Criminal Appeal (SJ) No. 103 OF 1995 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Rustam Ali, S/o Abul Hasan, R/o Village-Shripur Mallah Toli Police Station-Baisi, District-Purnia. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No. 108 of 1995 Md. Hanif, S/o Hajrat Ali, R/o Village-Shripur Mallah Toli Police Station-Baisi, District-Purnia. ************* For the Appellants : Mr. Arun Pd. Ambastha, Adv. For the State : Mrs. I.B.Pandey, APP : Mr. R.B. Roy “Raman”, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Section 304 Part II IPC and sentenced to RI for ten years by the 2nd Additional Sessions Judge, Purnia in Sessions Trial No. 196/86 by a judgment dated 16.06.1995. 2. The prosecution case is that on 26.10.1984 on account of settlement of a civil dispute between the parties a meeting was convened in course of which an altercation arose when both the parties became angry and then the appellant Rustam is said to have assaulted the cousin of the informant with a lathi on account of which he fell down and died. The rest of the accused persons also assaulted the cousin of the informant namely Wasid, Abdul Khalique and Abdul Noor. Initially a charge under Section 302/149 IPC and such ancillary Sections was framed against the appellants but they were acquitted of the charges and convicted as mentioned above. 2 3. During trial the prosecution in all examined seven witnesses out of whom P.W. 2, P.W. 3, P.W. 5 and P.W. 6 who were also injured witnesses did not support were declared hostile whereas P.W. 1 is formal. P.W. 7 is Doctor who conducted the post-mortem examination and P.W. 4 is the informant. In effect therefore the prosecution based solely on the evidence of P.W. 4 and therefore it has to be seen by this Court as to whether he is completely trustworthy. 4. On going through the evidence of P.W. 4 one finds that in paragraph 11 he has stated that when suddenly an altercation arose between the parties on demands of shares some one assaulted from the back with a dagger on account of which he became unconscious and thereafter he did not see as to who assaulted whom. In view of such statement of the informant who is the sole eye- witness it would be difficult to uphold the conviction of the appellants. 5. In the result, the appeals are allowed and the judgment dated 16.06.1995 passed by the 2nd Additional Sessions Judge, Purnia in S.Tr. No. 196/86 is set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 5th May, 2011. NAFR/Vikash/-