JUDGMENT S.PUJAHARI, J. - The appellant herein calls in question the judgment of conviction and order of sentence passed against him in S.T. No. 130/27 of 1991 on the file of the Addl. Sessions Judge, Bargarh. The learned Addl. Sessions Judge, Bargarh vide the impugned judgment and order while acquitting the appellant of the charge under Section 307 of the Indian Penal Code (for short “the I.P.C.”), held the appellant guilty of the charge under Section 326 of I.P.C. and sentenced him to undergo rigorous imprisonment for three years and pay a fine of Rs. 5000/-, in default, to undergo further rigorous imprisonment for one year with direction that the entire fine amount shall be paid to the injured-Kalia Behera (P.W.1) towards compensation. 2. Prosecution case placed before the trial Court is that on 05.03.1991, the informant- Kalia Behera lodged an F.I.R. before Bargarh Police Station stating that there was some quarrel in between his brother –Kalia Behera and the appellant –Tikeswar Behera. On the date of occurrence, while he (informant) was in his shop, hearing the shouts of his brother, he went and found that the appellant-Tikeswar was holding a ‘Katari’ and co-accused-Jadaba Behera who was holding a wooden batton and gave blows on his shoulder and head. The present appellant assaulted his brother on his head and other parts of body by means of ‘Katari’ causing bleeding injury. Basing on such report, the case was registered and after completion of investigation, charge-sheet was submitted against the appellant and one Jadaba Behera and they were charged under Section 307/34 of I.P.C. During trial, the prosecution examined nine witnesses whereas none was examined on behalf of the appellant and the learned trial Court after analyzing the evidence on record acquitted both the accused persons from the offence under Section 307 of I.P.C., but found the present appellant guilty under Section 326 of I.P.C. and inflicted the aforesaid sentence which is under challenge in this appeal. 3. During course of hearing of this criminal appeal, the learned counsel for the appellant contended that the statement of the witnesses is discrepant to each others with regard to the place of occurrence and the manner of assault. The eyewitnesses, namely, Maina Behera, Bibhisan Pradhan and Dagar Maji have not been examined, for which adverse inference should have been drawn against the prosecution. The eyewitnesses, namely, Maina Behera, Bibhisan Pradhan and Dagar Maji have not been examined, for which adverse inference should have been drawn against the prosecution. Moreover, the appellant in view of his tender age should have been given the benefit of the Probation of Offenders Act. 4. On the other hand, the learned Addl. Standing counsel supported the impugned judgment of conviction and order of sentence. 5. Perused the materials on record. P.W.1, one of the injured, stated that there was some altercation between himself and the appellant relating to keeping of bullock cart, he further stated that the appellant was holding a ‘Katari’ and the other accused was holding a wooden batton and they chased him and he shouted and his brother-Kailash who was present in his ship came. He also stated that Jadaba Behera assaulted his brother by wooden batton and when he intervened, the present appellant dealt blows by ‘Katari’ on his head and right ankle and he sustained bleeding injuries and lost his sense. He further stated that he was treated at V.S.S. Medical College Hospital at Burla for about three months. P.W. 2, the informant stated that hearing the shouts of his brother, he came and found co-accused-Jadaba Behera was holding a wooden batton and the present appellant was holding a ‘Katari’ and co-accused-Jadaba assaulted him (P.W.2) by wooden batton and the appellant assaulted the P.W.1 on his head, right ankle and other parts of the body by ‘Katari’. P.W. 3 has stated that the appellant was holding ‘Katari’ and co-accused-Jadaba was holding wooden batton and they chased P.W. 1 and hearing his shouts, P.W. 2 reached there. P.W. 3 also stated about the assault on P.W. 1 With ‘Katari’ on his head and right ankle and there was profuse bleeding and P.W. 1 was hospitalized for three months. Such evidence of P.W. 3 lends enough corroboration to the version of P.Ws. 1 and 2. P.W. 4 though has turned hostile to some extent, but has stated that both the accused persons were chasing P.W.1 and co-accused –Jadaba was armed with wooden batton and the present appellant was armed with ‘Katari’ and P.W.2 shouted for help and P.W. 3 came out of his shop and he also stated that P.W. 3 was present at the place of assault. Even though P.W. 4 has not fully supported the prosecution case, but his version as narrated above lends additional corroboration to the version of P.Ws. 1 to 3 to such extent. 6. P.W.6, the Medical Officer stated to have examined the injured- Kalia Bhera and found right incised wounds on different parts of body and out of the same, Injury nos. (3) and (8) are grievous being probably caused by sharp cutting weapon and both the injuries are fatal to human life and he further stated that the injured was admitted in the hospital on 06.03.1991 and was discharged on 27.05.1991. Specifically, he explained during his cross-examination that he has found the injury no. (8) on the right ankle of the injured, but by mistake he noted the same as “left ankle” in Ext. 2. P.W. 8, another Medical Officer of Bargarh hospital stated that he had found some injuries on the body of injured –Kalia Behera as well as Kailash Behera. P.W. 7 is the Investigation Officer who had stated about the registration of the case, taking up investigation, seizure of the articles and issuance of injury requisition. He has further stated that he could not get trace of the ‘Katari’ after through search. When the evidence of the witnesses is clear and clinching about the weapon of offence, it’s non seizure no way affects the prosecution case. 7. On a conjoint reading of the evidence on record, it is seen that the version of P.Ws. 1, 2 and 3 is corroborative to each other and the same receives enough corroboration from the evidence of the doctors and the Investigating Officer, i.e., P.Ws. 6 to 8. That, the evidence of P.W.4 also lends additional corroboration to the extent mentioned above. Nothing substantial has been elicited during cross-examination of these witnesses to discard their testimony. It may be mentioned here that the evidence of the witnesses as regards overt act attributed to co-accused-Jadaba Behera during the course of occurrence needs no consideration as he has been acquitted by the learned Sessions Judge and the said order of acquittal is not under challenge in this appeal. 8. The learned counsel for the appellant has contended that adverse inference should have been drawn against the prosecution for non-examination of so-called eyewitnesses, namely, Maina Behera, Bibhisan Pradhan and Dagar Majhi. The evidence on record is clear, clinching and trustworthy. 8. The learned counsel for the appellant has contended that adverse inference should have been drawn against the prosecution for non-examination of so-called eyewitnesses, namely, Maina Behera, Bibhisan Pradhan and Dagar Majhi. The evidence on record is clear, clinching and trustworthy. So, non-examination of the aforesaid witnesses is immaterial. That apart, the appellant could have examined them on his behalf if the same was necessary to falsify the prosecution case. Likewise, the contention about discrepancy in the evidence of the prosecution witnesses is also not acceptable as because no such material discrepancy was pointed out in the evidence of the witnesses to render testimony untrustworthy. Evidence of P.W.1 shows that during his examination before Court he had shown his healed up injuries to the Court. He has also stated that he is unable to walk and move and needs help to pass urine and stool and bone pieces are coming out from his right ankle. It is difficult to comprehend as to why an injured would implicate the appellant as his assailant leaving the real culprits. The learned trial Court on proper appreciation of the evidence on record had reached at a right conclusion that the prosecution has failed to make out a case under Section 307 of I.P.C. against the appellant, but simultaneously held the appellant guilty under Section 326 of I.P.C. and such finding is just and proper and needs no interference by this Court. So far the quantum of sentence, the same is not excessive in view the grievousness of the injuries sustained by P.W.1 and its affect. 9. Hence, this criminal appeal is devoid of merit and, as such, stands dismissed. The impugned judgment of conviction and order of sentence are hereby confirmed. L.C.R. received by sent forthwith along with a copy of this Judgment. Appeal dismissed.