( 1 ) PETITIONER challenges the order of conviction under Section 307, I. P. C. passed by the Assistant Sessions Judge, talche'r in S. T. Case No. 24-D/8 of 1988 arising out of G. R. Case No. 385 of 1987 of the Court of S. D. J. M. Talcher and the order of confirmation of that conviction and sentence as per the impugned judgment of the Sessions Judge, Dhenkanal in Criminal appeal No. 103 of 1988. ( 2 ) PROSECUTION case according to the f. I. R. and the investigation is that on 5-12-1987, at about 8 P. M. , when the injured hrudananda Sethi was returning from nearby Betel Shop of Damasahi Chhak along with Abhaya Pratap Das (P. W. No. 7), the accused/ petitioner came from behind and dealt two blows to the back of the head as well as on the back by the axe, M. O. I. Informant Banamali Sethi (P. W. No. 2) is the elder brother of the injured. He heard that on that date the injured picked up quarrel with father of the accused and because of that grudge the accused assaulted the said injured with an intention to kill him. The occurrence of assault was witnessed by several persons and out of them, P. W. Nos. 3, 4, 6 and 7 were examined by the prosecution. Informant P. W. No. 2 was not an eyewitness to the occurrence. P. W. No. 5, is a witness to the seizure of M. O. I. and P. W. No. 8, is a witness to the seizure of the X-Ray plates and took zima of the same. P. W. No. 1 is the Doctor who treated the injured and P. W. No. 9 is the Investigating Officer. By the date when the trial was taken up for examination of witnesses, the injured was already dead and therefore he could not be examined as a witness. The injury report was marked Ext. 1, opinion of P. W. No. 1 as Ext. 2 and Bed-head ticket as Ext. 3, F. I. R. was marked Ext. 4. Exts. 5, 6, 9, 10 and 12 are different seizure-lists, Exts. 8 and 8/1 are the X-Ray plates and Ext. 7 is the zimanama. Besides the above noted M. O. I, the wearing apparels of the injured were marked M. Os. 2 and Bed-head ticket as Ext. 3, F. I. R. was marked Ext. 4. Exts. 5, 6, 9, 10 and 12 are different seizure-lists, Exts. 8 and 8/1 are the X-Ray plates and Ext. 7 is the zimanama. Besides the above noted M. O. I, the wearing apparels of the injured were marked M. Os. II and III and the wearing apparels of the accused were marked M. Os. IV and V. ( 3 ) ACCUSED petitioner took a plea of complete denial. In support of his defence, he examined Dr. P. Ch. Mohanty as D. W. No. 1 and one Rajendra Nayak as D. W. No. 2. ( 4 ) ON assessment of the oral evidence of p. W. Nos. 7, 3 and 4, the Courts below found that accused was the author of the two injuries found on the body of the injured. In that respect, Courts below, found evidence of P. W. Nos. 2 and 1 to be consistent and corroborative to such evidence of the eyewitnesses to the occurrence on identifying the accused as the author of the injuries. The trial Court, did not find anything available from the evidence of D. Ws. 1 and 2 so as to disbelieve the aforesaid prosecution witnesses. Trial Court did not consider it crucial for P. W. No. 6, another eye witness to the occurrence, not supporting the prosecution by identifying the accused as the author of the injuries which the injured sustained. Looking to the nature of the injuries and the part of the body where it was dealt the Courts below recorded the finding that accused has no other intention than to attempt murder of the injured and accordingly found him guilty of the offence under Section 307, I. P. C. Trial Court imposed a sentence of rigorous imprisonment for five years and the Appellate Court did not interfere with the same because of the fact that the injured died before commencement of the trial. ( 5 ) THE impugned order of conviction, has been challenged by the petitioner on various grounds which were considered by the courts below to reject such contention of the defence and to record the conviction against him. Before dealing with the said points, this Court take note of the injuries which is not in dispute. ( 5 ) THE impugned order of conviction, has been challenged by the petitioner on various grounds which were considered by the courts below to reject such contention of the defence and to record the conviction against him. Before dealing with the said points, this Court take note of the injuries which is not in dispute. According to P. W. No. 1, the injured had sustained :- (i) An incised wound of the size of 5" x 2" x 3/4" over the back of head 1" left to midline. The middle portion of injury is of 1" depth. The injury was in longitudinal direction with uniform margin and the underlining sub-tissue and bone were cut cleanly. The bone was fractured and depressed. (ii) One incised wound-of the size of 3" x " " over the right side back 1" right to midline. The upper end of the injury was at the level of inferior angle of scapula. The injury was with a uniform margin. There was profuse bleeding from both the injuries. Injury No. 1 was found grievous whereas the injury No. 2 was found to be simple. Both the injuries were found to be possible by sharp cutting weapon like M. O. I. Fracture injury was confirmed by the X-Ray plates. P. W. No. 1 opined that the injuries were not sufficient to cause death in ordinary course of nature though injury No. 1 was on the vital part of the body. ( 6 ) IN view of the aforesaid opinion of P. W. No. 1, it was canvassed before the Court below so also in this Court that prosecution has not been able to prove a case of attempt to murder. The Courts below have rejected that contention on the grounds that if petitioner is the author of the injuries, then, it is the intention which is to be gathered from the circumstantial evidence available on record and the circumstantial evidence in this case is the nature of the weapon used by the accused and the vital organ of the body selected to be injured by him. The above noted injury No. 1 gives a tell tale circumstance in that respect. Besides that repetitions of the assault by dealing a successive blow on the back clearly suggest to the fact that the author of the injury had the intention to kill the injured. The above noted injury No. 1 gives a tell tale circumstance in that respect. Besides that repetitions of the assault by dealing a successive blow on the back clearly suggest to the fact that the author of the injury had the intention to kill the injured. The overall circumstances, emerging from the evidence on record only indicates that the author of the injuries had no other intention except to attempt murder of the injured. Under such circumstance, argument of the petitioner is not sustainable that prosecution has not been able to make out a case under Section 307, I. P. C. ( 7 ) SO far as it relates to the contradictions in the evidence the accused/ petitioner has placed before this Court two circumstances, as glaring and important to cast a doubt on the veracity of the prosecution and to grant benefit of doubt to the accused. First of such contention is that a. chance of mistaken identity. In that respect, he argued that the occurrence having taken place in the night time the chance of identifying the assailant would have been less if there was non-availability of light for an illuminated electric bulb. According to him, though P. Ws. 3, 4 and 7 have stated about existence of an illuminated street light but P. W. No. 2, the informant stated that when he reached the spot the street light was not on (not burning ). Trial Court did not deal with that aspect. However, the Appellate Court rejected such contention of the petitioner on the ground that P. W. No. 2 arrived at the spot after the occurrence and therefore, he was not competent to say whether the street light was in illuminated condition or extinguished condition at the time of occurrence. I find sufficient force in that reasoning inasmuch as P. W. No. 7 in his evidence has clearly stated that the street light was a mercury light. Such mercury bulbs as street lights have also the tendency of going off after reaching the extreme heat. Therefore, by the time of occurrence light available from the illuminated mercury bulb as stated by p. W. No. 7 and supported by P. Ws. 3 and 4 as proved on record and evidence of P. W. No. 2 does not contradict to that fact so far as the burning condition of the street light at the time of actual assault. 3 and 4 as proved on record and evidence of P. W. No. 2 does not contradict to that fact so far as the burning condition of the street light at the time of actual assault. ( 8 ) THE other circumstance on which the petitioner has put emphasis is that evidence of P. Ws. 3 and 4 runs contrary to the evidence of P. W. No. 7 inasmuch as according to P. Ws. 3 and 4 the injured fell down when the first blow was struck on his head and thereafter, the 2nd blow was" given to his back. On the other hand, P. W. No. 7 has stated that the injured rested on his hand and then the blows were given and that the injured fell down after the 2nd blow was given. In fact, the petitioner has been successful in getting such a confusion by bringing some statement from the mouth of P. W. No. 7 in course of the cross-examination but on consistent reading of the entire evidence of P. W. No. 7 such a confusion does not stand on the way to properly assess and understand the evidence which P. W. No. 7 has given in the Court. On a conjoint reading of his evidence in examination -in-chief and cross-examination, it emerges that by the time he along with the injured came to the betel shop, the injured was in a drunken condition. After he took betel and returning with P. W. No. 7 the latter was holding the handle of his bi-cycle by the right hand and because of the drunken condition, injured had tilted on his left hand and rested and by that time from behind petitioner dealt the first blow to the head of the injured and when P. W. No. 7 looked around, he found the accused standing behind being armed with the axe and dealing the 2nd blow and by then the injured had already fallen down. Such evidence of P. W. NO. 7 is not contradictory to the evidence of P. W. Nos. 3 and 4. In that respect, the discussions made by the Courts below therefore does not appear to be illegal, unjust or suffering from perversity. ( 9 ) LEARNED counsel for the petitioner also argued that notwithstanding the evidence of D. Ws. Such evidence of P. W. NO. 7 is not contradictory to the evidence of P. W. Nos. 3 and 4. In that respect, the discussions made by the Courts below therefore does not appear to be illegal, unjust or suffering from perversity. ( 9 ) LEARNED counsel for the petitioner also argued that notwithstanding the evidence of D. Ws. 1 and 2, the trial Court accepted the evidence of P. Ws to the extent that tangi and tangia are not two but one weapon. I do not find any merit in the contention of the petitioner on the face of the evidence on record available from the mouth of the D. Ws to the effect that people in general loosely term an axe both as Tangi and Tangia though such are two distinct weapons. ( 10 ) WHILE no other argument is advanced challenging to the order of conviction, learned counsel for the petitioner argued that the occurrence took place in 1987 and in the meantime about one and half decades have lapsed. By then the accused was described to be aged about 28 years and now he is nearing 50 and therefore, on due consideration of that factor, a lenient view may be taken in the matter of imposing sentence. Learned Standing counsel opposes to that submission on the ground that provision of probation of Offenders' Act, 1958 is not in-vocable in this case. Regard being had to such submission and keeping in view the facts and circumstances involved in the case this Court takes a lenient view and reduces the substantive sentence to rigorous imprisonment for a period of two years and to pay a fine of rupees three thousands and in default to undergo rigorous imprisonment for a further period of six months. ( 11 ) THE Criminal Revision is accordingly dismissed by confirming the order of conviction but with modification of sentence in the above indicated manner. While admitting the revision, petitioner was allowed to remain on bail. Therefore, he is directed to surrender to the custody within six weeks failing which Courts below shall take appropriate steps to send him to Jail custody to serve the sentence. On payment of the fine, the same be paid to the parents of the injured and if they or any of them is no more alive then such fine amount shall stand forfeited to the State. Petition dismissed. On payment of the fine, the same be paid to the parents of the injured and if they or any of them is no more alive then such fine amount shall stand forfeited to the State. Petition dismissed. .