JUDGMENT : 1. No appears for the petitioners. However, Mr. Anand Kumar Pandey learned APP for the State is present. 2. This application is directed against the judgment dated 28.02.2003 passed by learned 1st Additional Sessions Judge, Hazaribagh in Criminal Appeal No. 96 of 1993, whereby and whereunder, the judgment and order of conviction and sentence dated 17.04.1993 passed by learned Judicial Magistrate, 1st Class, Hazaribagh in G.R. Case No. 1156 of 1990 (T.R. No. 252 of 1993) arising out of Hazaribagh (Sadar) P.S. Case No. 223 of 1990, convicting the petitioners for the offences punishable u/s 341 and 326/34 of the Indian Penal Code (I.P.C.) and sentencing them to undergo S.I. for 01 months and 01 year respectively, has been affirmed. 3. The prosecution story in brief is that on 26.06.1990 some quarrel had taken place between the informant and his cousin brother with respect to grazing of maize crops standing in the field of informant. It has been alleged that on 28.06.1990 when the informant was sitting in his house, the accused persons variously armed appeared and the accused Rameshwar Mahto gave a sword blow to him and the informant caught his blow on the left hand and suffered cut injury. Subsequently the informant snatched the sword from Rameshwar Mahto and when other persons arrived, the accused persons fled away. Based on the aforesaid allegation Hazaribagh (Sadar) P.S. Case No. 223 of 1990 was instituted in which after investigation charge-sheet was submitted and after cognizance was taken charge was framed u/s 341 and 326/34 I.P.C. 4. In course of trial 09 witnesses were examined on behalf of the prosecution. P.W. 1 Dilchand mahto, P.W. 2 Bijay Kumar and P.W. 3 Ashok Kumar are all formal witnesses who have proved the formal F.I.R. (Ext. 1) and the writing and signature of the ASI in the Fardbeyan (Ext. 2) and of the informant on the Fardbeyan (Ext. 3). P.W. 4 Rooplal Mahto is the victim and the informant who has stated that on the date of occurrence a quarrel had ensued between him and Rameshwar Mahto as the bullock of the accused had grazed his maize crops. He stated that on the date of occurrence at 12.00 noon when he was sitting in the verandah, Rameshwar Mahto appeared with a sword and all the other accused persons were variously armed. He stated that on the date of occurrence at 12.00 noon when he was sitting in the verandah, Rameshwar Mahto appeared with a sword and all the other accused persons were variously armed. He further stated that Rameshwar Mahto had given a sword blow upon the informant which was feded off with his hand leading to his suffering cut injury on his hand. He stated that thereafter he snatched the sword from Rameshwar Mahto. He has also deposed that the occurrence has been witnessed by several persons. P.W. 5 Bindo Mahto is the brother of the informant who has stated that when he returned from field he came to know about the occurrence and saw cut injury on the left hand of the informant. The informant had disclosed the name of all the four accused persons. He has denied existence of a land dispute between the parties. P.W. 6 Ugan Mahto is another brother of the informant who has stated that when he returned home after selling milk he found his brother having cut injury on his elbow. The incident was disclosed to him by the informant. He had also stated that he had seen all the accused persons fleeing from the place of occurrence. P.W. 7 Chando Devi is the wife of the informant and an eye witness who had seen Rameshwar Mahto giving sword blow upon her husband which caused injury on her left elbow. She has stated that when she raised alarm accused persons fled away. P.W. 8 Sukri Devi is sister-in-law of the informant and is an eye witness as well. She had seen the occurrence of assault by Rameshwar Mahto and she stated that others were armed with Lathi. P.W. 9, Dr. A.A. Farooque had examined the informant on 28.06.1990 at Sadar Hospital, Hazaribagh where he had found incised wound 3”X1” on the upper side of the left elbow. He has opined that the grievous injury was caused by sharp cutting weapon such as sword. The injury report has been proved and marked as Ext. 4. 5. The defence has taken a plea that all the witnesses are related to the informant and therefore are interested witnesses. It has also been stated that the main allegation has been levelled against Rameshwar Mahto and so far as the petitioners are concerned, their presence could not be proved by the prosecution in the place of occurrence. 4. 5. The defence has taken a plea that all the witnesses are related to the informant and therefore are interested witnesses. It has also been stated that the main allegation has been levelled against Rameshwar Mahto and so far as the petitioners are concerned, their presence could not be proved by the prosecution in the place of occurrence. A further plea has been taken that the Investigating Officer having not been examined, the same has caused prejudice to the defence. 6. Learned APP for the State has opposed the prayer made by the petitioners. 7. It appears from the evidence of the witnesses that P.W. 7 and P.W. 8 are the eye witnesses to the occurrence and all have stated about assemblage of the accused persons including the petitioners at the house of the informant variously armed with Lathi and Sword and subsequently it resulted in Rameshwar Mahto… assaulting the informant with a sword which led to a cut injury on the left elbow of the informant. P.W. 5 and P.W. 6 although are brothers of the informant who are not the eye witnesses but they have also stated about the disclosure made by the informant about assault committed upon him by the accused persons. In fact P.W. 5 and P.W. 6 has stated about seeing the accused persons fleeing away. Though both the witnesses have stated that there was no land dispute existing between both the sides and even no case u/s 107 Cr.P.C. was also initiated but it appears that motive of the accused persons have been sufficiently established by the prosecution as the same relates to the quarrel which had taken place between the informant and Rameshwar Mahto with respect to the bullock of Rameshwar Mahto grazing the maize field of the informant. Although the main allegation has been attributed against Rameshwar Mahto of assaulting the informant with a sword but the petitioners had also formed an unlawful assembly clearly with a view to commit assault upon the informant and the witnesses have also consistently stated about presence of the petitioners at the place of occurrence armed with Lathi. The non-examination of the Investigating Officer has not proved fatal to the prosecution case as the defence has failed to substantiate the said plea and has also failed to elicit any contradiction with respect to the evidence of P.Ws. The non-examination of the Investigating Officer has not proved fatal to the prosecution case as the defence has failed to substantiate the said plea and has also failed to elicit any contradiction with respect to the evidence of P.Ws. 5, 6, 7 and 8 so as to disbelieve the prosecution case. The evidence of P.W. 9 also proves that the injury suffered by the informant on his left elbow is by a sharp cutting weapon and therefore the chain of circumstances having been complete, the learned trial court had rightly convicted the petitioners for the offences punishable u/s 341 and 326/34 of the Indian Penal Code (I.P.C.), which has been affirmed in appeal also. There being no reason to interfere with the impugned judgment of conviction, the same is hereby sustained. 8. However with respect to the sentence imposed upon the petitioners, it appears that the petitioners have been facing rigours of the criminal case since the year 1990 and have also remained in custody for some time. It also seems that the petitioners had not caused any assault on the person of the informant and was acting in furtherance of a common intention which resulted in Rameshwar Mahto inflicting the sword blow upon the informant. On consideration of the said facts, the order of sentence passed against the petitioners is modified to the period already undergone by the petitioners. 9. This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioner.