from which Bana Bhoi and Naran Bhoi expired very soon after they were inflicted, and, in order to be exonerated from the consequences of in flicting these injuries, it is necessary for the appellants to prove more than what has been proved in this case. Al though some of the injuries inflicted on two appellants were on the head and fore-head, none of them appear to have been of such gravity as to justify the conclusion that there was any reason for the appellants to apprehend that either they or any member of their party would be killed, or would receive grievous hurt. The appellants were not, therefore, justified in causing the death of Bana Bhoi and Naran Bhoi. The weapons that were used were, lathis and the appellants must have known that injuries inflicted with such a weapon were likely to cause death, even though they had no intention either to cause death or grievous bodily injury. The appellants were not, therefore, justified in causing the death of Bana Bhoi and Naran Bhoi. The weapons that were used were, lathis and the appellants must have known that injuries inflicted with such a weapon were likely to cause death, even though they had no intention either to cause death or grievous bodily injury. In these circum stances, I would alter the conviction of all the eight appellants from one of murder to one under second part of Section 304 and alter the sentence from transportation for life to rigorous imprisonment for five years. The learned Trial Judge's order of conviction and sentence on the diffe rent appellants under Sections 323 and 325 as aforesaid is confirmed, with the direction that all sentences would run concurrently with the sentence passed under the Second part of Section 304. The appeal should, therefore, be allowed to the extent as aforesaid. 18. DAS, J. : I agree. Appeal allowed.