Criminal Appeal (SJ) No.197 OF 1995 ---------- Appeal against the Judgment and Order dated 5.9.1995 passed by the Sessions Judge, Katihar, in Sessions Case No. 202 of 1988. ----------- 1. BIBI LAILA KHATOON, WIFE OF MATLIB 2. KHAIRUN KHATOON @ BIBI KHAIRUN NISA WIFE OF MATIA @ MOTIUR RAHMAN BOTH RESIDENT OF VILLAGE SIHBURTALA BAIRGACHHI, P.S.-S. BALRAMPUR, DIST- KATIHAR. …… APPELLANTS Versus THE STATE OF BIHAR ……RESPONDENT ---------- For the appellants : Mr. Basant Kumar Coubey, Advocate For the respondent : A. P. P. ---------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. Heard. 2. The Appellants have been convicted under Sections 324, 225, 323 and 353 of the Indian Penal Code and sentenced to rigorous imprisonment for two years and a fine of Rs. 2,000/- in default of which undergo rigorous imprisonment for one year, one year, two years and three years respectively by the Sessions Judge, Katihar, in Sessions Case No. 202 of 1988 by a Judgment dated 5.9.1995. 3. The case of the prosecution is that when the Informant arrested an accused Sk.Matia from his house in pursuance to an earlier case against him, many villagers surrounded him and forcibly got free the accused person. The Appellant is said to have assaulted the Informant with a broom. In course of scuffle, the accused persons also assaulted one A.S.I. of 2 the raiding party who died subsequently and this case was converted to one under Section 302 of the Indian Penal Code. 4. The defence of the Appellants was that in fact the A.S.I. has entered the house of Sk. Matia with ill motive and had been assaulted to prevent him causing any harm to the wife of Sk.Matia, in course of which he sustained injuries and died. 5. During trial, the prosecution examined eleven witnesses out of whom PW-1, PW-2, PW-5 and PW-6 are on the point of occurrence. PW-7 is hearsay. PW-3 and PW-4 have been tendered. PW-8 had given medical aid to the injured Police Officer whereas PW-4 conducted the post mortem on the dead body of the deceased. PW-10 proved injury report of the Informant, the Chowkidar and the A.S.I. 6. In the present case the first Informant has not been examined. PW-1 who was a Chowkidar and a member of the raiding party has specifically stated that it was Sk. Bouka who gave a lathi blow on the head of the deceased and no specific overt act has been alleged against the present Appellants. Even though, he has stated that the Appellants had come at the place of occurrence. PW-2 who is the Mukhiya of the village is hearsay witness. PW-5 is only on the point of factum of occurrence. PW-6 also a Chowkidar did not allege any specific overt act against the Appellants and has merely stated that the accused persons came to the place of occurrence and variously assaulted the Injured. PW-7 is merely on the factum of the occurrence. 7. From the evidence of the witnesses, I find that apart from the fact that the Appellants participated in the occurrence no 3 specific overt act has been alleged against the Appellants and the entire case is based on vague and general allegations. There is no evidence that the Appellants had tried to get free Sk. Matia, arrested by the deceased, A.S.I. 8. Under the circumstances, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Case No. 202 of 1988 by the Sessions Judge, Katihar, is hereby set aside. 9. The Appellants are discharged from the liability of their bail bonds. Patna High Court, Patna. Dated, the 22nd April, 2011. NAFR/S.ALI (Anjana Prakash, J.)