JUDGMENT
A.K. Parichha, J.
1. This appeal has been filed against the order of conviction and sentence recorded by learned Sessions Judge Kalahandi, Bhawanipatna in Sessions Case No.1 of 1989 against the appellant.
2. Shorn of unnecessary details the prosecution allegation in the above noted Sessions Case is that on 9.5.1988 at about noon when Bhimsen Majhi (P.W.1) was returning from Kesinga on his cycle the appellant and his co-accused-Rajendra Majhi attacked him with an axe and knife causing multiple bleeding injuries on his back, stomach and right wrist. P.W.2, who was passing on the road at that time intervened and saved P.W.1, whereafter P.W.1 went to village Sirol, told about the incident to one Udaya Ganda (P.W.6) and requested him to convey the message to his family members. He then lost his sense and was carried to Kesinga Hospital. P.W.3, brother, of P.W.1 informed the police authorities about the incident who rushed to the spot and found the cycle of P.W., axe and other articles lying scattered there. The officer, then went to the Kesinga Hospital where P.W.1 was undergoing treatment. There on the information of P.W.1 F.I.R. (Ext.11) was prepared and sent to the police station for registration. The police authorities then conducted investigation during the course of which they examined witnesses, seized the incriminating articles including an axe from the spot and a knife on production of the appellant and on completion of the investigation submitted charge-sheet under Section 307/34, I.P.C. The appellant and the co-accused took plea of complete denial and false implication due to previous enmity.
3. 12 witnesses were examined and documents like FIR, seizure list, zimanama, injury reports, medical opinion, report of chemical examination of serologist etc. were produced by the prosecution. The axe, knife, clothes of the injured were also produced and were marked as M.Os I to VII. The appellant did not cite any witness and did not produce any document or object. Learned Sessions Judge after perusing the evidence on record found that there was lack of evidence showing involvement of co-accused Rajendra Majhi in the alleged offence and accordingly, acquitted that accused. He, however, found that a case under Section 325, IPC is made out from the evidence against the appellant and accordingly convicted the appellant for that offence and sentenced him to under go R.I. for 2 years. Aggrieved by that order, the appellant . has filed this appeal.
4. Mr. Panigrahi, learned Counsel for the appellant submitted that there was previous enmity and litigation between the appellant and P.W.1 for which P.W. 1 created a false case with the help of the police, but without attaching due importance to the previous enmity of the parties and without scrutinizing the evidences carefully, learned trial Judge made a superfluous approach and recorded the order of conviction basing on some inadmissible and unreliable evidence. Mr. A.K. Mishra, learned Standing Counsel on the other hand, argued that when eye witnesses are there and the evidence of such witnesses are supported by medical evidence and other circumstantial evidence there was good reason for the trial Court to hold the appellant guilty under Section 325, IPC. Mr. Mishra also argued that enmity is a double edged weapon and evidence shows that because of the previous enmity the appellant and his co-accused carried the attack on P.W.1 and that this aspect was also discussed by learned trial Judge in the impugned judgment. Mr. Mishra claimed that the impugned judgment is in tune with the materials on record and the established principles of law.
5. P.Ws. 1, 2 and 5 are eye witnesses to the occurrence. P.Ws 6 & 9 are the post occurrence witnesses. P.Ws 3, 4, 7 & 8 are seizure witnesses. P.W. 10 is the Medical Officer, who examined the injured. P.Ws. 11 & 12 are Investigating Officers. P.W.1 narrated about the incident in detail and directly implicated the appellant. He categorically stated that the appellant rushed towards him and gave an axe blow on his left side shoulder where after the co-accused Rajendra dealt knife blows on the right wrist, stomach and back causing bleeding injuries. He stated that Scooter mechanic Narayan was passing on the road at that time and he cried for help, but the said person did not stop. But one Banamali Harijan who came there helped him by catching hold of the axe of the appellant. P.W.1 stated that in such injured condition he proceeded towards village Sirol and on reaching that village informed Udaya Ganda about the incident and asked him to inform his family members. P.W.1 further stated that he lost sense at village Sirol and was carried to Kesinga Hospital and that on arrival of police officer at the hospital, he lodged the report. Banamali Harijan @ Ganda supported the evidence of P.W.1 by saying that he reached the spot, saw the attack on P.W.1 and on the request of P.W.1 caught hold of the axe of the appellant. P.W.5 stated that when passing on the road on 9.5.1988 at about 12.15 P.M. he found the appellant with an axe and Rajendra with a knife attacking RW.1. He said that P.W.1 was lying on the ground and was trying to pull the axe from the hand of the appellant. He said that out of fear, he did not stop at the spot. The reliability of the evidence of P.Ws. 1, 2 and 5 was challenged by the defence on the ground that there were discrepancies in their evidence. Learned trial Court discussed the evidence of these witnesses along with the surrounding circumstances and held that these witnesses are reliable and their evidence are acceptable. On scrutiny, I do not find any reason to differ from such conclusion of the trial Court.
6. According to the I.O., after registering the case, he examined the witnesses, sent requisition for medical examination of P.W.1 under Ext. 13 and received the injury report, Ext. 13/1 from the medical officer. He also stated that he seized blood-stained dhoti, shirt, banion of injured and P.W. 1 under seizure list Ext.2 one knife, one old umbrella, one blue coloured lungi, one green coloured lungi on production of the appellant under seizure list, Ext.1, seized the axe from the spot under seizure list, Ext.12, blood stained earth, sample earth, Hercules cycle, gray-colour blood-stained napkin, hawai chapal, some coins under seizure list, Ext.6 and 3. He also seized some cloths from the residence of the appellant under the seizure list, Ext.5. According to him, he sent the seized axe and knife to the doctor for opinion and the doctor gave opinion, vide Ext.7. He also sent these weapons, blood-stained cloths, etc. to chemical examiners/Serologist under requisition, Ext.8 and the Serologist submitted the reports, Exts. 9 & 10.
7. The doctor, P.W.10, who examined P.W.1 at Kesinga Hospital on the date of occurrence stated that he found bleeding incised spindle shape injuries on the left costal margin and upper abdomen front side outer end of left clavicle, right wrist joint and left renal ankle. He also noticed fractures beneath the left clavical and right wrist joint. According to the doctor, these two injuries were grievous in nature and were caused by heavy sharp-cutting weapon. He also opined that injury Nos. 1 to 4 were simple in nature and were caused by some sharp cutting weapons. Replying to the query of the I.O., P.W.10 further opined that the injuries found on P.W.1 are possible with the axe and knife. The reports of the doctor, Ext.13/1 and 7 are there in this regard.
8. Exts.9 and 10 show that human blood was detected on the seized wearing apparels of P.W.1 and lungi of the appellant and the axe M.O.I. This lungi of the appellant had human blood of ‘A’ group. The napkin of P.W.1, which was seized from the spot, had also human blood of ‘A’ group and there was no plausible explanation from the appellant as to how human blood of ‘A’ group was found on his lungi and also on the napkin of injured P.W.1 and how human blood was there on the axe, M.O.I. The appellant no doubt raised a feeble plea that the cloths and weapons were not properly packed and sealed before they were sent to the Chemical Examiners. But the learned trial Court has indicated from the documents on record that those articles were properly packed and sealed by the Magistrate concerned and were thereafter sent for chemical and serological examination. The evidence of the doctor, chemical examiner, I.O. and seizure witnesses and the connected documents thus lend sufficient corroboration to the evidence of P.Ws. 1, 2 and 5.
9. P.W.1 has admitted in his cross-examination that there was previous land dispute and litigation between him and the appellant and that because of that enmity he was attacked by the appellant and co-accused. Such statement of P.W.1 appears more reasonable than the plea of the appellant that false case was created due to previous enmity. No person with a sane-mind would cause deep incised injuries and fracture on his persons by self-infliction in order to create a false case against his litigant adversary. The plea of the appellant was therefore, rightly discarded by the trial Court.
10. Considering all the evidence and surrounding circumstances, I find that the order of conviction under Section 325, IPC against the appellant is fully justified and there is absolutely no reason to differ from the finding of the trial Court in that regard.
11. Learned Counsel for the appellant indicated that the incident took place 18 years ago and the appellant is pursuing the present appeal for last 17 years. He submits that considering the harassment, which the appellant has undergone and the fact that he is now an old man of 67 years, the jail sentence may be waived and a token fine sentence be imposed. In support of his contention, learned Counsel relied on the case of Kusia @ Krushna Sahu and 11 Ors. v. State of Orissa 2006 (I) OLR 260. In that case, the appeal was pending since 1988. Considering the delay in disposal of the appeal and the fact that the allegation was about theft of some paddy from the paddy field, jail sentence was modified and a fine of Rs. 1000/- only was imposed. The present appeal is of the year 1989 and there cannot be any second opinion that undue delay has been caused. It is also a fact that the appellant is now an old man, but in the present case the jail sentence cannot be modified to a sentence of fine because in offence under Section 325, IPC sentence of imprisonment is mandatory. However, considering the delay in disposal of the appeal and the old age of the appellant, I feel that length of jail sentence can be reduced. Thus, while confirming the order of conviction under Section 325, IPC, the jail sentence is reduced to R.I. for six months.
12. With the above modification of sentence, the appeal is dismissed.