PRADEEP KUMAR, J. - (1.) THIS appeal is directed against the judgment of conviction and sentence dated 5.9.2002 passed by Sri R. K. Srivastava, Additional District & Sessions Judge, F.T.C. 3rd, Bokaro in Sessions Trial No. 112/1995 by which judgment the learned Sessions Judge found the appellant no. 1, Kamta Prasad Saw guilty under Section 323 (sic '' 307?) of the Indian Penal Code read with Section 323 of the Indian Penal Code and sentenced him to undergo R.I. for 3 years under Section 307 of the Indian Penal Code and S.I. for 6 months. He also found the other appellants, guilty under Section 323 and sentenced them to undergo S.I. for 6 months.
(2.) IT is submitted by the learned counsel for the appellant that there is no evidence that the appellant no.1, Kamta Prasad Saw attempted to commit murder of the informant even the doctor ( P.W. 3), who examined the informant and opined that the injuries found on the person of the informant, Kamlesh Kumar Singh were simple in nature and the said injuries could not have been given by danda. In that view of the matter, his conviction under Section 307 of the Indian Penal Code is bad in law and fit to be set aside. On the other hand, learned counsel for the State while opposing the prayer submitted that there is sufficient evidence that all the appellants entered into the shop of the informant and started to throw his articles belonging to the shop and on protest they assaulted the informant.
(3.) AFTER hearing both the parties and going through the prosecution case, I find that the prosecution was started on the basis of a First Information Report given by Kamta Prasad (sic) (P. W. 5) the informant. He stated that on 4.3.95 at about 2.00 P.M. all the appellants entered into his shop and after breaking the lock of the shop they started to throw the articles kept in the shop whereupon he made an objection the informant was assaulted by all of them and it is alleged that Kamlesh Sao caught hold of his neck and was pressing his neck while another accused, Nagendra Gupta (appellant no. 4) took Rs. 500/ - from his pocket and other accused persons also assaulted him with fist and danda.;