JUDGMENT : ANJANA PRAKASH, J. Heard learned counsel for the Appellant and learned counsel appearing on behalf of the Additional Public Prosecutor. 2. The Appellant has been convicted under Section 302 I.P.C. and sentenced to undergo Rigorous Imprisonment for life and a fine of Rs. 10,000/- in default of which further imprisonment for six months by a Judgment of conviction and Order of sentence dated 28.12.2010 passed by the Additional District and Sessions Judge-III, Ara, Bhojpur in Sessions Trial No. 394 of 2002 arising out of Sandesh (Pawana) P.S. Case No. 71 of 2002. 3. The case of the Informant Rajeshwari Singh (P.W. 4) is that on 18.06.2002 at about 08:30 am. he learnt that the accused persons were building a foundation on his land, so he along with his son Bali Mahto, brother Ram Pravesh Singh (P.W. 1), grandson Dular Singh (P.W. 3), daughter-in-law Sonapati Devi (P.W. 2) went the place of occurrence. As soon as they reached there, Shyamala Mahto started to abuse him. When he protested, he caught hold of him and exhorted the others to assault. At this, the Appellant Sonadhari Mahto and Mahendra Mahto caught hold of the hands and Sonadhari Mahto who was holding a Bhala assaulted the deceased Bali Mahto, his son on the chest, on account of which he fell down. They also allegedly assaulted rest of witnesses. The accused persons were all exhorting. When the villagers started to arrive, the accused persons fled away. The statement was given in the village itself at 10:00 am. 4. The counsel for the Appellant submits that even conceding the allegations at best the case under section 304 Part-1 is made out and on going through the evidence, we are also inclined to hold the same opinion and it is, accordingly, that we discuss the evidence so as to reveal how we have reached such a conclusion. 5. During trial, the prosecution examined altogether 7 witnesses. Out of whom, P.W. 1 Ram Parvesh Singh is brother of the Informant, who supported him that in the morning, they heard that the accused persons were digging a foundation on their land, so they all went to protest. In that course, the Appellant Sonadhari Mahto assaulted the deceased Bali with Bhala on his chest due to which he fell down. When the Police came, the accused persons ran away and the injured were removed to the Ara Hospital. In that course, the Appellant Sonadhari Mahto assaulted the deceased Bali with Bhala on his chest due to which he fell down. When the Police came, the accused persons ran away and the injured were removed to the Ara Hospital. He describes the place of occurrence being about half kilometer from Manaki and whole area was densely populated and even the Police which came within 10 minutes had chased the miscreants but they all ran away. It was when the Police returned after chasing the miscreants that it prepared the Inquest Report and recorded the fardbeyan of the Informant. He stated that the land on which the accused were building a foundation was owned by the Informant alone and was adjacent to the house of the Appellant. He further claimed that the foundation was being dug on west of the lands of the Informant and east of it was a “Piple” tree. 6. P.W. 2 Sonapati Devi also named in the First Information Report, being the daughter-in-law of the Informant, supported the version of P.W. 1 Ram Parvesh Singh that in the morning, they heard the accused persons digging a foundation on their land on which they all went and in course of protest, the Appellant Sonadhari Mahto assaulted Bali with a Bhala on account of which he fell down dead. The rest of the accused persons assaulted the witnesses due to which they were injured. The Police came immediately thereafter, chased the miscreants but could not catch them. The injured were removed to the Ara Hospital. She stated that she was examined at the Police Station from where she was sent to the Hospital. Her attention was drawn to the earlier statement that she had not stated that she had seen the accused persons digging the foundation on their lands or the details of the manner of occurrence. She stated that the drain was not being dug in front of the house of the accused Shyamala Mahto but on the West of it. On account of digging of the drain, there was apprehension that water would fall on their lands and if it was dug a little further it would not fall in their fields. She stated that the drain was not being dug in front of the house of the accused Shyamala Mahto but on the West of it. On account of digging of the drain, there was apprehension that water would fall on their lands and if it was dug a little further it would not fall in their fields. The drain was situated on the East side of their fields and the occurrence had taken place on their fields where the drain was being dug, which was about 10-12 steps from the house of accused Shyamala Mahto. 7. P.W. 3 Dular Singh is the grandson of the Informant, who corroborated the evidence of Ram Parvesh Singh (P.W. 1) and Sonapati Devi (P.W. 2) on material particulars and the manner of assault. He also confirmed that they were all injured and removed to Ara Hospital for treatment. In cross-examination, he conceded that one Arbind Mahto had been falsely implicated in the case and he was not involved in the present occurrence. He replied to query that the prosecution party was annoyed. He stated that none of them had seen the accused Shyamala Mahto digging the drain on the lands of the Informant and in fact, it was being dug on the West of the house of Shyamala Mahto not to South. He further clarified that the drain was being dug to enable the waste water from the house of Shyamala Mahto to flow. He described the place of occurrence being that there was a “Pipal” tree nearby. His attention was drawn to the earlier statement but which is not important for facts of the case. 8. P.W. 4 Rajeshwari Singh is the Informant, who once again supported the version given in the fardbeyan that in the morning, he heard that the accused persons were digging a foundation in which all of them went to protest and then Appellant Sonadhari Mahto is said to have assaulted the deceased Bali with a Bhala on his chest. He proves the signature on the fardbeyan as Exhibit-1and the signature of Gulab Chand as Exhibit- 1/1 as also the Inquest Report Exhibit-2 and his signature on the same as Exhibit-2/1. He stated that all the witnesses who went along with him they lived in separate houses and it was on information received, they went to the place of occurrence. He proves the signature on the fardbeyan as Exhibit-1and the signature of Gulab Chand as Exhibit- 1/1 as also the Inquest Report Exhibit-2 and his signature on the same as Exhibit-2/1. He stated that all the witnesses who went along with him they lived in separate houses and it was on information received, they went to the place of occurrence. He did not know as to who had informed the Police Force, who arrived at the place of occurrence. He asserted in the cross-examination that the accused persons were digging the earth on his fields but he could not give exact details of the said land. He further stated that it was on the South-East corner of his land that the drain was being dug. It was suggested to him that the occurrence had not taken place in the manner that he depicted. 9. P.W. 5 Dr. Yogendra Mahto had conducted the Postmortem on the death body of the deceased Bali, son of the informant, and found the following injuries : External : (i) Penetrating wound 2” x ½” cavity deep over right side of chest at mid level, lateral to sternum, margin sharp. (ii) Bruise 3” x 1” over back in middle at sixth theorexie over vertebra. Internal : (i) On opening of skull, cranium intact, brain matter intact and pale. (ii) On opening of thorax, right lungs lacerated and filled with blood and blood clot. Left lungs intact and pale. Heart intact and empty. (iii) On opening of abdomen, all the abdominal visceras intact and pale. Stomach contains partially digested food particles. He proved the Postmortem Examination Report as Exhibit-3. He also examined Dular Mahto and proved the Injury Report as Exhibit 4/2. 10. P.W. 6 Dr. Naresh Prasad examined injured Sonpati Devi (P.W. 2) and proved the Injury Report as Exhibit-4 and the injuries of Ram Pravesh Singh (informant) and proved the same as Exhibit-4/1. However, his evidence is not relevant because none of the other accused persons have been convicted for having caused the injuries to the aforesaid injured. 11. P.W. 7 Md. Izaharuddin is the Investigating Officer, who stated that on 08.06.2002, he was posted at Pauna Police Station. He recorded the fardbeyan of the Informant, which was suspected by another Police Officer whose handwriting, he proves as Exhibit-1/2. 11. P.W. 7 Md. Izaharuddin is the Investigating Officer, who stated that on 08.06.2002, he was posted at Pauna Police Station. He recorded the fardbeyan of the Informant, which was suspected by another Police Officer whose handwriting, he proves as Exhibit-1/2. He also proves the endorsement on the fardbeyan as Exhibit 1/3 and Inquest Report as Exhibit 2/2 as also the Injury Reports of the injured as Exhibit 4/3. He stated that he inspected the place of occurrence which was in village Aramla and North of the house of accused Shyamala Mahto near Pipal tree. It was at this point that the assault is said to have taken place. He stated that the place of occurrence was bounded by North a “Pipal” Tree, South house of accused, East a road and West fields. He further stated that he examined the witnesses and thereafter, submitted the charge sheet. In cross-examination, he explained the manner in which the information was received and the relevant entries on the same. He does not say anything about reaching at the place of occurrence and chasing of the miscreants, which is contrary to the prosecution case. He also stated that the formal First Information Report was registered at 12:30 pm. itself and he had reached at the place of occurrence at 1:00 pm. However, he did not find any blood at the place of occurrence. His attention was drawn to the statement of Sonapati Devi (P.W. 2) and Dular Singh (P.W. 3) about the details in which they had related the manner of occurrence. 12. On going through the evidence of the aforesaid witnesses especially that of the Investigating Officer, we find that occurrence is said to have been taken place adjacent to the house of Shyamala Mahto and not on the fields of the prosecution as depicted in the fardbeyan. The eye witnesses disclose that the occurrence took place when the prosecution went to stop the accused from digging a drain on their lands since they apprehended that in such circumstances, the water would flow on to their fields. Hence, it does not appear that the accused persons were aggressors and circumstances suggest otherwise. Under such circumstances, we are inclined to hold that if at all the Appellant assaulted the deceased with a Bhala, it was merely in exercise of right of private defence of property, which right be exceeded. 13. Hence, it does not appear that the accused persons were aggressors and circumstances suggest otherwise. Under such circumstances, we are inclined to hold that if at all the Appellant assaulted the deceased with a Bhala, it was merely in exercise of right of private defence of property, which right be exceeded. 13. Hence, in the facts and circumstance of the case, the conviction of the Appellant is converted to one under section 304 Part-1 I.P.C. and his sentence is reduced to the period already undergone (i.e. more than 8 years) by him. 14. With the aforesaid modification in conviction and sentence, this Appeal is dismissed. Appeal dismissed.