AMARESH KUMAR LAL, J.:–This appeal has been preferred against the judgment and order dated 7.2.1989 passed by the learned 7th Additional Sessions Judge, Purnea in Sessions Trial No. 153 of 1986 by which the appellant has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 I.P.C. 2. The prosecution case, in brief, is that on 4.11.1983 at about 7 a.m. the informant, Kamleshwari Ram (P. W. 5) and his brother Uma Ram (deceased) were working in their field which has been given to them by the State of Bihar and the land is in their possession. The land was being cultivated by force by the accused Ganesh Ram (acquitted), Kishun Ram (appellant) and Umesh Ram (acquitted). When the informant and the deceased objected, there was altercation. In the meantime, all the accused took out lathi, spear and dagger from their house and the appellant Kishun Ram assaulted the deceased Uma Ram, the brother of the informant, in his stomach causing serious injury. The occurrence was witnessed by several persons. A written information to this effect was given to the Officer-in-Charge, Dhamdaha and Dhamdaha P. S. Case No. 193 of 1983 was instituted against the accused. 3. The injured was immediately rushed to Dhamdaha State Dispensary. Seeing the serious condition of the injured, he was referred to Purnea Sadar Hospital where he died. After his death the case was converted into the offence under Section 302 I.P.C. After investigation charge-sheet was submitted against all the accused aforesaid. Cognizance was taken and the case was committed to the Court of sessions. After trial appellant has been convicted and sentenced under Section 302 I.P.C. as aforesaid and co-accused Ganesh Ram and Umesh Ram have not been found guilty for any offence and accordingly they have been acquitted by the learned trial court. 4. The defence of the accused is that they have been falsely implicated in this case. From the trend of cross- examination of the prosecution witnesses as well as the defence adduced in this case, the contention of the defence is that the place of occurrence (five kathas of land) has been in possession of the accused Kishun Ram and Ganesh Ram who have been given Parcha for the same by the Bihar Government under Bihar Privileged Persons Homestead Tenancy Act. The deceased Uma Ram was insisting Kishun Ram to give him some portion of that land for his residential purpose. As Kishun Ram did not agree to part with any portion of his land so it was Uma Ram and the informant who were forcibly ploughing that land on the date of occurrence. It has been further pleaded that the deceased was the aggressor over the land of the accused. The act was justified in exercise of their right of private defence of property. During trial, the prosecution has examined nine witnesses and the accused has examined two witnesses. 5. Now the point for consideration is as to whether the prosecution has been able to substantiate its case beyond reasonable doubt or not. 6. The prosecution has examined following witnesses : P.W. 1 Mouzi Ram, P. W. 2 Ramu Ram, P. W. 3 Laxman Ram, P. W. 4 Nunu Lal Ram, all these witnesses are sons of Saudagar Ram, P. W. 5 Kamleshwari Ram is the informant and the brother of the deceased Uma Ram, P. W. 6 Arvind Nath Thakur, P. W. 7 Dr. B. B. Sarkar, P. W. 8 Dr. A. K. Choudhary and P. W. 9 Ram Chandra Mandal. D. W. 1 M. Narain and D. W. 2 Nand Kumar Singh. 7. P. W. 5 Kamleshwari Ram is the informant and the brother of the deceased of this case who has supported the prosecution case. He has stated that both the two brothers were living together in the same house. There is five kathas of land in the southern portion of his house which belongs to the State of Bihar but they are in possession over the five kathas of land. The house of Kishun Ram is in the eastern side of the land in dispute. There is one acre 52 decimals of land of the State of Bihar out of which seven kathas of land is in his possession. He has further stated that on the date of occurrence he and his brother Uma Ram were working in his courtyard. Kishun Ram started to cultivate the aforesaid five kathas of land. Ganesh Ram and Umesh Ram were also with him. Uma Ram went to stop the ploughing which was insisted by the appellant Kishun Ram. Thereafter, Uma Ram was assaulted with dagger in his stomach by Kishun Ram. Kishun Ram started to cultivate the aforesaid five kathas of land. Ganesh Ram and Umesh Ram were also with him. Uma Ram went to stop the ploughing which was insisted by the appellant Kishun Ram. Thereafter, Uma Ram was assaulted with dagger in his stomach by Kishun Ram. Uma Ram was taken to Dhamdaha hospital where written information was written by Domi Pathak. He has identified written report (Ext. 1). The doctor advised him to take the injured to Purnea Sadar Hospital. He was taken to Purnea hospital where he succumbed to injury on the same day at 5 p.m. He has given explanation as to why Bhumi Raj, Sipahi, Rishideo and Baunu Ram will not be examined as they have come in collusion with the accused and the witness Dhananand Jha died. Baljeet Mandal is unable to move. In his cross-examination, he has given description of the land in dispute bearing Khata No. 548, Plot No. 716, Area 5 kathas. He has admitted that the government has not given that land to him. In paragraph 7 he has stated that at the time of altercation he did not come to the place of occurrence. The suggestion of defence is that Kishun Ram was cultivating the land (place of occurrence) for the last 20-25 years. He has also denied that two kathas of land were demanded from Kishun Ram and he has agreed to give. It appears from the evidence of P. W. 9 Ram Chandra Mandal, Investigating Officer that in paragraph 11 Kamleshwari Ram (P.W. 5) did not state before him that the land in dispute has been given by the State of Bihar. P. W. 5 has stated that there was altercation on the point of cultivating the land. He has stated before him that the land in question has been cultivated by Kishun Ram for the last 20-25 years. It appears that the evidence of P. W. 5 is contradictory and it does not inspire confidence. 8. P. W. 1 Mouzi Ram, P. W. 2 Ramu Ram and P. W. 4 Nunu Lal Ram have supported the occurrence as eye witness. They have stated that the place of occurrence has been in possession of the informant and his brother since long. P. W. 3 Laxman Ram has been tendered. P. W. 6 is a formal witness, who has proved the protest petition (Ext. They have stated that the place of occurrence has been in possession of the informant and his brother since long. P. W. 3 Laxman Ram has been tendered. P. W. 6 is a formal witness, who has proved the protest petition (Ext. 2) filed by the informant against Investigating Officer. P. W. 7 Dr. B. B. Sarkar, Medical Officer of Dhamdaha State Dispensary has stated that since the injury was grievous he has advised to take the injured to Sadar Hospital Purnea. The deceased Uma Ram had come to Dhamdaha State Dispensary with stab injury. The injured told him that the injury was caused by Kishun Ram (appellant). He entered this statement in emergency register of the hospital Vide Entry No. 23 dated 4.11.1983. This entry has been marked as Ext. 4. He has further stated that he advised to take the injured to Sadar Hospital, Purnea and informed the police also. The information slip has been marked as Ext. 5. In his cross-examination he has stated that he did not remember as to whether he had made any treatment to the injured or not. 9. P. W. 8 Dr. A. K. Choudhary has held the post mortem examination on the dead body of Uma Ram and has stated that the deceased has good physic and rigor mortis was present on all limbs. On dissection he found no fracture. Heart chamber was empty, blood was present in parceformal cavity, stomach contained liquid about 1 ½ onus. He found the following ante-mortem injury:- (i) A penetrating wound over abdomen on right side of abdominal wall about 2” above the region. Size 1” X ½ ” abdominal deep. (ii) Derotoma contains blood clot. (iii) Right kidney had injury over the hilum. (iv) Time elapsed since death within 24 hours. (v) The injury was caused by sharp and pointed weapon. (vi) Cause of death was haemmorrhage caused by injury to kidney as aforesaid. He has proved the post-mortem report as Ext. 6. 10. P. W. 9 is the Investigating Officer. He has stated that he went to the place of occurrence which was a Government land measuring about 5 kathas. The house of Kamleshwari Ram P. W. 5 is adjacent to north-west of the place of occurrence and the hut of the deceased is in eastern side. The place of occurrence is ploughed field. He has stated that he went to the place of occurrence which was a Government land measuring about 5 kathas. The house of Kamleshwari Ram P. W. 5 is adjacent to north-west of the place of occurrence and the hut of the deceased is in eastern side. The place of occurrence is ploughed field. The house of the accused is adjacent to east of the place of occurrence. He has also stated that he went to circle office and came to know that the land of place of occurrence bears Khata No. 548, Plot No. 716, Area 1 acre 56 decimal mentioned in the khatian is in the name of Bihar Government. The place of occurrence is with regard to 5 kathas of land out of aforesaid land. He has further stated that he has mentioned in diary that the place of occurrence has been in possession of the accused and P. W. 1 has stated before him that the land in dispute was in possession of Kishun Ram. P. W. 2 Ramu Ram has stated before him that there was panchaiti in which Kushun Ram had agreed to give two kathas of land. P. W. 4 Nunu Lal Ram has not stated before him that the land in question was in possession of Uma Ram (deceased). He had stated that the place of occurrence was in possession of Kishun Ram. He has also stated that P. W. 5 has stated before him that Kishun Ram was cultivating the land in dispute for last 20-25 years. He has also stated that two bigahas of land of Veer Narayan Singh was given at the instance of Kamleshwari Ram, Chano Ram and Uma Ram and others to Kishun Ram and out of which two Kathas of land was agreed by the Kishun Ram to be given to the deceased for his house. Kishun Ram had agreed but he was ploughing the land. 11. D. W. 1 Dr. M. Narayan has stated that on 4.11.1983 he examined Kishun Ram and found following injuries on his persons:- (i) One cut injury over head on left side in 2 ½” X ¼” X skin deep. (ii) One cut injury over right shoulder in 2”x 1/4” X 1/4” (iii) One lacerated wound with swelling on back right side in 3”X1 ½” He has found that injury nos. (ii) One cut injury over right shoulder in 2”x 1/4” X 1/4” (iii) One lacerated wound with swelling on back right side in 3”X1 ½” He has found that injury nos. 1 and 2 were caused by sharp cutting weapons, may be farsa. Injury No. 3 caused by hard blunt substance. In his opinion, the injuries were simple in nature. He has proved the injury certificate (Ext. A.). 12. D. W. 2 Nand Kumar Singh is the formal witness who has proved the parcha Ext. B, B/1. In his cross-examination he has admitted that signature is no clear on the parcha. 13. Learned counsel for the appellant has submitted that from the evidence of P. W. 1 P. W.2, P. W. 4 and even the evidence of Investigating Officer it is clear that the land, in question, was in possession of the appellant for the last several years according to the informant himself 20-25 years. It has also come in the evidence that the land was in possession of the appellant and the deceased was the aggressor. The appellant has right to defend his property and he was justified in using force to stop interference in his possession over the land. In support of his contention he has relied upon a decision in the case of Kanchan Singh Vs. State of Bihar, reported in 1968 PLJR 98A (S.C.). He has also submitted that all the essential eye witnesses have not been examined by the prosecution. It is the duty of the prosecution to examine the eye witnesses whose evidence is essential to unfolding of narrative. His evidence seriously affects the truth of the prosecution case. In support of this contention he has also relied upon a decision in the case of State of U. P. & Anr. Vs. Jaggo @ Jagdish and Ors, reported in 1971 CRI. L. J. 1173. Paragraph 15 and 16 of the aforesaid judgment are quoted below:- “15. Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the “unfolding of the narrative” should be called. Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the “unfolding of the narrative” should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohammad Vs. The State of Hyderabad, 1954 SCR 475 = ( AIR 1954 SC 51 ), for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case. 16. This Court in Habeeb Mohammad’s case, 1954 SCR 475 = ( AIR 1954 SC 51 ) (supra) referred to the observations of Jenkins. C. J. In Ram Ranjan Roy Vs. Emperor, ILR 42 Cal 422= (AIR 1915 Cal 545) that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent the administration of justice so that the testimony of all the available eye-witnesses should be before the Court. Lord Roche in Stephen Seneviratne Vs. The King, AIR 1936 PC 289, referred to the observations of Jenkins, C. J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution. That is why this Court in Habeeb Mohammad’s case, 1954 SCR 475 = ( AIR 1954 SC 51 ) (supra) said that the absence of an eye witness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness has been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness has been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eye-witness the accused were entitled to test his evidence particularly when Lalu was alleged to be taking with Ramesh at the time of the occurrence.” 14. It appears that the learned trial court has also held that the land, in question, was in possession of the accused. 15. Considering the facts and circumstances, We find and hold that the appellant was not the aggressor of the occurrence and as such he cannot be held guilty for the offence punishable under Section 302 I.P.C. and the appellant has used the weapon what he has in his possession on the spur of the moment in defence of right to property. 16. For the aforesaid reasons, in our opinion, the impugned judgment of conviction and sentence is not fit to be sustained. It is set aside. The appellant is acquitted of the charge and he is discharged from the liability of his bail bonds. 17. In the result, this appeal is allowed.