Delay in FIR, if satisfactorily explained, does not affect the prosecution case; non-seizure of a weapon does not negate established evidence of guilt.

JUDGMENT :

R.K.PATTANAIK, J.

1. Instant revision is filed under Section 401 read with Section 397 Cr.P.C. by the petitioner challenging the impugned order of conviction and sentence dated 20^th February, 2002 directed in S.C. No.8 of 2001 by learned Assistant Sessions Judge, Berhampur confirmed in Criminal Appeal No.26 of 2002 by judgment dated 20^th March, 2003 of learned Sessions Judge, Ganjam-Gajapati, Berhampur on the grounds inter alia that the same is liable to be interfered with and set aside for being legally untenable.

2. The prosecution case in brief is that on 20^th November, 1999 at about 10.00 AM, while the brother of the informant was returning along with one Panchanan Sahu after taking bath, the petitioner arrived there with a ‘Bhujali’ and chased him to assault and he, out of fear, ran but the latter managed to inflict blows, as a result of which he sustained bleeding injuries. For the said incident, a written report was lodged leading to the registration of B. Sadar P.S. Case No.130 dated 21^st November, 1999 under Sections 307 and 326 IPC and on completion of investigation, the chargesheet was filed under Section 307 IPC. In course of trial, prosecution examined seven witnesses and exhibited two documents, whereas the petitioner examined one witness, but no documentary evidence was led by him and considering the same, learned Assistant Sessions Judge, Berhampur concluded that a case under Section 307 IPC is well established and further proceeded to direct him to undergo a sentence of R.I. for five years and to pay a fine of Rs.2000/- with a default sentence with the period of detention, if any, to be set off in terms of Section 428 Cr.P.C. The aforesaid decision and order of conviction was challenged by the petitioner before learned Sessions Judge, Ganjam-Gajapati, Berhampur in Criminal Appeal No.26 of 2002, but it was dismissed with the conclusion that the prosecution successfully proved the case beyond reasonable doubt. Against the order of confirmation in appeal by the learned court below, the present revision has been preferred by the petitioner.

3. The grounds of challenge in the revision are as follows: (i) delay in lodging the FIR; (ii) the prosecution case is improbable as the injured claimed the presence of one Judhistir Sahu, who has not been examined; (iii) if the petitioner had the intention to kill the injured, he could have assaulted on any vital part of his body; (iv) the eye witness, namely, Judhistir Sahu to the alleged incident was not examined for the reasons best known to the prosecution; (v) contradiction with regard to the nature of weapon which was never seized by the police; (vi) the evidence of the defence witness was disbelieved by the learned courts below without any reason; (vii) learned courts below even committed a mistake in not considering the evidence on record about illicit relationship of the petitioner with the wife of the injured; (viii) the injuries as per the medical report and evidence of the doctor could be possible in the manner suggested, but it has been rejected; (ix) if assuming but not admitting the prosecution case, the petitioner allegedly gave two blows by means of a ‘Bhujali’ which runs contrary to the evidence of the doctor, who found three injuries on the person of the victim, which creates a doubt regarding the veracity of his claim; and (x) therefore, the impugned order of conviction and sentence and decision of the learned court below in appeal is otherwise bad in law for being against the weight of evidence on record.

4. Heard Mr. Das, learned couns