Honble SHIV KUMAR SHARMA, J.–The appellants five in number along with co-accused Badam Bai and Tara Bai were indicted before the learned Additional Sessions Judge (Fast Track) No. 1, Jhalawar for having committed murder of Balkishan and Shyamlal in Sessions Case No. 288/2001. The learned Judge vide judgment dated November 8, 2001 convicted and sentenced the appellants as under : Bheru Lal & Girraj: U/s. 302 IPC Life Imprisonment with fine of Rs. 500/- each. U/s. 148 IPC Rigorous Imprisonment form three years and fine of Rs. 100/- each. U/s. 435 or 435/149 IPC: To suffer Rigorous Imprisonment four years and fine of Rs. 150/- each. U/s. 436 or 436/149 IPC: To suffer Rigorous imprisonment five years and fine of Rs. 250/- each. In default of total amount of fine i.e. Rs. 1000/- each to further suffer simple imprisonment for three months. Kailash Chandra, Purshottam & Gopal: + U/s. 302/149 IPC Life Imprisonment with fine of Rs. 500/- each. U/s. 148 IPC To suffer Rigorous Imprisonment for three years and fine of Rs. 100/- each. U/s. 435 or 435/149 IPC: To suffer Rigorous Imprisonment four years and fine of Rs. 150/- each. U/s. 436 or 436/149 IPC: To suffer Rigorous Imprisonment five years and fine of Rs. 250/- each. In default of total amount of fine i.e. Rs. 1000/- each to further suffer simple imprisonment for three months. All the sentences were ordered to run concurrently. (2). As per prosecution story informant Basanti Bai (PW.7) orally intimated Police Station Raipur District Jhalawar on October 26, 1997 that around 12.30 and 1.00 PM on the said day her sons Shyam and Balkishan had been belaboured by the appellants. Bheru Lal and Kailash inflicted sword blows on the neck and right hand of Shyam, while Purshottam and Gopal gave blows with sword and spear on the back and head of Bal Kishan. All the appellants then indiscriminately inflicted injuries on the person of Shyam and Balkishan and Girraj and Bheru crushed their heads with stones. After killing Shyam and Balkishan the appellants burnt her house, tractor trolly, and crop of onion and ground nut. On the basis of said information a case under Sections 147, 148, 149, 341, 302, 324, 323, 436, 435 and 427 IPC was lodged and investigation commenced. After killing Shyam and Balkishan the appellants burnt her house, tractor trolly, and crop of onion and ground nut. On the basis of said information a case under Sections 147, 148, 149, 341, 302, 324, 323, 436, 435 and 427 IPC was lodged and investigation commenced. On completion of investigation charge sheet was filed and in due course the case came for trial before the learned Additional Sessions Judge (Fast Track) No. 1, Jhalawar. Charges under Sections 147, 148, 341, 302 in the alternative 302/149 436 in the alternative 436/149, 435 in the alternative 435/149 and 427 in the alternative 427/149 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In their explanation under section 313 Cr.P.C. the appellants claimed innocence and examined four witnesses in defence. On hearing final submissions, the learned trial Judge convicted and sentenced the appellants as indicated above and acquitted the co-accused Badam Bai and Tara Bai. (3). The fact that death of the deceased Shyam and Balkishan was homicidal, is not in dispute. While conducting autopsy on the dead bodies, the skulls were found masticated. As per Post Mortem Report (Ex.P-35), Shyam received following antemortem injuries: ``Whole skull masticated, No marks of tyre, Brain Protruding, Multiple fractures Incised Wound back of neck 6" x 4cm x 4cm deep Incised Wound on left shoulder 4cm x 1cm Incised Wound on Rt. Shoulder 3cm length Incised Wound Rt. Arm 7cm x 5cm x 1,1/2cm Incised Wound Rt. Ear and jaw 5cm x 5cm Upper maxilla dislocated Lacerated wound on vertex 6cm diameter Lacerated wound on vertex 7-8cm deep. Bal Kishan sustained following ante mortem injuries vide Post mortem report (Ex.P.34) :- ``Whole skull masticated, Lacerated brain extruding on road, Left ear, left face, eye left Rt. Orbit maxilla frontal bone Incised Wound on back 8cm x 1cm Deep lacerated wound with depth of 7-8cm (4). The star witness of the prosecution case is Basanti Bai (PW.7), whose testimony has been relied upon by the learned trial judge while convicting and sentencing the appellants. In her deposition Basanti Bai stated that her sons Shyam and Balkishan while proceeding to the well had been belaboured by the appellants. The star witness of the prosecution case is Basanti Bai (PW.7), whose testimony has been relied upon by the learned trial judge while convicting and sentencing the appellants. In her deposition Basanti Bai stated that her sons Shyam and Balkishan while proceeding to the well had been belaboured by the appellants. Corroborating the FIR she stated that Bherulal and Kailash inflicted blows with sword on the neck and hand of Shyam whereas Gopal and Purshottam gave blows with spear and sword on the person of Bal Kishan. All the appellants caused injuries on their person and crushed their heads with stones. Shyam and Balkishan died at the spot. Seeing her there, the appellants chased her, came to her house entered the house and burnt tractor, utensils and other goods. In the cross examination she denied the suggestion given to her that Balkishan and Shyam had gun and kattas with them. (5). Mr. A.K. Gupta, learned counsel for the appellants canvassed that Basanti Bai (P.W.7) was not an eye witness of the occurrence. Questioning the conduct of Basanti Bai, learned counsel contended that it was highly unnatural that being a mother she did not make attempt to save her children. In view of the material contradictions in her testimony, no reliance could be placed on her evidence. Site plan Ex.P.17 also gave no corroboration to her testimony. Learned counsel further urged that the defence came with a definite case that the deceased came at the house of the appellants and attacked them and caused as many as 11 injuries to appellant Kailash Chand, out of which 10 were caused by sharp edged weapon. The prosecution has failed to give any explanation about the said injuries and also could not explain as to how the guns were found near the dead bodies of the deceased. The aspect of right of private defence of the appellants was not considered by the trial court and the appellants deserve to be acquitted of all the charges. Reliance is placed on Yogendra Morarji vs. State of Gujrat (1), Mohd. Ramzani vs. State of Delhi (2), Madan Mohan Pandey vs. State of U.P. (3), and Chuhar Singh vs. State of Punjab (4). (6). We have pondered over the submissions. (7). Reliance is placed on Yogendra Morarji vs. State of Gujrat (1), Mohd. Ramzani vs. State of Delhi (2), Madan Mohan Pandey vs. State of U.P. (3), and Chuhar Singh vs. State of Punjab (4). (6). We have pondered over the submissions. (7). Factual scenerio emerged on a careful scrutiny of record may be summarised thus- (i) Basanti Bai (PW.7) is the mother or deceased Shyam Lal and Bal Kishan and she alone supported the prosecution case. (ii) Police Station Raipur situated at a distance of 18 kms. from the place of incident and the report was lodged with in two hours of the occurrence. (iii) Incident had taken place between 12.30 and 1 PM on October 26, 1997 and as per site plan Ex.P.17, the house of informant existed at a distance of about 100-150 metres from the place of incident. (iv) Fire arms comprising of 12 Bore Gun and Country made Pistol stained with blood, got recovered from the place of incident vide recovery memos Ex.P.25 and Ex.P.26. Abdul Rashid, Investigating Officer (PW.21) deposed in his cross examination that country made Pistol was loaded and a bullet was found in the barrel of gun. (v) Vide Injury Report Ex.D.2 appellant Kailash Chand sustained 10 incised wounds and abrasions three in number. (vi) Appellant Kailash Chand submitted a written report (Ex.D.1) on October 26, 1997 with the Police Station Sunel at 5.30 p.m. against Bal Kishan and Shyam Lal and case under sections 307, 341, 451, 323/34 IPC was registered. (vii) Bal Kishan and Shyamlal died on the spot and their skulls were found masticated. They also sustained various antimortem incised and lacerated wounds. (8). It is trite that in a criminal trial credible evidence of even a solitary witness can form the basis of conviction. In the matter of appreciation of evidence of witnesses it is not the quantity but the quality that matters. However, when a case is based on the testimony of sole witness, his/her statement must be confidence inspiring. (9). While appreciating the evidence of Basanti Bai (PW.7) learned trial court observed that she was natural witness and there was no material infirmity in the testimony so as no doubt her presence near the scene of occurrence or discredit her testimony. However, when a case is based on the testimony of sole witness, his/her statement must be confidence inspiring. (9). While appreciating the evidence of Basanti Bai (PW.7) learned trial court observed that she was natural witness and there was no material infirmity in the testimony so as no doubt her presence near the scene of occurrence or discredit her testimony. While going through the evidence of Basanti Bai we have also not found any material infirmity as regards the place of occurrence, the manner of assault and the weapons assigned to the assailants. Her evidence is consistent so far as the basic features of the prosecution case are concerned and her evidence is corroborated by medical evidence as well as prompt first information report. If she did not make any effort to save her children from the assailants it does not render her presence near the place of incident doubtful. Different people behave and react differently in different situations. How a person would behave in a particular situation, can never be predicted. In State of U.P. vs. Man Singh (5), their Lordships of the Supreme Court indicated that where eye witnesses did not come out in open before the accused persons in order to make any effort to save the deceased in view of the fact that the accused persons were seven in number and they were all armed with lethal weapons whereas the eye witnesses were totally unarmed, the said conduct of the witnesses was quite natural. (10). The testimony of Basanti Bai also gets corroboration by Site Plan Ex.P.17 according to which the house of Basanti Bai existed around 100-150 metres away from the place of incident. As per the prosecution case deceased Shyam Lal and Bal Kishan when proceeded from their house to the well, the appellants belaboured them. Ghastly murder of Shyam Lal and Bal Kishan was committed in broad day light at a distance of 100-150 metres from their house and presence of their mother Basanti Bai near the place of incident in such a situation can not be doubted. Even veracity of Site Plan could not be shattered. Gokul (PW.19) motbir of site plan and Abdul Rashid, Investigating Officer were not cross examined in regard to the details given in site plan. (11). That takes us to the plea of right of private defence raised on behalf of the appellants. Even veracity of Site Plan could not be shattered. Gokul (PW.19) motbir of site plan and Abdul Rashid, Investigating Officer were not cross examined in regard to the details given in site plan. (11). That takes us to the plea of right of private defence raised on behalf of the appellants. Appellant Kailash got himself examined as defence witness (DW.2). In his deposition Kailash stated that on October 26, 1997 around 12-1 P.M. while he was taking food and his brother Purushottam and mother Badam Bai were busy in white washing the house, Bal Kishan and Shyam Lal came to his house. Bal Kishan was armed with 12 Bore Gun and sword whereas Shyam Lal was having spear and Pistol. The attempt of Bal Kishan in opening the fire did not get success as the gun got misfired. Then Bal Kishan inflicted injuries with sword on his person. Nobody intervened but some now he got escaped and lodged report with the Police Station Sunel. He did not know as no how Shyam Lal and Bal Kishan got killed. Dr. Chandra Kishore Srivastava (DW.1) proved the injury report (Ex.D.2) of Kailash and stated in the cross examination that all the injuries were simple in nature. Appellant Bherulal also got himself examined as DW.3 and deposed that around 11-12 noon while he was sitting in the upper story of his house he heard hue and cry, he immediately came down and saw Bal Kishan inflicting injuries on the person of his son Kailash with sword. Bal Kishan also had a gun. Thereafter villagers pelted stones at Bal Kishan and Shyam Lal and killed them with swords and stones. In the cross examination Bheru Lal admitted the presence of his other sons Purshottam and Gopal and stated that they also came to intervene. ASI Kanhaiya Lal (DW.4) stated that on October 26, 1997 he was Incharge SHO Police Station Sunel and on that day Kailash Chand submitted written report Ex.D.1 before him. He got Kailash Chand medically examined. (12). The Apex Court in Sekar vs. State (6), propounded that in order to find whether right of private defence is available or not the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances a person acted in the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract form for determining such a question can be laid down. If the circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such a plea. Their Lordships also observed that it can not be stated as a universal rule whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. (13). In the case on hand although it is established that the appellant Kailash Chand had sustained 10 incised wounds and three abrasions on his person but the injuries so sustained would not probabilise the plea raised on behalf of the appellants in regard to their right of private defence. The reasons are as follows :- (i) In the cross examination no such question was asked from Basanti Bai (PW.7) that the deceased Shyam Lal and Balkishan were armed with sharp edged weapons and that they caused injuries with sharp edged weapons on the person of Kailash Chandra. Only suggestion given to her was that the deceased had fire arms and the said fire arms were found lying near their dead bodies. (ii) Abdul Rashid, Investigating Officer (PW.21) was also not cross examined on the point that at the time of incident the deceased had sharp edged weapons and they caused injuries on the person of Kailash Chandra. (iii) No sharp edged weapon got recovered either from the place of incident or from the person of the deceased and it could also not be established that the said fire arms belonged to the deceased. (iv) Written report Ex.D.1 was lodged after about five hours of the occurrence by Kailash Chandra and delay in lodging the report was not explained by him. (v) Statements of appellants Kailash Chand and Bheru Lal are self contradictory. (iv) Written report Ex.D.1 was lodged after about five hours of the occurrence by Kailash Chandra and delay in lodging the report was not explained by him. (v) Statements of appellants Kailash Chand and Bheru Lal are self contradictory. Kailash Chand on one hand deposed that Bheru Lal, Gopal and Girraj were not present but on the other hand Bheru lal stated that he was very much present and his other sons Purushottam and Gopal intervened. (vi) The evidence adduced by the appellants would not indicate that they (appellants) were put under a situation where they could reasonably have apprehended grievous hurt even to one of them. Bheru Lal although deposed that villagers had killed Bal Kishan and Shyam Lal and got their tractor and house in the flames but names of villagers were not disclosed. Even this fact was not mentioned in the report Ex.D.1. (14). It is also not possible to accept the plea of appellants that the alleged acts attributed to them would not amount to murder but only culpable homicide punishable under section 304 IPC. In order to sustain that plea, there should have been evidence to show that the appellants had exceeded their right of private defence. If only the offence comes within Exception 2 to section 300 IPC, the gravity of the offence would be reduced and the acts committed by the assailants would come within the purview of culpable homicide not amounting to murder. (15). On a close look at the testimony of Basanti Bai we find that injury with Pharsi attached with stick, on the person of Bal Kishan, was attributed to appellant Girraj but no such Pharsi got recovered at his instance. Even in the FIR Ex.P.7 the allegation against Girraj was that he caused injuries with stones on the heads of both the deceased. There was no allegation against Girraj in the FIR that he inflicted injury on the person of Bal Kishan with Pharsi. Appellant Bherulal also did not state that his son Girraj was present in the house at the time of incident. The possibility of over implication of appellant Girraj, therefore cannot be ruled out and he is entitled to benefit of doubt. (16). Appellant Bherulal also did not state that his son Girraj was present in the house at the time of incident. The possibility of over implication of appellant Girraj, therefore cannot be ruled out and he is entitled to benefit of doubt. (16). Abdul Rashid Investigating Officer (PW.21) vide recovery memos Ex.P.11, Ex.P.12, Ex.P.13 and Ex.P.14 got recovered spear stained with blood, lathi stained with blood, sword stained with blood and lathi respectively at the instance of Bheru Lal, Kailash Chand Purushottam and Gopal. Clothes stained with blood also got recovered at the instance of Bherulal vide recovery memo Ex.P.15. As per FSL report (Ex.C.1) the blood was detected as human blood. Thus testimony of Basanti Bai also gets corroboration from recovery of blood stained weapons allegedly used at the time of commission of offence. Presence of appellants Bherulal, Kailash Chand, Purushottam and Gopal is also found established even from the testimony of appellant Bherulal (DW.3). Bherulal although stated that villagers had killed Bal Kishan and Shyam lal and got their tractor and house burnt but as the names of villagers were not disclosed, we find ourselves unable to accept his testimony. We however find that the presence of appellant Girraj could not be established at the time of commission of offence, beyond reasonable doubt by the prosecution. (17). For the reasons aforementioned we dispose of the appeal in the following terms:- (i) Appeal of appellant Girraj is allowed and he stands acquitted of all the charges. Appellant Girraj who is in jail, shall be set at liberty forthwith if not required in any other case. (ii) Conviction and sentence of appellant Bherulal under Section 302 IPC are maintained. We set aside the conviction and sentence of appellants Bherulal, Kailash Chandra, Purushottam and Gopal under Sections 148, 435 or 435/149, 436/149 and 302/149 IPC instead we convict and sentence each of them as under- Bheru Lal : U/s. 436/34 IPC to suffer Rigorous imprisonment for five years and fine of Rs. 250/- in default to further suffer one month R.I. Kailash Chand, Purushottam and Gopal : + U/s. 302/34 IPC Each to suffer Imprisonment for life and fine of Rs. 100/- U/s. 436/34 IPC Each to suffer Rigorous Imprisonment for five years and fine of Rs. 250 in default to further suffer one month RI. The sentences shall run concurrently. 250/- in default to further suffer one month R.I. Kailash Chand, Purushottam and Gopal : + U/s. 302/34 IPC Each to suffer Imprisonment for life and fine of Rs. 100/- U/s. 436/34 IPC Each to suffer Rigorous Imprisonment for five years and fine of Rs. 250 in default to further suffer one month RI. The sentences shall run concurrently. Appellants Kailash Chandra, Purushottam and Gopal, who are on bail, shall now be taken in custody forthwith and their bonds stands cancelled. (iii) The impugned judgment of learned trial judge stands modified as indicated above.