P. K. TRIPATHY, J.

( 1 ) ORDER of conviction under Section 307, IPC against the petitioner pronounced by learned Asst. Sessions Judge, Dharmagarh in Sessions case Nos, 25/3 of 1991 and confirmed by learned Sessions Judge, Kalahandi at bhawanipatna in Criminal Appeal No. 44 of 1991 is under challenge.

( 2 ) ACCORDING to the case of the prosecution, while the injured (P. W. No. 9)was carrying on his business in the weekly market at Dharamgarh, at about 1. 30 p. m. , accused attacked him from behind and dealt kati blow as a result of which P. W. No. 9 sustained bleeding fracture injury on back side of the head and also over the angle of left mandible. Petitioner was caught red handed at the spot, injured was taken to the hospital, police was informed and the law was set into motion. After completion of routine investigation, charge sheet was filed against the accused. Learned Asst. Sessions Judge framed charge for the offence under Section 307, IPC. Accused denied to the charge and claimed for trial. In course of trial as many as 11 witnesses were examined and series of documents were proved besides placing on record the blood stained wearing apparels as M. Os. I to IV and the weapon of offence i. e. Gagarakati, M. O. V. As it reveals from the record, amongst the witnesses, P. W. No. 7 is the eye-witnesses to the occurrence and P. W. No. 9 is the injured P. Ws. 2, 3, 4 and 8 are witnesses who were present in the market. They did not see actual assault part, but witnessed the rest part of the occurrence relating to P. W. No. 9 having sustained bleeding injuries and the accused-petitioner being caught by P. W. 'no. 7 and others. P. W. No. 5 is the Doctor who granted treatment and prove the injury certificate, Ext. 4 and opinion report ext. 5 P W. No. 1, father of the injured was the informant. P. W. No. 11 was the investigating Officer and rest of the witnesses were formal in nature being witnesses to search and seizure. As against that accused examined Jageswar Pata as d. W. No. 1 who was also present in that market being selling 'gupchup'. He stated that he did not see the accused in the market on that date and no such occurrence took place.

( 3 ) ON assessment of such evidence on record, the Courts below while accepting prosecution version rejected the evidence of defence as untrustworthy and unreliable. Both the Courts below found the evidence lead by prosecution to be reliable in support of the charge under Section 307, IPC and accordingly convicted him with sentence of Rigorous imprisonment for three years on the ground that by the date of occurrence the accused-petitioner was 22 years old. At this stage, it may be noted that P. W. No. 9 has admitted in his cross-examination that there was land dispute and enmity between him and the accused.

( 4 ) AFTER hearing learned counsel for the petitioner, this Court finds no merit in the argument advanced by him that evidence of P. Ws. 2, 3, 4 and 8 are contradictory to the evidence of P. W. Nos. 7 and 9 relating to the occurrence and that there is contradiction in the evidence of P. Ws. 7 and 9 regarding the manner of assault. In that respect after going through the evidence on record, this court finds that the opinion expressed by the Courts below to be correct relating to consistency in the evidence of such witnesses contributing to their credibility.

( 5 ) BEING unsuccessful in that aspect, learned counsel for the petitioner further argues that evidence led by the prosecution does not make out a case under Section 307, IPC. Learned Additional Govt. Advocate in that respect defends the impugned judgment of the courts below. This Court finds that it is not worthy to defend the impugned judgment and the criticism is well made by the petitioner.

( 6 ) SECTION 307. IPC provides punishment for 'attempt to murder. It provides that any act done with such intention or knowledge and under such circumstances that, if by that act death is caused then the offender would be guilty of murd