S.J. Mukhopadhaya, J.

1. Both the appellants (accused) were charged for offences punishable under Sections 302/34 and 323/34, IPC for committing murder of Rani @ Sani Mundain, daughter of informant, Dimbu Devi (PW 2). The Trial Court while acquitted both the accused of the alleged charges under Section 323/34, IPC, convicted both the accused for the offence under Section 302/34, IPC and sentenced to undergo life imprisonment vide impugned judgment dated 30th June, 1997, passed by Sri Ravindra Nath Verma, Additional Judicial Commissioner- Khunti in Sessions Trial No. 673 of 1996/G.R. Case No. 257 of 1995. .

Before discussion of objections as have been raised by the learned counsel for the appellants, it will be convenient to discuss the case of prosecution and the evidence.

2. The case of prosecution, as per fardbeyan of Dimbu Devi (PW 2), mother of the deceased, Rani Mundain, recorded on 8th May, 1995 at 7 am is that the deceased Rani @ Sani Mundain was living alone in her sasural situated in Village-Bakarberadih under P.S. Arki, District-Ranchi since the death of her husband. She was issueless, informant, mother of deceased had gone to her (deceased) sasural on Tuesday to stay there. On Sunday, she (informant) and her daughter (deceased) had gone to Hemrum hat for purchase and returned in the evening at about 7 pm. When they were busy in cooking fish, on the said Sunday (7th May, 1995) at about 7 pm both the accused persons, namely, Doman Munda and Bhanu Munda suddenly entered into the home of the deceased and started assaulting the deceased, Rani Mundain. When she (informant) intervened to save her daughter (deceased), the accused, Doman Munda also assaulted her on her back and she become senseless. When she regain sense, found her daughter, Rani Mundain lying dead on the place of occurrence. The informant alleged that the accused persons were earlier charging the deceased that she was a Dyine (witch).

In course of trial, prosecution examined seven witnesses in order to bring home the charges, framed against the appellants under Sections 302/34 and 323/34, IPC. PW 2, Dimbu Devi, mother of the deceased (informant) is the solitary eye-witness. Two of the independent witnesses, who are neighbours of the deceased, Rani Mundain, namely, PW 4, Budhu Munda and PW 5, Maisu Munda were declared hostile by the prosecution.

PW 1, Basant Munda is from another Village-Seranghatu and mukhiya of Musanga Panchayat but he has claimed to have learnt about the crime from PW 4, Budhu Munda, who was declared hostile. PW 3, Singrai Munda merely stated that he has seen the dead-body of Rani Mundain and proved his signature on the inquest report. PW 6, Dr. V.K. Prasad, Medical Officer conducted post-mortem on the dead-body of the deceased, Rani Mundain, PW 7, Deo Narain Saha, Officer-in- Charge was the I.O.

Learned 2nd Additional Judicial Commissioner, Khunti mainly relied on the evidence of solitary eye-witness, PW 2, Dimbu Devi, mother of the deceased. He also relied on the statement made under Section 161, Cr PC by two hostile witnesses namely, PW 4, Budhu Munda and PW 5, Maisu Munda and held that there is no legal bar upon such testimony, if corroborated by other reliable evidence. Though, there is major contradiction between the ocular evidence of PW 2, Dimbu Devi and medical evidence, he held that the ocular evidence will prevail over the medical evidence.

3. Challenging the judgment and order of conviction and sentence passed by the learned Court below, learned counsel for the appellants has submitted that there is no evidence in support of genesis of alleged occurrence. It has not been proved by the prosecution. Learned Court below has not properly assessed the ocular evidence and the medical evidence nor decided the question whether the evidence of solitary witness (PW 2), who is related to the deceased, can be relied upon or not in absence of any evidence to corroborate her testimony.

The solitary eye-witness of the occurrence, Dimbu Devi