Pradeep Kumar,J, 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 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.

3. On the other hand, learned counsel for the State while opposing the prayer and submitted that there is sufficient evidence that all the appellants entered into the shop of the informant and started throw his articles belonging the shop and on protest they assaulted the informant.

4. 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 (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.

5. On the basis of the said written report the police registered a case under Sections 341/323/307/379/34 of the Indian Penal Code and after investigation the police submitted charge-sheet whereupon cognizance was taken by the learned Magistrate and committed the case to the court of Sessions. Since the case was exclusively triable by a Court of Sessions the learned Magistrate after taking cognizance of the case committed the same to the court of sessions. Lastly the case was finally tried by Additional District & Sessions Judge. F.T.C.IIIrd, who passed the judgment as aforesaid.

6. It appears that in course of trial the prosecution has examined 5 witnesses. P.W.1, Pramod Kumar Singh, P.W.2, Krishna Mishra, P.W.3, Dr. P.H.Roy, who has examined the victim, P.W.4, Manoj Kumar Singh, P.W.5, Kamlesh Kumar Singh the informant.

P.W.1, Pramod Kumar Singh stated that he only saw that Kamlesh Kumar Singh is being assaulted by some persons by fist and danda. He identified Kamlesh Prasad Singh. He also stated that there is a dispute between the parties with regard to the shop.

P.W.2, Krishna Mishra also started that he saw that Kamlesh Kumar Gupta is being assaulted by Rajesh Kumar with lathi and one or two persons were taking money from the waist. He also stated that he does not know that there is dispute between the parties with regard to that shop . where the trial was held and the appellant was found guilty as aforesaid.

P.W.3, Dr. P.H.Roy, who found only one abrasion on the lower lip 1 ½” x ½” and swelling on different part of the body and opined that the injuries were simple in nature and such injuries can be caused even by falls.

P.W.4, Manoj Kumar Singh stated that when he reached the place of occurrence he saw four persons assaulting Kamlesh Kumar Gupta and their names as Bhagwan Sao and Rajesh Kumar, but he did know the name of two perso