JUDGMENT T.P. Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 7/8/2002 passed by 2nd Additional Sessions Judge Baloda Bazar, District Raipur (C.G.) in Sessions Trial No. 14/2002 whereby and where under after holding the appellants guilty for the commission of offence of culpable homicide amounting to murder of Gandheshwar Bai & her son Amar Singh in sharing common intention convicted the appellants under Section 302/34 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 500/-, in default of payment of fine amount additional rigorous imprisonment for 6 months. 2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellants, Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. 3. As per case of the prosecution, on fateful day of 2/12/2001 at about 9:00 A.M. unfortunately Gandheshwar Bai & her son Amar Singh (since deceased) were digging the Government land; appellants reached to the spot and assaulted by axe and caused their instantaneous death on the ground that they were digging the land of their possession. PW1 Premdas went to the Police Outpost Gidhpuri and lodged marg intimation vide Exs. P-1 & P-2. First Information Report was registered at Police Outpost Gidhpuri vide Ex. P-3. Finally, numbery marg intimation was recorded in Police Station Palari vide Exs.P-17 & P-18. First Information Report was lodged vide Ex. P-16. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Exs. P-4 & P-6. Inquest over the dead body of deceased Gandheshwar Bai & Amar Singh was prepared vide Exs. P-5 & P-7. Blood stained & plain soil and broken piece of bangles was seized near the body of Gandheshwar Bai. Blood stained & plain soil and blood stained towel having cut mark was seized near the body of Amar Singh. Plastic Chappals, Gaiti (instrument for digging the land) and stick were seized from the spot. Dead body of Gandheshwar Bai was sent for autopsy to Primary Health Center, Palari vide Ex. P-12A where PWI2 Dr. Manish Shrivastava conducted autopsy vide Ex. Plastic Chappals, Gaiti (instrument for digging the land) and stick were seized from the spot. Dead body of Gandheshwar Bai was sent for autopsy to Primary Health Center, Palari vide Ex. P-12A where PWI2 Dr. Manish Shrivastava conducted autopsy vide Ex. P-12 and found following injuries:- - (i) Incised wound of 3" x 1" x 4" over left temporal region, (ii) Incised wound of 3" x 1" x 2" over left side of neck, (iii) Incised wound of 2" x 1" in front part of the neck, (iv) Incised wound of 2" x 1" over left collarbone, (v) Incised wound of 2" x 1" over back of the neck, (vi) Incised wound of 3" x 1" x 6" over left side of the waist, (vii) Trachea and bronchi were found cut, (viii) Lungs were stained with blood. Mode of death was hypovolemic shock and death was homicidal in nature. 4. Dead body of Amar Singh was sent for autopsy to Primary Health Center, Palari vide Ex. P-13A where PW 12 Dr. Manish Shrivastava conducted autopsy vide Ex. P-13 and found following injuries:- (i) Incised wound of 3" x 1" superficial over right side of the neck, (ii) Incised wound of 3" x 1" over right axilla, (iii) Incised wound of 3" x 1" over right axilla, (iv) Incised wound of 2" x 1" over right side. of the chest, (v) Incised wound of 2" x 1" over back of the neck, (vi) Incised wound of 3" x 1" x 4" x depth over right temporal region along with depressed fracture, (vii) Two superficial abrasions over left side of the waist, (viii) Bone of skull was found fractured. Mode of death was hypovolemic shock and death was homicidal in nature. 5. During course of investigation appellant Dinesh Kumar Satnami was taken into custody he made discloser statement of axe and blood stained cloths vide Ex. P-10. Blood stained cloths of appellant Dinesh Kumar Satnami was seized vide Ex. P-11. Blood stained axe was seized by appellant Dinesh Kumar Satnami vide Ex. P-8. Spot map was prepared by Patwari vide Ex. P-19. Sealed cloths of Gandheshwar Bai & Amar Singh were seized vide Ex. P-20. Seized articles were sent for chemical examination vide Ex. P-21. Presence of blood was confirmed on the cloths of appellant Dinesh Kumar Satnami and axe which is recovered from appellant Dinesh Kumar Satnami vide Ex. P-24. 6. P-8. Spot map was prepared by Patwari vide Ex. P-19. Sealed cloths of Gandheshwar Bai & Amar Singh were seized vide Ex. P-20. Seized articles were sent for chemical examination vide Ex. P-21. Presence of blood was confirmed on the cloths of appellant Dinesh Kumar Satnami and axe which is recovered from appellant Dinesh Kumar Satnami vide Ex. P-24. 6. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Baloda Bazar who in turn committed the case to the Court of Sessions, Raipur from where learned 2nd Additional Sessions Judge Baloda Bazar, District Raipur (C.G.) has received the case on transfer for trial. 7. In order to prove the guilt of the appellants prosecution examined as many as 15 witnesses. Appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. 8. After affording an opportunity of hearing to the parties, learned 2nd Additional Sessions Judge Baloda Bazar, District Raipur (C.G.) has convicted and sentenced the appellants as aforementioned. 9. Mr. K.K. Singh, learned counsel for the appellants and Ms. Madhu Nisha Singh, P.L. for the State/respondent are heard. Judgment impugned and record of Court below perused. 10. Learned counsel for the appellants vehemently argued that conviction of the appellants is based on the evidence of child witnesses PW9 Mahesu, aged about 15 years & PW 10 Satpal, aged about 14 years whose evidence does not inspire confidence and trustworthy. Evidence of aforesaid child witnesses are not safe to rely for conviction of the appellants for commission of double murder without further corroboration from independent sources. 11. Learned counsel for the appellants further argued that even as per case of the prosecution, deceased persons namely Gandheshwar Bai & Amar Singh were digging the land possessed by appellants therefore, in order to save their property in exercise of right of private defence which was available to the appellants, they have caused minimum injuries to Gandheshwar Bai & Amar Singh and not committed any offence punishable under Section 302/34 of Indian Penal Code in sharing common intention. 12. Learned counsel for the appellants placed reliance in the matter of Vajrapu Sambayya Naidu and Others Vs. 12. Learned counsel for the appellants placed reliance in the matter of Vajrapu Sambayya Naidu and Others Vs. State of A.P. and Others 1 in which Supreme Court has held that on the ground of causing injury of dispute over the land in exercise of right of private defence by cutting weapons in absence of any material to show that who has exceeded the right of private defence appellants are entitled for acquittal. 13. Learned counsel for the appellants further placed reliance in the matter of Chittar Singh Lodhi and Others Vs. State of Madhya Pradesh in which High Court of Madhya Pradesh has held that in exercise of right of private defence of property from saving the land from tress passer appellant was having right to cause injury: " 14. On the other hand, learned counsel for the State/respondent opposed I the appeal and argued that evidence of child eyewitnesses PW9 Mahesu & PW10 Satpal are sufficient for drawing definite conclusion that appellants have caused fatal injuries resulting into death of Gimdheshwar Bai & Amar Singh in sharing common intention and Court below has rightly convicted and sentenced the appellants as aforementioned. 15. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 16. In the present case, homicidal death as a result of fatal injury found over the vital part of deceased persons Gandheshwar Bai & Amar Singh have not been substantially disputed on behalf of the appellants on the other hand, otherwise also established by the evidence of PW 12 Dr. Manish Shrivastava and autopsy report vide Exs. P-12 & P-13 and death of Gandheshwar Bai & Amar Singh was homicidal in nature. 17. As regards the complicity of appellants in crime in question, conviction of the appellants is substantially based on the evidence of child eyewitnesses PW9 Mahesu & PW 10 Satpal; aged about 15 & 14 years, after satisfying that child witnesses were able to understand the duty to speak truth and able to answer the question rationally by asking questions, Court below has examined the child witnesses PW9 Mahesu & PW10 Satpal. 18. As per evidence of PW9 Mahesu, aged about 15 years and studying in 8th class, at the time of incident, appellants were assaulting Gandheshwar Bai & Amar Singh by axe and caused their instantaneous death. 18. As per evidence of PW9 Mahesu, aged about 15 years and studying in 8th class, at the time of incident, appellants were assaulting Gandheshwar Bai & Amar Singh by axe and caused their instantaneous death. As per his evidence, Gandheshwar Bai was his maternal grand mother (Nani) whom appellant Budhwara Bai has stopped at the time of incident. He was standing after one field from the place of incident, he rushed from the spot and went to the village and informed the wife of deceased Amar Singh i.e. his maternal aunty that appellants have killed his maternal uncle i.e. Amar Singh & his maternal grand mother (Nani) i.e. Gandheshwar Bai. PW 10 Satpal, aged about 14 years has also corroborated the evidence of PW9 Mahesu. Both the eyewitnesses were present on the spot. As per their evidence, they were collecting paddy from the field left after transportation of paddy from the field, which the villagers normally collected. 19. Defence has cross-examined these witnesses at length, they have categorically deposed that they were in position to see the incident and they have seen the incident from 150-200 meters, they have not heard the sound or altercation. In Para-4 of cross-examination of Mahesu he has deposed that appellant Daulal Satnami was also assaulting to Gandheshwar Bai & Amar Singh but he do not know by which weapon he was assaulting injury over the neck of Gandheshwar Bai & Amar Singh. In Para-5 of his cross-examination, he has admitted that Gandheshwar Bai, Amar Singh & Dinesh Kumar Satnami were quarrelling with each other. Amar Singh was holding stick and Gandheshwar , Bai was holding Gaiti. In detail cross-examination of PW 10 Satpal he has denied the part of statement recorded under Section 161 of the Code vide Ex. D4 relating to causing injury by appellant Dinesh Kumar Satnami by axe to both persons i.e. Gandheshwar Bai & Amar Singh. They have denied the suggestion that they have not seen the incident. As per case of the prosecution, both the witnesses are present on the spot, they have rushed to the village and informed the villagers and their relatives then villagers reached to the spot where dead bodies of Gandheshwar Bai & Amar Singh were lying. 20. They have denied the suggestion that they have not seen the incident. As per case of the prosecution, both the witnesses are present on the spot, they have rushed to the village and informed the villagers and their relatives then villagers reached to the spot where dead bodies of Gandheshwar Bai & Amar Singh were lying. 20. Appellant Dinesh Kumar Satnami has taken the specific defence that deceased Gandheshwar Bai & Amar Singh were digging the land occupied by him which he stopped then they tried to assault him by axe and stick then with a view to save himself and in exercise of right of private defence, he snatched the axe and caused aforesaid injuries to Gandheshwar Bai & Amar Singh. Other appellants have taken the defence that they have not caused any injury to Gandheshwar Bai & Amar Singh and they were not present on the spot at the time of incident and they have been falsely implicated on account \ of land dispute. 21. As per evidence of child witnesses PW9 Mahesu & PW10 Satpal, aforesaid Government land was not in possession of Gandheshwar Bai & Amar Singh or their family members but they were digging the land. As per evidence and claim of appellant Dinesh Kumar Satnami, he was in possession of Government land as encroacher and when Gandheshwar Bai & Amar Singh tried to dispossess him, then he objected the same and at the time of quarrelling when Gandheshwar Bai & Amar Singh tried to assault him then he caused aforesaid injuries. Initial case of the prosecution and statement of PW9 Mahesu & PW10 Satpal vide Exs. D-3 & D-4 recorded under Section 161 of the Code reveal that appellant Dinesh Kumar Satnami was holding axe and caused injury to Gandheshwar Bai & Amar Singh and other appellants were also present on the spot who have objected the deceased persons Gandheshwar Bai & Amar Singh for digging the land and also threatened them that they will cut and chop them if they will dig their land. 22. 22. Virtually, initial case of the prosecution, evidence of aforesaid child eyewitnesses and recovery of axe only from appellant Dinesh Kumar Satnami reveal that appellant Dinesh Kumar Satnami has caused homicidal death of Gandheshwar Bai & Amar Singh and other appellants were also present on the spot to save their land which they have encroached and they also threatened Gandheshwar Bai & Amar Singh that if they will dig their land then they will kill them. These facts and evidence clearly reveal that" they were having right to save their property may be encroachment of other persons and with intent to save the property and possession of land, appellants Daulal Satnami & Smt. Budhwara Bai have threatened Gandheshwar Bai & Amar Singh and also tried to assault in exercise of right of private defence was available to them and they have not exceeded their right. 23. As per evidence of child witnesses PW9 Mahesu & PW10 Satpal, Gandheshwar Bai & Amar Singh have not caused any injury to Dinesh Kumar Satnami even they have not raised the weapon or objects towards appellant Dinesh Kumar Satnami. There was no eminent danger to the life of appellant Dinesh Kumar Satnami for exercise of right of private defence and using force to the extent of causing homicidal death of Gandheshwar Bai & Amar Singh therefore, act of appellant Dinesh Kumar Satnami squarely falls within the ambit of culpable homicide amounting to murder of Gandheshwar Bai & Amar Singh. 24. As held in case of Vajrapu Sambayya Naidu & Chittar Singh Lodhi (Supra) that in absence of in case of exercise of right of private defence accused has right to cause injury to complainant party for saving his land from dispossession. In the present case, although deceased persons were digging the land but they were not causing injury, they were not using any weapon in exercise of right of private defence that too to the extent of causing homicidal death of two persons was available to appellant Dinesh Kumar Satnami therefore, the case of Vajrapu Sambayya Naidu & Chittar Singh Lodhi (Supra) are distinguishable on the grounds of fact. 25. After appreciating the evidence available on record learned and Additional Sessions Judge Baloda Bazar, District Raipur (C.G.) has convicted and sentenced the appellants as aforementioned. 25. After appreciating the evidence available on record learned and Additional Sessions Judge Baloda Bazar, District Raipur (C.G.) has convicted and sentenced the appellants as aforementioned. While convicting and sentencing the appellant Dinesh Kumar Satnami for causing homicidal death amounting to murder of Gandheshwar Bai & Amar Singh, Court below has not committed any illegality but while convicting and sentencing the appellants namely Daulal Satnami & Smt. Budhwara Bai for commission of aforesaid offence in sharing common intention, Court below has committed an illegality and not considered their right & act attributed to them and thereby committed an illegality. 26. For the foregoing reasons, criminal appeal is partly allowed. Conviction and sentence of the appellants Daulal Satnami & Smt. Budhwara Bai is hereby set-aside, they are set at liberty at once. Conviction of the appellant Dinesh Kumar Satnami under Section 302/34 of Indian. Penal Code is altered into under Section 302 of Indian Penal Code and sentenced imprisonment for life and fine of Rs.500/-, in default of payment of fine amount additional rigorous imprisonment for 6 months. Appeal Partly Allowed.