V. D. GYANI, J. ( 1 ) THIS appeal arises out of the judgment dated 14/5/1986, passed by the Addi. Sessions Judge, Garoth (Mandsaur), in Sessions Trial No. 77 of 1986, convicting the appellants under Sections 302/149 and 307/149, IPC and sentencing them to undergo imprisonment for life and rigorous imprisonment for three years respectively. Both the sentences to run concurrently. By the same judgment the learned Judge of trial Court acquitted the co-accused Pooralal s/c Devilal, Bharuji sb Deviial and Ramchandra Chander sb Nanda Gujar. There is no State appeal against their acquittal. ( 2 ) PROSECUTION case against the above named five persons was that they formed an unlawful assembly with the common object of committing murder of Mansingh and attempting at the life of Jalamsingh (P. W. 7) and Pratapsingh (P. W. 1), at 8. 00 p. m. on 31/12/1985, in the complainants field, in village Bhesonda. The appellants Devital and Kalu are brothers. Pratapsingh (P. W. 1), Bansinghand Gokulsingh (P. W. 6) are also brothers and sons of deceased Mansingh. Jalamsingh (P. W. 7) is their Gwala and Parwatsingh (P. W. 3) is his brother. This relating of witnesses inter se would help appreciating their evidence. ( 3 ) COMING to the prosecution case as such, it is an admitted position that there was an old dispute between Pratap singh (P. W. 1) and Devilal over Medh of their fields. According to complainants, Devilal had occupied two cubits of land belonging to complainants. A Babul tree stood on this Medh, which was claimed by Pratap singh as well as Devilal. It was over this dispute that Marpit took place (See Dehati Nalish-Ex. P/i ). As per report, Ex. P/i, Pratapsingh (P. W. 1) his father Mansingh, their Gwala Jalamsingh and his brother Parwatsingh (P. W. 3) had gone to the field for cutting the Babul tree. Lalsingh was having a shovel and Parwatsingh had an axe with him, while Mansingh had a Danda (a thick stick ). It was Pratapsingh, who started cutting the Babul tree. It was almost half cut, when the appellants along with co-accused (since acquitted) are alleged to have come armed with Farsi, Lathis. Devilal gave a Farsi blow to Mansingh, who fell to the ground. He was hit on his head. Another blow was given by him to Pratapsingh, who also fell unconscious. Jalamsingh was also attacked. Parwatsingh managed to escape. It was almost half cut, when the appellants along with co-accused (since acquitted) are alleged to have come armed with Farsi, Lathis. Devilal gave a Farsi blow to Mansingh, who fell to the ground. He was hit on his head. Another blow was given by him to Pratapsingh, who also fell unconscious. Jalamsingh was also attacked. Parwatsingh managed to escape. Pratapsingh came limping and reported the incident to one Nanuram, who brought him home. His brother Banesingh and others went to the field. They brought Mansingh and Jalamsingh. Man singh was dead. ( 4 ) ON the basis of the above Dehati Nalisht, Ex. P/1, a case under Sec. 302,307/149,147,294, 341, IPC was registered and investigated. The appellants were put on trial along with three others named above, who have since been acquitted by the trial Court, while the appellants stand convicted and sentenced as noted above. Hence this appeal. ( 5 ) SHRI J. P. Gupta, learned counsel for the appellants, apart from challenging the very legality of appellants conviction, in face of acquittal of three co-accused and the defect in charge, as framed by the trial Court, also invoked the right of self-defence and defence of property in favour of the accused. It was argued by him that this right accrued to the appellants and is positively established by the prosecution evidence itself. Shri Chauhan, learned Dy. Govt. Advocate has on the other hand supported the conviction, notwithstanding the infirmities as pointed out by Shri Gupta. ( 6 ) TO appreciate Shri Gupta's argument based on right of self-defence and defence of property, it would be necessary to refer to the prosecution evidence and findings recorded by the trial Court. It is evident from the F. I. R. (Ex. P/i) itself that the Marpiltook place over the long standing dispute of Medh (Boundry) and the cutting of Babul tree, standing thereon, by the complainant party. Pratapsingh (P. W. 1) in para 8 of his evidence had admitted that between his field and that of the accused there is wire fencing. It is also admitted by him in subsequent para 9 that the Babul tree in question is inside the wire fencing, in Devilals field. Parwatsingh (P. W. 3) also admits that there is a well about 30-35 inside Devilal field and the tree in question is about 3-4 feet away from the well. It is also admitted by him in subsequent para 9 that the Babul tree in question is inside the wire fencing, in Devilals field. Parwatsingh (P. W. 3) also admits that there is a well about 30-35 inside Devilal field and the tree in question is about 3-4 feet away from the well. Jalamsingh (P. W. 7); and deceased Mansingh were lying 5n cubits from the tree, which was lying cut as admitted by the Banesingh (P. W. 4), who came to the spot after the incident Patwari Bhawanishankar (P. W. 8) deposed that the well was situated in survey No. 832, which is recorded in the name of appellant Devilal. According to him, Mansingh and Jalamsingh were lying in Survey No. 831, which is also recorded in the name of Devilal. He has further deposed that the Babul tree in question was in Survey No. 832, and the cut tree was lying in the same Survey No. 832. ( 7 ) WITH this and the above evidence further supported by revenue- record, the prosecution case, as it is forthcoming is to be considered. According to the prosecution case on 31. 12. 1985 at 9. 30 p. m. Parwatsingh (P. W. 3), armed with an axe, Mansingh, armed with TDanda, Jalamsingh with a Phawda (a shoval) had come to the field to cut the Babul tree. According to Praiapsingh (P. W. 1), they cut the tree and fell it down and it was on this account that quarrel arose, in which the deceased Mansingh and Jalamsingh got injured. ( 8 ) IT would thus be seen that not only the Babul tree belonging to the accused Devilal was cut by the complainants by trespassing into Devilals field, but Devilals hut was also damaged by illegally cutting the Babul tree (See para 6 of the statement of Parwatsingh- P. W. 3 ). ( 9 ) LET us also note the source of the findings recorded by the trial Court in its judgment. In para 33 it is said: The trial Court has recorded a categorical finding in para 34. Rendered into English, it reads: It is thus proved that the complainant party cut the Babul tree belonging to Devital by trespassing into his land. ( 10 ) SHRI Gupta's argument is two-fold. In para 33 it is said: The trial Court has recorded a categorical finding in para 34. Rendered into English, it reads: It is thus proved that the complainant party cut the Babul tree belonging to Devital by trespassing into his land. ( 10 ) SHRI Gupta's argument is two-fold. His submission is that in view of the above-noted circumstances and the findings recorded by the trial Court, which have not been challenged by the learned Deputy Govt. Advocate, appearing for the State, nor could they be challenged on any legitimate ground, a right of self-defence began and secondly, in such a situation, there could be no formation of an unlawful assembly or common intention, to commit an offence. ( 11 ) THE question that arises for consideration therefore is whether the right of private-defence had accrued to the accused? The right of private defence is right of defence and not of retribution. It is available in face of imminent peril to those who act in good faith under Section 102, IPC. The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises and it continues as long as such apprehension of danger continues. Similarly, Section 105, IPC Ideals with right of private defence of property. Section 97 clause Secondlyt provides for defence of such a right In case of theft it continues till the offender has affected his retreat and in case of robbery such right continues as long as the offender causes or attempts to cause death, hurt or wrongful restraint to any person, or as long as the fear of instant death or hurt or personal restraint continues. It may also be noted in this connection that the Court should take an over -all view of the case and if a right of private defence is made out from the evidence on record, that right should not be construed too narrowly. ( 12 ) IN face of facts, as noted above, it cannot be said that the right of private-defence of property had not accrued to the accused. ( 13 ) SHRI Chouhan, however, urged that the accused far exceeded their right. ( 12 ) IN face of facts, as noted above, it cannot be said that the right of private-defence of property had not accrued to the accused. ( 13 ) SHRI Chouhan, however, urged that the accused far exceeded their right. Once the right of private defence has accrued to the accused, in order to sustain appellants conviction their act) would have to be positively established and then further examined as to who exceeded the right of private defence. The law on the point is well settled by the Supreme Court by its number of decisions. Reference may, however, be made to State of Bihar v. Nathu Pandey, A. I. R 1970 SC Paras 9, 10, 11, Joginder v. State of Bihar1, and Rafiq v. State of Maharashtra2. ( 14 ) ADVERTING to Shri Chouhans argument regarding exceeding the right of private-defence, let us first examine as it ought to be, whether prosecution evidence has succeeded in positively establishing overt-acts done by appellants Devilal and Kalu, and whether the said acts would amount to exceeding the right of private defence? This would necessarily need scanning and analysing the prosecution evidence. ( 15 ) ACCORDING to Pratapsingh (P. W. 1), Devilal gave Pharsi blow from sharp side on the head of Mansingh (para 3 of witness Pratapsingh's statement ). When Pratapsingh protested, Devilal gave Pharsi blow on the head of Pratapsingh, as a consequence of which he fell down and became unconscious. In the Hospital, Doctor has recorded his statement. Ex. D/1. According to portion marked A to A in Ex. D/1, there were 11 accused persons and they were all armed with lathis and none had sharp cutting, weapons (para 14 of Pratapsingh's statement ). He could not say whether Marpit being caused by Pharsa was mentioned by him or not in Ex. D/1. It is apparent that now to the line of medical evidence, this witness has substituted lathi by Pharsa. Similarly, Parvatsingh (P. W. 3) has stated in para 2 that Devital caused pharsa injuries to Mansingh and Pratapsingh. In para 8 he is confronted with his police statement. Ex. D/2, in which it is not mentioned that Devital gave Pharsa blows to Mansingh and Pratapsingh. In para 10 he is confronted with his earlier statement. Ex. D 13, in which it is not mentioned that Devital caused Pharsa blows to Mansingh and Pratapsingh. In para 8 he is confronted with his police statement. Ex. D/2, in which it is not mentioned that Devital gave Pharsa blows to Mansingh and Pratapsingh. In para 10 he is confronted with his earlier statement. Ex. D 13, in which it is not mentioned that Devital caused Pharsa blows to Mansingh and Pratapsingh. Jalamsingh (P. W. 7) has stated that he could not identify any assailant (para 2 of Jalamsingh P. W. 7 ). Even station officer (P. W. 16), in para 13 of his statement admitted that Jalamsingh has not clearly observed any accused and hence no test parade was arranged. ( 16 ) APART from the infirmities noted above, the following circumstances may also be noted: (1) It is said that there were 8 unknown persons and they also caused injuries. Why will then 2 known persons would be present and participate. Remaining 8 were enough. (P. W. 1- para 12, and P. W. 3 para 2); (2) It was very dark at the place of occurrence. Jalamsingh (P. W. 7), in his statement u/s. 164, Cr. P. C. , Ex. D/10 - A to A, admitted that it was absolutely dark at the place of occurrence. He now purposefully disowned his statement at trial (Para 6 of P. W. 7 ). Now he attempts to say that there was bulb light. In para 4 he admits that this fact was not disclosed by him to anybody; (3) P. W. 7 - Jalamsingh disowns that police recorded his statement at all (para 5 of P. W. 7); (4) Pratapsingh (P. W. 1) is son of the deceased and P. W. 3 - Parvatsingh and Jalamsingh (P. W. 7) are servants. Police did not investigate at all to find out if there were independent witnesses of locality or not (para 13 of P. W. 16) (5) In para 26 of judgment the trial Court has discarded the statement of Parwatsingh,. holding that his presence on the spot is extremely doubtful; (6) Out of 3 alleged eye-witnesses, Parwatsingh is discarded by the trial Court. Jalamsingh (P. W. 7) does not identify any assailant Then remains only Pratapsingh (P. W. 1), sole testimony of Pratapsingh (P. W. 1) cannot be the basis of conviction. Besides being highly interested, he has gone back on his earlier statements. Jalamsingh (P. W. 7) does not identify any assailant Then remains only Pratapsingh (P. W. 1), sole testimony of Pratapsingh (P. W. 1) cannot be the basis of conviction. Besides being highly interested, he has gone back on his earlier statements. ( 17 ) SHRI Chouhan, however, urged that Pratapsingh is an injured eye-witness and should, therefore, be relied upon. Being an injured witness, his presence at the scene of occurrence cannot be doubted in view of the injury sustained by him in the course of the same incident, but as pointed out by the Supreme Court in Balak Ram v. State of U. P. 3, dealing with two witnesses, who had received gun-shot injuries, the Supreme Court observed: Take Jhilaili and Ramprakash. The fire arm injuries on their person establish their presence at the scene of offence, but to be present is only to have an opportunity to witness. Presence does not ensure truthfulness, nor is it any assurance against the common human failing to involve the innocent along with guilty. T ( 18 ) IT cannot be disputed that the conviction can be based on the evidence of a solitary eyewitness, but for that it must be of unimpeachable quality, which is not the case with Pratapsingh (P. W. 1 ). ( 19 ) IN this state and quality of evidence, it cannot be said that the prosecution has positively established the overt-acts attributed individually to the appellants. Consequently, it cannot be held that they exceeded the right of private defence. ( 20 ) THERE is yet another angle of looking at the case. Shri Gupta urged that complainants being the aggressors, having forcibly cut the tree, they were committing robbery and under Sec. , 104, IPC, whosoever caused injuries was entitled to kill. The evidence on record does not suggest robbery, at best it could be said to be a case of theft and in that case, the accused had a right to cause injuries, short of death. ( 21 ) HENCE, let us see if any of the accused appellants caused death. In this context, the evidence of Dr. Patil (P. W. 2) becomes important. He does not say that any particular injury was fatal. Therefore, no question, as to who caused or was the author of fatal injury arises. ( 21 ) HENCE, let us see if any of the accused appellants caused death. In this context, the evidence of Dr. Patil (P. W. 2) becomes important. He does not say that any particular injury was fatal. Therefore, no question, as to who caused or was the author of fatal injury arises. In fact one can easily visualise the situation where in dark night four persons armed with weapons come to cut the tree and cut the tree. They would certainly, on challenged threatened to inflict injuries. In any case, in absence of any particular injury having been proved to be fatal, and it not being proved as to who caused that injury or which injury. It is well nigh impossible to hold as to who exceeded the right of self-defence. ( 22 ) ONE more point relating to the defective nature of the charge, as framed by the trial Court, still remains to be considered. Appellant Devilal was not tried under Sec. 302/149, IPC. The charge against him was under Section 302 and 307, IPC. There being no charge under Sec. 302/149, IPC, and he being tried under Section 302, IPC, he could not be convicted under Sec. 302/149, IPC. In this connection the following decisions of Supreme Court may be referred to with advantage: Nanakchand v. State of Punjab, A. I. R. 1955 S. C. 274, Suraj Pal v. State of U. P. , A. I. R. 1955 S. C. 419 and Lakhan Mahto v. State of Bihar, A. I. R. 1966 S. C. 1742. ( 23 ) IN view of the foregoing discussion, the conviction and sentence, as recorded by the trial Court, against the appellants, cannot be sustained. It is liable to be quashed and is accordingly quashed. The appeal stands allowed. Appellants are acquitted of the charge framed against them. They be set at liberty forthwith. Appeal allowed. .