D.M. PATNAIK, J.

(1.) The petitioner assails his conviction under section 307 of the Indian Penal Code (for short, the I.P.C.) and sentence of imprisonment for two years R.I. and fine of Rs. 500/- by the trial court and confirmed by the lower appellate court.

(2.) Prosecution case is, on 26.3.1989 around 7.30 p.m. while the injured (P.W. 8) was returning after attending call of nature, the petitioner with a Masua Katari (a sharp cutting weapon) attempted to dealt a blow aiming at his neck, but as P.W. 8 turned, it caused an injury on his backside close the neck and so he had a providential escape from death. It was further alleged that the petitioner also dealt a second blow causing another simple injury close to injury No.1. The petitioner in his defence denied the prosecution case.

(3.) Heard Mr. Debasis Panda, learned counsel appearing for the petitioner and Mr. S.S. Rao, learned Additional Standing Counsel.

(4.) Having gone through the evidence of P.Ws. 1 and 8 and the judgments of the courts below I am unable to accept the contention of Mr. Panda that the prosecution has failed to prove the assault on P.W. 8 by the petitioner because of the resultant injuries as stated by him which was fully corroborated by the evidence of P.W. 1. who immediately saw him with the injury. It is also worthwhile to mention that P.W. 8 immediately after the assault fell unconscious in the Khalahri of P.W. 1 who is his brother-in-law and that the very fact that P.W. 8 disclosed to P.W. 1 about the manner in which he was assaulted is itself a relevant factor which goes a long way to support the prosecution case. That apart the evidence of P.W. 8, the injured cannot be disbelieved since there is no infirmity in his evidence. Rather, that he was so injured, has been duly corroborated by P.W. 9, the doctor. The evidence of P.W. 8 that he was assaulted from behind would indicate that he could not have been in a position to say that the petitioner aimed the blow on his neck. From this evidence it would be difficult to hold that the petitioner aimed the blow on the neck, but it accidentally hit the backside of the left shoulder joint and. therefore, the conviction of the petitioner u/s 307 I.P.C. is misconceived since not supported by any evidence. The Doctor (P.W. 9) mentioned that the first injury was of the size of 8 x 4 3 in length located on the top of the left shoulder joint, anterior and from the middle point of anterior axillary fold encircling it and there was a fracture of the head of the left humerus and fracture of the tip of the left acromion process and, therefore, the petitioner can be said to have committed an offence punishable under section 326 I.P.C.

(5.) Mr. Panda stresses that since the petitioner is a young man of 22 years old and since there is no previous conviction, he should be given the benefit of the provisions of Probation of Offenders Act In view of the manner in which the petitioner assaulted P. W. 8 from behind, I am not inclined to extend this benefit of the Act but since the prosecution has not proved the X-ray report with regard to the fractures found by P.W. 9, it is difficult for this Court to arrive at a conclusion with regard to the extent of damage caused to the bones so found to have been fractured by P.W. 9. Secondly, there is no opinion of the Doctor that this injury endangered the life of P.W. 8. Considering this and further considering that the petitioner was a young man of 22 years of age at the time of occurrence, I reduce the substantive imprisonment of two years to one year R.I. The fine of Rs. 500/- imposed is not disturbed, but after realisation of the fine amount the same shall be paid to P.W. 8 as compensation.

(6.) In the result, the criminal revision is dismissed with modification with regard to sentence. Revision dismissed with modification in sentence.