Short Note : The case of the prosecution in nut-shell is that Raghubar and Gotiram had adjacent fields, that a mound standing in the field of the former was claimed by the latter and this formed the root of the trouble, that on the 5th day of September, 1975, Gotiram's uncle Kasole took Chhutte, Tunde, Mangali, Dhanaram and others to dig out the said mound, that at about midday Raghubar reached there and asked them to stop digging, which they accordingly did, that they then sat down to smoke and Raghubar also joined them. Jagmohan (P.W.7) and Munni (P.W.4) also reached there. While they were enjoying smoke, Gotiram came there after driving out his bullocks from his field and struck an axe blow on the head of Raghubar, who was smoking while sitting there. The stroke felled him unconscious and blood oozed out from his head. Gotiram went away from there. Kasole and Mangli shifted the unconscious Raghubar from the top of the mound to the shade of a nearby babool tree. Chhutte (P.W.2) carried information to the Chowkidar Prabhudayal about this incident, who hurried to the spot. Raghubar died after a short while. Trial Court convicted the appellant for murder and awarded life imprisonment. Hence this appeal. Held : Raghubar came on the spot, sat on the mound, stopped the labourers from digging it and he had an axe with him is sufficient to hold that this gave Gotiram, who was in possession, annoyance and an offence under section 441 IPC, was complete as far as the deceased Raghubar is concerned. If there is an offence of original trespass under section 441 IPC, then under section 97 IPC, the appellant had right to defend his property and we hold so. If he had a right to defend his property then offence under section 302 IPC is not made out and, therefore, the conviction under section 302 IPC of the appellant cannot be maintained and, therefore, we set it aside. 2. In this case, a blow has been given by the appellant to the deceased. Therefore, it can be held that he has exceeded the right of private defence and because he has exceeded the right of private defence, therefore, the offence he has committed is under section 304 Part (One) IPC. We hold accordingly. AIR 1975 SC 1674 and AIR 1977 SC 619 followed.