JUDGMENT : K.P. Mohapatra, J. - The Appellants have challenged the judgment passed by the learned Additional Sessions Judge, Rourkela, convicting them for an offence u/s 302 read with Section 34 and further convicting Appellant No. 2 for an offence u/s 324 I.P.C. 2. Prosecution case in brief that on 13.5.1983 in the morning, deceased Manga and Surya were ploughing the disputed land and P.W. 2 Chando, wife of deceased Manga, was waiting nearby. The Appellants arrived there running on account of previous dispute with regard to possession of the same. Both of them were armed with Tangias. Appellant Guna first assaulted P.W. 2 on the head and other portions of her body by means of the Tangia. P.W. 2 drew the attention of the deceased persons arid fell down on the ground seriously injured. Thereafter both the Appellants assaulted deceased Manga and Surya by means of the Tangias as a result of which they died on the disputed land instantaneously the occurrence was seen by P.W. 3 who was serving as the farm servant of chamor father of deceased Surya and was helping them for ploughing the disputed land. Out of fear, he ran to the village and informed the villagers of the occurrence. P.W. 1 made a station diary entry (Ext. 24) which was treated as F.I.R. (Ext. 24/1). Investigation commenced and the Appellants were charge sheeted. 3. At the trial the Appellants denied that they had committed the murder of the deceased persons. 4. The learned Additional Sessions Judge believed the evidence of P.Ws. 2 and 3 who were present on the disputed land when the occurrence took place and held that the Appellants had committed the double murder and had seriously injured P.W. 2 by assault by means of the Tangias and accordingly convicted and sentenced them for life imprisonment. 5. Mr. S.C. Sahu, learned Counsel appearing for the Appellants, urged that there is clear evidence on record that Appellant Guna was in cultivating possession of the disputed land and Appellant Jhuba, his sister's son was helping him in cultivation. Prior to the date of occurrence they had cultivated the same. Both the deceased persons raised dispute and by trespassing upon the disputed land were reploughing the same. Therefore, the Appellants were entitled under law to protect the property. Prior to the date of occurrence they had cultivated the same. Both the deceased persons raised dispute and by trespassing upon the disputed land were reploughing the same. Therefore, the Appellants were entitled under law to protect the property. So, even though they might have exceeded the right of private defence of property and liable for conviction u/s 304, Part II, they could not be convicted for the offence of murder u/s 302 read with Section 34 I.P.C. It is necessary to examine this contention. 6. It was not disputed that P.W. 2 was injured and death of both the deceased persons was homicidal in nature. It will appear from the evidence of P.W. 2 that deceased Manga and Surya and the Appellants were closely related to one another. Appellant Guna is the younger brother of her husband deceased Manga. Deceased Surya was the son of Chamar another brother of deceased Manga Appellant Jhuba is the sister's son of Appellant Guna. On the date of occurrence in the morning both the deceased, field servant (P.W. 3) and herself went to the disputed land for ploughing and sowing paddy. When she was sitting on the ridge, she saw the Appellants coming running. Both of them were armed with Tangias. Seeing them, she shouted at her husband and informed about their arrival. Hearing her shouts deceased Manga stopped ploughing and asked others to stop ploughing and came the her side He asked the Appellants not to assault. Appellant Guna gave a Tangia blow on the head of P.W. 2 and another blow on her back as a result of which she sustained bleeding injuries. She became senseless and did not see what happened thereafter. When she regained her sense, she found P.W. 1 and some others on the land and her husband and Surya lying dead nearby. She was treated at Kuarmunda hospital for more than a month as an indoor patient. In her cross-examination nothing in particular was ascertained so as to disbelieve her evidence. But she admitted that Appellant Guna had filed a case against deceased Manga and some others. P.W. 3 stated that he was serving as the field servant of Chamara, father of deceased Surya and brother of deceased Manga. Manga and Chamara were having joint cultivation. He was present when Manga and Surya were killed on the disputed land. He was ploughing the land. P.W. 3 stated that he was serving as the field servant of Chamara, father of deceased Surya and brother of deceased Manga. Manga and Chamara were having joint cultivation. He was present when Manga and Surya were killed on the disputed land. He was ploughing the land. Deceased Manga and Surya both were also ploughing the same, P.W. 2 was sitting on the ridge. Both the Appellants came and tried to snatch away the Tangia from P.W 2. Appellant Guna snatched the Tangia from the hand of P.W. 2 and assaulted on her head, as a result of which P.W. 2 fell down sustaining bleeding injuries. Deceased Mange stopped ploughing and asked Appellant Guna not to assault. But both the Appellants assaulted deceased Manga and Surya by means of the Tangias on their head, neck and other parts of the body. As a result, both of them died on the disputed land. Both the Appellants threatened him to assault and asked him to go away. Out of fear he field away and informed Chamara and the daughter of deceased Manga, as well as other villagers. The cross-examination of this witness with show that there is hardly any material to disbelieve his testimony. On careful consideration of the evidence of P.Ws. 2 and 3 we find no material to disbelieve them. The learned Additional Sessions Judge was correct in relying upon their evidence. 7. The Appellants did not take the specific plea of right of private defence during trial. But from the evidence of P.W. 1 and D.W. 1 it appeal s that Appellant Guns had been in possession of the disputed land. It was the deceased persons who had raised dispute about his possession with respect thereto. So, if from the evidence a plea of right of private defence can be spelt out, there is no bar for the Court to accept such a theory. P.W. 1, obviously an independent witness stated in cross-examination that prior to the occurrence Appellant Guna had sowed paddy on the disputed land. On earlier occasions the deceased persons had reploughed the land after paddy was sown by Appellant Guna. The above evidence has been corroborated by another independent witness (D.W. 1). He stated that Appellant Guna was possessing the disputed land. In the year of occurrence he had sown paddy on the land. Appellant Jhuba was assisting Appellant Guna in the cultivation. On earlier occasions the deceased persons had reploughed the land after paddy was sown by Appellant Guna. The above evidence has been corroborated by another independent witness (D.W. 1). He stated that Appellant Guna was possessing the disputed land. In the year of occurrence he had sown paddy on the land. Appellant Jhuba was assisting Appellant Guna in the cultivation. This evidence conclusively proves that prior to the occurrence and even before, Appellant Guna had cultivated the disputed land and had sown paddy thereon. Even during previous years he had sown paddy on the same. The deceased persons were creating disturbance and on the date of occurrence they reploughed the disputed land thereby damaging the seedlings that might have grown after paddy had been sown by Appellant Guna. The deceased persons were, therefore, trespassers and Appellant Guna had the right to protect the property under his cultivating possession. But while doing so he was entitled under law to use minimum force and not to commit the murder of the persons and to injure an elderly woman who was waiting on the ridge. Therefore, It was a clear case of exceeding the right of private defence attracting Section 304 Part II, I.P.C. Conviction u/s 324 I.P.C. cannot however be interfered with. 8. In the result, the appeal is allowed in part. Conviction of the Appellants u/s 302 read with Section 34 is altered to Section 304 Part II read with Section 34 I.P.C. In place of life imprisonment, they are sentenced to undergo rigorous imprisonment for eight years each. Conviction of Appellant No. 2, Guna Oram u/s 324 I.P.C. is upheld and he is sentenced to undergo rigorous imprisonment for two years. The sentences are to run concurrently. A.K. Padhi, J. 9. I agree. Final Result : Allowed