JUDGMENT

R. N. BISWAL, J. — The appellant has preferred this appeal against the judgment and order dated 28.11.1989 passed by the Addl. Sessions Judge, Bargarh in Sessions Trial No. 18/7 of 1989 wherein while acquitting the co-accused he convicted the accused-appellant for the offence under Section 325 of I.P.C. and sen¬tenced him thereunder to undergo R.I. for one year.

2. The laconic fact of the prosecution case is that on 23.7.1988 P.Ws. 3, 4 and 7 sowed paddy in plot No. 2244 appertaining to Khata No. 176 covering an area of Ac. 0.12 deci¬mals locally known as Budhendoli/Talidoli in mouza Kebad. In the night, since there was heavy down pour of rain, on the day break, all of them went to the said land to drain out water, if accumu¬lated and on reaching there saw accused Somanath Bhoi ploughing it, while accused Sabitri Bhoi, Indrajit Bhoi and accused-appellant Jujesthi Bhoi standing on the ridge. P.Ws. 4 and 7 protested the highhandedness of the accused persons and prevented accused Somanath Bhoi from ploughing further, by standing in front of the plough team. At this, accused-appellant Jujesthi Bhoi being armed with an axe, rushed into the land and inflicted one blow on the cheek and another blow on the left hand of P.W.4, by the sharp side of the axe. To rescue his brother, when P.W.7 went near him, accused-appellant Jujesthi Bhoi and accused Indrajit Bhoi assaulted him with axe, while accused Sabitri Bhoi and Somanath Bhoi assaulted him indiscriminately with Bhara. Seeing this ghastly sight, P.W.3 rushed to his village and requested some villagers including P.Ws. 1 and 2 to rescue P.Ws. 4 and 7. On their arrival at the spot, they saw P.Ws. 4 and 7 lying on the Budhendoli with bleeding injuries, and one axe, two Bharas and a spade lying near them at sixes and sevens. P.Ws. 3 with the help of P.Ws. 1 and 2 and some others carried both the injured persons and the axe, Bharas and spade to Barpali Police Station, where P.W.3 orally reported the incident to the O.I.C., which he reduced into writing and treated it as F.I.R. As the allegations contained in the F.I.R. revealed a cognizance case, the O.I.C. registered it under Section 307 of I.P.C. and took up investigation. In course of investigation, he seized the axe, two Bharas and the spade (M.Os. I to IV respectively) produced before him at the police station and prepared the seizure list in respect thereof, visited the spot, got the disputed land demar¬cated by the R.I. of Agalpur, (P.W.6), sent the injured persons to hospital, arrested the accused persons, forwarded them to Court and after completion of investigation finding a prima facie case under Sections 447/307/34 of I.P.C. submitted charge sheet against all of them, thereunder. After the case was committed to the Court of Sessions, charge was framed under Sections 307/447 read with Section 34 I.P.C. against all the accused persons, under Section 325 I.P.C. against accused Jujesthi and under Sections 325/34 I.P.C. against accused Jujesthi Bhoi and Indrajit Bhoi. The accused persons pleaded not guilty and faced the trial.

3. In order to prove its case prosecution examined 10 witnesses, of whom P.Ws. 1 and 2 are post occurrence witnesses, P.W.3 is the informant, P.Ws. 4 and 7 are the injured persons, P.W. 5, 8 and 9 are doctors, P.W.6 is the R.I. and P.W.10 is the I.O. The defence did not choose to examine any witness.

4. After assessing the evidence on record, the trial Court, while acquitting the co-accused persons of all the charges and accused-appellant of the charge under Sections 307/447/34 of I.P.C., found him guilty under Section 325 of I.P.C. and convict¬ed and sentenced him thereunder to undergo R.I. for one year as stated earlier. Being aggrieved with the said order, the accused-appellant has preferred this appeal.

5. Learned counsel for the accused-appellant submitted that disbelieving the evidence of P.Ws. 3, 4, and 7, when the trial Court acquitted the co-accused persons of all the charges, it ought not ha