Judgment B.P.Sharma, J. 1. Both these appeals arise out of the same judgment and order passed by the 7th Addl.Sessions Judge, Bhagalpur in Sessions Trial No. 52/81 / 93/89. By his order dated 30th April, 1991 the learned Addl.Sessions Judge convicted the appellants, Jallu @ Jaldhar Singh, Rajendra Singh, Saso @ Jai Krishna Singh and Futo @ Nand Kishore Singh, under section 302 I.P.C. and the appellant Sadanand Singh under section 302 read with 109 I.P.C. By an order dated 1.5.1991 the appellants were sentenced to undergo R.I. for life. The sole appellant in Cr.Appeal No.146/91 is Hari @ Harihar Singh, who has been convicted under section 302 read with section 109 I.P.C. So far as Cr.Appeal No.213/91 is concerned, the appellants are Saso @ Jay Krishna Singh @ Jai Krishna Pd. Singh, Rajendra Prasad Singh @ Rajendra Singh, Futo @ Nand Kishore Singh and Jallu @ Jaldhar Singh, who have been convicted under section 302 I.P.C. by the learned trial court. 2. It may be noted in this regard that actually altogether eight persons were standing trial in this case. When the charges were framed in the case there were altogether nine accused, but one Govind Singh died during trial and the trial thus proceeded against rest eight persons. Seven of the accused, including the deceased Govind Singh, were charged under section 302 I.P.C. for having committed the murder of Harihar Yadav and they were also charged under section 148 I.P.C. for having joined an unlawful assembly with the common object of causing death of the said Harihar Yadav being armed with deadly weapons. Accused Hari @ Harihar Singh and Sadanand Singh were charged under section 148 I.P.C. for being the members of unlawful assembly and they were also further charged under section 302 read with section 149 I.P.C. for being the members of unlawful assembly as such, in the prosecution of the common object of which the murder of Harihar Yadav was committed by the members of this unlawful assembly. Seven accused persons, including Govind Singh (deceased), were also charged under section 302 read with section 149 I.P.C. for being the members of- unlawful assembly as such, in the prosecution of the common object of which the murder of Harihar Yadav was committed. Jallu @ Jaldhar Singh was charged under section 307 I.P.C. for having caused injury to Sidhu Yadav with an intention to commit his murder. Jallu @ Jaldhar Singh was charged under section 307 I.P.C. for having caused injury to Sidhu Yadav with an intention to commit his murder. Further, Futo @ Nand Kishore Singh and Tappo Singh were charged under section 307 I.P.C. for having caused injury to Sidhu Yadav with an intention to commit his murder. Prasadi Jethi, Jallu @ Jaldhar Singh and the deceased Govind Singh were also charged under section 307 I.P.C. for having caused injury to Sidhu Yadav with an intention to commit his murder. Accused Sadanand Singh was charged under section 324 I.P.C. for having caused injunies to Bagru with a sharp cutting instrument. Hari @ Harihar Singh was charged under section 302 read with section 109 I.P.C. for having abetted the commission of murder of Harihar Yadav by his companions. However, after recording evidence and hearing arguments of respective parties the learned Addt.Sessions Judge convicted the appellants, as stated above, but all the accused persons were acquitted of the charge under section 148 I.P.C. The accused persons were also acquitted of the charge under section 302 read with section 149 I.P.C. and undersection 307 I.P.C. as also under section 324 I.P.C It was on account of the finding recorded by the learned trial court that so far as unlawful assembly was concerned, the assembly of the accused was not actually unlawful and it was also held by the learned trial court that since the accused persons in the case had acted in exercise of their right of private defence, they could not be held liable for having committed the offences under sections 148, 307 and 324 I.P.C, but, however, the learned trial court after examining the evidence and circumstances appearing in the case and the law applicable in this regard held that four appellants of Cr.Appeal No.213/91 were guilty of having committed the murder of Harihar Yadav as they exceeded exercise of their right of private defence. Similarly, the appellant of Cr. Appeal No. 146/91 was also held liable for having abetted the commission of the offence of murder. 3. A short history of the case is like this. On 22nd of October, 1979 at about 12.30 P.M. a Police Officer of Jagdishpur Police Station in the District of Bhagalpur recorded the Fardbeyan of Bhudeo Yadav, son of Rameshwar Yadav of village Kola Narainpur at a Bandh in the village. 3. A short history of the case is like this. On 22nd of October, 1979 at about 12.30 P.M. a Police Officer of Jagdishpur Police Station in the District of Bhagalpur recorded the Fardbeyan of Bhudeo Yadav, son of Rameshwar Yadav of village Kola Narainpur at a Bandh in the village. According to the informant, Bandh was being used by the prosecution party for irrigating their fields since long, but some dispute arose between the prosecution party and the accused party regarding taking water from the Bandh and Rajinder Singh and his men had blocked the supply line of water on the previous day. But subsequently on the request he opened the channel of the Bandh for taking water by the members of the prosecution party and, thereafter, again it was blocked. So, on the alleged date of occurrence, i.e. on 22.10.1970 the informant alongwith some others approached the Sarpanch Rajinder Singh and requested him to release the water and he permitted them to do so. Thereafter the informant alongwith the deceased Harihar Yadav, Bhuteli Yadav, Pitamber Yadav, Devendra Yadav and others went to the Bandh and opened the channel for taking water. Thereafter the accused persons named in the F.I.R., including the appeallants, arrived there with various kinds of weapons, including guns and pistols, and appellnt Harihar Singh ordered to assault and the accused persons attacked the members of the prosecution party. Accordingly, on the orders of Hari @ Harihar Singh, accused Jallu @ Jaldhar Singh, Rajendra Singh, Futo @ Nand Kishore Singh fired at Harihar Yadav (deceased). Harihar Yadav fell down and some other accused persons, namely, Bhuteii Yadav, Futo @ Nand Kishore Singh and Tappo Singh also fired. However, Jallu @ Jaldhar Singh fired at Sidhu Yadav and Govind Singh (deceased) fired at the informant. However, the informant and Sidhu Yadav took shelter behind the ridge of a paddy field and saved themselves. The other members of the prosecution party were also assaulted by the accused persons and thereafter they fled away. The Police Officer subsequently arrived there and recorded the statement of the informant in the Fardbeyan (Ext.6) which was subsequently sent to the Police Station where a formal F.I.R. (Ext.5) was drawn up and the case was registered. The other members of the prosecution party were also assaulted by the accused persons and thereafter they fled away. The Police Officer subsequently arrived there and recorded the statement of the informant in the Fardbeyan (Ext.6) which was subsequently sent to the Police Station where a formal F.I.R. (Ext.5) was drawn up and the case was registered. It transpired that the dead body of Harihar Yadav (Deceased) was found lying at a distance of about 500 yards from the place where the occurrence is said to have taken place and the Police Officer examined the dead body and prepared an inquest report and the dead body was sent for Postmortem Examination. Some materials were also seized at the P.O. and a seizure list (Ext.8) was prepared. After recording the statements of the witnesses and on receiving the postmortem report as well as injury reports of the injured witnesses and on completion of all formalities of investigation, the I.O. submitted charge sheet in the case and after cognizance the case was committed to the court of Sessions where the trial commenced. 4. The prosecution in this case examined altogether 14 witnesses in support of the charges framed against the accused persons. Out of these 14 witnesses, P.W.10 is the doctor, who had examined the injuries of the injured witnesses and P.W.12 is the doctor, who held the postmortem examination. P.W.6 happens to be a formal witness, Who was present when the gun was seized from the house of accused Jaldhar Singh. According to him, the seizure list was prepared in his presence, P.W.7 Ishar Yadav happens to be a witness on the inquest report. According to him, the inquest report was prepared in his presence on which he signed. His signature is Ext. 1/5. He also proved the signatures of other witnesses on the seizure-list, namely, Rewati Yadav and Kishori Yadav, marked Exts. 1/6 and 1/7. P.W.8 Kishori Prasad Yadav happened to be Mukhiya of the Gram Panchayat under which the P.O. village fell. According to him, Pipra Bandh existed in village Tola Narainpur and the water of this Bandh used to be taken by all concerned living in three different tolas of the village. 1/6 and 1/7. P.W.8 Kishori Prasad Yadav happened to be Mukhiya of the Gram Panchayat under which the P.O. village fell. According to him, Pipra Bandh existed in village Tola Narainpur and the water of this Bandh used to be taken by all concerned living in three different tolas of the village. This witness further stated that in the year 1979, on 22.10.1979 he received information that there was some altercation between some persons regarding taking water of the Bandh for irrigation and then he went to Rajput Tola of the village and came to the Pokhar and as he was apprehensive of some trouble, he went to Jagdishpur Police Station and informed the Block Development Officer in this regard and he also informed the local police. Thereafter he returned to the P.O. alongwith the Police Officer and then he learnt that the murder of Harihar Yadav was committed by the accused persons. He also further stated that the Fardbeyan of the informant was also recorded in his presence and he also signed the same. His signature is Ext. 1/8. He also further stated that some seizures of blood stained earth were made and a seizure list was prepared on which his signature has been marked as Ext. 1/7. He also stated that when he came towards Rajput Tola, he saw the dead body of Harihar. Yadav lying on the road and accordingly the Police Officer prepared he inquest report on which he also signed which is marked Ext. 1/7. P.W.11 is also a formal witness. He is a Police Officer, who has stated that on 22.10.1979, while he was posted at Jagdishpur P.S. as A.S.I., Pradeep Narain Singh was the Officer Incharge, who was now dead. He stated that on 22.10.1979 at 2.30 P.M. he had searched the house of Jallu @ Jaldhar Singh (accused) and he recovered a D.B.B.L.gun from his house and he prepared a seizure list (Ext.3) on which the witnesses also signed. P.W.13 is also a formal witness. He had identified the dead body of Harihar Yadav at the time of Postmortem Examination. P.W.14 Md. Jiyaullah as a formal witness has formally proved the formal F.I.R. (Ext.5), The Fard- Beyan (Ext.6), the case diary (Ext.7), the seizure list (Ext.8), inquest report (Ext.9) and two requisitions (Ext. P.W.13 is also a formal witness. He had identified the dead body of Harihar Yadav at the time of Postmortem Examination. P.W.14 Md. Jiyaullah as a formal witness has formally proved the formal F.I.R. (Ext.5), The Fard- Beyan (Ext.6), the case diary (Ext.7), the seizure list (Ext.8), inquest report (Ext.9) and two requisitions (Ext. 10 and 10/1) which was so done because the I.O. of the case was dead and he could not be examined by the prosecution. 5. Out of the rest witnesses, P.W.12 is the doctor, who held the Postmortem Examination. So far as P.W.10 is concerned, he was a Medical Officer, who had examined the injred persons in this case and has submitted his report, but his evidence now becomes irrelevant because the accused persons in this case were acquitted of the charge of having caused the injuries to the witnesses. P.W.12, however, held the postmortem examination on the dead body of Harihar Yadav on 23.10.1979 at 10 A.M. and he found the following injuries : (i) One wound of entry of 1/2" x 1/2" deep to the chest cavity having blackening and inverted margin at the level of 9th thovenic vertibra on inter- vertibral line. The projectile after passing through the skin and adjacent vessels and nerve entered into the right side of the chest cavity, passing through the right iung. It has come out having would exit 2"x2" above the right nipple everte4d margin at the level of 4th and 5th ribs right side of 2" x 2". The right side of the chest cavity was filled with blood and blood clots. (ii) One wound of entry of 1/4" x 1/4" deep to the brain pluestances having ingerted margin on the left temporal bone 1/2" above the left lateral pina. The projectile after passing through the left temporal bone had entered into the brain substances and pillet was recovered and there was intra-cranial hameorrhage. (iii) One wound of entry of 1/2" x 1/4" deep upto the brain substances. There was blackening and inverted margin on the mid of the frontal bone. Projectile after passing through the frontal bone entered into the brain substances and lodged there which was removed. There was intra cranial haemorrhage. (iv) One wound of entry of 1/2" x 1/2" deep to the muscle just below the ramins of the mondable having inverted margin. There was blackening and inverted margin on the mid of the frontal bone. Projectile after passing through the frontal bone entered into the brain substances and lodged there which was removed. There was intra cranial haemorrhage. (iv) One wound of entry of 1/2" x 1/2" deep to the muscle just below the ramins of the mondable having inverted margin. The projectile after passing through the skin muscle adjacent nerve and vessles entered just below the brain and was lodged there which was removed. (v) One wound of entry of 1/2" x 1/2" musde deep in the right upper arm having inverted margin and blackening. The projectile after passing through the skin and muscle had come out having wound of exit from the back of the right upper arm of 1/2" x 1/2" with inverted margin. (vi) One wound of entry of 1/2" x 1/2" muscle deep blaokening and inverted margin on the front of the fore arm. Projectile after passing through the skin and muscle came out with wound of exit of 1/2" x 1/2" on the back of the fore arm. In the opinion of the doctor all the injuries were a ante-mortem in nature and were caused with fire-arms; such as gun and pistol. The death was due to shock and haemorrhage as a result of the injuries caused on the vital organs of the victim and the death was caused within 24 hours from the time of postmortem examination. The injuries in the opinion of the doctor were sufficient to cause instantaneous death in ordinary course. The postmortem report is Ext.4. 6. The other witnesses, i.e. P.Ws. 1, 2, 3, 4, 5 and 9 are on the point of occurrence. P.W.2 is the informant of this case, who happened to be a brother of the deceased. P.W.1 was the son of the deceased and P.W.3 was a co-worker of the deceased. P.W.4 claimed that he was cutting the grass near the P.O. at the alleged time of occurrence and he had seen the occurrence. Similarly, P.W.9 also stated that he was irrigating his field at the time of occurrence and he happened to be a witness of the occurrence. P.W.5, who was an eye witness to the occurrence, turned hostile and did not support the prosecution story in his evidence. Similarly, P.W.9 also stated that he was irrigating his field at the time of occurrence and he happened to be a witness of the occurrence. P.W.5, who was an eye witness to the occurrence, turned hostile and did not support the prosecution story in his evidence. It appears that P.W.5 had also sustained injuries in course of the incident, but he has stated that it was the accused Jallo Singh who had fired both at Harihar Yadav (deceased) as well as at him and he had fled away. So he neither spoke about the participation of other accused in the commission of the offence nor he stated anything else then the fact that he had seen 8-10 persons coming to the P.O. with lathi, Bhaia and fire arms and he had identified only Jallu Singh, Prasadi Singh, Tappo Singh, Sattan Singh, Sarpanch Rajendra Pd. Singh and Govind Singh. Accordingly, he was declared hostile. 7. P.W.2 Bhudeo Yadav is the informant and he has supported the prosecution story as narrated in the F.I.R. (Ext.6). He stated that while he alongwith others were trying to take water for the irrigation from the Bandh, the accused persons, namely, Hari @ Harihar Singh, Soso @ Jai Krishna Singh, Futo @ "and Kishore Singh, Rajendra Singh, Govind Singh, Jallu @ Jaldhar Singh and Prasadi Jethi came. According to him, Hari @ Harihar Singh was holding a Bhala, Soso @ Jai Krishna Singh was holding a double barrel gun, futo was having a pistol, Rajendra Singh had also a country made pistol, Govind Singh had also a country made pistol, Jallu had also a double barrel gun and Tappo was also having a pistol. He further stated that Sadanand Singh had also a sword. He further stated that as soon as the accused persons came, Hari Singh ordered to assault on which Jaldhar Singh, Soso, Futo and Rajendra Singh opened fire with the guns and pistol in their possession and Harihar Yadav was hit and he fell down in mud. He further stated about the assault of to there witnesses including him self. He also stated that when they sustained injuries the accused persons also chased them away and thereafter they dragged the dead body of Harihar Yadav and put it on path or road near the Darwaja of Sarpanch and thereafter they put fire to the hay-stack kept near the Darwaja of Sarpanch. He also stated that when they sustained injuries the accused persons also chased them away and thereafter they dragged the dead body of Harihar Yadav and put it on path or road near the Darwaja of Sarpanch and thereafter they put fire to the hay-stack kept near the Darwaja of Sarpanch. He further stated that the Police Officer came at about 12.30 and then he recorded the statement of this witness and he put his signature on the same and some other witnesses also signed the same and some other witnesses also signed the same document. He further stated that on the alleged date of occurrence they had taken water by the Bandh for irrigation for 1 1/2 hours before the accused persons came and they used to take water from his Bandh early also. He further stated that one day prior to the occurrence after they had irrigated their fields the accused persons had closed the channel and on the alleged date of occurrence in the morning they had approached the Sarpanch Rajendra Singh and asked him to permit them to take water and the Sarpanch permitted them to take water. He also further stated in the cross-examination that there is a pond in the village and the people of the village also took water from the pond for irrigation, but in the relevant year there was no sufficient water in the pond for irrigating the fields. He also stated that he had shown the P.O. to the I.O. for examination. He also stated about the two witnesses, namely, Ghutki and Bhora that they had gone In collusion with the accused persons. It appears that two things this witness stated in his evidence in court which he had not stated in the Fard- Beyan (Ext.6) whereas he did not state in the Fard Beyan that the accused persons had dragged the dead body of Harihar Yadav to some distance and he also did not state in the Fard Beyan that the accused persons set fire to haystack near the Darwaja of Sarpanch Rajendra Singh. It has not been explained as to why it had so happened (sic) this witness, the informant did not state so in his Fard Beyan. The other witness, the informant did not state so in his Fard Beyan. It has not been explained as to why it had so happened (sic) this witness, the informant did not state so in his Fard Beyan. The other witness, the informant did not state so in his Fard Beyan. The other witnesses P.Ws 1 Pitamber Yadav, P.W.3 Munai Yadav, P.W.4 Bhutali Yadav and P.W.9 Devendra Yadav also supported the prosecution story as stated by the informant in court. It has already been pointed out that P.W.4 Bhutali Yadav had stated that he had gone to cut grass at the relevant time and saw the occurrence that when the members of the prosecution party were taking water from the Bandh, the accused persons came and opened fire killing Harihar Yadav. However, he had also sustained injuries in course of this occurrence. Therefore, his presence at the P.O. could not be doubted. P.W.9 Devendra Yadav was one of the persons engaged in taking water from the Bandh at the P.O. and according to him the occurrence took place for irrigating the paddy fields. He, however, stated that after the assault on the members of the prosecution party, he fled away. 8. it is important to note in this case that while dealing with the evidence in order to come to a different conclusion the learned trial court observed that the manner in which the occurrence took place indicate that the accused persons had not formed an unlawful assembly within the meaning of Section 141 I.P.C. and the common object of unlawful assembly was not for some unlawful purpose, i.e. to assault or kill the members of the prosecution party; rather it was to defend their right over the Bandh in question from which water was being taken by the members of the prosecution party for irrigating their fields. It has been observed by the learned trial court that it has been admitted by the prosecution itself that the channel of the Bandh was closed by the accused persons one day prior to the alleged date of occurrence and on their request the water was allowed to be taken away and that they irrigated their fields also. It has been observed by the learned trial court that it has been admitted by the prosecution itself that the channel of the Bandh was closed by the accused persons one day prior to the alleged date of occurrence and on their request the water was allowed to be taken away and that they irrigated their fields also. It is further admitted that again the channel was closed by the accused persons and then according to the informant himself, they approached the Sarpanch and requested him to allow the members of the prosecution party to take water from the Bandh for irrigating their fields and it was allowed. Thereafter the members of the prosecution party opened the channel and started taking water. It has also further been stated on behalf of the prosecution that while the deceased was engaged in clearing the channel through which the water was passing, he was attacked and shot at. In this view of the matter, it has been observed by the learned trial court that it makes the position clear that the Bandh was under the control of the accused persons. So, if the members of the prosecution party were taking water from that Bandh and if the accused persons felt that it was encroachment over their right to control the Bandh, they had right to object to it. It appears to be unprobable and absurd that if the Sarpanch had permitted the members of the prosecution party to take water and accordingly, the water was taken for irrigation by the members of the prosecution party, the accused persons all on a sudden decided to attack and kill the members of the prosecution party. However, it has also been stated by an important witness of the prosecution itself, i.e., P.W.8 Kishori Prasad Yadav, the Mukhiya, that in the year in question on 22.10.1979 he received information that there was some altercation between the parties regarding taking water from the Bandh and accordingly, he went to Rajput tola to which the accused persons belonged and thereafter he went to the Bandh also and in order to avoid any further trouble he went to Jagdishpur Police Station and he informed the Block Development Officer as also the Police Officer in the Police Station. Therefore it becomes clear that there was some dispute between the parties, i.e. the members of the prosecution party on the one hand and the accused party on the other hand regarding flow of water from the Bandh for the irrigating the fields of the members of the prosecution party. The learned trial court has observed in this context that if the Bandh in question was under the control of the accused party and if the water was being taken by the members of the prosecution party from the Bandh it amounted to encroachment over their right to control over the Bandh and therefore, the accused persons have gone to the P.O. to prevent the members of the prosecution party from taking water. It appears to be natural also. If there was shortage of water and the Bandh was under the control of the accused party from which the water was being taken by the prosecution party, there might be apprehension in the mind of the accused party that it might damage their crops also if there was shortage of water to irrigate their fields. It appears from the evidence of the witnesses for the prosecution that they have denied that there was any dispute or altercation between the parties, but it is falsified by the witness of the prosecution, P.W.8 himself. In this background, if there was attack on the members of the prosecution party by the accused persons, it has been held by the learned trial court that the members of the accused party were acting in exercise of their right of private defence regarding the property as damage was likely to be caused to the accused side. Accordingly, the learned trial court held that the accused persons, who had gone to the P.O. in a mob, did not constitute unlawful assembly as contemplated under section 141 I.P.C. and the mob had also no common object to assault or kill the members of the prosecution party. The learned trial court has accordingly recorded the finding on (sicof ?) no guilt against the members of the accused side. 9. The learned trial court has accordingly recorded the finding on (sicof ?) no guilt against the members of the accused side. 9. So far as the allegations regarding rioting and assault, even the murderous assault, on the members of the prosecution party are concerned, in this connection it has been contended on behalf of the appellants that it appears to be strange that while the learned trial court accepted that the accused persons had justification in assaulting the members of the prosecution party in exercise of their right of private defence, the appellants have been convicted of the offence under section 302 I.P.C. for having committed the murder of Harihar Yadav and one appellant has also been convicted for having abetted the commission of murder of the deceased. Therefore, it has been contended that the conviction of the appellants does not appear to be justified. 10. The learned A.P.P. appearing for the State in this case, on the other hand, submitted that merely because some of the accused on trial have been acquitted, the appellants should not have been found guilty and convicted, cannot be acquitted merely on this ground. The learned A.P.P. appearing for the State cited two decisions in this regard. In the case of Brathi @ Sukhdev Singh V/s. State of Punjab ( AIR 1991 S.C. 318 ) it has been held by their Lordships that : "Where the evidence examined by the appellate court unmistakenly proves that the appellant was guilty under section 34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the appellate court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding." It has further been observed that the appellate court has power to review the whole evidence and can come to a conclusion that the acquittal or finding of the innocence of the accused by the trial court is improper and conviction of the appellant can be maintained. Another judgment is Khujji @ Surendra Tiwari V/s. State of Madhya Pradesh (AIR 1991 S.C.1853) in which also the abovementioned decision was relied upon and it was observed that "the appellate court is not bound by the facts found proved on the appreciation of evidence by the courts below and is, in law, entitled to reach its own conclusion different from the one recorded by the courts below on a view of the evidence though in the absence of an appeal by the State the acquittal cannot be set aside or converted into conviction." 11. So far as the present case is concerned, the findings recorded by the learned trial court do not appear to be improper and unjust as the circumstances appearing in the evidence in this case justify the correctness of the finding. In this connection it is also important to note that some defence witnesses have also been examined in this case and D.W.4 has stated that he was a constable posted at Jagdishpur P.S. at the relevant time and he proved the station diary entry (Ext.B) which was recorded at the P.S. on the information of the Sarpanch of Kola Narainpur from which it transpired that there was some apprehension of breach of peace and then this witness was sent to the place where he arrived and found hundreds of persons assembled with arms and he tried to pacify them, though they were adamant to take water at any cost and he subsequently returned to the PS. when he found the situation beyond the control. He has stated that the Sarpanch, who had informed the Police Station in this regard, was Rajendra Singh, D.W.3 Janardhan Mandal of the P.O. village has also stated that he was asked by the Sarpanch Rajendra Pd. Singh to accompany him to the Police Station where he was gone and lodged information and a police constable was deputed. He also identified the accused Rajendra Singh as the person who is described as Sarpanch. He is appellant no.2 in Cr. Appeal No.213/91. So, it appears that actually the entire incident did not take place all on a sudden and the accused persons did not attack the members of the prosecution party totally unprovoked. He also identified the accused Rajendra Singh as the person who is described as Sarpanch. He is appellant no.2 in Cr. Appeal No.213/91. So, it appears that actually the entire incident did not take place all on a sudden and the accused persons did not attack the members of the prosecution party totally unprovoked. In this view of the matter, the findings of the learned trial court regarding absence of common object on the part of the mob constituted of the accused persons does not appear to be improper or incorrect. If there was apprehension on the part of the accused persons that their right to property being infringed, they were justified in resorting to attack or attempt on the part of the members of the prosecution party to disturb their possession and control over the Bandh from which the water was being taken. The learned trial court, therefore, has rightly held the accused persons not guilty of having committed the offences of rioting and assault. 12. However, in this connection the question arises whether the right of the appellants extended to causing death of the deceased. In this case the right of causing death in exercise of right of private defence extends only in limited circumstances as laid down in Section 100 of the Indian Penal Code, but the present situation is not covered by the conditions under section 100 I.P.C. Therefore, it is obvious that the exercise of right of private defence by the appellants has been exceeded in the present case, but if it is so that the right of private defence has been exceeded, the offence committed, though it cannot amount to a homicide amounting to murder. According to Section 300 of the Indian Penal Code : "Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 2ndly.If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly.If it is done with the intention of causing bodily injury to any person and the bodily injury intended to beinflicted is sufficient in the ordinary course of nature to cause death, or 4thly.If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." According to exception laid down in Section 300 I.P.C. : "Exception 7.Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception 2.Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence." 13. Thus, it is clear from the circumstances in this case that Exception 2 to Section 300 I.P.C. is applicable in the present case. Thus, it is clear from the circumstances in this case that Exception 2 to Section 300 I.P.C. is applicable in the present case. It appears that an offence of culpable homicide is not amounting to murder is punishable under section 304 I.P.C, when the case falls under one of the other clauses of Section 300, but is covered by Exception 2 to Section 304 I.P.C. It is clear from the observation made above and the provision of law quoted above that the present case was covered by Exception 2 of Section 300 I.P.C. Therefore, causing of death of the deceased in this case is apparently punishable under section 304 Part I because the injury caused to the deceased in this case was caused in such a manner which was likely to cause death. It is clear from the evidence on record that the fire arm injuries were caused on the vital part of the person of the deceased and therefore, the injury was very likely to cause death, though there might not have been intention on the part of the assailant to cause death. 14. So far as the appellant Hari @ Harihar Singh @ Harihar Prasad Singh of Cr. Appeal No.146/91 is concerned, he has been convicted of offence under section 302 read with section 109 I.P.C. for having abetted the commission of murder. The conviction of this appellant is converted into a conviction under section 304 read with Section 109 I.P.C. Similarly the conviction of other four appellants of Cr.Appeal No.213/91 is also converted into a conviction under section 304 Part I I.P.C. The conviction of these appellants under section 302 I.P.C. is set aside. Similarly, the conviction of the appellant of Cr. Appeal No. 146/91 under section 302/109 I.P.C. is also set aside. All the appellants of Cr.Appeal No. 213/91 are sentenced to undergo R.I. for ten years each and also to pay a fine of Rs. 1000/- each and in default to undergo R.I. for two months each under section 304 Part I I.P.C. Appellant Hari @ Harihar Singh @ Harihar Pd. Singh of Cr.Appeal No. 146/91 is also sentenced to undergo R.I. for ten years under section 304 Part I read with section 109 I.P.C. and also to pay a fine of Rs.1000/- and in default to undergo R.I. for two months. 15. Singh of Cr.Appeal No. 146/91 is also sentenced to undergo R.I. for ten years under section 304 Part I read with section 109 I.P.C. and also to pay a fine of Rs.1000/- and in default to undergo R.I. for two months. 15. Both the appeals are, accordingly, dismissed subject to the modification as suggested above. 16. I agree.