ORDER : Heard Mr. Vikash Kumar, learned counsel appearing for the petitioners and Mr. Shekhar Sinha, learned A.P.P. for the State. 2. In this application the petitioners have challenged the judgment dated 24.06.2015 passed in Criminal Appeal No. 116 of 1993/213 of 2001 by the learned Additional Sessions Judge-IV, Jamtara whereby and whereunder the judgment and order of conviction and sentence dated 21.06.1983 passed by the learned Assistant Sessions Judge, Jamtara in Sessions Case No. 139 of 1982 convicting the petitioners for the offences punishable under Sections 452, 326, 307 of the Indian Penal Code and sentencing them to rigorous imprisonment for three years has been affirmed by upholding the judgment of conviction under Section 326 and 307 of the Indian Penal Code while acquitting the petitioners for the offence under Section 452 of the Indian Penal Code. 3. It has been stated by the learned counsel for the petitioners that the prosecution has measurably failed to prove its case. Learned counsel submits that the Investigating Officer of the case has not been examined which has caused prejudiced to the defence. It has also been stated that even the doctor has not been examined and, therefore, the injury report could not be proved. Learned counsel further submits that since the petitioners have been acquitted by the learned appellate court under Section 452 of the Indian Penal Code and forcible entry has not been proved, the subsequent event of the petitioners committing assault upon the informant becomes doubtful. An alternative argument has been advanced by the learned counsel for the petitioners that if this Court has not inclined to interfere in the judgment of conviction the period of sentence imposed upon the petitioners be suitably modified. Learned A.P.P. has opposed the prayer made by the petitioners. 4. The prosecution story in brief is that while the informant was sleeping in his house, on the sound of barking of dogs he woke up and saw the accused persons variously armed with Tangi started assaulting him. It is alleged that on alarm being raised the accused persons had managed to flee away. 5. Based on the aforesaid allegation Narayanpur P.S. Case No. 10 of 1981 was instituted. It is alleged that on alarm being raised the accused persons had managed to flee away. 5. Based on the aforesaid allegation Narayanpur P.S. Case No. 10 of 1981 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken the case was committed to the court of session and charge was framed under Sections 452, 326 and 307 of the Indian Penal Code and trial proceeded. 6. In course of trial seven witnesses were examined on behalf of the prosecution. P.W.1, Baldeb Mahato, who is the brother of the informant was declared hostile by the prosecution. P.W.2, Jaideb Mahato, has been tendered by the prosecution. P.W.3, Lakhia Mahatain, is the wife of the informant who had stated that when she had come out on hearing the alarm she had seen the accused persons assaulting her husband with Tangi. This witness has claimed to have identified all the accused in torch light. She had further stated in her cross-examination that when she came out the accused persons were fleeing away. She had also disclosed that out of fear she did not come out when the informant was being assaulted. P.W.4, Shanti Mahatain, is the daughter-in-law of the informant who had also come out on hearing the cry of alarm. This witness had stated that the informant had disclosed about the persons who had committed assault upon him. P.W.5, Ritlal Mahato, is the informant who had stated about the accused persons committing assault upon him. This witness has further stated that when his wife had come out the accused persons had flashed torch light which enabled him to identify the assailants. He had stated that he was an accused in a case of murder of one of the brothers of the accused in which he was sentenced to rigorous imprisonment for ten years. P.W.6, Dwijopada Gorain, is a retired compounder of the hospital who had proved the injury report. P.W.7, Sahajahan Khan, is an Advocate's Clerk who had proved the First Information Report. The defence had examined as many as two witnesses who controverted the allegations levelled against the petitioners. D.W.1, Achintya Kumar Roy, had stated that Badri Mahato (petitioner no. 2) was an employee of C.C.L. D.W.2, Dulal Khan, was an electrician who had proved the letter typed by Sri M.M. Laik. 7. The defence had examined as many as two witnesses who controverted the allegations levelled against the petitioners. D.W.1, Achintya Kumar Roy, had stated that Badri Mahato (petitioner no. 2) was an employee of C.C.L. D.W.2, Dulal Khan, was an electrician who had proved the letter typed by Sri M.M. Laik. 7. The learned counsel for the petitioners has much stressed upon the identification of the petitioners being doubtful as the occurrence had taken place in the dead of night and there was no source of light in which the petitioners could be identified as being the assailants. P.W. 3 the wife of the informant had claimed that she had identified the accused persons on the flash of torch light. This version of P.W.3 has been supported by P.W.5 the informant who had stated that on hearing the cry of alarm when his wife came out from inside the house the accused persons had flashed torch light and, therefore, the informant could also be able to identify the accused persons. The evidence of P.W.3 also supports the factum of identification although this witness is not an eye-witness but it has clearly been disclosed by P.W.5 with respect to the assault committed by the accused persons upon him. So far as the non-examination of the doctor is concerned, it appears that the injury report was being proved by P.W.6 who is a retired compounder of the hospital. P.W.6 had categorically stated that he had worked with the doctor who had treated the injured-informant and, therefore, P.W.6 was competent enough to have identified the injury report. The non-examination of the Investigating Officer does not prove fatal to the prosecution case in view of the consistent evidence of P.W.s 3, 4 and 5. Although there is some discrepancy with respect to the evidence P.W.3 inasmuch as in the examination in chief she had stated that she had come out after hearing the cry of alarm but the same has been contradicted in her cross-examination wherein she had stated that out of fear she could not come out and when the accused persons had left she had come out from her room. The evidence of P.W.5 however is cogent, categorical and the same does inspire confidence with respect to the petitioners having taken part in committing indiscriminate assault upon the informant. The evidence of P.W.5 however is cogent, categorical and the same does inspire confidence with respect to the petitioners having taken part in committing indiscriminate assault upon the informant. Although learned counsel for the petitioners at this stage has also taken a plea about the petitioners being falsely implicated on account of previous enmity since the informant was earlier made an accused for an offence under Section 302 of the Indian Penal Code and was convicted for rigorous imprisonment for ten years but it is well known that enmity is a double edged sword which cuts both ways. Merely because there was previous enmity that cannot be the sole ground for demolishing the prosecution case in absence of any surrounding facts and circumstances. So far as the acquittal under Section 452 of the Indian Penal Code is concerned, in the First Information Report it was mentioned that the informant was sleeping at the door whereas in his evidence as P.W.5 he had stated that he was sleeping inside the room. Since the Investigating Officer could not be examined the benefit of doubt so far as Section 452 of the Indian Penal Code is concerned, was given to the petitioners. Merely because the petitioners have been acquitted in appeal under Section 452 of the Indian Penal Code that cannot lead to acquittal of the petitioners under Sections 326, 307 of the Indian Penal Code as admittedly the incident had taken place, the petitioners had participated and they were identified by P.W.2 as well as P.W.5 and P.W.5 had immediately disclosed about the assailants to his daughter-in-law who was examined as P.W.4. 8. Considering such circumstances, therefore, the learned trial court had rightly convicted the petitioners for the offence punishable under Sections 307 and 326 of the Indian Penal Code which was affirmed in appeal. There being no reasons to conclude otherwise with respect to the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court the same is, hereby, sustained. 9. As regards the sentence which has been imposed upon the petitioners, it appears that the petitioners are facing rigors of the prosecution case since the year 1981. The maximum punishment which has been imposed upon the petitioners is three years rigorous imprisonment. The petitioners have also remained for sometimes in custody. 9. As regards the sentence which has been imposed upon the petitioners, it appears that the petitioners are facing rigors of the prosecution case since the year 1981. The maximum punishment which has been imposed upon the petitioners is three years rigorous imprisonment. The petitioners have also remained for sometimes in custody. Considering the fact that the petitioners are facing mental agony for a period of more than three decades and the fact that they have remained in custody for sometime the period of sentence which has been imposed upon the petitioners is modified to the period already undergone. 10. This application stands dismissed with the aforesaid modification in sentence. Application dismissed.