JUDGMENT : A. K. MISHRA, J. 1. The conviction of accused under section 326 IPC and sentence to under go R.I. for a period of three years and to pay a fine of Rs. 1000/- in default to under go R.I. for a period of two months passed by Addl. Sessions Judge, Khurda on 25.1.1996 in Criminal Appeal No.96/41/147of 1995/1992/1991 is challenged in this revision. 2. The Appellate Court had modified the conviction of accused under Section 307 IPC by the Trial Court vide judgment dated 13.11.1991 and passed the above order. 3. The prosecution case in short is that on 03.07.1989 at 6:00 P.M. injured Ajaya Kumar Bairiganjan, P.W. 7 while returning in a bicycle to his house, near his village Society Office, accused his co-villager, suddenly stabbed him by means of a knife causing injury on his left side chest and fled away. His father immediately shifted him to Olasingh Hospital but being referred to in the same night, he was taken to Capital Hospital, Bhubaneswar and then to S.C.B. Medical College & Hospital, Cuttack. He was discharged after ten days on 13.7.1989. On the lodging of FIR by the father on next date at 6:00 P.M. Jankia P.S. Case No.91 of 1989 under Section 324 IPC was registered, investigation was ensued. On 02.08.1989, the injured filed a complaint case. In course of investigation on police requisition, medical opinion was obtained and charge sheet was filed under section 307 IPC. In defence the accused abjured the charge stating that due to village party faction this case was falsely foisted at the instance of Sarpanch. 4. Prosecution examined 12 witnesses. Injured is P.W.7 while his father, the informant, is P.W.5. The FIR named three eye witnesses, P.Ws.1, 3 and 4 did not support prosecution and were declared hostile. P.W.6 and 9 are the Doctors. The former was the Medical Officer of Olasingh Hospital by whom injured was treated first and later is the Assistant Professor of S.C.B. Medical College & Hospital, Cuttack. P.W.2 is a post occurrence witness while P.Ws.8, 10 and 11 whose names were not given in the FIR, have deposed to have seen the occurrence. P.W.12 is the Investigating Officer. The former was the Medical Officer of Olasingh Hospital by whom injured was treated first and later is the Assistant Professor of S.C.B. Medical College & Hospital, Cuttack. P.W.2 is a post occurrence witness while P.Ws.8, 10 and 11 whose names were not given in the FIR, have deposed to have seen the occurrence. P.W.12 is the Investigating Officer. On behalf of defence the daily record of Nurses of S.C.B. Medical College & Hospital, Cuttack containing that he was stabbed by accused is proved vide Exhibit-A. No material object is produced obviously being not seized during investigation. 5. Learned Trial Court recorded a finding believing the Medical Officer, P.W.-6 and P.W.9 and medical reports that the injury sustained by P.W.7 in his left side chest was grievous in nature likely to cause death. Basing upon the evidence of the injured and three eye witnesses P.Ws.8, 10 and 11, learned Trial Court concluded that the accused had caused such injury by means of a knife. The defence plea that there was a party faction in the village for which accused was framed was disbelieved. Consequently the trial Court convicted the accused under section 307 IPC and sentenced him to undergo R.I. for four years with a fine of Rs.5000/- in default to undergo R.I. for two months. Accused preferred Criminal Appeal against conviction and sentence. Learned Appellate Court did not put importance to the plea of non-seizure of blood stained clothes of the injured on the ground that it was not challenged when P.W.12, Investigating Officer was examined. It was also held that P.Ws.8, 10 and 11 who were not named as witnesses in the FIR were reliable because they were examined by the Investigating Officer on 5.7.1989. It is recorded that incident arose out of a silly matter and there was no intention or knowledge that the act of the accused could have resulted into the death of injured. Specifically it is held that accused had acted on impulse or on the spur of the moment. For that learned Appellate Court setaside the conviction under Section 307 IPC but found him guilty under Section 326 IPC and passed sentence as stated above. 6. Mr. Specifically it is held that accused had acted on impulse or on the spur of the moment. For that learned Appellate Court setaside the conviction under Section 307 IPC but found him guilty under Section 326 IPC and passed sentence as stated above. 6. Mr. Himanshu Bhusan Dash, learned Amicus Curiae appearing on behalf of revision petitioner submitted that findings of both the Courts below are perverse as weapon of offence was not seized and if the complaint petition, Exhibit-3 filed subsequently by the injured himself is read, a different story all together is unfolded to the effect that the injured protested when accused restrained and abused holding the handle of the bicycle and due to stabbing, the shirt of injured was cut and it was handed over to the Medical Officer, Olasingh Hospital and non production of such knife or cut shirt creates doubt in the credibility of injured. It is further submitted that in the complaint petition, the names of three eye witnesses mentioned in the FIR have been omitted while the names of P.Ws.8, 10 and 11 are introduced and thereby it can be said that injured had tried to suppress the truth in a camouflage manner. Basing upon that it is urged that when the weapon of offence is not seized and injury report from Doctor was received after much delay on 14.08.1989 for which Investigating Officer without any reason had sent requisition on 12.8.1989, it can be said that prosecution had tried to frame the accused for village groupism. It is assiduously urged that both the courts below having not appreciated the above facts, the accused should be given benefit of doubt. 6(a). Lastly, it is buttressed that the incident between two youths having occurred thirty years back for silly matters, delay in trial should be considered as one of the factors to give benefit of doubt to the appellant. 6(b). Learned Additional Government Advocate, Mrs. S. Pattnaik supported the impugned judgment adding that non-recovery of weapon of offence is not fatal when the injured and other eye witnesses have specifically proved its use. 7. In this nature of case the evidence of injured always assumes importance. Here he is P.W.7, a young boy of 19 years of old by the time of incident. Accused was also his co-villager aged about 21 years then. 7. In this nature of case the evidence of injured always assumes importance. Here he is P.W.7, a young boy of 19 years of old by the time of incident. Accused was also his co-villager aged about 21 years then. Injured has stated that on the previous day of occurrence there was a quarrelling while he and his friends were eating puffed rice (MUDHI) and accused was annoyed and had threatened him. He has also stated that when police did not make proper inquiry on the FIR filed by his father he filed complaint petition vide Exhibit-3. The spot as per him was fifty to sixty cubic feet from his house and the weapon of offence was sharp and having length about ten inches. He has admitted that after one month of discharge from the hospital he filed the complaint. His father P.W.5 stated that by the time he reached the spot P.Ws.1, 3, 4 and 6 were present. and from them he came to know that accused had stabbed his son by means of a knife and he took his son to Olasingh Hospital. He has stated that on the next day morning he returned to village and lodged FIR at evening. He has also testified that the brother of injured had taken a shirt to Olasingh Hospital where the blood stained shirt of injured was changed and kept. He has clearly admitted that both parties were in litigating terms (cross examination of Para-7). Thus, fact remains proved that parties were in litigating terms. The FIR named witnesses do not support the prosecution. Three witnesses P.Ws.8, 10 and 11 were introduced in the complaint petition filed one month after the incident. The fate of that complaint Exhibit-3 is not made known. The weapon of offence is not seized. The blood stained shirt having cut mark is also not seized. The Investigating Officer, P.W.12 stated that he made requisition but Doctor did not send that shirt. He has also stated that on 15.8.1989 he received the injury report. Injury report Exhibit-2 reveals that injury requisition was received by the Doctor on 12.08.1989 more than one month after the incident. While the Investigation on the father's FIR going on, the son, injured filed a complaint adding the witnesses who were not named in the FIR. He has also stated that on 15.8.1989 he received the injury report. Injury report Exhibit-2 reveals that injury requisition was received by the Doctor on 12.08.1989 more than one month after the incident. While the Investigation on the father's FIR going on, the son, injured filed a complaint adding the witnesses who were not named in the FIR. If the totality of above circumstance is considered in the backdrop of litigating terms as admitted by father-informant it can be said that the true facts between accused and informant occurred on 3.7.1989 at 6:00 P.M. is shrouded with mystery. Oral testimony cannot be appreciated in isolation of the surrounding circumstances and for that the accused is entitled to be given benefit of doubt. 8. The findings of learned court below being perverse for having not considered the circumstances creating doubt in the prosecution allegation, this court in exercise of revisional jurisdiction reverses the same. Accused is given benefit of doubt. The conviction and sentence of appellant-accused is setaside and he is acquitted. 9. The Criminal Revision is allowed.