Judgment S.C.Misra, J. 1. This appeal by Raju alias Rajendra Mahto arises out of his conviction under Sec.302 of the Indian Penal Code by the learned Sessions Judge of Singh hum at Chaibasa. He has been sentenced to imprisonment for life. He was tried with.four other persona, namely, Dolu alias Dhora Mabto, Borjo Mahto, Jairam Mahto and Raghu-bir Mahto. Out of them, Jairam Manton alone was convicted under Sec.323 I.P.C. and sentenced to undergo rigorous imprisonment for six months. The remaining three accused were acquitted. Jairam has not preferred an appeal to this Court. 2. The appellant was tried on the charge of murder for having killed Kunj Behari Mahto, son of Baya Mahto (P. W. 1) of village Baranga within police station Manoharpur in the district of Singhbhum at about 8 a. m. It was alleged on behalf of the prosecution that on the day of occurrence, i. e., on the 2nd of July, 1959, in the morn ing Baya Mahto (P. W. 1), his deceased son, Kunj Behari Mahto and a laborer Doma Manjhi (P. W. 5) were engaged in plaguing plot No. 856 situated in Hellebore alias Kharilagore alias Heber in the village. According to the complainant, the western portion of this plot had been given to Bayer nearly 40 years ago as a result of a family partition and the remaining half, on the eastern side, was given to Raju and Dolu. The parties were in possession in accordance with the partition. At the time of the occurrence, Raju was ploughing his portion of the plot on the eastern side. After some time he took away his plough and came back to the field accompanied by Raghubir, Borjo, Dolu and Jairam. Raju was armed with a farsa, Rehabber with a gun and the remaining three with lathis. Raju asked the prosecution party as to why they were going on with ploughing whereupon Kunj Behari answered that the land was his ancestral land and he had a right to it. Hearing this, Raghubir ordered his companions to assault. Kunj Behari was struck with a lathi by Jairam who also gave a lathi blow on the head of Doma Manjhi. Kunj Behari who had a paina (small lathi) in his hand, gave a blow with that on the head of Jairam and caught hold of his hands. Hearing this, Raghubir ordered his companions to assault. Kunj Behari was struck with a lathi by Jairam who also gave a lathi blow on the head of Doma Manjhi. Kunj Behari who had a paina (small lathi) in his hand, gave a blow with that on the head of Jairam and caught hold of his hands. Immediately, Raju, the appellant, came there and gave phrase blows on Kunj Beharis chest and neck. Kunj Behari fell down on the ground and died. Borjo then caught hold of Baya and Dolu gave lathy blows on his head. Jairam snatched away the farsa from the hand of Raja and aimed a blow against Baya which, the latter warded off by his left hand as a result of which he received a cut on the portion of the palm in between two fingers. Bayer ran away towards his house and the accused persons also fled away. 3. While on his way home Baya met his daughter Monju who was coming to the field with, more Kodo seeds. He told her what had happened in the field. He then narrated this incident to Rathu, Kurso Mahto and Shrikrishna Mahto. The choukidar was also informed about the occurrence and he accompanied Baya to the police station where the first information report was lodged at 11-30 a. m. The Officer-in-charge of the police station (P. W. 15) recorded the first information examined the injuries on the person of Bayer and sent him for medical aid to the doctor. The choukidar was deputed to look for a boat to ferry the police party to village Baranga and he came back with accused Raju in custody. He too was found injured, 4. P. W. 15 reached village Baring at 1 p.m. After having held an inquest over the dead body he sent it to Chaibasa hospital for post, mortem examination. Accused Dholu and Borjo were arrested that very day. Jairam was arrested on 5-7-1959 and Rehabber surrendered in Court long after. Charge sheet was submitted against the accused persons and in due course they were committed to the Court of Session. The learned Sessions Judge convicted two out of the five accused, as stated above, and acquitted the remaining three. 5. Jairam was arrested on 5-7-1959 and Rehabber surrendered in Court long after. Charge sheet was submitted against the accused persons and in due course they were committed to the Court of Session. The learned Sessions Judge convicted two out of the five accused, as stated above, and acquitted the remaining three. 5. The defence of the accused was that Bayer was born of the first wife of one Abhiram Mahto and accused Raju and Dolu were born of his second wife. There was a partition in the family as a result of which the accused were in possession of plot No. 856 and a kalian entry showing their names as raiyats in respect of this plot was made. The prosecution case that there was a partition of this plot as well as a result of which Baya was left with the western portion of the land was denied. It was further alleged that the manner of the occurrence was wholly untrue. According to the defence, the correct position was that on the day of occurrence the accused were ploughing their plot duly, but Baya Mahto, Kunj Behari and Doma Mahto came to the field with lathis and phalsa and challenged the accused Raju. He answered that he had a right to continue ploughing whereupon Baya aimed a lathy blow on his head. He saved himself from the blow with his right hand and got injury on his right elbow. Jairam Mahto happened to be passing that way close by. He came near Raju and asked the complainant Baya and his companions not to quarrel with Raju whereupon deceased Kunj Behari started hitting Jairam with Phalsa on his head and the other men of the complainants party surrounded Raju and gave him lathi blows. Noticing the predicament of Jairam Mahto and apprehending that he would be killed by the prosecution ftarty, Raju went near him to save his life and snatched a phalsa from the hand of Kunja and wielded the same in order to save Jairam. Baya thereupon gave a lathi blow on his head. He fell down on the ground in consequence and leaving the phalsa on the spot he went to the police station and the Chonkidar was able to produce him before the Sub-Inspector. Baya thereupon gave a lathi blow on his head. He fell down on the ground in consequence and leaving the phalsa on the spot he went to the police station and the Chonkidar was able to produce him before the Sub-Inspector. Rajus stand was that while he was wielding the phalsa to save Jairam, it might have hit Kunja, but he did not kill him intentionally. 6. The learned Sessions Judge, however, did not accept the defence version as to the manner of assault and accepted the prosecution story in substance. He convicted two out of the five accused. persons. 7. learned Counsel appearing; for the appellant has not challenged the factor of the death of Kunj Behari as a result of a pharsa blow on the neck as well as, on the other parts of the body. As a matter of fact Raju, in his written statement himself suggested by implication that Kunj Bihar might have been killed as a result of a blow with phalsa which was wielded by him to save the life of Jairam Mahto. The learned Sessions Judge considered the medical evidence of Dr. Gupteshwar Prasad Kesari (P. W. 10) who held post mortem examination over the dead body of Kunj Behari Mahto on the 4th of July, 1959, at 10 a. m. and found three injuries being -- (1) Incised wound 6" x 3" x 3" with the cut of the left mandibular (jaw) bones and left cheek. 2. Incised wound 4" x 2" x bone deep at the level of the 8th and 9th ribs on the left side of chest. 3. Incised wound 3" x 2" x Jungs deep cavalry with the protrusion of a part of lungs tissue through the gap of the wound. According to the doctor, injuries 1 and 3 might be fatal if left unattended. There is no doubt, therefore, that the deceased. Kunj Behari Mahto was killed as a result of blows given by phrase on his person by the appellant. There is also no doubt that Baya Mahto (P. W. 1) the father of Kunj Behari, was also injured. His injuries were examined on the 2nd July, 1959, at 10 p. m. by Dr. Hari Shankar Prasad (P. W. 11), medical officer of Manoharpiir dispensary. He found, five injuries on his person: 1. Cut injury margin lacerated 2" x 1/4" x 1/2" on the occipital bone. His injuries were examined on the 2nd July, 1959, at 10 p. m. by Dr. Hari Shankar Prasad (P. W. 11), medical officer of Manoharpiir dispensary. He found, five injuries on his person: 1. Cut injury margin lacerated 2" x 1/4" x 1/2" on the occipital bone. 2. Cut injury margin lacerated 1" x 1/4" lateral angle of the right eye. 3. Swelling 2" x 2 1/2" right deltoid. 4. Scratch 1/2" x 1/4" lower third of posterior aspect of right forearm. 5. Cut, margin lacerated 3/4" x 1/12" between-left thumb and left index finger. The same doctor examined appellant Raju Mahto and found the following injuries :- 1. Cut, margin lacerated .1" x 1/12" middle-of junction of two parietal bones. 2. Swelling 2" x .1" right elbow posterior aspect. On the 3rd July, 1959, he examined Jairamv Mahto and found as many as 10 injuries on his person being as follows:- 1. Cut margin clean 1" x 1/12" lateral part of right parietal bone. 2. Cut margin clean 1 1/2 x 1/2" medial side-of right parietal. 3. Cut, margin clean, 3" x1/2" x 1/2" covering middle of right parietal bone right parietal superiority and a portion of occipital bone. 4. Cut, margin clean, 2"x 1/2" middle of left parietal bone- 5. Cut, margin clean, 1" x 1/.12" by the side of No." 4. 6. Cut, margin clean, 1" x 1/2" left parietal superiority. 7. Cut, margin clean, 2" x 1/12" occipital superiority. 8. Cut, margin clean 1/4" x 1/4" just below-No. 7. 9. Ecchymosed 3" x 1/2 middle of posterior left cheat. 10.Ecchymosed 2" x 1/4" posterior aspect of upper 3rd o£ left forearm. The same doctor also examined, the injury on the person of Doma Manjhi caused by lathi. It is clear that at least Baya Mahto and Doma Manjhi were definitely present when the riot took place resulting in the death of Kunj Behari Mahto -and that Raju and Jairam did take part in the rioting as was also stated by, the accused persons themselves, although the manner of occurrence alleged by them was different from what was urged on behalf of the prosecution. It is also not denied that the time of the occurrence as alleged by the prosecution was the correct time and it was admitted on behalf of Raju and Jairam that -trouble originated over ploughing of the field tearing plot No. 856. 8. It is also not denied that the time of the occurrence as alleged by the prosecution was the correct time and it was admitted on behalf of Raju and Jairam that -trouble originated over ploughing of the field tearing plot No. 856. 8. The only further question which is really of vital importance in determining the guilt or otherwise of the appellant is as to whether the ploughing of plot No. 856 was being done by the prosecution party when Raju and his companions started the assault and received a few blows in return or Raju was ploughing and Kunj Behari and others took the aggressive and started assaulting them. The further question for consideration is whether Raju was in possession, of the entire plot No. 856 or the western portion was in possession of Baya Mahto and only the eastern part of the plot was in possession of the appellant Raju. The learned Sessions Judge has recorded a finding in favour of the prosecution so far as possession over plot No. 856 is concerned, that is in his opinion the western portion of the land was in possession of Baya Mahto and the eastern portion was in possession of Raju and Dolu. It may be stated that the investigating officer found this part divided into four sub-plots which is not consistent in clear terms either with the prosecution case or the defence version. The fact, "however, remains that this plot was divided into a number of sub-plots. Whatever might be the reason for that, the plot was divided into four sub-plots. The learned Sessions Judge after recording a finding in favour of Baya Mahtos possession has, however, convicted the appellant not on the ground that Baya was in possession and Raju and his companions assaulted Baya, Kunj Behari and Doma while trying to dispossess them of the western portion of plot No. 856 but on the ground that there was a free fight between the men of both parties. The question of right of private defence did -not arise in the case inasmuch as it was a" part piece of land and there was ample time for the other party to take recourse to the authorities. That not having been done; the question of right of private defence of property could not be available. 9. The question of right of private defence did -not arise in the case inasmuch as it was a" part piece of land and there was ample time for the other party to take recourse to the authorities. That not having been done; the question of right of private defence of property could not be available. 9. learned Counsel for the appellant has urged that the learned Sessions Judge was in error in coming to a finding that Baya Mahto was in possession of the western portion of plot No. 856. In fact, the entry in the Khatian showing the possession of Raju and Dolu over the disputed plot in its entirety should have been accepted by the learned Sessions Judge. In view of the clear entry in the khatian showing possession of Raju and Dolu, the onus was on the prosecution to establish that the entry in the Khatian was incorrect and that there was a partition of this plot by which the western portion was allotted to Baya Mahto and the eastern portion to his stepbrothers Raju and Dolu learned Counsel has urged that the story of partition is not borne out by the evidence on record. This was not stated in the first information report; nor was it mentioned before the Committing Magistrate. It came out in the prosecution evidence only in course of the Sessions trial. There was no document to support the story of partition. No doubt Baya Mahton supported this fact by his evidence but he had to admit that Abhiram Mahton his father, died about 40 years ago and according to the statement of his age made before the Sessions Judge, he could not have been in possession then. The learned Sessions Judge has accepted his evidence on the point as, reliable. I see no reason to differ from the ;concision recorded by the learned Sessions Judge. It may well be that the statement of age before the learned Sessions Judge was incorrect as often majority of people in this country are not exact in their knowledge of their own ages. It may as well be that the father having married two wives thought of dividing the land into two equal shares and for. It may well be that the statement of age before the learned Sessions Judge was incorrect as often majority of people in this country are not exact in their knowledge of their own ages. It may as well be that the father having married two wives thought of dividing the land into two equal shares and for. aught one knows Baya being admittedly the son of Abhiram, even before he attained the age of discretion Abhiram Mahtoo may have effected the division for the preservation of family peace. In the circumstances I think there is no reason to discard his evidence which was accepted by the learned Sessions Judge as correct. 10. As it is however, I agree with the learned. Sessions Judge that the point is not very material except for the purpose of testing the evidence of the prosecution witnesses with regard to the manner of the occurrence. The learned Sessions Judge has been impressed by the prosecution evidence as reliable on the ground that the very fact that the prosecution party received so many injuries resulting in the death of one of them would show that the accused had taken the aggressive. In answer, however, it is urged that there were a large number of injuries on the person of Jairam which go to show that the prosecution party was the aggressive party and not the accused persons. That however, is a matter which can only be decided with reference to the evidence on record. The eye-witnesses examined on behalf of the prosecution to support the case with regard to the manner of occurrence are Baya Mahton (P. W. 1), Doma Manjhi (P. W. 5) and Jethu Mahton (P. W. 12). Their evidence has been corroborated by Rathu Mahton (P. W. 3), Sri-krishna Mahton (P. W. 4), Kisto Charan Mahton (P. W. 8), Ghoghlo Mahton (P. W. 9) and Manju Mahatani (P. W. 2) all of whom stated that Baya Mahton told them when he was coming back from the field where the riot took place as to how Kunj Behari was killed by Raju with a pharsa. The comment made on this testimony by the learned Counsel is that Shibnath, Kapil and Guput who held lands in the neighbourhood were not examined. All that Baya (P. W. 1) admitted was that they were to the village and they were witnesses of possession only. The comment made on this testimony by the learned Counsel is that Shibnath, Kapil and Guput who held lands in the neighbourhood were not examined. All that Baya (P. W. 1) admitted was that they were to the village and they were witnesses of possession only. But merely because these witnesses were not examined would not show that Baya Mahto was not in possession. Another comment made upon his evidence is that it was strange indeed that although P. W. 1 claimed to have looked after his interest during the settlement operation and also got the parkas still he did not detect the mistake showing that his name was not recorded. That, however, is hardly a ground for disbelieving the testimony about possession as I have stated above. As to the actual manner of the occurrence, he deposed how Kunj Behari himself and Domu were ploughing the land known as Kbarilagora sowing Kodo seeds and how Raju was ploughing another filed (field), how he left his plough and bullocks and came back with Raghu, Jairam, Dhoru and Barjo. He supported the prosecution story further how Kunj Behari was given a lathi, blow on the back by Jairam and so was Domu given a lathi blow by Jairam, and then Kunj Behari gave paina blows on the head of Jairam and also caught hold of him. Thereafter then Raju gave pharsa blows on Kunj Beharis neck and chest. The cause of the trouble between the parties as stated by Baya Mahto was that one year before the date of occurrence Raju and Jairam had cut the all to drain off water from their land. He lodged a case in the Panchayat and they were fined. That led to bad blood between the parties. Further there was trouble between them and Ragout who was made custodian of the paddy cut by the villagers so that they would borrow from that stock and they might not have to go to a creditor. The villagers demanded an account of paddy from Ragout who denied having misappropriated any part of it. Kunj Behari took a prominent part on the side of the villagers and brought a sacred bull and asked Ragout to swear by it. Ragout got annoyed and threatened him with dire consequences. There is no cross-examination of this witness on this point to show that he was telling a lie. Kunj Behari took a prominent part on the side of the villagers and brought a sacred bull and asked Ragout to swear by it. Ragout got annoyed and threatened him with dire consequences. There is no cross-examination of this witness on this point to show that he was telling a lie. Thus there is some motive and cause of annoyance on the part of the accused persons. Nothing has been suggested, however, as to why Baya Mahto should have thought of dispossessing Raju and Dolu if they were in peaceful possession of the entire area. In the circumstances I see no reason not to accept the evidence of Bava Mahto even with regard to the manner of the occurrence which is also consistent with the fact that three persons were injured on the side of the prosecution and one of them actually lost his life. Domo Manjhi (P. W. 5) stated that he was a. labourer of Bava Mahto and engaged by him for ploughing. He supported the evidence cf Baya Mahton and being one of the injured, his story seems to be truthful. Nothing has been suggested to him as to why he would depose falsely for Baya Mahton excepting that he was a labored under him. The account which he has given as to the manner of the occurrence seems to be consistent. The evidence of Jethu Mahton (P . W. 12) which was supported by Baya Mahto appears to be truthful. He is a person who was carrying on cultivation work in his Gora. He stated how at the time of the riot he was also. ploughing his field, while ploughing and sowing of kodo was going on in the western portion of plot No. 856 in which Baya, Domo and Kunj Behari were engaged. The Sub-Inspector found the western portion of plot No. 856 re-ploughed and kodo seeds also lying there. Having perused the evidence of the witnesses, I see no reason not to accept his evidence as reliable. The only suggestion made to him to discredit his evidence was that one Braja had been married. There was a dispute between him and the accused persons over the feast and that was the reason why he came to depose falsely against the accused and he admitted that he attended the marriage feast. The only suggestion made to him to discredit his evidence was that one Braja had been married. There was a dispute between him and the accused persons over the feast and that was the reason why he came to depose falsely against the accused and he admitted that he attended the marriage feast. It was suggested to him that he did not tell the Committing Magistrate that Baya had snatched away the phrase from Rajus hand. That omission, however, is not of any consequence so far as the veracity of this witness is concerned. 11. As I have said, their evidence is corroborated by a large number of witnesses. No doubt, P. W. 2 is the daughter of Baya bat it was natural that while she was coming to the field with more Kodo seeds and Baya was going home, he would have met her. Rathu (P. W. 3) is a resident of that village who stated that Baya told him when he was near the chaukidar house that Kunj Behari was killed by Raju. He saw bleeding injuries on his head. There is nothing in his evidence which might show that be was not reliable. Srikrishna Mahton (P. W. 4) also was one of the cultivators and thikadar of the village. He supported the possession of the complainant. He also stated that Baya told him at his house soon after the occurrence that the five accused persons had attacked them and that Kunj Behari was killed by Raju with pharsa blows. I see no reason not to accept his testimony as reliable Kristo Charan (P. W. 8) is also a resident of the same village. Baya also told him soon after the occurrence that Kunj Behari was killed with pharsa blows by Raju and the other details regarding the assault on Baya and Domu. It was suggested to him that there was some dispute between him and Ragout regarding collection of rent at Gopipur. He denied the suggestion. He stated that Ragout demanded his share and he was paid his share. There was no trouble between him and Raghu over that matter or concerning for of the bandli in Baxanga village. He, however, admitted that there was party feeling among the villagers which originated on the occasion of the Sradh of on Rarndhans wife of that village. He stated that Ragout demanded his share and he was paid his share. There was no trouble between him and Raghu over that matter or concerning for of the bandli in Baxanga village. He, however, admitted that there was party feeling among the villagers which originated on the occasion of the Sradh of on Rarndhans wife of that village. The learned Sessions Judge was right in accepting his testimony also with regard to the manner of the occurrence. In my opinion, the finding of the learned Sessions Judge, therefore that the prosecution story was & truthful version of the way in which the trouble originated between the parties on the date of the occurrence resulting in the death of Kunj Behari is well-founded and it must be affirmed as a correct finding. 12. learned Counsel for the appellant has, however, advanced some general criticisms against the finding of the learned Sessions Judge which may also be considered in I, this connection. He has urged that it should have been held that because Jairara had a large number of injuries on his bead, as spoken to by the doctor and Kunj Behari was a strong man the latter must have begun the assault, and Jairam must have been on the defensive. He urged further that if three out of five accused persons were acquitted by the learned Sessions Judge, he should not have relied upon the testimony of the self same witnesses to convict two out of the five accused persons. I am not impressed with the contention urged on behalf of the appellant. I have already considered the argument with regard to the injuries of Jairam on the head which he might have received in course of the fight, when Raju began taking an aggressive part and assaulted Kunj Behari. Kunj Behari being a stout man might have resisted the attack by the party of the accused persons. The judgment that three of the accused out of five were acquitted and for that reason the self same evidence should not have been accepted by the learned Sessions Judge to convict the appellant and Jairam Mahto Who has not filed an appeal also cannot be accepted as valid. The judgment that three of the accused out of five were acquitted and for that reason the self same evidence should not have been accepted by the learned Sessions Judge to convict the appellant and Jairam Mahto Who has not filed an appeal also cannot be accepted as valid. The learned Sessions Judge approached the case on a liberal footing and has given three out of the five accused persons the benefit of doubt on the ground that the eastern portion of plot No. 856 was in possession of Raju and it was likely that, apart from himself and Jairam, others might not have taken part in the rioting and might have been there as mere spectators. From this it does not follow that he has not accepted the testimony of the witnesses for the prosecution I in substance in regard to the manner of assault. The contention is falsest in unto, falsest in omnibus which is not the correct law on the point. It is open to the Court to accept that part of the evidence which is reliable and not to act on the other part which appears to be shaky or wrapped in doubt. In the circumstances stated above, the finding of the learned Sessions Judge must be accepted as correct. 13. As to the nature of the conviction, how-ever, the learned Sessions Judge has proceeded on, the footing that there was some kind of free fight between the parties. Raju and Jairam were both injured. The doctor who held the post mortem examination also stated that if the injuries on Kunj Behari were attended to, he might as well have survived. In the circumstances it appears to me to be a fit case in which the conviction of the appellant may be altered from one after Sec.302 to one under Sec.304 Part I, Indian Penal Code. The sentence of rigorous imprisonment fat life passed upon the appellant may be reduced to that of rigorous imprisonment for a period of seven years. 14. With this modification in the conviction and sentence of the appellant, the appeal fails and is dismissed. He must now surrender. to his bail bond to serve out the remaining portion of the sentence. R.J.Bahadur, J. 15 I agree.