BEHERA, J. ( 1 ) CHALLENGE in this appeal is to the judgment and order of conviction recorded against the two appellants by the trial Court convicting them under S. 302 of the Penal Code (for short, 'the Code') and sentencing them to undergo imprisonment for life, after acceptance of the case of the prosecution that the two appellants, with two other co-accused persons who have been acquitted, went upon the land of Nanda Barik (to be referred to hereinafter as 'the deceased') which had been purchased by him from Sadhu Barik (P. W. 13) a few months prior to the date of occurrence which had taken place on May 5, 1980, being armed with deadly weapons, such as, Ekmunia, Farsa and lathis and assaulted the deceased to death on the spot. The case of the defence was one of denial of the occurrence, as alleged. According to the appellants and the co-accused persons, the land in question was in their cultivating possession as bhag tenants of P. W. 13 and the deceased and his sons were the aggressors and had started the assault having gone to the spot being armed. Right of private defence both of person and property had been set up. ( 2 ) IT is not disputed at the Bar that the deceased had died a homicidal death. The findings of the trial court that the appellants had dealt blows on the person of the deceased, the appellant Chintamani having dealt the fatal blow by means of Ekamunia and the other appellant having dealt a blow on the nose by means of a Farsa on the person of the deceased have not been assailed by the learned counsel for the appellants. ( 3 ) THE only question raised on behalf of the appellants is one of right of private defence of person and property. It has been submitted by Mr. Mohapatra appearing for the appellants that as the appellants with the co-accused persons were in cultivating possession of the land as bhag tenants and it had been sold by P. W. 13 in favour of the deceased without legal authority, the deceased was not justified in going upon the land for the first time on the day of occurrence and accordingly, the appellants were well within their rights to exercise the right of private defence of property. It has also been urged that as the deceased's party had started the assault and the deceased had dealt a blow on the head of the appellant Chintamani, as found by the trial Court itself, the appellants had the right of private defence of the person of Chintamani and they had not exceeded it. The learned Additional Standing Counsel has submitted and in our view, justifiably so, that the appellants did not have the right of private defence of property to the extent of causing the death of the deceased, in view of the provisions contained in Ss. 103 and 104 of the Code enumerating the extent and circumscribing the limits of the right of private defence of property. He has fairly submitted that the appellants did have the right of private defence of person of the appellant Chintamani which they had exceeded and therefore, the order of conviction should properly and legally have been recorded under S. 304, Part I of the Code by the application of Exception 2 to Sec. 300 of the Code. ( 4 ) THE trial Court has found as a fact that the appellants were the bhag tenants of P. W. 13. The evidence on record would undoubtedly lead one to a reasonable conclusion that the appellants were in cultivating possession of the land in question. There was, no doubt, evidence that after the sale by P. W. 13 in favour of the deceased, the former had delivered possession to the latter, but if the appellants were in cultivating possession of the land, they would not be affected by any such paper transaction and symbolic delivery of possession. It is in evidence that the deceased and his sons had gone to the land for the first time on the day of occurrence. The evidence undoubtedly indicates that they had gone armed. ( 5 ) THE right of private defence is a valuable right enacted for a social purpose and should be fostered within the permissible limits. At the same time, no more force than is necessary for the purpose should be used while exercising the right of private defence of person or property. ( 5 ) THE right of private defence is a valuable right enacted for a social purpose and should be fostered within the permissible limits. At the same time, no more force than is necessary for the purpose should be used while exercising the right of private defence of person or property. As none of the clauses enumerated in Sec. 103 of the Code could be made applicable to the instant case, the appellants did not have the right of private defence of property to the extent of causing the death of the deceased. ( 6 ) COMING to the question of right of private defence of person, the fact remains that the appellant Chintamani did have an injury on his head which had not been explained by the prosecution. Taking the entire evidence into consideration and an overall picture of the evidence and the circumstances attending the case, the trial Court has taken a reasonable view that the deceased, being armed with a lathi, was the first to start the assault and he had dealt a blow on the head of the appellant Chintamani. In the circumstances in which the appellnats' party had been placed, they did have the right of private defence of the person of appellant Chintamani. But there are no materials to clearly indicate that at the time the fatal blow was dealt by the appellant Chintamani on the deceased, the deceased had been acting in such a manner that the appellants could have any apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised by them. ( 7 ) THE appellant Chintamani had dealt a fatal blow on the person of the deceased. The other appellant had dealt a blow on the nose of the deceased which was not fatal in nature although it had caused fracture of a nasal bone. On the facts and in the circumstances of the case, it would be reasonable to assume that although the appellants had the right of private defence of person, they had exceeded it by assaulting the deceased to death. On the facts and in the circumstances of the case, it would be reasonable to assume that although the appellants had the right of private defence of person, they had exceeded it by assaulting the deceased to death. ( 8 ) THE contention raised on behalf of the appellants that they were completely protected by the right of private defence of person cannot be accepted The submission made by the learned Additional Standing Counsel that having exceeded the right of private defence, the appellants should have been convicted for culpable homicide not amounting to murder is well founded and acceptable. Both the appellants had come together armed and had assaulted the deceased who ultimately succumbed to the injuries sustained by him. It would be legal and reasonable to assume that they had acted with a plan and had shared the common intention to kill the deceased. It would, therefore, be reasonable and proper to convict the two appellants for culpable homicide not amounting to murder under Sec. 304, Part I read with Section 34 of the Code. ( 9 ) THE appellant Chintamani has remained in custody for nearly seven years and the other appellant, who had dealt but one blow on the nose of the deceased, has remained in custody for more than one and a half years in connection with this case. The sentence already undergone by them would meet the ends of justice. ( 10 ) IN the result, the appeal is allowed in part. The order of conviction recorded against the two appellants under Sec. 302 of Penal Code and the sentences passed against them thereunder are set aside and in lieu thereof, they are convicted under Sec. 304, Part I read with Sec. 34 of the Penal Code and are sentenced to undergo imprisonment for the periods already undergone by them. The appellant No. 1, namely, Champei alias Chintamani Barik, be set at liberty forthwith, and the other appellant, namely, Bhalu alias Bhramar Barik, who is on bail, is discharged from his bail bond. ( 11 ) L. RATH, J. :- I agree. Appeal partly allowed.