V. K. AGRAWAL, J. ( 1 ) THE accused/appellants have been convicted for offence punishable under Section 302 and 302 r/w. Sec. 34 of the IPC for having intentionally cased the death of Gendalal and Narayan in furtherance of their common intention and have been sentenced on each of the above counts to life imprisonment and to pay fine Rs. 2000/- and in default to undergo R. I. for 2 years, in S. T. No. 25 of 1992, impugned judgment dated 6-10-1994. Appellants feeling aggrieved by the said conviction as sentence imposed on them, have filed the present appeal. ( 2 ) THE prosecution case stated in brief is that, Khasra No. 33/4 and khasra 33/5, area 3 acres is an agricultural land at village Dungaria, Known as 'tagrawala Khet' (which hereinafter will be called 'disputed land' for convenience ). Chunnilal was the Bhumi-Swami of the said disputed land and his son Shivji received the same in his share in partition by way of family settlement and his name was also mutated thereon. Shivji had sold the disputed land by registered sale deed to Satyendra Kumar and Indra Kumar, who are the sons of Narayan, alias, Ram Narayan and Gendalal, whereafter their names were also recorded in the record of rights. Since, the said purchasers Satyendra Kumar and Indra Kumar were minors, the agricultural operations on the disputed land used to be carried on by the deceased Narayan and Gendalal. Even prior to the purchase, the deceased used to cultivate the disputed land as sub-tenants. ( 3 ) ACCORDING to the prosecution, most of the disputed agricultural land was sown in the year 1991 by Gendalal and Narayan, 4-5 days prior to the incident. On 26-10-1991, i. e. , the date of incident at about 4. 30 p. m. the accused/appellants Rajendra Tiwari, Narendra Prasad Tiwari and Vishwanath went to the agricultural land along with Chunnilal (P. W. 4) to plough the said land. Appellant No. 1 Rajendra Tiwari was armed with a 315 rifle and cane, appellant No. 2 Narendra was armed with a 12 bore gun, while appellant No. 3 Bhura, alias, Vishwanath was armed with a 'lathi'. Deceased Gendalal, Narayan and Indra Kumar (P. W. 5) came on the spot and protested ploughing of field by the appellants. However, the accused/appellants were not prepared to listen to the protests and wanted the cultivating operation to continue. Deceased Gendalal, Narayan and Indra Kumar (P. W. 5) came on the spot and protested ploughing of field by the appellants. However, the accused/appellants were not prepared to listen to the protests and wanted the cultivating operation to continue. However, when deceased Gendalal and Narayan continued to protest and came in front of the plough, the accused/appellant No. 1 Rajendra Tiwari who had a 315 rifle with him, fired on the deceased Gendalal and Narayan, who sustained injuries. Gendalal and Narayan died on the spot. The accused/appellant Narendra also fired his 12 bors gun at the time of incident. Indra Kumar (P. W. 5) ran towards the deceased Narayan and Gendalal to intervene, upon which accused/appellant No. 3 Vishwanath, alias Bhura assaulted him with 'lathi' , on account of which he received injuries on his hand. ( 4 ) ON receiving information, the Station House Office, Panager, K. S. Bhatia (P. W. 12)came to the spot. Ramnath Patel (P. W. 1) reported the matter, which was recorded as Dehati Nalsi (Ex. P/1) by K. S. Bhatia (P. W. 12 ). He also recorded the marg intimation (Ex. P/25) and (Ex. P/26) regarding the death of deceased Gendalal and Narayan. On the next day, Investigating Officer prepared the spot map (Ex. P/19) and seized a broken chain of wrist watch, one cane, three empty cartridges and one live cartridge of 315 rifle, one broken nose-cap guard of the said rifle, as per seizure memo (Ex. P/14. ). Two lathis, one each from under the dead bodies of deceased Gendalal and Naryan, were also seized, as per seizure memos (Ex. P/16) and (Ex. P/18 ). Blood stained soil and ordinary soil from besides the dead bodies of Gendalal and Narayan was seized, as per seizure Memo (Ex. P/15) and (Ex. P/17 ). After preparing inquest report of the dead bodies of Narayan and Gandalal, as per (Ex. P/12) and (Ex. P/13) respectively, the dead bodies were sent for post mortem examination. ( 5 ) DR. B. K. Sakella (P. W. 3) conducted post mortem examination on 27-10-1991 at 1. 15 p. m. on the dead body of Gendalal and found the following injuries on his person as per his report (Ex. P/12) and (Ex. P/13) respectively, the dead bodies were sent for post mortem examination. ( 5 ) DR. B. K. Sakella (P. W. 3) conducted post mortem examination on 27-10-1991 at 1. 15 p. m. on the dead body of Gendalal and found the following injuries on his person as per his report (Ex. P/7) : -External injuries : (1) Lacerated irregular would situated on right lateral aspect of chest at 6th, 7th, 8th rib level 51/2 " below apex of axilla 21/2 " right to nipple size 3" x 3". The ribs of this area were fractured and fragmented, small fragments of ribs have entered the lower and middle lobe of right have entered the lower and middle lobe of right lung; innumerable in number. The lung was lacerated; (2) Lacerated would situated on the right chest well at the level of 3rd intercoastal space with fractures and fragmentation of 4th rib. The wound is irregular 1" x 1/4". No blackening, burning, charring or tattooing was seen. It was opined that the injuries were ante mortem and appear to have caused by the fire arms and the case of death was shock as a result of injures to internal organs, which were sufficient in the ordinary course of nature to cause death. It was also opined that the injuries were caused on account of gun shot fired from a distance. ( 6 ) DR. B. K. Sakella (P. W. 3) also conducted post mortem examination on the body of deceased Narayan and found the following injuries, as per Ex. P/8 : - (1) Laceration on a area 4" x 3" on right fore arm and wrist with fracture of radius ulna bones of 1 lower part. The hand was found to be hanging; (2) Lacerated punctured would on left abdomen 2" x 1 1/2" with ragged irregular margins; (3) Lacerated wound 1" below injury No. 21" x 3/4" having irregular ragged margins;no sign of burning, tattooing was found. It was opined that the injuries were caused by fire arm fired from a distance and the cause of death was shock as a result of internal organs. It was also opined that the injuries were sufficient to cause death, in the ordinary course of nature. ( 7 ) THE Investigating Officer, K. S. Bhatia (P. W. 12) recorded the memorandum (Ex. It was also opined that the injuries were sufficient to cause death, in the ordinary course of nature. ( 7 ) THE Investigating Officer, K. S. Bhatia (P. W. 12) recorded the memorandum (Ex. P/3) under Section 27 of the Evidence Act of accused/appellant No. 3 Vishwanath alias Bhura and a 315 bore rifle manufactured by India Ordnance Factory and a 'lathi' was seized from the house of appellant No. 3 as per seizure memo (Ex. P/5 ). The memorandum u/s. 27 of the Evidence Act of appellant No. 2 Narendra Pr. Tiwari was also recorded and a 12 bore rifle was seized, as per seizure memo (Ex. P/4 ). The seized articles were sent for chemical examination to FSL, Sagar, as per letter (Ex. P/29) from where report (Ex. P/30) was received. The articles were then also sent to Serologist and Chemical Examiner of Calcutta from where report (Ex. P/31) was received. After completion of other usual formalities during investigation, charge-sheet was filed against the accused/appellants. ( 8 ) THE learned trial Court framed charge for offence punishable u/s. 302 and under Section 302 r/w Sec. 34 of the IPC, to which appellants pleaded not guilty. Their defence was that, the disputed land belonged to Pandas Mathura, namely, Lalji, Bihari, Sakal Kunde, Gekchiranji and that they were in possession thereof for the last 25 years. Accused/appellant No. 1 Rajendra Tiwari was assaulted on the spot and had lodged the report at P. S. Madan Mahal, Jabalpur, He was sent to the hospital where he was admitted and remained under treatment. He had fired in the exercise of right of private defence, while appellant No. 2 Narendra Prasad pleaded that he was not present on the spot and did not partake in the incident. The defence of appellant No. 3 Vishwnath alias Bhura is that, he was in his own field and that, he did not partake in the incident. ( 9 ) THE learned trial Court on appreciation of evidence adduced by the parties, found all the appellants guilty of offence punishable u/s. 302 and 302 r/w Section 34 of the IPC and accordingly convicted and sentenced them, as has been mentioned earlier. ( 9 ) THE learned trial Court on appreciation of evidence adduced by the parties, found all the appellants guilty of offence punishable u/s. 302 and 302 r/w Section 34 of the IPC and accordingly convicted and sentenced them, as has been mentioned earlier. ( 10 ) LEARNED counsel for appellants has mainly contended that the defence of appellant No. 2 Narendra Prasad Tiwari that he was not present on the spot at all and did not partake in the incident, is supported by the evidence and material on record and, therefore his conviction cannot be sustained. Similarly, it has been urged that the appellant No. 3 Vishwanath alias Bhura was in his own field adjacent to the disputed land and it is not established that he entertained common intention of committing murder of deceased Gendalal and Narayan and, therefore could not be held guilty for committing offence punishable u/s. 302 r/w. Section 34 of the IPC and, at worst, even if the prosecution evidence is believed, than he, having caused simple injuries to Indra Kumar (P. W. 5) could only be convicted for offence punishable u/s. 323 of the IPC. ( 11 ) SO far as appellant No. 1 Rajendra Tiwari is concerned, learned counsel for the appellants has mainly contended that appellants were in possession of the disputed land and were sought to be dispossessed there from by the deceased. Appellant No. 1 Rajendra was assaulted by the deceased due to which he fell down and, therefore he had right of private defence of his person and property, as enumerated u/ss. 100 and 104 of the IPC and in exercise thereof, he had fired his rifle, due to which deceased Gendalal and Narayan were hit and died. ( 12 ) IT has further been urged, in this connection, that the assault on him is proved by his injury report (Ex. D/5) given by Dr. Ravishankar Choudhary (D. W. 4) after his examination and also by the seizure of broken nose-cap of his rifle, chain of wrist watch by K. S. Bhatia (P. W. 12) as per seizure memo (Ex. P/14 ). Learned counsel for appellant has made reference in his connection to the law laid down in State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 : (1975 Cri LJ 1079) and Munshi Ram v. Delhi Administration, AIR 1968 SC 702 : (1968 Cri LJ 806 ). P/14 ). Learned counsel for appellant has made reference in his connection to the law laid down in State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 : (1975 Cri LJ 1079) and Munshi Ram v. Delhi Administration, AIR 1968 SC 702 : (1968 Cri LJ 806 ). Also placing reliance on the case of Partap v. State of U. P. AIR 1976 SC 966 : (1976 Cri LJ 697), he has contended that the burden of proving their defence is not as onerous on the appellants as that on the prosecution. While, the prosecution is required to prove its case, beyond any reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability. It has been urged that assault on the appellant No. 1 having been proved by the evidence material on record, he has fully discharged his onus of proving the circumstances justifying use of force by appellant No. 1 in firing his rifle. ( 13 ) FURTHER elaborating the above contentions, the learned counsel for appellants has contended that deceased Narayan and Gendalal had come to the spot armed with lathi to take forcible possession of disputed land from appellant No. 1 and obstructed him in his cultivating operation. Thereupon, the appellant No. 1 Rajendra Tiwari had first fired the rifle in the air, but the deceased continued to advance towards him and assaulted and injured him, whereafter he had fired on the deceased Narayan and Gendalal. It has been contended that, as observed in the case of Deo Narain v. State of U. P. AIR 1973 SC 473 : (1973 Cri LJ 677) that the right of private defence if available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. Appellant No. 1 in order to protect his property and person, in the circumstances of the case has duly exercised the right of private defence. ( 14 ) IN the above context, it has also been urged that appellant No. 1 had sustained injuries during the incident and the same having not been explained, would give rise to adverse inference against the prosecution case and cast doubt regarding its truthfulness. ( 14 ) IN the above context, it has also been urged that appellant No. 1 had sustained injuries during the incident and the same having not been explained, would give rise to adverse inference against the prosecution case and cast doubt regarding its truthfulness. Reference, in this connection, has been made in the case of Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263 : (1976 Cri LJ 1736), wherein it has been laid down that :- ". . . It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences : (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version : (2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore their evidence is unreliable; (3) That in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which completes in probability with that of the prosecution one. " ( 15 ) THE learned counsel for the accused/appellant in this connection, has also referred to Bhaba Nanda v. State of Assam, AIR 1977 SC 2252 : (1977 Cri LJ 1930) and Jagdish v. State of Rajasthan AIR 1979 SC 888 : (1979 Cri LJ 888) and had contended that that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it become obligatory on the prosecution of explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated and failure to do so adverse inference against prosecution has to be drawn. Learned counsel for the appellants has also made reference, in this context, to the pronouncement of apex Court in the case of Kesha, v. State of Rajasthan, AIR 1993 SC 2651 : (1993 Cri LJ 3674 ). ( 16 ) IT has therefore been contended that since the prosecution has failed to explain theinjuries on the person of appellant No. 1 Rajendra Tiwari, the inference that arises is that it has not come out with the true version and has suppressed the genesis and the origin of the occurrence. Hence the defence version deserves to be accepted and consequently, appellant No. 1 should be held to have acted in due exercise of his right of private defence in firing at the deceased Gendalal and Narayan. ( 17 ) AS against this, learned counsel for the State/complainant have urged that Satyendra Kumar and Indra Kumar, sons of deceased, were having title over thee disputed land. The deceased were in possession thereof and were cultivating the same for the last many years, first as sub-tenants (Shikmi) and thereafter on behalf of their sons, as owners thereof. They were in actual possession of the disputed land, at the time of incident also, and had ploughed and sown the same, 4 or 5 days prior to the date of incident. It has been urged in this connection, that there were civil proceedings between the parties relating to the disputed land, wherein the appellant No. 1 had claimed injunction and in the alternative possession of the disputed land. Further, it has been urged that the disputed land was also record in the name of complainant party. ( 18 ) IT has been contended that the appellants went to the disputed field, armed with rifle, gun, etc. , with avowed object to dispossess the deceased from the disputed land, by ploughing the field again; which move was resisted and objected to by the deceased. Therefore, the appellants being the aggressors could not have any right of private defence, as has been tried to be contended on their behalf. Reliance in this connection was placed on Dhananjay v. State of U. P. AIR 1994 SC 551 : (1994 Cri LJ 614 ). Therefore, the appellants being the aggressors could not have any right of private defence, as has been tried to be contended on their behalf. Reliance in this connection was placed on Dhananjay v. State of U. P. AIR 1994 SC 551 : (1994 Cri LJ 614 ). ( 19 ) LEARNED counsel for the complainant/state also urged that appellant did not face any real or apparent danger, so as to justify firing of gun and rifle, at the deceased and fatally injuring them. Reliance has been placed on the following observation of Laxman Sahu v. State of Orissa, AIR 1988 SC 83 : (1988 Cri LJ 188), wherein it has been laid down that : (para 2) " It is needless to point out in this connection that the right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. The necessity must be present, real or apparent. " ( 20 ) THE learned counsel for the State/complainant has submitted that since there was no imminant danger to the appellants and also as the appellants were aggressors and trespassers on the disputed land; therefore the trial Court has rightly held the appellants guilty for committing murder of deceased; in furtherance of their common intention. ( 21 ) IN view of the rival contentions, as above, the main question, which deserves to be considered first, is as to which of the party was in possession of the disputed land ? ( 22 ) INDRA Kumar (P. W. 5) who is the son of deceased Gendalal had state that they, for the last 4-5 years, had been cultivating the disputed land as sub-tenants and thereafter had purchased it two years prior to the incident, He has also stated that they had ploughed most part of that field 4-5 days prior to the incident, however, some portion of the land was wet, hence could not be cultivated. Ramnath Patel (P. W. 1) has fully corroborated the above statement in all material particulars. ( 23 ) IN this connection, reference may also be made to the statement of Kunjiala (P. W. 4 ). Ramnath Patel (P. W. 1) has fully corroborated the above statement in all material particulars. ( 23 ) IN this connection, reference may also be made to the statement of Kunjiala (P. W. 4 ). Though, it is true that he has been declared hostile by the prosecution, but that by itself would not be a ground for rejecting his whole testimony, though the same shall require closer scrutiny, before reliance can be placed upon it. Reference, in this connection, may be made to the observations in Dhananjay Chatterji v. State of West Bengal, (1194) 2 SCC 220, that the testimony of a hostile witness is not liable to be rejected without even scrutinizing it, although great care and caution is required to analyse the same before accepting any part of it, as is otherwise found reliable and consistent with the prosecution case. ( 24 ) KUNJILAL (P. W. 4) has stated that from prior to the incident, he was in the employment of appellants and that on the date of incident, had first ploughed the land belonging to appellant No. 3 Bhura alias Vishwanath, which is adjoining the disputed land. Thereafter, the appellant No. 1 Rajendra had asked to plough the field of deceased Gendalal, whereafter he went to the field of deceased Gendalal and started ploughing the same. In his statement in paras 3, 4, and also 7, hehas re-emphasised that the disputed land was cultivated and was in possession of deceased Gendalal. It may be noticed that Kunjilal (P. W. 4) was in the employment of appellants and should have been naturally inclined in their favour. There is nothing to indicate that he had any axe to grind against the appellants. His presence on the spot at the time of incident is undisputed. His statement appears to be without bias and has a ring of truth in it. It may further he noted in this connection that Kunjilal (P. W. 4) being in employment of the appellants and doing their cultivating operations over their fields, some of which are adjoining the disputed land; naturally must have had full knowledge about the factual state regarding the possession of the disputed land. Therefore, after subjecting it to closer scrutiny, in our considered opinion, the testimony of Kunjilal (P. W. 4) deserves to be relied upon, and it appears therefrom that the deceased were in possession of the disputed land. Therefore, after subjecting it to closer scrutiny, in our considered opinion, the testimony of Kunjilal (P. W. 4) deserves to be relied upon, and it appears therefrom that the deceased were in possession of the disputed land. ( 25 ) AS against the above oral evidence of prosecution, the defence has examined Gopal Prasad (D. W. 1), who has stated that the disputed land is in possession of appellant No. 1 Rajendra Tiwari for the last 20-25 years, who carries the cultivation operation thereof. He has also stated that deceased Gendalal or Narayan were never in possession of the said field. ( 26 ) BESIDES above oral evidence, the appellants in their defence have produced documents, some of which are copies of Khasra Paanchasalas. It would appear from the said entries that earlier the land was recorded in the name of Dakchironji, Sakal, Kunda and Lalji, as per Ex. D/7 to D/11. These Khasra entries relate to the year till 1975-76. Thereafter, in the year 1975-76, the land appears to have been recorded in the name of Chunnilal, as per Khasra entries, Ex. D/12 and Ex. D/13, relating to the year upto 1984-85. It also appears that in the said Khasra, appellant No. I Rajendra Tiwari is shown to be in possession in column No. 10 thereof. Thereafter, in the year 1985, the land was recorded in the name of Shivji and it appears that, the names of minor Satyendra Kumar and Indra Kumar were mutated. It also appears that by order of S. D. O. , the order of mutation was stayed. The copy of the said order of S. D. O. is Ex. D/i5. Copy of the record of rights Ex. D/16, also indicates that the disputed land, Khasra No. 33/4 and No. 33/5, was duly recorded in the names of minor Satyendra Kumar and Indra Kumar. Thus, it appears that earlier till the year 1985, though the possession of appellant No. I was shown in the Khasra, but from the year 1985-86, his possession over the suit land has not been shown, as would be clear from copy of Khasra Panchsala, Ex. D/14 for the year 1985-86 to 1989-90. ( 27 ) IT also appears that Rajkumar Chakkan and Bhagwandas through their attorney, appellant No. 1, Rajendra Tiwari, had filed a civil suit against Chunnilal, Shivaji, Indra Kumar and Satyendra Kumar. D/14 for the year 1985-86 to 1989-90. ( 27 ) IT also appears that Rajkumar Chakkan and Bhagwandas through their attorney, appellant No. 1, Rajendra Tiwari, had filed a civil suit against Chunnilal, Shivaji, Indra Kumar and Satyendra Kumar. The copy of the plaint of the said suit is Ex. D/21. It appears that the said civil suit was filed seeking injunction against the defendants (i. e. , complainant party), that they be restrained from interfering the possession of plaintiffs (appellant No. 1) and in the alternative, it was prayed that if the defendants are held to be in possession of the disputed land, then a decree for possession thereof may be passed in favour of the plaintiffs. ( 28 ) IT may be mentioned here that Chunnilal and Shivji are previous owners of the disputed land, while the defendants 3 and 4 Satyendra Kumar and lndra Kumar of that suit are the 3 sons of the deceased Narayan and Gendalal, who claim to have purchased the land from the said owner Chunnilal and Shivji. It is alleged therein that the previous title holders Smt. Sonabai conferred the right of occupancy of the disputed land by way of gift on the predecessors of plaintiff and that they have accordingly cultivated it. Though, the copy of written statement filed by the defendants in that civil suit, has not been filed by the accused/appellants during trial, but they have filed the copies of their reply of injunction application in the said suit, which are marked as Ex. D/22, Ex. D/24 and Ex. D/25, in which it was pleaded that the possession of the disputed land is with defendants No. 3 and 4, i. e. Satyendra Kumar and Indra Kumar. ( 29 ) THUS, it transpires in the above civil suit, filed by appellant No. 1, as attorney, much prior to the incident, Satyendra Kumar and Indra Kumar, i. e. , the sons of Narayan and Gendalal had asserted their possession over the disputed land. In the order, Ex. D/34, passed in the said suit, the prayer of plaintiff, (i. e. appellant No. 1 Rajendra Tiwari) for temporary injunction has been rejected, as it was held that there was noprima facie case in favour of appellant No. 1 Rajendra, as during the year 1986-87 to 1989-90 Shivji, defendant No. 2 of the disputed land and thereafter defendant Nos. D/34, passed in the said suit, the prayer of plaintiff, (i. e. appellant No. 1 Rajendra Tiwari) for temporary injunction has been rejected, as it was held that there was noprima facie case in favour of appellant No. 1 Rajendra, as during the year 1986-87 to 1989-90 Shivji, defendant No. 2 of the disputed land and thereafter defendant Nos. 3 and 4 i. e. Satyendra Kumar and Indra Kumar were in possession thereof. No appeal appears to have been filed against the said finding and order, the same has, therefore become final between the parties. ( 30 ) THEREFORE, from the documents on record, including latest Khasra entry, Ex. D/14, copy of entry in record of rights Ex. D/16 as also documents relating to the civil suit between the parties, particularly, the order of injunction Ex. D/34, it would appear that the appellant No. 1 Rajendra Tiwari was not in possession of the disputed land at the time of the incident and also during the period preceding the incident. ( 31 ) THUS the above documentary evidence corroborates the oral evidence led by the prosecution which has been discussed earlier, and establishes that, at the time of incident and immediately prior to it, the complainant party, that is the deceased were in possession of the disputed land. The above conclusion further finds support from the fact that the appellant No. 1 was admittedly armed with rifle at the time of the incident, which took place when he was getting sowing operations carried on. Now, if appellant No. 1 had gone only to sow field in his possession, normally there was no question of his having gone there for that purpose, armed with rifle. This conduct of appellant No. 1 Rajendra Tiwari is eloquent proof of the fact that he had gone to the disputed field to take forcible possession thereof. Therefore, oral and documentary evidence on record indicates settled possession of the deceased over the dispute land and not that of the appellants. ( 32 ) IT may be noticed that the learned trial Court considered the question of possession of parties in detail in the impugned- judgement and the trial Court, after detailed discussion and appreciation of evidence, arrived at the finding that the disputed land was in possession of complainant party. ( 32 ) IT may be noticed that the learned trial Court considered the question of possession of parties in detail in the impugned- judgement and the trial Court, after detailed discussion and appreciation of evidence, arrived at the finding that the disputed land was in possession of complainant party. After careful consideration of the aforementioned material and evidence oral as well as documentary on record, as well as the circumstances of the case, as enumerated above, the above finding of the trial Court appears to be correct, and we concur with the same. ( 33 ) NOW coming to the evidence regarding the occurrence, the statement of Ramanath Patel (P. W. 1) is that the appellants were ploughing the disputed field, which was objected to by the deceased Gendalal and Narayan, whereafter the appellant No. 1 Rajendra Tiwari had fired with the rifle, which hit Gendalal and Narayan on account of which they fell down. Similar statement has been given by Indra Kumar (P. W. 5 ). The statement of Kunjilal (P. W. 4) corroborates the above statement, which is also to the effect, that after objection to the ploughing there was an altercation between accused appellant No. 1 Rajendra Tiwari and the deceased Gendalal and Narayan; whereafter, Gendalal had assaulted appellant No. 1 Rajendra Tiwari on the head, on account of which he fell down and thereafter Rajendra Tiwari fired, which hit first Gendalal and then Narayan. It may be mentioned that the angle of injuries sustained by Gendalal, as reported in his post-mortem reports (Ex. P/7) by Dr. B. K. Sakella (P. W. 3) clearly indicates that the rifle was fired from a lower angle towards the deceased Gendalal, on account of which he received injuries of entry and exit on the side and chest. ( 34 ) IT may be pertinent to note that it is not dispute by the appellants that the appellant No. 1 on being assaulted by the deceased, had fallen down and had thereafter fired with his rifle, hitting fatally the deceased Narayan and Gendalal. This is also borne out from the evidence on record, as noticed above. The appellant No. 1 Rajendra Tiwari, however, claims that he had fired in exercise of right of his private defence. This is also borne out from the evidence on record, as noticed above. The appellant No. 1 Rajendra Tiwari, however, claims that he had fired in exercise of right of his private defence. In this connection, it may be pointed out that from the foregoing discussion, it is clear that the deceased persons and not appellant No. 1 Rajendra Tiwari were in possession of the disputed land and appellant No. 1 Rajendra Tiwari was trying to forcibly dispossess them by ploughing the disputed land despite their protest. Therefore, it is clear that the deceased Gendalal and Narayan had right of private defence of their property and they could legitimately resist the move of appellant No. 1 Rajendra Tiwari to dispossess them from the disputed land. ( 35 ) IN the circumstances, the assault made by deceased Gendalal on appellant No. 1 Rajendra Tiwari appears to be in the exercise of the said right. As against this, since the appellant No. 1 Rajendra Tiwari was not in possession of the property and was a trespasser trying to forcibly oust and dispossess the deceased from the disputed land, obviously, therefore, the appellant No. 1 Rajendra Tiwari cannot be said to have any right of private defence, as has been tried to be urged on his behalf. Therefore, the firing of rifle by the appellant No. 1 Rajendra Tiwari appears to be without justification and not in the exercise of right of any alleged private defence. A trespasser cannot certainly have a right of private defence against a person in actual settled possession of the land, and the trespasser cannot forcibly oust him. Reference in this connection may be made to Dhananjay v. State of U. P. , AIR 1994 SC 551 : (1994 Cri LJ 614 ). ( 36 ) THEREFORE, appellant No. 1 is held liable for committing murder of deceased Gendalal and Narayan and finding of the trial Court in this regard is confirmed. ( 37 ) HOWEVER, so far as appellant No. 2 Narendra Prasad is concerned, his defence is that he was not present on the spot; while according to the prosecution he was also present at the spot and was armed with a 12 bore gun and had also fired with it, although it is not alleged that the shot fired by him hit anybody. ( 38 ) IT has been urged in this regard that the prosecution witnesses have tried to state that in all four shots were fired at the time of incident, three of which were by appellant No. 1 Rajendra and one by appellant No. 2 Narendra. In the above connection, Ramnath Patel (P. W. 1) has stated that after the appellant No. 1 Rajendra Tiwari had shot deceased Narayan and Gendalal, appellant No. 2 Narendra Prasad had also fired towards Narayan and thereafter, appellant No. 1 Rajendra Tiwari had again fired a shot towards Indra Kumar (P. W. 5 ). However, Ramnath Patel (P. W. 1) in his report (Ex. P/1) did not state that appellant No. 2 Narendra Prasad had fired towards Narayan, as he has tried to state during trial. He has simply reported therein that appellant No. 2 Narendra had fired a shot, but not that he aimed the shot at Narayan, as he has stated in the trial Court. It is also pertinent to notice that the report (Ex. P/1) in which details of the incident have been narrated by Ramnath Patel (P. W. 1) there is no mention that a fourth shot was fired by Rajendra after Narendra had fired, as Ramnath (P. W. 1) has stated during the trial. ( 39 ) SIMILARLY, though Indra Kumar (P. W. 5) has also stated during trial that appellant No. 2 Narendra Prasad also fired his gun, but there is conspicuous omission in this regard in his case diary statement, Ex. D/2. This material omission in his case diary statement clearly indicates that he has tried to make improvement in his statement during trial and he, therefore, cannot be believed in this regard. Similar is the position regarding the statement of Naresh Kumar (P. W. 6), who though states in his statement during trial that the appellant No. 2 Narendra had also fired, but he admits that he did not state so in his case diary statement and was disclosing this for the first time in Court during trial. ( 40 ) CLEARLY, therefore, there is a distinct attempt to make improvement by prosecution witnesses in their statements during trial, that in all four shots were fired; while during investigation, their statements to the police were to the effect that only three shots were fired. ( 40 ) CLEARLY, therefore, there is a distinct attempt to make improvement by prosecution witnesses in their statements during trial, that in all four shots were fired; while during investigation, their statements to the police were to the effect that only three shots were fired. It may be noticed in this context that admittedly only three empty cartridges, which were fired from 315 Rifle, were recovered from the spot by Investigating Officer, K. S. Bhatia (P. W. 12 ). Since appellant No. 1 Rajendra Tiwari was admittedly having 315 Rifle, above three empty cartridges lying on the spot, were, therefore, fired by him. Thus, the witnesses, in order to implicate the appellant No. 2 Narendra also in the occurrence, have tried to improve their statements, by stating that in fact four shots and not three (as was their earlier version) were fired at the time of incident. ( 41 ) IT is also pertinent to note that Rameshwar Prasad (P. W. 11), who has prepared the spot map on the instructions given by the prosecution witnesses, including the eye-witnesses of the incident, has admitted during cross-examination that he was not informed that the accused/appellant No. 2 Narendra was also present on the spot, which also supports the inference that the appellant No. 2 Narendra was not present at the time of the incident, otherwise, his presence would have been stated to Rameshwar Prasad (P. W. 11) and would have been shown in the spot map prepared by him. ( 42 ) MOREOVER, it may be noticed that if appellant No. 2 Narendra Prasad had fired with his gun, some pellets would have been found near the dead-body of Narayan or on the spot. However,the Investigating Officer, K. S. Bhatia (P. W. 12) in para 8 has admitted that no pellets were found near the dead-body of deceased Narayan or Gendalal, which also negatives the statements of prosecution witnesses that appellant No. 2 had also fired. ( 43 ) IN this context, the statement of Kunjilal (P. W. 4) is that appellant No. 2 Narendra Prasad did not fire and, in fact, he has categorically stated that Narayan was not on the spot which, deserves, to be believed. ( 43 ) IN this context, the statement of Kunjilal (P. W. 4) is that appellant No. 2 Narendra Prasad did not fire and, in fact, he has categorically stated that Narayan was not on the spot which, deserves, to be believed. It may be noticed that though Kunjilal (P. W. 4) has been declared hostile, but it is pertinent to note that he has given a statement that appellant No. 1 Rajendra had fired at Gendalal and Narayan. In the circumstances, there was no reason why he would not have stated so about appellant No. 2 Narendra Prasad also, who is the brother of appellant No. 1 Rajendra, had the appellant No. 2 Narendra Prasad been present and had he fired the gun shot. As already mentioned earlier, the statement of Kunjilal (P. W. 4) on close scrutiny appears to be truthful and deserves to be relied upon. ( 44 ) THEREFORE, the above statement of Kunjilal (P. W. 4), the spot map (Ex. P/14), the attempt to improve the prosecution case by the prosecution witnesses, as noticed above and pellets-powder having not been found on the spot, clearly indicate that appellant No. 2 Narendra was not present on the spot and had not fired, nor had partaken in the incident. Therefore, the conviction of the accused/ appellant No. 2 Narendra deserves to be set aside. ( 45 ) NOW considering the part taken by appellant No. 3, it would appear that Ramnath Patel (P. W. 1) has stated that as a result of altercation between accused/appellant No. 1 Rajendra and deceased Gendalal, Rajendra had fired, due to which deceased Narayan and Gendalal received the fatal injuries. It also appears that when Indra Kumar (P. W. 5) came to the spot, he was injured by the accused/appellant No. 3 Vishwanath, alias, Bhura, Indra Kumar (P. W. 5) has similarly stated that after the firing by appellant No. 1 Rajendra, when he tried to rush to help the deceased, the accused/appellant No. 3 Vishwanath alias Bhura had assaulted him, as a result of which, he sustained injury on his wrist, as found by Dr. R. N. Ojha. The injuries were simple in natures as reported in Ex. P/23. ( 46 ) FROM the above, it would appear that the firing by appellant No. 1 Rajendra was sudden, as a result of altercation between him and the deceased. R. N. Ojha. The injuries were simple in natures as reported in Ex. P/23. ( 46 ) FROM the above, it would appear that the firing by appellant No. 1 Rajendra was sudden, as a result of altercation between him and the deceased. In the circumstances, it does not appear that accused/appellant No. 3 Vishwanath alias Bhura had entertained any common intention with appellant No. 1 Rajendra in the firing or in committing murder of the deceased Narayan and Gendalal. It may be noted in this connection that the appellant No. 3 Vishwanath alias Bhura, had not partaken in the earlier part of the incident. It is only when, later Indra Kumar (P. W. 5) came on the spot that the appellant No. 3 Vishwanath alias Bhura gave him a 'lathi' blow. It may also be noted that the field of appellant No. 3 Vishwanath alias Bhura is adjoining to the disputed land and was sown on the very day on which the incident took place. Therefore, the mere presence of the accused/appellant No. 3 Vishwanath alias Bhura at the time of incident would not indicate that he had common intention with accused/appellant No. 1 Rajendra Tiwari in causing the death of the deceased. ( 47 ) THEREFORE, the appellant No. 3 Vishwanath alias Bhura would not be liable for having committed the murder of deceased Narayan and Gendalal in furtherance of common intention with the appellant No. 1 Rajendra and could be liable only for having caused injury to Indra Kumar (P. W. 5 ). Thus, though he could have been convicted for having voluntarily causing hurt to Indra Kumar (P. W. 5), but unfortunately since no charge against the accused/appellant No. 3 Vishwanath alias Bhura had been framed by the learned trial Court for that offence and, therefore, it would not be possible to convict him for the said offence. Therefore, the conviction of the accused/appellant No. 3 Vishwanath alias Bhura for offence punishable u/s. 302 read with S. 34 of the IPC deserves to be set-aside. ( 48 ) ACCORDINGLY, the appeal of appellant No. 1 Rajendra Tiwari fails and is hereby dismissed and the conviction and sentence imposed on him by the learned trial Court therefore are maintained. Therefore, the conviction of the accused/appellant No. 3 Vishwanath alias Bhura for offence punishable u/s. 302 read with S. 34 of the IPC deserves to be set-aside. ( 48 ) ACCORDINGLY, the appeal of appellant No. 1 Rajendra Tiwari fails and is hereby dismissed and the conviction and sentence imposed on him by the learned trial Court therefore are maintained. However, the appeals of accused/appellant No. 2 Narendra Prasad Tiwari and No. 3 Vishwanath alias Bhura are allowed and their conviction and sentence for offence punishable under Section 302 r/w. sec. 34 of the IPC are hereby set aside, and they are acquitted of the said charge. The fine amount, if deposited by them, shall be refunded to them. They being in jail are directed to be set at liberty forthwith, if not required to be detained in any other offence. Order accordingly. .