D.P.SINGH, J. - (1.) SOLE appellant Kando Dhabariya stands convicted for the offence punishable under Sec. 323 of the Indian Penal Code and sentenced to serve simple imprisonment for three months and to pay a fine of Rs. 500.00 in default thereof to further undergo simple imprisonment for one month, by the 1st Additional Sessions Judge, Seraikella in Sessions Trial No. 55 of 1999.
(2.) BRIEF facts leading to this appeal are that in the afternoon of 4.7.1998 informant Sudhir Mahto was going to village Nuwagawn when the appellant along with Sona Mandal assaulted him with iron rod. The incident was been by Chandra Shekhar Dhabariya who rescued the informant from further assault. The appellant became unconscious and was moved to Seraikella Sadar Hospital where his statement was recorded by Seraikella Police at 9.00 P.M. According to informant, this occurrence was took place due to demand of money from appellant for drinking wine. The police registered Seraikella Police Station Case No. 24 of 1998 under Sections 341, 323, 325, 307/34 of the Indian Penal Code against two persons and ultimately submitted charge sheet against both of them. The case of the appellant was committed to the Court of Sessions where he was charged for offence under Sections 307/325 of the Indian Penal Code while co -accused Sona Mandal was charged under Sec. 109 of the Indian Penal Code. The appellant pleaded not guilty. The trial court acquitted co -accused Sona Mandal from the charge under Sec. 109 of the Indian Penal Code and the appellant from charge under Sections 307/325 of the Indian Penal Code, but found him guilty for the offence under Sec. 323 of the Indian Penal Code and sentenced him as stated above.
(3.) THE present appeal has been preferred mainly on the grounds that when the main charges under Sections 307/325 of the Indian Penal Code were not found proved, the conviction of the appellant under Sec. 323 of the Indian Penal Code deserves to the set aside. Mr. R.C.P. Sah, learned Counsel appearing on behalf of the appellant, submitted that the whole prosecution story is concocted and deserves to be thrown away. According to Mr. Sah, the prosecution version has not been supported by any positive evidence in this case. It is further submitted that P.W.2, the brother of the informant, P.W.3, P.W.4 and P.W.5 are hearsay witnesses while P.W.1 has been declared hostile. Therefore, the conviction of the appellant may be set aside.;