JUDGMENT :

S.K. Sahoo, J.

The petitioner Rama Chandra Moharana along with co-accused Ajaya Maharana faced trial in the Court of learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Khurda, Camp-Bhubaneswar in S.T. Case No.227/47/341 of 1997/96 for offence punishable under section 307 read with section 34 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 03.11.1998 found the petitioner and the co-accused guilty under section 307 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for five years.

The petitioner preferred Criminal Appeal No.53 of 1998 in the Court of learned Sessions Judge, Khurda at Bhubaneswar and the learned Appellate Court vide impugned judgment and order dated 31.03.2001 altered the conviction to section 326 read with section 34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years, hence the revision.

2. The prosecution case as per the First Information Report lodged by Dibakar Rout before the officer in charge of Balianta Police Station is that on 23.3.1995 at about 6.00 p.m. while the younger son of the informant Pramod Kumar Rout (P.W.10) was returning home along with his niece in a scooter, near Badapokhari of the village, the petitioner along with co-accused Aju @ Ajaya Maharana wrongfully restrained him being armed with sword and bhujali. When P.W.10 stopped the scooter, co-accused Aju caught hold of P.W.10 from his back and the petitioner assaulted P.W.10. Hearing cries of P.W.10 and also his niece, the passer-by arrived at the spot for which the accused persons fled away. P.W.10 was lying on the spot in an unconscious manner with bleeding injuries. He was shifted to Balkati Hospital and then to S.C.B. Medical College and Hospital, Cuttack for treatment. The informant indicated in his First Information Report that number of persons who were present at the spot including Bipin Samal (P.W.2) and Madan Sethi (P.W.1) had seen the occurrence and as a result of the assault, P.W.10 sustained injuries on his head, hands and nose.

It is further stated in the First Information Report that P.W.10 was in love with the sister of the petitioner and they had decided to marry each other but the petitioner and his family members were very much against such decision and accordingly, in a pre-planned manner to kill P.W.10, they committed the crime. It is stated in the First Information Report that the condition of P.W.10 who was hospitalized was alarming.

On receipt of such First Information Report, Balianta P.S. Case No. 37 of 1995 was registered under section 307/34 of the Indian Penal Code. P.W.9 Rama Chandra Dwivedi who was posted as A.S.I. of Police at Balakati out post took up investigation of the case on being directed by the officer in charge of Balianta Police Station. During course of investigation, he examined the witnesses and injured Pramod Kumar Rout (P.W.10), visited the spot, seized the sword and wearing apparels of the accused persons, two chappals of P.W.10, some blood stained earth and sample earth and also the Bajaj Scooter of P.W.10 and then he handed over the charge of investigation to A.S.I. of Police Narasingh Bhol (P.W.6) who on completion of investigation submitted charge sheet.

3. After observing due committal formalities, the case of the petitioner was committed to the Court of Session for trial where the learned Trial Court framed charge against the petitioner under sections 307/34 of the Indian Penal Code on 25.09.1996 and since the petitioner refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.

4. The defence plea of the petitioner is that P.W.10 while coming in the scooter dashed against the culvert for which he sustained injuries but falsely implicated him in the crime.

5. During course of trial, in order to prove its case, the prosecution examined 10 witnesses.

P.W.1 Madan Sethi and