JUDGMENT : S.K. Sahoo, J. The petitioner Sohanlal @Sunil @ Anil Shankar Mali @ Sunil Sankar faced trial in the Court of learned Asst. Sessions Judge, Sundargarh in Sessions Trial No. 63/15 of 1992 for offences punishable under sections 324/448/307 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 22.10.1992 held that there is no evidence against the petitioner for committing offence under section 324 of the Indian Penal Code but found the petitioner guilty under sections 307/448 of the Indian Penal Code and he was sentenced to undergo R.I. for three years under section 307 of the Indian Penal Code and R.I. for one year under section 448 of the Indian Penal Code and both the sentences were directed to run concurrently. The petitioner preferred an appeal in the Court of Session and it was heard by the learned Sessions Judge, Sundargarh in Criminal Appeal No. 55 of 1992 and vide impugned judgment and order dated 01.03.1997, the learned Appellate Court set aside the conviction of the petitioner under section 448 of the Indian Penal Code, however, maintained the conviction under section 307 of the Indian Penal Code and sentence passed thereunder, hence the revision. 2. The prosecution case as per the First Information Report lodged by the Ramakanta Behera (P.W.6) before the Officer in charge, Bhasma Police Station on 05.10.1991 is that on that day while the informant was returning home after taking bath from Power loom campus, on the way near Kundukela market complex, he found the petitioner assaulting the injured Vedvyas Naik (P.W.4) by means of a Tangia on his head as well as on the other parts of his body. Then the petitioner assaulted Prasanta Kumar Patel (P.W.5) who was having a cloth shop at the spot so also one Rabi who was a servant in the Sahoo Hotel by the same weapon. One Dibyalochan Patel (P.W.2) who was taking tea in the nearby tea stall came to the rescue of P.W.5 but he was also assaulted by means of Tangia by the petitioner. The petitioner left the spot after handing over the Tangia to his mother. On the basis of such First Information Report, Bhasma P.S. case no.79 of 1991 was registered on 05.10.1991 under sections 307/448/323 of the Indian Penal Code. Mr. The petitioner left the spot after handing over the Tangia to his mother. On the basis of such First Information Report, Bhasma P.S. case no.79 of 1991 was registered on 05.10.1991 under sections 307/448/323 of the Indian Penal Code. Mr. Sesadev Mallick (P.W.15), who was attached to the Bhasma Police station as the officer in charge took up investigation of the case. During course of investigation, he visited the spot, examined the informant and other witnesses, issued requisition to the Medical Officer, District Headquarters Hospital, Sundargarh for examination of the injured Vedavyas Naik (P.W.4), Rabi Swain so also Prasanta Kumar Patel (P.W.5). He instructed A.S.I. Biswanath Mohanty (P.W.11) to go to Sundargarh and take steps for recording the dying declaration of the injured (P.W.4). On 06.10.1991 he got information from P.W.11 that the injured P.W.4 was referred to V.S.S. Medical College & Hospital, Burla for better treatment. The petitioner was arrested on 06.10.1991 and forwarded to Court on the same day. The injured (P.W.4) was then admitted in the Male Neurosurgery Ward of V.S.S. Medical College & Hospital, Burla. On 29.10.1991 the I.O. examined injured (P.W.4). On 03.11.1991 the I.O. received the dying declaration statement of the injured (P.W.4) from Superintendent of V.S.S. Medical College & Hospital, Burla. The bed head ticket of the V.S.S. Medical College & Hospital was seized under seizure list (Ext.9). The I.O. received the injury reports of other injured persons. On 15.12.1991 he produced the seized axe (M.O.I) before the Dr. Ramnarayan Acharya (P.W.3) who opined positively regarding possibility of injury sustained P.W.4 by M.O.I. On completion of investigation, on 16.12.1991 the Investigating Officer submitted charge sheet against the petitioner under sections 307/448/324 of the Indian Penal Code. 3. After submission of the charge sheet, the case was committed to the Court of Session after complying due committal procedure and the matter was transferred to the Court of learned Asst. Sessions Judge, Sundargarh for trial where on 28.07.1992 the learned Trial Court framed charges under sections 324/448/307 of the Indian Penal Code and since the petitioner refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to establish his guilt. 4. In order to prove its case, the prosecution examined as many as fifteen witnesses. P.W.1 Dr. 4. In order to prove its case, the prosecution examined as many as fifteen witnesses. P.W.1 Dr. Gajendra Sekhar Deo, P.W.2 Dibyalochan Patel and P.W.5 Prasanta Kumar Patel did not support the prosecution case for which they were declared hostile. P.W.3 Dr. Ramnarayan Acharya was the Asst. Surgeon attached to the District Headquarters Hospital, Sundargarh who examined the injured (P.W.4) on 05.10.1991 and noticed one incised wound on the head and proved his medical report Ext.2. On the query of the Investigating Officer, the doctor after examining the seized Tangia (M.O.I) opined that the injury sustained by the injured (P.W.4) was possible by the said Tangia. He also examined injured Rabi Charan Swain on the same day. P.W. 4 Vedavyas Naik is the injured in the case. P.W.6 Ramakanta Behera stated that he saw a man handing over an axe to a lady and further stated that the injured persons P.W.4, P.W.5 and Rabi were lying at the spot in injured condition. P.W.7 Dr. Dambarudhar Bhuyan was the specialist in Surgery attached to District Headquarters Hospital, Sundargarh and he examined P.W.4 and found that the injured had sustained head injury and the x-ray of the skull revealed that it was the fracture of the right parietal bone and accordingly, P.W.4 was advised to attend Neurosurgery unit of V.S.S. Medical College & Hospital, Burla. P.W.8 Bijaya Kumar Kandulana is a witness to the seizure of the bed head ticket under seizure list Ext.9. P.W.9 Chaitanyanath Nag and P.W.10 Mukundanath Nag stated nothing about the case. P.W. 11 Biswanath Mohanty was attached to Bhasma police station as A.S.I. of police and on 15.11.1991 on being directed by the Officer in Charge, he seized the bed head ticket of the injured (P.W.4) which has been marked as Ext.10. P.W.12 Dr.Pravatini Tripathy was the Asst. Surgeon attached to District Headquarters Hospital, Sundargarh who examined the petitioner on 06.10.1991 and noticed some abrasion and proved his report Ext.1. P.W.13 Dr. Alekh Prasad Mohapatra was the Asst. Surgeon of Kinjirma Medical Aid Centre and on police requisition he examined injured Rabi Swain and Prasanta Kumar Patel (P.W.5) and proved their medical reports Ext.12 and 13 respectively. P.W.14 Dr. Brahmananda Acharya was Associate Prof. P.W.13 Dr. Alekh Prasad Mohapatra was the Asst. Surgeon of Kinjirma Medical Aid Centre and on police requisition he examined injured Rabi Swain and Prasanta Kumar Patel (P.W.5) and proved their medical reports Ext.12 and 13 respectively. P.W.14 Dr. Brahmananda Acharya was Associate Prof. of Neurosurgery of V.S.S. Medical College & Hospital, Burla and he stated to have treated the injured (P.W.4) on 05.10.1991 onwards who disclosed before him on 10.10.1991 the name of one Anil to have assaulted him by Tangia (axe). He further stated that P.W.4 was discharged from the hospital on 16.10.1991. P.W.15 Sesadev Mallick was the Officer in charge of Bhasma police station who is the Investigating Officer. The prosecution exhibited as many as eighteen documents. Exts.1 and 2 are the injury reports of the injured persons, Ext.3 is the opinion of P.W.3, Exts.4 and 5 are the bed head tickets, Ext.6 is the First Information Report, Exts.7 and 8 are the query of P.W.7, Ext.9 is the seizure list, Ext.10 is the bed head ticket, Ext.11 is the injury report of P.W.12, Exts.12 and 13 are also the injury reports, Ext.14 is the formal F.I.R., Ext.15 is the dying declaration of the injured Vedavyas Naik and Exts.16, 17 and 18 are the seizure lists. The prosecution proved one material object which is the axe as M.O.I. 5. The defence plea of the petitioner was one of denial. 6. The learned Trial Court in the impugned judgment and order held that there is no evidence against the petitioner for commission of offence under section 324 of the Indian Penal Code. The learned Trial Court further held that even though there was enmity between the petitioner and P.W.4 but for such fact the evidence of P.W.4 requires closure scrutiny of the evidence and some independent corroboration to it but the evidence of P.W.4 is not liable for outright rejection on that ground. It was further held that the other injured Rabi Swain has not been examined and P.W.5 Prasanta Patel did not specifically implicate the petitioner. It was further held by the learned Trial Court since P.W.4 has suffered fatal injury on his head, it is improbable that he would name some other person as the culprit than the real author of the injury. It was further held by the learned Trial Court since P.W.4 has suffered fatal injury on his head, it is improbable that he would name some other person as the culprit than the real author of the injury. The learned Trial Court further held that there is no reason to discard the evidence of P.W.4, the victim and that on careful analysis of the evidence, it is found that the petitioner is the assailant and he had caused grievous hurt i.e. the fracture of right parietal bone of P.W.4 by means of a Tangia entering into his shop. The learned Appellate Court held that from the medical evidence on record, it is proved beyond reasonable doubt that P.W.4 had sustained grievous injury on his head and accordingly, it is the petitioner who had caused such injury on his head by means of Tangia (M.O.I). The learned Appellate Court further held that the learned Trial Judge was justified in recording the conviction relying on the testimony of the injured (P.W.4) and there is overwhelming evidence on record to prove that the petitioner caused grievous hurt to P.W.4. The learned Appellate Court however held that there is no evidence regarding the criminal tresspass and accordingly, set aside the order of conviction of the petitioner under section 448 of the Indian Penal Code, however, held that the prosecution has been able to prove its charge under section 307 of the Indian Penal Code against the petitioner beyond all reasonable doubt. 7. Mr. Byomokesh Sahoo, learned counsel for the petitioner while challenging the impugned judgment and order of conviction of the petitioner under section 307 of the Indian Penal Code contended that all the material witnesses including the injured Prasanta Kumar Patel (P.W.5) have not supported the prosecution case and therefore, basing on the solitary testimony of the injured Vedavyas Naik (P.W.4), the learned Trial Court should not have been convicted the petitioner under section 307 of the Indian Penal Code. He further submitted that there are no materials on record to make out a case under section 307 of the Indian Penal Code. It is further contended that the petitioner was in custody for three months in connection with the case and since twenty five years have passed in the meantime, in the event this Court upholds the order of conviction, the sentence may be reduced to the period already undergone., Mr. It is further contended that the petitioner was in custody for three months in connection with the case and since twenty five years have passed in the meantime, in the event this Court upholds the order of conviction, the sentence may be reduced to the period already undergone., Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand contended that the evidence of the injured has remained unchallenged and nothing has been brought out in the cross-examination to discard such evidence and the oral evidence is corroborated by the medical evidence given by number of doctors. He further contended that the learned Courts below have rightly relied upon the evidence of P.W.4 as well as the medical evidence to convict the petitioner under section 307 of the Indian penal Code as the petitioner assaulted the injured (P.W.4) by means of an axe on the head as a result of which the petitioner was treated as an indoor patient from 05.10.1991 to 16.10.1991 in the Neurosurgery Department of V.S.S. Medical College Hospital, Burla and the skull of the injured was fractured. 8. Considering the submissions made by the learned counsels for the respective parties, it is found that though the petitioner was charged under section 307 of the Indian Penal Code for causing assault on Vedvyas Naik (P.W.4), Prasanta Kumar Patel (P.W.5) and one Rabi but P.W.5 has not whispered anything against the petitioner and he has not supported the prosecution case for which he was declared hostile by the prosecution. Similarly, the other injured Rabi has not been examined. The only injured (P.W.4) has also not stated about any assault either on P.W.5 or on Rabi. Therefore, it is to be seen as to how far the evidence of P.W.4 is acceptable so far his own assault is concerned. P.W.4 has stated that the petitioner had a fruit shop at Kundurkela where he had a betel shop and on 05.10.1991 morning while he was in his shop, the petitioner came there with an iron axe and dealt a blow on his head as a result of which he fell down on the ground unconscious and he was removed to District Headquarters Hospital, Sundargarh and from there to V.S.S. Medical College and Hospital, Burla for treatment and for eleven days, he was treated as indoor patient at V.S.S. Medical College Hospital, Burla. P.W.4 has specifically stated in the cross-examination that the petitioner assaulted him from the front side with the axe and the sharp side of the axe hit his head from the front side and that to from a very close range. Nothing has been elicited in the cross-examination to disbelieve the ocular testimony of P.W.4. P.W.3 Dr. Ramnarayan Acharya attached to District Headquarters Hospital, Sundargarh examined P.W.4 on 05.10.1991 and noticed an incised wound of size 2½” x 1” x 1” on the right side of fronto parietal region of the head and he opined after examining the axe that injury on the person of P.W.4 was possible by the said axe. The evidence of another doctor P.W.7 who was the specialist in surgery attached to the District Headquarters Hospital, Sundargarh indicates that P.W.4 had sustained head injury and x-ray of the skull revealed fracture injury and he advised P.W.4 to attend the Neurosurgery Unit of V.S.S. Medical College and Hospital, Burla. P.W.14 Dr. Brahmananda Acharya who was the Associate Professor of Neurosurgery Department of V.S.S. Medical College and Hospital, Burla treated P.W.4 and stated that on 16.10.1991, P.W.4 was discharged from the hospital and during treatment on 10.10.1991 when he asked P.W.4 as to who caused hurt to him, P.W.4 replied that it was by one Anil by means of an axe. Therefore, the ocular testimony of P.W.4 gets sufficient corroboration from the medical evidence. Section 307 of the Indian Penal Code which deals with attempt to commit murder requires two ingredients i.e. the intention or the knowledge on the part of the accused and the act done. The act must be capable of causing death in the natural and ordinary course of things. It is the necessity on the part of the Court to see whether the act, irrespective of its result was done with the intention or the knowledge and under such circumstances as mentioned in the section. The act must be capable of causing death in the natural and ordinary course of things. It is the necessity on the part of the Court to see whether the act, irrespective of its result was done with the intention or the knowledge and under such circumstances as mentioned in the section. The nature of the weapon used, the intention expressed by the accused at the time of committing the act, the motive for commission of offence, the nature and the size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the blow or blows are important factors that may be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempt of murder. In the present case, when the petitioner used the sharp side of the axe (Tangia) to assault the deceased on his head which resulted in causing fracture of the right parietal bone for which P.W.4 was treated as an indoor patient in Neurosurgery Department for about eleven days, I am of the view that all the necessary ingredients of offence under section 307 of the Indian Penal Code are made out and therefore, the learned Trial Court as well as the learned Appellate Court have rightly convicted the petitioner under section 307 of the Indian Penal Code. Coming to the sentence part, this Court vide order dated 10.11.2016 directed the Officer in charge/Inspector in charge of the concerned police station to collect the information regarding the criminal antecedents of the petitioner and his family backgrounds and produce the same before this Court. Today, the learned counsel for the State produced the report of Inspector in charge of Bhasma police station dated 16.11.2016 wherein it is mentioned that on verification of the police record, there was no criminal antecedents against the petitioner. It is further mentioned that the petitioner is selling Channa in the local market at Rajgangpur near Subash Chowk and his family consists of his wife and four sons and one of them is a school student. There is no dispute that twenty five years have passed in the meantime since the date of occurrence and in connection with the case, the petitioner has already undergone imprisonment for three months. There is no dispute that twenty five years have passed in the meantime since the date of occurrence and in connection with the case, the petitioner has already undergone imprisonment for three months. Accordingly, I am of the view that it would not be proper at this stage while upholding the order of conviction to send the petitioner again to jail custody. Therefore, considering the overall aspects of the case, the family background, absence of any criminal antecedents, passage of time and the fact that the petitioner is sustaining his livelihood and maintaining his family by doing small business, while upholding the conviction of the petitioner under section 307 of the Indian Penal Code, I direct reduction of the sentence to the period already undergone. With the aforesaid modification in the sentence, the criminal revision petition stands dismissed.