JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. The sole appellant namely, Paulus Hans has challenged the judgment of his conviction under section 302 IPC and the order of sentence of R.I. for life, both dated 13.11.1992 passed by the VIIth Additional Judicial Commissioner, Ranchi in S.T. No. 60 of 1990. 2. By an order dated 07.01.1993, the appellant was granted bail by this Court. 3. On the basis of fardbeyan of Munia Devi recorded at 15.25 p.m on 25.08.1989 in her house, Namkum P.S. Case No. 128 of 1989 was registered against Paulus Hans, Mare Tirkey, Mannu Tirkey and Kamel Tirkey under section 302/34 IPC. A common charge for the offence under section 302/34 IPC was framed against all the accused persons vide order dated 10.07.1991. During the trial, the prosecution has examined seven witnesses; the informant namely, Munia Devi/Munia Toppo is P.W.1, her younger son namely, Tepro Toppo is P.W. 5 and the doctor who has conducted autopsy over the dead-body of the deceased-Budhua Toppo has been examined as P.W.6. The investigating officer has examined himself as P.W.7. The prosecution witness-P.W.2 is witness to the fardbeyan and P.W. 3 is the inquest witness. 4. On the basis of the evidences laid before him, the learned VIIth Additional Judicial Commissioner, Ranchi has held that charge under section 302/34 IPC against the accused namely, Mare Tirkey, Mannu Tirkey and Kamel Tirkey has not been proved, however, the prosecution has been able to prove the charge under section 302 IPC against the accused-appellant. 5. Contentions raised on behalf of the appellant are two-fold; (i) it is the duty of the Sessions Judge to examine the inherent improbability and contradictions in the prosecution's evidence, and (ii) on the basis of the evidence led in S.T. No. 60 of 1990 once other accused persons have been acquitted of the charge under section 302/34 IPC conviction of the appellant under section 302 IPC is illegal. 6. The learned counsel for the appellant has referred to the judgment in “Kuna Alias Sanjaya Behera Vs. State of Odisha” reported in (2018) 1 SCC 296 . 7. Mr. Ravi Prakash, the learned A.P.P has submitted that in view of the consistent evidence of the informant who is no other than widow of the deceased-Budhua Toppo and the medical evidence which corroborates the ocular evidence, conviction of the appellant under section 302 IPC is legal. State of Odisha” reported in (2018) 1 SCC 296 . 7. Mr. Ravi Prakash, the learned A.P.P has submitted that in view of the consistent evidence of the informant who is no other than widow of the deceased-Budhua Toppo and the medical evidence which corroborates the ocular evidence, conviction of the appellant under section 302 IPC is legal. The learned A.P.P has relied on decisions in “Pattarvayal Kanakan Vs. State of Kerala” reported in (2014) 13 SCC 312 and “Balraje Alias Trimbak Vs. State of Maharashtra” reported in (2010) 6 SCC 673 , to contend that the evidence against the appellant that he has struck Dauli blow on the neck of the deceased warrants his conviction under section 302 IPC. 8. We have carefully examined the records of S.T. No. 60 of 1990 and having gone through the judgment of the learned VIIth Additional Judicial Commissioner, Ranchi, we are of the opinion that the learned VIIth Additional Judicial Commissioner, Ranchi has committed a serious error in law in convicting the appellant under section 302 IPC. 9. The informant in her fardbeyan has stated that when she was returning from the forest with her husband the accused-Paulus Hans met them at about 5.30 p.m. and took her husband towards Saunda rock. She has alleged that the accused was holding a big Dauli which is a sharp cutting weapon. She has also asserted that she saw other accused persons namely, Mare Tirkey, Mannu Tirkey and Kamel Tirkey hiding behind the bush. The appellant is said to have accompanied the informant's husband towards Saunda rock to resolve the dispute. The reason why the accused persons have killed her husband, according to the informant, is that, the accused persons were calling the informant Dayan to which her husband had objected to. Evidence of the informant-P.W.1 has been relied by the learned Additional Judicial Commissioner to convict the accused under section 302 IPC. The learned Judge has also relied on the evidence of the younger son of the informant who has been examined as P.W.5. In paragraph no. 11 of the judgment in S.T. No. 60 of 1990, the learned Judge has dealt with the evidence of P.W.1 and P.W. 5 in the following manner : “11. Learned counsel for the accused persons has argued that there are major contradictions in the statement of the witnesses. In paragraph no. 11 of the judgment in S.T. No. 60 of 1990, the learned Judge has dealt with the evidence of P.W.1 and P.W. 5 in the following manner : “11. Learned counsel for the accused persons has argued that there are major contradictions in the statement of the witnesses. He has submitted that before police neither informant nor any other witness has said that informant had seen the occurrence of assault while in court the informant as well as P.Ws. 5, 4 and 2, all have said that the informant had seen the occurrence of assault with her own eyes. It is true that before police as said by the I.O. (P.W.7) neither informant nor any other witnesses has said that the informant had seen the occurrence of assault but in the court all of them have said that the informant had seen the occurrence of assault. I find in the cross examination that the informant has said that accused Paulus Hans had assaulted her husband with Dauli and accused Mannu with axe. I think this has occurred only for the reason that question in cross examination is usually put to the witnesses in suggestive form. The informant who is a rustic Adivasi woman might not understand the trend of question being put to her and so in order to prove her case she might have said something more which she would not have seen. Only for this reason entire evidence cannot be disbelieved or discarded. She has said to the police that while she was returning from the jungle along with her husband, Paulus met them and he took the deceased along with him forcibly and at that time he was armed with Dauli. Further he has said before the police that while she went again along with her son Tepro they saw Paulus armed with Dauli and other accused persons were fleeing away from there after committing murder of the deceased. P.W.5 has said that Paulus was armed with Dauli and other accused persons were unarmed. Before police the informant has also said that Paulus was armed with Dauli and others who were hiding themselves in a bush followed them towards Saunda rock. Therefore, it is clear that Paulus was armed with Dauli while he forcibly took the deceased towards Saunda rock asking the deceased to clear the matter as to what was said by him. Before police the informant has also said that Paulus was armed with Dauli and others who were hiding themselves in a bush followed them towards Saunda rock. Therefore, it is clear that Paulus was armed with Dauli while he forcibly took the deceased towards Saunda rock asking the deceased to clear the matter as to what was said by him. Again when the informant along with her son went to the place of occurrence they saw Paulus armed with Dauli and other accused persons fleeing away from p.o. after killing her husband. These circumstances are sufficient to bring home the charge of murder against accused Paulus Hans. So far the other accused persons are concerned, I find that the prosecution has not been able to prove the charge of murder in furtherance of common intention against them beyond reasonable doubt, because mere presence of a person at the place of occurrence is not sufficient to bring home the charge against him. Simply, it is said by the informant that they had also followed the deceased being taken by Paulus and when she again went to the place of occurrence they along with Paulus were fleeing away but at that time also they were unarmed as said by P.W. 5. Paulus armed with Dauli took the deceased to Saunda rock and was seen by P.W.1 and P.W.5 fleeing away with Dauli and the injuries on the dead body were caused by heavy sharp cutting weapon such as Dauli as said by the doctor prove the charge of murder against him.” 10. Mr. Mahesh Kumar Sinha, the learned counsel for the appellant has challenged the evidence of the informant who has claimed herself an eye-witness on the ground that there are major contradictions in the prosecution story as narrated by the informant in her fardbeyan and her evidence in the court. 11. But before examining the rival contentions of both the sides, we would first look into the evidence of P.W.5 who according to the prosecution is also an eye-witness. We find that in his examination-in-chief, the witness-Tepro Toppo has stated that his mother has informed him that she has seen the accused Paulus Hans taking away his father and when he started assaulting his father with Dauli his mother ran away home. We find that in his examination-in-chief, the witness-Tepro Toppo has stated that his mother has informed him that she has seen the accused Paulus Hans taking away his father and when he started assaulting his father with Dauli his mother ran away home. On the basis of such evidence of P.W.5, it cannot be said that P.W.5 is an eye-witness to the actual occurrence. The learned Additional Judicial Commissioner, thus, has committed an error in relying on the evidence of P.W.5 as if he was an eye-witness. 12. The informant in her fardbeyan has not spoken about assault on her husband by the accused persons; she has simply stated that the accused Paulus Hans has taken away her husband towards Saunda rock and she has seen the other accused persons hiding themselves behind the bush. However, in her statement in the court she has made specific allegations of assault against the appellant and other accused persons. The learned Additional Judicial Commissioner has recorded a finding that there is some difference in the statement of the informant before the police and her statement in the court. The learned Judge has also recorded a finding that it is true that neither the informant nor any other witness has stated before the investigating officer that they have seen the actual assault on the deceased. However, the learned Judge has found the informant a reliable witness for the reason that during her cross-examination she has stated that she has seen the appellant assaulting her husband with Dauli and the accused Mare with axe. We find that during her cross-examination, the informant has admitted that 5-6 tangi blows were given to her husband due to which he fell down and thereafter the accused-appellant gave Dauli blow on the neck of her husband. In her cross-examination, she has also admitted that when she went to Saunda rock with her husband it was dark in the evening and distance between her house and Saunda rock is about 5-6 k.m. P.W. 5 has admitted in his cross-examination that there are 50-60 houses near their house, however, his mother did not inform any one about the occurrence. The informant, however, has stated that she had informed the chowkidar about the occurrence but the said chowkidar has not been examined by the prosecution. The informant, however, has stated that she had informed the chowkidar about the occurrence but the said chowkidar has not been examined by the prosecution. The elder son of the informant who has been examined as P.W. 4 has also admitted in his cross-examination that his mother never said that she has seen his father being assaulted by the appellant. This witness has stated that all that her mother has informed him was that when Paulus Hans took away his father he was holding a Dauli and they were quarreling. Contrary to the aforesaid evidence, the informant says that she ran away home when she saw the accused persons assaulting her husband. Evidently, this witness has not spoken the truth. 13. The doctor who has conducted autopsy has found the following injuries on the dead-body of the deceased-Budhua Toppo. “(i) 11 X 4 c.m. on the front of neck lower part situated transversely cutting the soft tissues, blood vessels, trachea, oesophagus completely and first thoracic, vertebra partially, (ii) 3 X 1 c.m. X soft tissue right shoulder front, (iii) 2 ½ X 1 c.m. X soft tissue on right chest front upper part over right clavicle. Injury Nos. (ii) and (iii) are connected by a linear cut, 6 c.m long. (iv) 3 X 2 c.m. X soft tissue at left lateral neck lower part, and (v) 2 X ½ c.m. X soft tissue right chest front upper part. All the injuries were ante-mortem in nature and have been caused by heavy sharp cutting weapon such as Dauli and the injuries were sufficient to cause death in ordinary course of nature.” 14. A glance at the aforesaid injuries would reveal that there are at least two injuries on the neck and two injuries on the upper chest of the accused. There is no allegation even by the informant of repeated blow by Dauli on the neck of the deceased. 15. The doctor has opined that the aforesaid injuries were sufficient to cause death in ordinary course of nature. 16. By now, it is well-settled that conviction of an accused can rest on the evidence of a solitary witness; it is not the quantity of evidence but the quality of evidence which matters the most. 15. The doctor has opined that the aforesaid injuries were sufficient to cause death in ordinary course of nature. 16. By now, it is well-settled that conviction of an accused can rest on the evidence of a solitary witness; it is not the quantity of evidence but the quality of evidence which matters the most. However, the rule of prudence requires that before conviction is recorded on the basis of evidence of a solitary witness the court must satisfy itself about credibility of the witness. We find that the informant who has substantially improved her case in the court and made specific allegation of assault by the appellant to her husband and evidence of her sons who have been examined as P.W.4 and P.W.5 who have admitted that their mother did not inform them about assault on their father, substantially challenge credibility of the informant. 17. The evidence led by the prosecution in S.T. No. 60 of 1990, that other accused persons have also assaulted the deceased-Budhua Toppo, do not establish that it was the appellant who is responsible for the fatal blow which has caused death and, therefore, he cannot be convicted for the offence under section 302 IPC simpliciter. In our opinion, the appellant was not put to notice by not framing a separate charge under section 302 IPC against him and, thus, he was misled during the trial of S.T No. 60 of 1990. No doubt, an accused can be convicted for the offence under section 302 IPC simpliciter provided the evidence led against him clearly establish that he is the one who has caused the death, but in the present case the persons against whom there are specific allegations of assault and, that too, by tangi have been acquitted of the charge framed under section 302/34 IPC. In our opinion, in the above facts, conviction of the appellant under section 302 IPC simpliciter is unsustainable. On evidence also, we find that the prosecution has failed to establish charge under section 302 IPC against the appellant. 18. Accordingly, Criminal Appeal (DB) No. 2(A) of 1993 (R) is allowed. The judgment of conviction and order of sentence, both dated 13.11.1992 in S.T. No. 60 of 1990 are set-aside. 19. The appellant is discharged of liability of the bail-bonds furnished by him. 20. Let a copy of the order be transmitted to the court concerned through FAX. 21. 18. Accordingly, Criminal Appeal (DB) No. 2(A) of 1993 (R) is allowed. The judgment of conviction and order of sentence, both dated 13.11.1992 in S.T. No. 60 of 1990 are set-aside. 19. The appellant is discharged of liability of the bail-bonds furnished by him. 20. Let a copy of the order be transmitted to the court concerned through FAX. 21. Let the lower court records be transmitted to the court concerned, forthwith.