HEMANT KUMAR SRIVASTAVA,J.:–This criminal appeal has been directed against the judgment of conviction dated 19.7.2001 and sentence order dated 21.7.2001 passed by learned Addl. Sessions Judge III, Madhepura in Sessions trial no. 33 of 1989 by which and whereunder he convicted appellant no. 4, Gurudeo Sah for the offences punishable under sections 148, 448, 324, 307 of the Indian Penal Code, appellant nos. 2 and 3 for the offences punishable under sections 148, 448, 307/34 of the IPC and appellant no. 1, Bhutai Sah for the offences punishable under sections 147, 448, 323, 307/34 of the IPC and accordingly, sentenced the appellant no.4, Gurudeo Sah to undergo rigorous imprisonment for ten years for the offence punishable under section 307 part II of the IPC, to undergo rigorous imprisonment for two years for the offence punishable under section 324 of the Indian Penal Code and sentenced the rest appellants to undergo rigorous imprisonment for ten years for the offence punishable under section 307 read with section 34 of the Indian Penal Code and furthermore, appellant no.1, Bhutai Sah was sentenced to undergo rigorous imprisonment for six months for each offence punishable under sections 147, 323, 448 of the IPC and similarly, appellant nos. 2, 3 and 4 were sentenced to undergo rigorous imprisonment for one year for the offence punishable under section 148 of the Indian Penal Code and to undergo rigorous imprisonment for six months for the offence punishable under section 448 of the IPC. However, all the sentences were ordered to run concurrently. 2. During the pendency of this appeal, appellant no.2, Bihari Sah died and accordingly, proceeding of this appeal was abated against him vide order dated 7.5.2013. 3. However, all the sentences were ordered to run concurrently. 2. During the pendency of this appeal, appellant no.2, Bihari Sah died and accordingly, proceeding of this appeal was abated against him vide order dated 7.5.2013. 3. In brief, the prosecution case, is that P.W. 6, Sahdeo Sah, gave his fardbeyan to ASI of Madhepura police station on 31.5.1987 in injured condition that on preceding day, his wife informed him that appellant no.4, Gurudeo Sah and appellant no.1, Bhutai Sah had assaulted her and having got the aforesaid information on 31.5.1987 at about 11 p.m, he asked appellant Bhutai Sah as to why he had assaulted his wife but appellant Bhutai Sah started abusing him and he, too, in response used abusive language and in the meantime, rest appellants also came there and at that time, appellant Bhutai Sah was armed with lathi, appellant Gurudeo Sah was armed with arrow, Ramchandra Sah was armed with farsa, Sri Prasad Sah was armed with bhala and appellant Bihari Sah was armed with bhala. He further stated that appellant Bhutai Sah started assaulting him with lathi as a result of which he sustained injury on his left hand as well as on his back. His brother Mahadeo Sah (P.W. 4) came to his rescue but appellant Gurudeo Sah shot arrow which pierced into the chest of Mahadeo Sah and having sustained the aforesaid injury, Mahadeo Sah started running from there but again an arrow was shot which hit on his back. He further stated that he rushed towards his house but the appellants and one other accused chased him and entered into his house and started assaulting his wife by means of lathi and appellant Gurudeo Sah again shot an arrow which hit on the palm of his wife. The aforesaid incident was witnessed by Sharif Khan, Ishaque Khan and Sideshwar Singh. He came to police station and gave his fardbeyan whereas his brother and wife were taken to hospital. 4. On the basis of the aforesaid fardbeyan, Murliganj (Kumarkhand) P.S. case no.143/1987 for the offences punishable under sections 147, 148, 149, 323, 324, 307, 448 of the Indian Penal Code was registered against the appellants and one other accused. He came to police station and gave his fardbeyan whereas his brother and wife were taken to hospital. 4. On the basis of the aforesaid fardbeyan, Murliganj (Kumarkhand) P.S. case no.143/1987 for the offences punishable under sections 147, 148, 149, 323, 324, 307, 448 of the Indian Penal Code was registered against the appellants and one other accused. The case was investigated and after completion of investigation, police submitted charge sheet against the appellants and co-accused Sri Prasad Sah for the offences punishable under section 307 and other minor sections of the Indian Penal Code. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way. 5. Appellants and co-accused Sri Prasad Sah were put on trial and subsequently, they were jointly charged for the offences punishable under sections 148, 448, 341 of the Indian Penal Code. Appellant Bhutai Sah was separately charged for the offence punishable under section 324 of the Indian Penal Code whereas appellant Gurudeo Sah was separately charged for the offence punishable under section 307 of the Indian Penal Code. Appellants Bhutai Sah, Bihari Sah, Ramchandra Sah were jointly charged for the offence punishable under section 307/34 of the Indian Penal Code. Appellants denied the charges and claimed to be tried. 6. During the pendency of trial, co-accused Sri Prasad Sah died and accordingly, proceeding against him was dropped by the learned trial court vide order dated 17.1.1994. 7. In course of trial, prosecution examined, altogether, eight witnesses and the prosecution also got exhibited signature of the informant on his fardbeyan as exhibit 1, injury reports as exhibit 2 series, formal FIR as exhibit 3 and fardbeyan as exhibit 4. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence and denied the prosecution story. 8. Appellants also produced one defence witness in their defence and got exhibited certified copy of fardbeyan of the appellant no.1 in connection with Murliganj (Kumarkhand) P.S. case no.144/1987 as exhibit A, certified copy of deposition of one Singeshwar Prasad in GR no. 503/1987 as exhibit B, photo stat copy of injury report of appellant Bhutai Sah as exhibit C. 9. Appellants also produced one defence witness in their defence and got exhibited certified copy of fardbeyan of the appellant no.1 in connection with Murliganj (Kumarkhand) P.S. case no.144/1987 as exhibit A, certified copy of deposition of one Singeshwar Prasad in GR no. 503/1987 as exhibit B, photo stat copy of injury report of appellant Bhutai Sah as exhibit C. 9. Perusal of documentary evidence adduced on behalf of the appellants as well as trends of cross-examination of prosecution witnesses shows that the defence of the appellants is that the prosecution party assaulted the appellant Bhutai Sah on alleged date of occurrence and to save their skin, prosecution party lodged this case with concocted story. 10. The learned trial court, having considered the materials available on record, passed the impugned judgment of conviction and order of sentence in the manner as stated above. 11. Learned counsel appearing for the appellants assailed the impugned judgment of conviction and order of sentence arguing that in course of trial, it was admitted by the prosecution witnesses that for the occurrence of the same day, appellant Bhutai Sah lodged Murliganj (Kumarkhand) P.S. case no.144/1987 and, as a matter of fact, on the alleged date of occurrence, P.W. 6 and P.W. 4 assaulted appellant Bhutai Sah but prosecution suppressed the aforesaid fact and therefore, it is apparent that the prosecution has not come with true story and therefore, appellants could not have been convicted for the alleged offences. He further submitted that even if it is assumed that a free fight had taken place between the parties, then also, appellants could not have been convicted for the offence punishable under section 307 of the IPC. He further submitted that except family members of the informant and P.W. 3 not a single independent witness came forward to support the prosecution story. So far as P.W. 3 is concerned, he claimed himself to be eye-witness of the alleged occurrence before the trial court but he had not made such claim before the Investigating officer and therefore, non-examination of the Investigating officer has caused serious prejudice to the appellants. So far as P.W. 3 is concerned, he claimed himself to be eye-witness of the alleged occurrence before the trial court but he had not made such claim before the Investigating officer and therefore, non-examination of the Investigating officer has caused serious prejudice to the appellants. He further submitted that injuries found on the persons of P.Ws.4, 5 and 6 were not sufficient to cause their death and there was no intention of appellants to cause death of the aforesaid injured persons but even then, the learned trial court inferred that the appellants caused injuries to the aforesaid persons with an intention to commit their murder. Challenging the quantum of sentence, he submitted that it has come in course of trial that both parties are agnates and alleged occurrence took place on account of a petty matter and furthermore, at the time of pronouncement of judgment appellant Bhutai Sah was aged about 65 years whereas appellant Bihari Sah (since deceased) was aged about 60 years and moreover, all the appellants remained in custody in course of trial as well as during the pendency of hearing of this criminal appeal for considerable period. So even if this court comes to the conclusion that appellants had committed alleged occurrence, the sentence imposed upon the appellants should be reduced up to the period already undergone by them during the pendency of trial as well as during the pendency of this criminal appeal. 12. On the other hand, learned Addl. Public Prosecutor appearing for the State supported the impugned judgment of conviction and order of sentence arguing that the informant as well as rest two injured persons supported the prosecution story and injury reports also corroborate their statements. He further submitted that no doubt, Investigating officer has not been examined by the prosecution in course of trial but even if the statement P.W. 3 is discredited, then also, there is sufficient material to support the guilt of the appellants and therefore, there is nothing before this court on the basis of which this court could interfere into the impugned judgment of conviction and order of sentence. 13. On careful perusal of the evidences available on the record, I find that P.Ws. 1 and 2 have been declared hostile as they have not supported the prosecution story. 13. On careful perusal of the evidences available on the record, I find that P.Ws. 1 and 2 have been declared hostile as they have not supported the prosecution story. P.W.3, Md Ishaque supported the prosecution story but his attention was drawn towards this fact that in the midst of hot exchange of words, he had left the place of occurrence and later on, he came to know that appellant Gurudeo Sah shot an arrow which hit into the chest of injured Mahadeo Sah. The aforesaid witness claimed himself to be eye witness of alleged occurrence but he had not made such claim before Investigating officer and therefore, non-examination of the Investigating officer has caused great prejudice to appellants, particularly, in respect of the statement of P.W.3 and so, in my view, no reliance can safely been placed upon deposition of P.W.3. P.W.4, Mahadeo Sah and P.W.5 are injured and they have supported the prosecution story. P.W.6 is the informant himself and P.W.7 is the doctor who had examined the informant and injured of alleged occurrence. P.W.8 is the formal witness and there is nothing important in his deposition. 14. P.W.7 stated that on 31.5.1987, he was posted as Medical officer at Primary Health center, Kumarkhand and on the same day, he examined Parwati Devi (P.W. 5) and found following injuries:– (i) Penetrating wound passing horizontally size ¾”x ½”x 3” over left dorsum of hand (ii) There is also diffused swelling tenderness over left dorsum of hand. He kept reserved his opinion in respect of nature of the aforesaid injury till receipt of x- ray report but in respect of injury no.1, he observed that the aforesaid injury was caused by sharp pointed metallic arrow. On the same day, this witness examined P.W. 6, Shahdeo Sah and found following injuries:– (i) Penetrating wound with defused swelling ¼ ”x 1/8” x1/4” over left dorsum of hand. The said injury was caused by sharp pointed object and opinion regarding injury was kept reserved. (ii) Bruise with swelling 3” x ½” over left shoulder caused by hard and blunt object and simple in nature. (iii) Diffused swelling with tenderness over left end interior aspect of head caused by hard and blunt object and simple in nature. The said injury was caused by sharp pointed object and opinion regarding injury was kept reserved. (ii) Bruise with swelling 3” x ½” over left shoulder caused by hard and blunt object and simple in nature. (iii) Diffused swelling with tenderness over left end interior aspect of head caused by hard and blunt object and simple in nature. He also examined injured Mahadeo Sah on the same day and found following injuries:– (i) Penetrating wound 3/4 ” x ½ ” x1/2 ” on chest right side and the said injury was caused by sharp pointed metallic arrow and opinion regarding the nature of the aforesaid injury was kept reserved till receipt of x- ray report. (ii) Penetrating wound 1½” x ½”x 2” on back near left scapular aspect and the said injury was caused by sharp pointed metallic arrow and opinion regarding the nature of the aforesaid injury was kept reserved till receipt of x- ray report. (iii) Bruise 2” x ½” on lower lateral aspect of left leg caused by hard and blunt object and simple in nature. (iv) Diffused swelling with tenderness on posterior aspect of right leg caused by hard and blunt object and simple in nature. 15. The statement of P.W. 7 as well as exhibit 2 series reveal that P.Ws.4 , 5 and P.W. 6 were examined by P.W. 7 after alleged occurrence and injuries were found on their persons but admittedly, after examination of the aforesaid injured persons by P.W. P.W. 7, neither any x- ray report nor x- ray plate was produced before P.W. 7 nor before the trial court in course of trial and therefore, prosecution could not succeed to prove the nature of injury no.1 of injured P.W. 5, injury no. 1 of injured P.W.6 and injury nos. 1 and 2 of P.W.4. 16. No doubt, to constitute an offence under section 307 of the IPC, injury is not essential but nature of the injury plays an important role to come on the conclusion as to whether injury has been caused with intention to commit murder or not. 17. From perusal of the impugned judgment it would appear that the trial court came to the conclusion that appellant Gurudeo Sah shot arrows causing injuries to P.Ws.4 and 5 and the aforesaid injuries were caused with an intention to kill the aforesaid persons. 17. From perusal of the impugned judgment it would appear that the trial court came to the conclusion that appellant Gurudeo Sah shot arrows causing injuries to P.Ws.4 and 5 and the aforesaid injuries were caused with an intention to kill the aforesaid persons. The learned trial court came on the aforesaid conclusion on the ground that in course of trial P.W.4 stated before the trial court that appellant Bihari Sah (since deceased) exhorted that “ Chalo Sale ko Maro Chorna nahi hai” and the aforesaid conduct of appellant Bihari Sah (since deceased) was sufficient to say that the appellants and other accused were of the view to finish life of P.W. 4. The Hindi word “Maro” has two meanings in English that is kill or assault. The subsequent conduct of the appellants does not show that the intention of the appellants was to kill the injured persons of this case. However, even if, it assumed that appellant Bihari Sah (since deceased) ordered others “ Chalo Sale ko Maro Chorna nahi hai, then also, it can not be inferred that intention of appellant Bihari Sah (since deceased) was to kill P.W.4. Moreover, it is well settled principle of law that on the basis of same fact, if two conclusions are possible, conclusion favorable to accused shall go in evidence. Therefore, in my view, only on the ground that appellant Bihari Sah (since deceased) exhorted the above stated word, it can not be said that the appellants were of the view to finish life of P.W.4 18. Admittedly, prosecution could not succeed to prove this fact that the injured persons of this case had sustained grievous injuries on the vital part of their body and therefore, it will be presumed that all the injured persons of this case sustained simple injury. Furthermore, it is an admitted case of the prosecution that P.W. 6 called appellant Bhutai Sah to lodge a complain with him in respect of assault on P.W.5 one day prior to alleged occurrence and in course of lodgment of the aforesaid complain, abusive words were used by both sides and after that occurrence took place. Furthermore, it is an admitted case of the prosecution that P.W. 6 called appellant Bhutai Sah to lodge a complain with him in respect of assault on P.W.5 one day prior to alleged occurrence and in course of lodgment of the aforesaid complain, abusive words were used by both sides and after that occurrence took place. Furthermore, it is an admitted position that appellant Bhutai Sah also lodged Murliganj (Kumarkhand) P.S. case no.144/1987 against prosecution party and exhibit C reveals that appellant Bhutai Sah also sustained injury on his person and he, too, was examined by doctor after the alleged occurrence but the aforesaid fact was suppressed by the prosecution and in my view, the prosecution has not come before the court with true story. Moreover, it would appear from the materials available on record that free fight took place between the parties and persons from both sides sustained injuries and therefore, in my view, appellants could not have been convicted for the offence punishable under section 307 and 307 read with section 34 of the IPC and therefore, their conviction and sentence in respect of section 307 and 307 read with section 34 of the IPC can not be sustained. 19. So far as conviction of appellants under the above stated rest sections is concerned, in my view, there is no scope to interfere into the above stated rest sections. 20. So far as quantum of sentence is concerned, admittedly, the informant and the appellants are agnates and alleged occurrence took place in the year 1987 and at the time of pronouncement of the impugned judgment appellant Bhutai Sah was aged about 65 years whereas appellant Gurudeo Sah was aged about 30 years and the appellant Ramchandra Sah was aged about 32 years. Furthermore, I find that appellant Gurudeo Sah was remanded in the case on 2.6.1987 and thereafter, he was released on bail on 1.7.1987 and again after his conviction, he was remanded on 1.7.2001 and remained in custody till 28.1.2002 and therefore, he has already remained in custody for considerable period. 21. Furthermore, I find that appellant Gurudeo Sah was remanded in the case on 2.6.1987 and thereafter, he was released on bail on 1.7.1987 and again after his conviction, he was remanded on 1.7.2001 and remained in custody till 28.1.2002 and therefore, he has already remained in custody for considerable period. 21. So far as appellants Bhutai Sah and Ramchandra Sah are concerned, they remained in custody for one day in course of trial and later on, after conviction, they remained in custody for near about one month and therefore, I am of the opinion, that the aforesaid appellants have sufficiently been punished and end of justice will meet if the sentence of the above stated appellants is reduced to the period already undergone by them in course of trial as well as during the pendency of this criminal appeal. Accordingly, the appellants are sentenced to period already undergone by them in course of trial and during pendency of this appeal. 22. On the basis of the aforesaid discussions, this criminal appeal stands dismissed with modification in judgment of conviction and order of sentence in the manner as stated above. Appellants are on bail. They are discharged from the liabilities of their bail bonds.