Judgment B.K.Jha, J. 1. This appeal is directed against the judgment and order dated 27.7.1996 passed by 1st Additional Sessions Judge, Chapra in Sessions Trial No. 422 of 1988 convicting and sentencing the appellants to undergo imprisonment for life u/s. 302 of Indian Penal Code (in short "IPC"). 2. The case of prosecution, in short, is that on 13.11.1986 at about 8.45 A.M., deceased Durga Sah, father of informant-Kanhai Lal Sah (P.W. 7) sitting at his Darwaza with informant, was washing his mouth when all the appellants came there. Appellants Ram Nath Sah and Shravan Sah were armed with lathis, appellant Mandeo Sah was armed with Farsa and appellants Satyadeo Sah, Deo Nath Sah and Laxman Sah were armed with daggers. Appellants caught hold of father of informant and took him in the field of appellant Ram Nath Sah where appellant Ram Nath Sah and Shravan Sah started assaulting him with lathis, appellants Satyadeo Sah, Deo Nath Sah and Laxman Sah with daggers and appellant Mandeo Sah assaulted on his with Farsa. The informant and his father raised alarm and informant tried to rescue his father when appellant Ram Nath Sah gave two to three lathi blows on him causing injuries to his left and right arm. On hulla, Bhola Sah (P.W. 4) and Nand Lal Sah (P.W. 1), own brothers of informant, Sakla Devi (P.W. 5), mother of informant, Kalawati Devi (P.W. 2), wife of informant and villagers Dhaneshwar Singh (not examined) and Ganesh Sah (P.W. 3) came there and saw the occurrence. On their arrival, all the appellants fled away. The informant saw his father was groaning and he saw Farsa injury on his head and dagger injuries on his chest and back. Father of informant died at the spot on account of excessive bleeding. The informant, on the same day at about 12.45 P.M. lodged First Information Report (Exhibit-1) in which cause of occurrence is stated to be land dispute and old enmity. A case under Ss. 147, 148, 149, 342, 323 and 302 of IPC was registered against the appellants and police, after investigation, submitted chargesheet against them. The informant, on the same day at about 12.45 P.M. lodged First Information Report (Exhibit-1) in which cause of occurrence is stated to be land dispute and old enmity. A case under Ss. 147, 148, 149, 342, 323 and 302 of IPC was registered against the appellants and police, after investigation, submitted chargesheet against them. Charge u/s. 302 of the Indian Penal Code against all the appellants and additional charge u/s. 323 of the Indian Penal Code against appellant Ram Nath Sah were framed and the appellants were put on trial and after trial, they were held guilty and were convicted and sentenced, as stated above. 3. The case of appellants, as it appears from the trend of cross-examination of prosecution witnesses and documents produced on their behalf, is that on the day and time of occurrence, the informant alongwith his father and brothers was installing a Nad (manger) and Khunta (peg) on the land of appellant Ram Nath Sah on which appellant Ram Nath Sah and his son Mandeo Sah went to their land and asked the informant, his father and brothers to remove the Nad and Khunta on which deceased Durga Sah started abusing them and ordered his sons to assault them. At the order of deceased Durga Sah, the informant Kanhai Lal Sah took knife from his pocket and assaulted and inflicted knife injury on the right scapular region of appellant Ram Nath Sah and when he fell down, Bhola Sah assaulted him with kicks and fists and on alarm raised by appellant Ram Nath Sah, his villager Bhikhari Sah came there running. The further case of appellants is that the appellant Ram Nath Sah was taken to Sadar Hospital, Chapra and his statement was recorded by Assistant Sub Inspector K.K. Mishra of Bhagwan Bazar Police Station in the Surgical Ward of Sadar Hospital, Chapra and because his case was not instituted by police, therefore, he filed a complaint case in the Court of Subdivisional Judicial Magistrate, Chapra (Exhibit-A). 4. Now it has to be seen how far prosecution has been able to prove its case beyond all reasonable doubts. 5. Altogether eleven witnesses have been examined on behalf of prosecution. 4. Now it has to be seen how far prosecution has been able to prove its case beyond all reasonable doubts. 5. Altogether eleven witnesses have been examined on behalf of prosecution. Kanhai Lal Sah (P.W. 7) is the informant, Nand Lal Sah (P.W. 1) and Bhola Sah (P.W. 4) are brothers of informant, Kalawati Devi (P.W. 2) is the wife of informant, Ganesh Prasad (P.W. 3) is the Samdhi and Sakla Devi (P.W. 5) is wife of deceased. Dr. Anil Kumar Sinha (P.W. 6) is the doctor who had held post mortem examination on the dead body of deceased. Bishwanath Mishra (P.W. 8) is a formal witness who has proved formal First Information Report (Exhibit-4). Hasnain Khan (P.W. 9) is the Investigating Officer of this case. Bishwanath Prasad (P.W. 10) and Dharamdeo Pandey (P.W. 11) are formal witnesses who have proved a sale deed (Exhibit-7) and informatory petition (Exhibit-13). 6. Dr. Anil Kumar Sinha (P.W.6), in his evidence, has stated that on 14.11.1986, he was posted as Civil Assistant Surgeon, Sadar Hospital, Chapra and on that day at about 11 A.M., he held post mortem examination on the dead body of deceased Durga Sah and found the following ante mortem injuries: (i) Incised wound on the top of head 1-1/2"x1/4"xscalp deep, (ii) Perforating incised wound middle of membrane stern bone of chest cavity deep x3/4" x 1/3" and this wound had incised in chambers of the heart, (iii) Perforating wound on back of right side of chest fifth intercoastal space below on scapula perforating the right lung lower part 3/4"x1/3" xcavity deep, (iv) Incised wound on left back of chest 3/4"x1/3"x1/3" below on left scapula 2" lateral to midline, and (v) Abrasion on back of right knee 1-1/2" x 1/2". According to him, death was caused mainly by injury No. (ii) and partially by injury No. (iii) causing damage to heart bond and right lung caused by sharp penetrating instrument like Chura and time elapsed since death was thirty six hours. He has proved his post mortem examination report which is marked Exhibit-2. In cross-examination, he has said that all the injuries can be possible by one nature of weapon. The evidence of this witness establishes that death of deceased was homicidal. 7. He has proved his post mortem examination report which is marked Exhibit-2. In cross-examination, he has said that all the injuries can be possible by one nature of weapon. The evidence of this witness establishes that death of deceased was homicidal. 7. Kanhai Lal Sah (P.W. 7), the informant in his evidence, has said that on the day of occurrence at about 8.45 A.M., his father was sitting at his Darwaza towards south of his house when appellants Ram Nath Sah and Shravan Sah armed with lathi appellant Mandeo Sah armed with Farsa, appellants Satyadeo Sah, Deo Nath Sah and Laxman Sah, armed with daggers, came there and caught hold of his father and took him dragging six to seven feet towards south and started assaulting him. He was also there. Appellants Ram Nath Sah and Shravan Sah assaulted his father with lathi and appellant Mandeo Sah assaulted him on his head with Farsa and appellants Satyadeo Sah, Deo Nath Sah and Laxman Sah assaulted him with daggers on his chest and back and when he went to rescue his father, he was also assaulted with lathi by appellant Ram Nath Sah and his father, after receiving injuries, fell down on the ground. He has said that occurrence was witnessed by Bhola Sah (P.W. 4), Nand Lal Sah (P.W. 1), Kalawati Devi (P.W. 2), Sakla Devi (P.W. 5), Ganesh Sah (P.W. 3) and a number of other villagers and appellants, after occurrence, fled away. About the relationship between him and appellants, he has stated that his ancestor Gopi Sah had two sons, namely, Khelawan Sah and Sunder Sah, Khelawan Sah had two sons, namely, Sarju Sah and Singhasan Sah, Sarju Sah had two sons, namely, Bishwanath Sah and Durga Sah (deceased). Singhasan Sah had one son who is appellant Ram Nath Sah and appellant Mandeo Sah and Satyadeo Sah are sons of appellant Ram Nath Sah. This part of his evidence suggests that deceased was the own cousin of appellant Ram Nath Sah. Singhasan Sah had one son who is appellant Ram Nath Sah and appellant Mandeo Sah and Satyadeo Sah are sons of appellant Ram Nath Sah. This part of his evidence suggests that deceased was the own cousin of appellant Ram Nath Sah. On the point of land dispute between the parties, he has given the history of the dispute by stating that land of plot No. 1040, khata No. 39 measuring one katha twelve dhurs is situated towards south of his house and on this land, there was a house in which he and his Pattidars are living which belongs to him and his Pattidars and his father had share of four dhurs in this land and appellant Ram Nath Sah had eight dhurs. Apart from his own share, his father had purchased twenty dhurs of this land from Bishwanath Sah, Mahavir Sah and Sripati Kuer at different time by different sale deeds whereas appellant Ram Nath Sah had sold his eight dhurs share to one Gautam Sah. He has further said that his father filed a case under the provisions of Land Ceiling Act which was numbered as 76 of 1983 in which order in his favour was passed on 25.3.1985 and Gautam Sah then preferred appeal which was numbered as Ceiling Appeal No. 49 of 1987 and that was also decided in favour of father of informant and that land was also ordered to be registered in his favour and in this way, his family came in possession of entire one katha twelve dhurs of land and, thereafter, appellant Ram Nath Sah again got eight dhurs of land registered in his name from Gautam Sah and when he started constructing a wall on this land, his father lodged a case under Ss. 144 and 188 of Code of Criminal Procedure against him and during the pendency of this case, his father was killed. 8. Nand Lal Sah (P.W. 1), Kalawati Devi (P.W. 2), Ganesh Prasad (P.W. 3), Bhola Sah (P.W. 4) and Sakla Devi (P.W. 5) have claimed themselves to be eye witnesses of the occurrence. Nand Lal Sah (P.W. 1) is another son of deceased and, in his evidence, has stated that on the day of occurrence at about 8.45 A.M., he was at the Darwaza of his house and his deceased father sitting there was washing his mouth when both the appellants came there. Nand Lal Sah (P.W. 1) is another son of deceased and, in his evidence, has stated that on the day of occurrence at about 8.45 A.M., he was at the Darwaza of his house and his deceased father sitting there was washing his mouth when both the appellants came there. Appellant Ram Nath and Lakhan were armed with lathis, appellant Mandeo armed with Farsa and appellants Satyadeo Sah and Deo Nath Sah were armed with Churas and appellants caught hold of deceased father and appellants Ram Nath and Laxman assaulted him with lathi. appellant Mandeo with Farsa, appellants Deo Nath and Satyadeo with Chura and his father received injuries on his chest, back etc. He has further said that when his brother Kanhai Sah, informant went to rescue his father, he also received lathi injuries. According to him, appellants took his father to a field about four to five steps-away from his Darwaza by dragging and after assault, his father died there and occurrence was seen by his other family members and Ganesh Sah (P.W. 3). 9. Kalawati Devi (P.W. 2), daughter-in-law of deceased has said that at the time of occurrence, she was in her house and she came to the Darwaza of the house after hearing hulla and saw that the appellants were forcibly taking away his deceased father-in-law towards a field four to five steps south to her house and assaulted him there. She has said that appellants Deo Nath Sah, Ram Nath Sah and Laxman Sah assaulted the deceased with lathi, appellant Mandeo with Farsa and appellants Satyadeo, Deo Nath and Laxman with Chura and when her husband went to rescue his father-in-law, he also received lathi injuries and his father-in-law died at the spot. About appellant Laxman Sah, as stated above, she first stated that he assaulted her father-in-law with lathi but immediately thereafter has said that he assaulted her father-in-law with Chura. Ganesh Prasad (P.W. 3) is the Samdhi of deceased and he has said that at the time of occurrence, he was sitting at the Darwaza of deceased and all the appellants came there and appellants Laxman Sah and Satyadeo were armed with knives. Ganesh Prasad (P.W. 3) is the Samdhi of deceased and he has said that at the time of occurrence, he was sitting at the Darwaza of deceased and all the appellants came there and appellants Laxman Sah and Satyadeo were armed with knives. Appellants Ram Nath Sah and Shravan Sah were armed with lathi and appellant Mandeo was armed with Farsa and appellants took the deceased by dragging to a field about four to five cubic south from the house and assaulted him. About the manner of assault, he has said that appellants Shravan and Ram Nath assaulted the deceased with lathi, appellant Mandeo with Farsa and remaining three appellants assaulted the deceased with knives. When he was giving description of arms carried by appellants, as stated, he has not stated about appellant Deo Nath that which arm he was carrying but while stating about assault, he has included the name of this appellant among those who assaulted the deceased with Chura. He has further said that when informant went to rescue his father, he also received lathi injuries by appellants and deceased after receiving injuries, fell down and died and occurrence was seen by family members of deceased. In cross-examination, he has said that when the appellants were taking away the deceased by dragging, at that time among the family members of deceased, only informant was there and when deceased was taken to field, his other family members came out from the house. According to him, the occurrence was seen by other villagers also but at initial stage when appellants were dragging the deceased, only he was present there and when he wanted to rescue the deceased, appellants gave him threatening and he, out of fear, could not rescue the deceased. Bhola Sah (RW. 4) is another son of deceased and he has said that at the time of occurrence, he was returning to his house after attending call of nature when he saw the appellants taking away his father in a field towards south of his house where appellants Ram Nath and Shravan assaulted his father with lathi, appellant Mandeo with Farsa, appellants Satyadeo, Deo Nath and Laxman with Chura and his father died at the spot. He has said that the occurrence was witnessed by his other family members. Sakla Devi (RW. He has said that the occurrence was witnessed by his other family members. Sakla Devi (RW. 5) is the wife of deceased and has said that at the time of occurrence, she was at her Darwaza and her husband was washing his mouth when appellants came there and forcibly took her husband in the field of appellant Ram Nath where appellants Ram Nath and Shravan assaulted him with lathi, appellant Mandeo with Farsa, appellants Satya Deo, Laxman and Deo Nath with Chura and her husband fell down and died there. 10. Hasnain Khan (P.W. 9) is the Investigating Officer of this case. In his evidence, he has said that he inspected the place of occurrence as pointed out by informant and place of occurrence is barren land of appellant Ram Nath situate adjacent to the house of deceased. According to him, he seized blood-stained soil from the place of occurrence and prepared seizure list (Exhibit-6), recorded statements of witnesses, received post mortem examination report of deceased and had almost completed investigation when he handed over charge of investigation to Nagendra Prasad Sinha, Officer-in-charge of Police Station under the orders of Superintendent of Police who submitted chargesheet. In cross-examination, he has said that at the place of occurrence, he found marks of putting Nad. He has further said that appellant Laxman Sah was brought to Police Station from Hospital by Constables and they had also brought injury report of Laxman which he has mentioned in para-27 of case diary and when appellant Ram Nath was brought to Police Station, after his arrest, he came to know from the Constable who brought him that he was getting treatment at Hospital and he also knew it from the Fardbayan of counter case lodged by appellant Ram Nath that he was getting treatment in hospital and he had mentioned about the Fardbayan of Ram Nath in para-3 of case diary. The complaint petition lodged by appellant Ram Nath Sah has been proved by Mujibur Rahman (D.W. 1) and it is marked Exhibit-A. Injury reports of appellants Ram Nath Sah and Laxman have been marked Exhibits-B and B/1. The complaint petition lodged by appellant Ram Nath Sah has been proved by Mujibur Rahman (D.W. 1) and it is marked Exhibit-A. Injury reports of appellants Ram Nath Sah and Laxman have been marked Exhibits-B and B/1. The Investigating Officer, in para-12 of his cross-examination, has stated that Nand Lal Sah (P.W. 1) had not stated before him the names of appellants Ram Nath, Mandeo, Satyadeo, Deo Nath and Shravan among the participants in occurrence and Kalawati Devi (P.W. 2) had not stated before him that she saw appellants assaulting her father-in-law or her husband. His further evidence in para-14 is that Sakla Devi (P.W. 5) had not stated that on which part of the body of deceased, appellants Shravan, Ram Nath and Satyadeo inflicted injuries. From these statements, so far the evidence of Nand Lai Sah (P.W. 1) and Kalawati Devi (P.W. 2) that they saw all the appellants assaulting the deceased is concerned, becomes quite doubtful because as per the evidence of Investigating Officer stated above, Kalawati Devi (P.W. 2) had not claimed herself to be the eye witness of the occurrence in her statement before him and Nand Lal Sah (P.W 1) had not stated the names of appellants Ram Nath, Mandeo San, Satyadeo, Deo Nath and Shravan among the participants. So far evidence of Sakla Devi (P.W. 4), wife of deceased is concerned, it is true that Investigating Officer has stated that she, in her statement before him, had not specifically stated that on which part of the body of deceased, appellants Shravan, Ram Nath and Satyadeo assaulted which she has specified in her evidence in Court but then so far assault by appellants on deceased is concerned, there remains no contradiction in her earlier statement during investigation and in her statement in Court. About the evidence of Ganesh Prasad (P.W. 3), Bhola Sah (P.W. 4) and informant (P.W. 7) is concerned, there is no contradiction in their earlier statements during investigation and in their statements in Court. No attention of Investigating Officer has been drawn towards any type of contradiction in their earlier statements during investigation and in their evidence in Court. About the evidence of Ganesh Prasad (P.W. 3), Bhola Sah (P.W. 4) and informant (P.W. 7) is concerned, there is no contradiction in their earlier statements during investigation and in their statements in Court. No attention of Investigating Officer has been drawn towards any type of contradiction in their earlier statements during investigation and in their evidence in Court. It is true that all witnesses, who have deposed on the point of occurrence, are closely related to deceased because they include wife, sons, daughter-in-law and Samdhi of deceased but then the Court below has rightly held that only on this ground, their evidence cannot be rejected and in such type of cases, the Court should scrutinize the evidence of interested witnesses cautiously. From the evidence of P.Ws. 2, 3, 4 and informant (P.W. 7), it is proved that on the day of occurrence, deceased received injuries at the hands of appellants and he died. This aspect of prosecution case is supported by the evidence of P.W. 6, who is a doctor who had held autopsy. 11. The case of defence is that on the day of occurrence, deceased and his men had gone to the land of appellant Ram Nath and wanted to fix Nad and Khunta there and on protest, they assaulted the appellants for which appellant Ram Nath Sah filed a complaint case (Exhibit-A) which although was sent to police for instituting a case and for investigation and police submitted final report stating allegations false and appellant Ram Nath Sah then filed a protest petition which was treated a complaint petition which was dismissed for default and order recalling the dismissal order was also set aside in Cri. Rev. 69/90 (Ext. 8). Exhibits-B and B/1 are injury reports of appellants Ram Nath Sah and Laxman Sah showing that they both had received incised wounds. Place of occurrence is the land of appellant Ram Nath Sah that has been admitted by all prosecution witnesses who have deposed on the point of occurrence. Rev. 69/90 (Ext. 8). Exhibits-B and B/1 are injury reports of appellants Ram Nath Sah and Laxman Sah showing that they both had received incised wounds. Place of occurrence is the land of appellant Ram Nath Sah that has been admitted by all prosecution witnesses who have deposed on the point of occurrence. Only difference between the cases of prosecution and defence is that according to prosecution, appellants caught hold of deceased and took him dragging to the land of appellant Ram Nath Sah which is just beside the house of deceased whereas case of defence is that informants party was aggressor and had come to the land of appellant Ram Nath and wanted to fix Nad and Khunta there which was protested by appellants and appellants were assaulted by the informants party. No doubt, Investigating Officer found marks of putting Nad on the place of occurrence but then defence has not been able to prove the circumstances in which deceased received injuries. The own case of defence shows that on the date and time and at the same place of occurrence, as given by prosecution, some occurrence between the parties took place. Only injury reports in respect of appellants Ram Nath and Laxman Sah have been brought on record without examining the doctor who had issued these reports. If the counter case and injury reports of two appellants are to be taken into consideration alongwith the fact that the occurrence took place on the land of appellant Ram Nath Sah even then it cannot be said that appellants were justified in inflicting injuries which ultimately resulted into his death. 12. Considering all the materials on record as well as the fact that there was land dispute between the parties who are related to each other, it appears to be a case of exceeding the right of private defence and, in our opinion, falls u/s. 304 Part II of Indian Penal Code. It is true that all appellants have been charged u/s. 302 of Indian Penal Code and in the charge, there is no mention of charge u/s. 34 of Indian Penal Code but in view of evidence on record, we find and hold appellants guilty u/s. 304 Part II read with Sec. 34 of Indian Penal Code. It is true that all appellants have been charged u/s. 302 of Indian Penal Code and in the charge, there is no mention of charge u/s. 34 of Indian Penal Code but in view of evidence on record, we find and hold appellants guilty u/s. 304 Part II read with Sec. 34 of Indian Penal Code. As per case of prosecution, appellants Ram Nath and Shravan Sah were armed with lathis, appellant Mandeo Sah was armed with Farsa and appellants Satyadeo, Laxman Sah and Deo Nath Sah were armed with Churas and post mortem examination report shows that two incised wounds and two perforating wounds were caused to deceased and both perforating wounds, in the opinion of doctor who held autopsy, were caused by sharp penetrating weapon like Chura and incised wounds are also generally caused by sharp edged weapons and besides these injuries, only one abrasion on left right knee of deceased was found, we reduce the sentence of appellants Ram Nath Sah and Shravan Sah, who were armed with lathi, to the period of rigorous imprisonment of one year each. The sentences of remaining appellants, namely, Mandeo Sah, Satyadeo Sah, Deo Nath Sah and Laxman Sah are reduced to the period of rigorous imprisonment for ten years each. 13. With the aforesaid modification in sentences, the appeal stands dismissed. 14. The bail bonds of appellants Ram Nath Sah, Shravan Sah and Satyadeo Sah, who are on bail, are cancelled and they are directed to surrender before the Court below and serve out the remaining sentences. M.L.Visa, J. 15 I agree.