Judgment Prabha Shanker Mishra, J. 1. This case is a glaring example of justice frustrated on account of manouvring of the parties and persons interested. Even the son of the victim has retracted from his statement before the police and gone against the prosecution case. The way witnesses have deposed, one can safely say that they have indulged in perjury. 2. Lamentations aside, appellants have been convicted by the 1st Additional Sessions Judge, East Champaran at Motihari, appellant Ram Bilas Singh under Sec.302 of the Indian Penal Code and other appellants under Sec.302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 3. Briefly stated the prosecution case is that on 28-4-1974 at village Bara Harpur within Harsidhi Police Station of the district of East Champaran, Saryu Mahre (informants son) was ploughing his land of plot No. 500 appertaining to Khata No. 10 having an area of 5 Khathas 14 1/2 Dhurs. He had cultivated sugarcane in 3 Kalhas and the remaining land which was fallow was being ploughed by him. At about 11 a. m , however, appellant Ram Bilash Singh with appellants Mangru Singh and Ram Lal Singh and others came on a tractor. They forcibly unyoked the bullocks and removed the plough belonging to Banshi Mahare and started ploughing the field by tractor Banshi Mahara and his brother Bhola Mahare as also the informant came in front of the tractor to protest. Appellants and others, however, paid no heed to their protests. According to prosecution, Matigru Singh and Ram Lal Singh said that they would shoot the informant and hit sons dead and appellant Ram Bilash fired a shot from a gun aiming at Saryu Marars, Saryu sustained injury in his chest and fell down dead. Appellant Ram Bilash not the tractor removed from the field towards north id the field belonging to appellant Mangru Singh, get the oil like substance removed from the tractor and set the tractor to fire. In the mean while witnesses arrived and seeing them coming accused persons fled away. 4. The prosecution has also alleged that Banshi had purchased the said land and land of plot No. 509 of the same Khata from Most. Kabutari about 6-7 years ago and was coming in possession thereof. In the mean while witnesses arrived and seeing them coming accused persons fled away. 4. The prosecution has also alleged that Banshi had purchased the said land and land of plot No. 509 of the same Khata from Most. Kabutari about 6-7 years ago and was coming in possession thereof. Since a year before the occurrence, however, appellant Ram Bilash Singh started claiming the land on the pretext that he had purchased the land from Most. Kabutari and with a view to dispossess Banshi he committed murder of his son Saryug Mahara. After the occurrence Banshi Mahare went to Police Station along with the Chaukidar, On his statement Officer-in-charge, Makut Bihari Prasad Verma (P. W. 15) drew up a first information report and took up the investigation of the case. Later investigation of the case was handed over to P. W. 16 who submitted charge sheet. 5. It is on the record that appellant Ram Bilash Singh lodged a case at the Police Station alleging that he and other persons accompanying him were assaulted by the informant, his son Saryug Mehra and others on 28-4-1974 at about 11 a. m. when he had gone to the said field with the tractor to plough it. A defence witness Gorakh Singh (P. W. 2) has been examined to state about the occurrence alleged by appellant Ram Bilash Singh. He has stated that the said land belonged to Ram Bilash Singh and when Ram Bilash and others were ploughing it with a tractor the informant and others constituting an unlawful assembly attacked him and other people accompanying him and assaulted them with Farsa, Bhala, Lathi and fire arms. He has also stated that when Ram Bilash and others got injuries he with the help of others removed them and when Ram Bilash and others were being taken to the village, he heard sound of gun firing from the field. According to his evidence no one from amongst the appellants or any other person on their behalf assaulted Saryug Mahara rather the latter, his father and others assaulted Ram Bilash Singh and others in the occurrence which took place in the field. In their statement under Sec.313 of the Code of Criminal Procedure appellant Ram Bilash Singh as well as the other two appellants have stated that they were not present in the occurrence. 6. In their statement under Sec.313 of the Code of Criminal Procedure appellant Ram Bilash Singh as well as the other two appellants have stated that they were not present in the occurrence. 6. P. W. 16 being entrusted with the investigation of the case, went to the fields and found the dead body of Saryug Mahara. He has stated that besides other materials he also found butt of a gun in the field claimed by the informant. The said butt was sent for examination to the experts of forensic science. Appellant Ram Bilash possessed a two bore double barrel gun (made in Germany) being D. B. B. L. Gun No. 1558937 which was produced by his son. That was also sent for examination to the Forensic Science Laboratory. The report of the said examination, Ext. 9 revealed that the wooden piece of butt found at the place of the occurrence was of S. B. B. L. Gun No. 155937. Thus it found that butt belonging to Ram Bilash Singh, was discovered by the Investigating Officer at the place of the occurrence. That Saryug Mahara was killed and that he had been assaulted by a gun fire at his chest is proved by the evidence of the Investigating Officer, P. W. 15 and the inquest report. Ext. 4 and the evidence of P.Ws. 3 and 10. P. W. 15 had noticed a gun shot injury in the chest of Saryug in the inquest and P. Ws. 3 and 10 were present when he held the inquest. P. W. 19, Dr. Tribhuwan Prasad Singh held post mortem examination of the dead body of Saryug Mahara. In the post mortem examination he found a 3"x2" lacerated wound in the chest and recovered 16 pellets from it. He has deposed that the death was caused due to haemorrhage and shock due to the said fire arm injury. There was no serious challenge to the factum of assault upon Sarayug with a gun before the learned Sessions Judge and there is no contention raised about it before us also. The tragic part of the case, however, is that except P. W. 7 no witness has claimed in the court that he witnessed the occurrence or saw any of the appellants assaulting Sarayug. P. W. 1 is not an eye witness to the occurrence. The tragic part of the case, however, is that except P. W. 7 no witness has claimed in the court that he witnessed the occurrence or saw any of the appellants assaulting Sarayug. P. W. 1 is not an eye witness to the occurrence. P. W. 2 has deposed that he had not witnessed the occurrence which took place in the fields of Banshi Mahara although before the police he had claimed to have seen the occurrence and recognized the appellants as the assailants. P. W. 3 has deposed as to the seizure of the articles at the place of the occurrence and proved the seizure List. P. W. 4, according to his deposition, arrived after hearing about the murder and burning of tractor and saw the dead body of Sarayug Mahara and the tractor burning. He went to the Police Station with Banshi Mahara but has said that Banshi did not state the names of the accused person before him although he has admitted that Banshi got the Fardbeyan recorded in his presence and in his statement Banshi named the appellant as his assailants. P. W. 5 has deposed that he only learned about the murder of Sarayug Mahara when he returned from Belwa Bijulpur but did not hear the names of the assailants P.W. 6 has stated that he was ploughing the field of Babu Saheb when he heard alarm from both sides and also heard the sound of firing of gun shot but when he reached in the field in which the occurrence took place, all had fled away. He found Sarayug Mahara dead in the field. He had also claimed to have witnessed the occurrence before the police, P. W. 8, according to his evidence, arrived after hearing the sound of firing. He neither met any body nor saw any body except the dead body of Sarajug Mahara. P. W. 9 has deposed that he arrived on hearing the alarm and found Sarayug Mahara lying dead and also saw one tractor burning but he saw no one around the place of the occurrence. P. W. 10 is a witness to the inquest of dead body. P. W. 11 has deposed that he went on alarm to the place of the occurrence and he saw a mob there but could identify none. P. W. 10 is a witness to the inquest of dead body. P. W. 11 has deposed that he went on alarm to the place of the occurrence and he saw a mob there but could identify none. Before the police however he had claimed to have witnessed the occurrence and identified the accused persons. P. W. 12, who is the son of the victim has shown ignorance about the occurrence although before the police he was an eye witness." P. W. 13 who is the brother of the victim and the son of the informant has also resiled from his earlier statement before the police and said that he reached the place of the occurrence on alarm and saw none except the dead body of Sarayug. P. W. 14 also has resiled from his statement before the police and in the court has shown ignorance about the assailants or the occurrence. 7. P. W. 7 is the only witness who has stated that he was ploughing the field of one Sahadeo Rai and the informant and his sons Saryug and Bhola were ploughing the field when appellants came on a tractor and started ploughing the field, When Sarayug protested appellant Mangru ordered to shoot him and appellant Ram Bilash fired the gun which hit Sarayug on the chest. Sarayug fell down and died. He has also deposed that Mangru ordered to hum Sarayug Mahara by taking out oil from the tractor and they all set fire to the tractor. He has stated that when villagers assembled the accused persons fled away. 8. Informant Banshi Mahara died before the evidence was taken in the court. In the absence of his evidence the Fardheyan by him which could be used for corroborating his testimony in the court is of no use to either party. I have already referred to the evidence of D. W. 2 and also taken notice of the information lodged by appellant Ram Bilash Singh. The said report by Ram Bilash Singh has been produced (Ext. A). In the absence of any statement by Ram Bilash Singh about his lodging the case and thus stating about the occurrence, contents of Ext. A are of no avail to either party. It is, however, in the evidence at least of P. Ws. The said report by Ram Bilash Singh has been produced (Ext. A). In the absence of any statement by Ram Bilash Singh about his lodging the case and thus stating about the occurrence, contents of Ext. A are of no avail to either party. It is, however, in the evidence at least of P. Ws. 4, 6, 8, 9, 11 and 13 that an occurrence took place at about 11 a. m. on the alleged date of the occurrence and there was alarm after which they went to the place of the occurrence and found Sarayug Mahara dead. In the evidence of P. W. 6 there is a mention of the alarm and two sides present in the field at the time of the occurrence and in the evidence of P. W. 11 that there was a mob which he saw but did not identify any one. They have also affirmed that Sarayug was killed in the occurrence. It is well settled that unlike England there is no concept of a hostile witness in India. In terms of provisions of Evidence Act there is a truthful witness or untruthful witness or partly truthful or partly untruthful. I have already noticed that some of the witnesses have clearly taken recourse to suppressio vari suggesfio falsi. Learned Session Judge would have been well advised to direct for prosecution of such witness. If I am not directing for prosecution to-day the only reason for that is that the occurrence had taken place in April, 1974 and the witnesses were examined in the year 1978 in the court and after such a long period of time any direction to prosecute them will not be proper. 9. The prosecution, however, has despite all that the witnesses have done to spoil its case been able to demonstrate that : (1) There was an occurrence on 28-4-1974 at about 11 a. m. in which Sarayug Mahara was killed. (2) Appellants were present in the field with the tractor and appellant Ram Bilash Singh possessed a gun. (3) Butt of the gun of the appellant Ram Bilash Singh was discovered in the field by the Investigating Officer and when his gun was produced by his son the butt and the gun were compared and examined in the Forensic Science. Laboratory and the report concluded that the butt belonged to the gun possessed by appellant Ram Bilash Singh. (3) Butt of the gun of the appellant Ram Bilash Singh was discovered in the field by the Investigating Officer and when his gun was produced by his son the butt and the gun were compared and examined in the Forensic Science. Laboratory and the report concluded that the butt belonged to the gun possessed by appellant Ram Bilash Singh. (4) P. W. 7 has deposed that appellant Mangru Singh ordered and following his order appellant Ram Bilash Singh fired a gun shot which hit Sarayug on his chest. He is a witness, who it appears, was not named in the First Information Report. He. however, according to his deposition was present in a field at a short distance and saw the occurrence there. There has been a few days delay in recording the statement under Sec.161 of the Code of Criminal Procedure but that delay and the facts of this case is not such that his evidence can be discarded. Omission of his name in the First Information Report is of no consequence because the informant named only those who are present in the field or were in the vicinity of the field in which the occurrence took place and if P. W. 7 who was in a field at a short distance was not noticed by him, not much can be found in the absence of his name in the first information report. 10 D. W. 2 has also affirmed that about 11 a.m. the occurrence took place in the field. According to him, appellant Ram Bilash and others were assaulted by Sarayug, Banshi and others. D. W. 1 has proved the injury reports of some of the victims allegedly of the assault at the hands of the informant and others including appellant Ram Bilash Singh. He has said that he was a Civil Assistant Surgeon at Sadar Hospital Motihari on 9-4-74 on which date he examined the injuries upon Ram Bilash and others. D. W. 1 has proved the injury reports of some of the victims allegedly of the assault at the hands of the informant and others including appellant Ram Bilash Singh. He has said that he was a Civil Assistant Surgeon at Sadar Hospital Motihari on 9-4-74 on which date he examined the injuries upon Ram Bilash and others. Upon Ram Bilash Singh, however, he found simple injuries caused by hard blunt substance namely a bruise with swelling on the left shoulder, a bruise with swelling on the left scapula and an injury caused, according to him, by a sharp cutting instrument being 2"x1" scalp deep there of the injuries however found on Ram Bilash Singh on 29-4-1974 at 6.30 a. m. were serious Even if there is some thing in the evidence of D. W. 2 and the alleged time of the injuries upon Ram Bilash Singh and some of his associates (not accused) is proved the prosecution, in my view is not required to explain the injuries. Assuming for a moment that the defence has been able to probabilise its case that accused Ram Bilash had sustained injuries at the time of the occurrence, in the incoherent defence in the court from stage to stage namely, the first information report (Ext. A) suggesting that in the occurrence taking place in the field that was injury upon at least one accused, in the statement under Sec.313 by Ram Bilash himself saying that he was not present at all at the occurrence and the evidence of P. W. 2 that occurrence took place in which Ram Bilash and others were assaulted and were removed by him and others and thereafter there was a gun shot first suggesting as if some one killed Sarayug after the occurrence, it is difficult to give any produce to any such suggestion that the accused sustained injuries in the occurrence. 11. Having diluted into the case of the prosecution and the evidence both on behalf of the prosecution and the defence 1 come to a conclusion that Sarayug was killed in the occurrence without any doubt at the hands of appellant Ram Bilash Singh What remains to be seen is whether on the evidence on the record Ram Bilash Singh can be held guilty under Sec.302 of the Indian Penal Code or not and other two appellants under Sec.302/34 or not. There is nothing on the record showing any participation in the occurrence by other appellants excepts Ram Bilash Singh. The evidence against them is that of P. W. 7 who has said that Ram Lal was with Ram Bilash and Mangru when Mangru ordered and following his order Ram Bilash Singh assaulted with his gun. Requirements of Sec.34 of the Indian Penal Code however are not fully established by such evidence against appellant Ram Lal Singh. About appellant Mangru the only evidence available is that the responded to the protest of informant and his son by saying that they shall plough the field and shall shoot if there was any interference. On such evidence one may think of Sec.114 of the Indian Penal Code or Sec.109 thereof but not Sec.34 thereof. Even for satisfying the requirements of Sec.114 or 109 of the Indian Penal Code the meeting of mind to abut the offence of murder has to be established. In my view, although there is specific mention of the role of appellant Mangru Singh in the occurrence. The prosecution cannot be said to have proved its case against him beyond reasonable doubt. Case against appellant Ram Bilash Singh, however, is proved beyond any reasonable doubt for the gun that he used left its work in the field in the shape of the broken butt and the tractor belonging to him remained in that field after being burnt in part. P. W. 7 has catogerically said that Ram Bilash Singh fired with his gun and the shot hit Sarayug on his chest. It cannot be said that Ram Bilash fired without intending to kill. There is, however, evidence on the record of P. W. 9 that the land was purchased by Ram Bilash Singh and he was in possession thereof. Even the prosecution has admitted that there was a land dispute raised by him. P. W. 7 has vacillated in categorically asserting that the informant and his sons were the owners of the land although he has affirmed that they were in possession when the occurrence took place. Learned Sessions Judge has taken notice of the evidence of the prosecution witnesses and the defence witnesses and has found that in all probabilities the informant and his sons were not in possession of the lands on the date of the occurrence. Learned Sessions Judge has taken notice of the evidence of the prosecution witnesses and the defence witnesses and has found that in all probabilities the informant and his sons were not in possession of the lands on the date of the occurrence. On this, thus, the defence can legitimately suggest that its right to property had been violated and there could be exercise of right of private defence of property. Although there is no plea of private defence raised on behalf of the defence it is well settled that if intrinsically such a plea is noticeable a court of law may not ignore it. In these circumstances, in the absence of any further evidence of any overt act by the informant and his sons, even if there was any violation of the property right of appellant Ram Bilash Singh by them, in killing Saryug will fall in the exception of Sec.300 of the Indian Penal Code, His offence on such evidence will be one under Sec.304 part I of the Indian Penal Code. No reliance can be placed on the evidence of D. W. 2 that Sarayug and others had assaulted Ram Bilash and others and after Ram Bilash Singh and others who had sustained injuries were removed some one fired at Saryug. He is a witness who has evidently chosen to support the case of the accused without there being any corroboration whatsoever to his deposition. 12. To conclude, in my view, the prosecution has been able to prove its case beyond any reasonable doubt against appellant Ram Bilash Singh. The charge which has been proved against him is punishable under Sec.304 Part I of the Indian Penal Code. The prosecution has not been able to prove its case beyond any reasonable doubt against appellants Mangru Singh and Ram Lal Singh. 13. In the result, appeal on behalf of appellant Ram Bilash Singh is dismissed subject to the modification that his conviction under Sec.302 of the Indian Penal Code is numerically altered to case under Sec.304, Part I of the Indian Penal Code, Since more than a decade has elapsed from the date of the occurrence, I do not propose to send appellant Ram Bilash Singh to jail. It is stated at the Bar that he has remained in jail in connection with this case for a period of about six months only. It is stated at the Bar that he has remained in jail in connection with this case for a period of about six months only. Since, however on account of long lapse of time I propose to remit him without imprisonment, ends of justice shall be satisfied by imposing a fine of Rs. 5,000.00 (five thousand), in addition to the period of sentence already undergone and in default of the payment of fine to undergo rigorous imprisonment for five years. The appeal on behalf of appellants Mangru Singh and Ram Lal Singh is allowed. Their conviction under Sec.302/34 of the Indian Penal Code is set aside. They are acquitted of the charges levelled against them. They are accordingly discharged from the liability of their bail bonds. It shall be open to the appellant Ram Bilash Singh to apply for release of his gun before the trial court only when he deposits the fine and not when he defaults. Abhiram Singh, J. 14 I agree.