Prashant Kumar,J : This appeal has been filed against the judgment of conviction and order of sentence dated 11.10.2002 passed by Additional Sessions Judge, Fast Track Court, Seraikella in S.T. Case No. 278 of 1992 whereby and whereunde, he convicted the appellant under section 323/34 I.P.C., 325/34 I.P.C. and 387 /34 I.P.C. and sentenced to undergo R.I. For one month under section 323/34 I.P.C., R.I. for two years under section 325/34 I.P.C. and R.I. for three years under section 387/34 of the I.P.C.

2. The case of the prosecution as per the fard beyan of Yogendra Thakur is that on 8.2.1990 at about 10.45 a.m. while he was supervising the work of his laboures in his factory , namely, Nebula Product, three persons came on Scooter bearing Registration No. BR-16(S) 3154 along with appellant who was on another scooter. It is further alleged that appellant pointed his finger towards the informant and asked the aforesaid three un-known persons to do their job. It is stated that thereafter appellant went away and the aforesaid three persons, who were armed with hockey stick, came in the factory premises of the informant and demanded Rs. 10,000/- as a donation for the party. It is alleged that when the informant refused to pay the said amount, he has been assaulted by aforesaid three unknown persons due to that he received injury. However, after hearing the hulla, factory workers and other factory owners arrived, seeing them the miscreants fled away. Informant claims that the aforesaid occurrence took place on the behest of Subhash Mohanti( appellant).

3. It appears that on the basis of aforesaid fard beyan, Adityapur P.S. Case No. 24 dated 8.2.1990 under section 384, 385, 307/34 of the IPC instituted against the appellant and three un-known persons. Police after investigation submitted charge sheet against the appellant under section 384, 385, 307 and 323/34 of the IPC. Accordingly, cognizance of the said offences had been taken and later on the case committed to the court of Sessions as the offence under section 307/34 of the IPC is exclusively triable by a court of Sessions.

4. It further appears that the learned Assistant Sessions Judge, Seraikella vide his order dated 26.6.2000framed charges against the appellant under section 307 /34 , 386/34 of the IPC and explained the said charges to them to which he pleaded not guilty and claimed to be tried. Thereafter the prosecution had examined altogether seven witnesses in support of its case. It further appears that learned court below after considering the evidence available on record, convicted and sentenced the appellant as aforesaid against that the present appeal has been filed.

5. Sri Ananda Sen, learned counsel for the appellant submits that it is an admitted position that the present appellant had not demanded any extortion money from the informant nor there is any evidence to show that he has assaulted the informant. It is further submitted that there is also no evidence to show that the present appellant had indulged into conspiracy with the other-un-known persons for demanding extortion money from the informant and/or assaulting him. Thus only because he has pointed out the factory of the informant to other accused persons while he was passing through the road, it cannot be presumed that on his behest the present crime has been committed and he had common intention with other three un-known accused persons for commission of said crime. Accordingly, it is submitted that the conviction of the appellant by the court below suffers from material illegality and irregularities.

6. Learned APP submits that it has come in the evidence that the present appellant have strain relation with thein formant because he is not vacating the quarter. It is further submitted that because of the aforesaid strain relation, it is possible that the appellant had brought the aforesaid miscreants for assaulting the informant and demanding extortion money. Thus, it is submitted that there is n