JUDGMENT Biplab Kumar Sharma, J. 1. This appeal is against the judgment of conviction dated 29.12.2003 of the learned Ad-hoc Additional Sessions Judge, Bongaigaon, passed in Sessions Case No. 35(Bgn)/2001, convicting the accused/appellants u/s 148 IPC with sentence of rigorous imprisonment for 01(one) year; u/s 326/149 IPC with sentence of rigorous imprisonment of 03(three) years with fine of Rs. 2000/- each and in default, rigorous imprisonment for further period of 01(one) month and u/s 307/149 IPC with the sentence of rigorous imprisonment for 03(three) years with fine of Rs. 5000/- each, in default to undergo rigorous imprisonment for further 02(two) months. All the sentences of imprisonment are to run concurrently. 2. On the basis of the FIR lodged by PW-1 on 08.05.1999 against the accused/appellants, Bongaigaon P.S. Case No. 53/1999 was registered u/s 147/148/149/326/307/397 IPC. The incident narrated in the FIR was that on 07.05.1999, at about 7.30 P.M., when the injured persons namely Harish Nath (informant's son), Mohen Nath and Rajen Nath (informant's nephews) were coming to her house from the house of her brother-in-law, the accused persons named in the FIR being armed with sharp weapons, bows and arrows, attacked them in a pre-planned manner and by assembling in a group. They were attacked from behind with sharp weapons on the road near the shop of one Sri Puspa Nath. In the process, left thumb of her son was cut. The accused also inflicted grievous injuries on his left shoulder, left hand and leg. They assaulted him in various parts of his body. They also inflicted grievous injuries on the head and back of her nephew Mohen Nath. As per the FIR, her other nephew Sri Rajen Nath somehow managed to escape. Her son and the nephew were lying unconscious at the place of occurrence and on raising hue and cry by her other nephew, she rushed to the place of occurrence along with other neighbourers and took the injured to Bongaigaon Civil Hospital, where they were treated. On the date of lodging of the FIR, their conditions were said to be critical. As per the FIR, two wrist watches and cash amounting Rs. 350/- were also snatched away from the injured. 3. In due course, investigation was carried out by the Investigating Officer and charge sheet having been filed, the learned Trial Court framed charges against the accused/appellants u/s 148 IPC;326/149 IPC and 307/149 IPC. As per the FIR, two wrist watches and cash amounting Rs. 350/- were also snatched away from the injured. 3. In due course, investigation was carried out by the Investigating Officer and charge sheet having been filed, the learned Trial Court framed charges against the accused/appellants u/s 148 IPC;326/149 IPC and 307/149 IPC. During trial, the prosecution examined 11 (eleven) witnesses and also produced 08(eight) numbers of documents in support of its case. After completion of recording of evidence of prosecution witnesses, the accused persons were examined u/s 313 Cr.P.C and their statements were also recorded. The defence plea was of total denial and pleaded innocence. However, they declined to adduce any evidence. 4. The learned trial Court formulated the following points for determination:-- "i. Whether the accused persons being the member of an unlawful assembly and being armed with deadly weapons committed the offence of rioting? ii. Whether the accused persons in prosecution of their common object voluntarily caused grievous hurt to Haris Ch Nath and Mohen Ch Nath by means of sharp cutting instrument? iii. Whether the accused persons in prosecution of their common object committed the offence "attempt to murder"?" 5. The witnesses examined by the prosecution are the following:-- "(a) PW-1 Smt. Jamunabala Nath; (b) PW-2 Harish Ch Nath @ Dolen Nath; (c) PW-3 Mohen Nath; (d) PW-4 Dr. M.N. Saikia; (e) PW-5 Sanat Kr Nath; (f) PW-6 Rajen Nath; (g) PW-7 Suresh Ch Nath; (h) PW-8 Smt. Janaki Nath; (i) PW-9 Poromatibala Nath; (j) PW-10 S.I. Pranab Ch Roy; (k) PW-11 S.I Satadal Deka." 6. The documents produced by the prosecution are as follows:-- "(i) Ext.1 Medical certificate of Mohen Ch Nath; (ii) Ext.2 Medical certificate of Harish Ch Nath; (iii) Ext.3 X-ray Plate; (iv) Ext.4 X-ray report; (v) Ext.5 Information slip regarding admission of Harish Ch Nath and Mohen Nath in Bongaigaon CHC; (vi) Ext.6 Ejahar; (vii) Ext.7 Sketch Map of the place of occurrence; (viii) Ext.8 Charge sheet." 7. On the basis of the evidence adduced, the learned trial Court having convict the accused/appellants as aforesaid, they have preferred this appeal. 8. Mr. Z. Alam, learned counsel for the accused/appellants strenuously argued that the impugned judgment of conviction is not sustainable in law having regard to the evidence on record. On the basis of the evidence adduced, the learned trial Court having convict the accused/appellants as aforesaid, they have preferred this appeal. 8. Mr. Z. Alam, learned counsel for the accused/appellants strenuously argued that the impugned judgment of conviction is not sustainable in law having regard to the evidence on record. Placing reliance on the decision of the Apex Court reported in (2014) 2 SCC 1 [Lalita Kumari v. Government of Uttar Pradesh and others], he submitted that since there was failure to register the FIR at the earliest opportunity in spite of receipt of information by the police, the same was fatal to the prosecution case. He further submitted that since the alleged incident occurred during night, the witnesses could not have identified the culprits. 9. Countering the above argument, Mr. D. Das, learned Additional Public Prosecutor, Assam submitted that evidence being over whelming towards establishing the charges against the accused/appellants, no interference is called for in respect of the impugned judgment of conviction. Referring to the evidence on record and also placing reliance on the decision of the Apex Court in AIR 2002 SC 1965 [Krishna Mochi and others v. State of Bihar], he submitted that the aforesaid plea of non registration of the FIR at the earliest opportunity is not at all sustainable, inasmuch as, even if the FIR is not proved, it would not be a ground for acquittal, but the case would depend upon the evidence laid by the prosecution. In the said case, it was held that non-examination of the informant cannot in any manner affect the prosecution case. 10. The decision on which the learned counsel for the accused/appellants has placed reliance i.e. Lalita Kumari (Supra), it was held that registration of FIR is mandatory u/s 154 Cr.P.C, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation. Paragraph 119 of the said judgment commenting on the registration/non-registration of FIR, the Apex Court held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. Paragraph 119 of the said judgment commenting on the registration/non-registration of FIR, the Apex Court held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or enquiry for the limited purpose of ascertaining as to whether a cognizable offence has been made out. But as pointed out by the Apex Court in the said case, although section 154 of the Cr.P.C postulates mandatory registration of FIRs on receipt of a cognizable offence, yet, there may be instances where preliminary enquiry may be required. This decision has been pressed into service so as to contend that since the police did not register any FIR on receipt of the first information, the prosecution case could not have been on the basis of the subsequent FIR lodged. 11. The above plea of the learned counsel for the accused/appellant is in reference to the cross examination of PW-1 i.e. the first informant, in which she stated that on the day of incident, she had gone to the police station on the night of the incident and that the police came to the hospital to see the injured persons that very night. Reference has also been made to the deposition of PW-4 in which he stated that after examining both the injured persons, he had intimated the matter to the police at Bongaigaon Police Station vide Ext.5. 12. According to the learned counsel for the accused/appellant, on the basis of the aforesaid informations, it was incumbent on the part of the police to register an FIR instead of waiting for lodging of a formal FIR by the PW-1, who is the mother of the victim. This submission will have to be tested in the touchstone of the evidence laid during trial. This plea was never taken during the trial and no prejudice has also been urged. It is in this context, the learned Additional Public Prosecutor, submitted that mere non-registration of an FIR on the basis of the aforesaid informations, cannot necessarily lead to the inference that there was manipulation in lodging of the formal FIR by PW-1. This plea was never taken during the trial and no prejudice has also been urged. It is in this context, the learned Additional Public Prosecutor, submitted that mere non-registration of an FIR on the basis of the aforesaid informations, cannot necessarily lead to the inference that there was manipulation in lodging of the formal FIR by PW-1. It is also in this context, referring to the decision in Krishna Mochi (Supra), he submitted that when even non-examination of the informant cannot in any manner affect the prosecution case, mere non-registration of an FIR on the basis of the aforesaid informations, cannot be said to be fatal to the prosecution case, more particularly when there is no infirmity shown in the evidence of the PWs. 13. Once it is held that the aforesaid informations furnished by the PW-1 and PW-4 to the police although was not registered as an FIR, did not bring any infirmity to the prosecution case in absence of anything to show that the formal FIR was the product of any twisted fact and or manipulation, the matter will have to be considered in reference to the evidences that were adduced during the trial. 14. As noted above, the prosecution had examined 11 witnesses. PW-1 is the complainant, who in her deposition narrating the incident stated that upon hearing hue and cry from the road side, she had gone to the place of occurrence and found both the injured persons lying on the road with bleeding injuries on their persons. She was told by her son Harish that the accused/appellants inflicted injuries on him with swords and daggers. Thereafter, she also raised hue and cry hearing which, Puromoti, Suresh Nath, Sanat, Karen, Kandura and many others came to the place of occurrence. They took both the injured to Bongaigaon by means of a Tempo where they were admitted for treatment. She lodged the FIR on the following day. She in her deposition stated that as she was busy for the treatment of the injured persons, she could not lodge the FIR on the day of occurrence, but could lodge the same on the following day only. 15. PW-2 and PW-3 are the injured. Both in their evidence categorically stated about the incident implicating the accused/appellants. She in her deposition stated that as she was busy for the treatment of the injured persons, she could not lodge the FIR on the day of occurrence, but could lodge the same on the following day only. 15. PW-2 and PW-3 are the injured. Both in their evidence categorically stated about the incident implicating the accused/appellants. As per the evidence of PW-2 and also supported by medical evidence, he was inflicted with injuries on his neck, left hand and left leg, which resulted in amputation of his left thumb. PW-3 duly supported the evidence of PW-2. There is nothing to disbelieve the testimonies of the PW-2 and PW-3. PW-3 also suffered injuries on his body due to assault by the accused/appellants. 16. From the evidence of PW-1 and PW-5 also it is found that they arrived at the place of occurrence immediately after the occurrence and found PW-2 and PW-3 lying at the place of occurrence with injuries on their persons. As regards the injuries sustained by PW-2 and PW-3, same has been fully supported by PW-8 and PW-9. 17. PW-4 is the doctor, who examined the PW-2 and PW-3 on the night of the incident at about 10.00 P.M. Upon such examination he found the following:-- "Injuries sustained by Mohen Ch Nath 1. One incised wound over the scapular region on left side, size 2" x 1" x 1 1/4 ". 2. One lacerated injury over the parietal region, scalp, size 2" x 1/2 " x 1 1/4 ". 3. Linear bruise on the back of the chest, 6" long and in his opinion the injuries were simple in nature and fresh and injury No. 1 was caused by sharp cutting object and injury No. 2 was caused by blunt object and injury No. 3 was caused by pointed object. Injuries sustained by Sri Harish Ch Nath 1) One incised wound on the left side of the neck, size 3" x 1" x 1/4" placed obliquely below and behind the ear. 2) One incised wound on left forearm at lower thumb on the outer aspect, size 4" x 1" x 1/2". The under lying bone was fractured. 3) Amputation of left thumb at the base of the thumb. Phalanx was attached to small flap of skin to the proximal part. 2) One incised wound on left forearm at lower thumb on the outer aspect, size 4" x 1" x 1/2". The under lying bone was fractured. 3) Amputation of left thumb at the base of the thumb. Phalanx was attached to small flap of skin to the proximal part. 4) One incised wound at the left at the mid part on the outer side, size 3" x 2" x 1/2". 5) One incised wound on left leg at middle thumb on the outer aspect, size 4" x 1/2" x 1/2". X- ray of the left forearm:- Fracture of the ulna, left at lower thumb with amputation of the thumb." The doctor opined that the injuries were fresh. Injury No. 2 and 3 were grievous in nature and all the other injuries were simple in nature and were caused by sharp cutting object. 18. From the evidence of PW-2 and PW-3, the two injured persons, supported by ocular evidence of PW-1, PW-5, PW-8, PW-9 and the medical evidence of PW-4, it is found that PW-2 Harish Nath sustained incised wound on his neck, left leg and left hand with fracture of underlying bone of the left forearm and amputation of the left thumb. According to the evidence of PW-4, all the injuries sustained by him were fresh and caused by sharp cutting object. 19. From the evidence on record adduced by the prosecution, it is found that PW-2 and PW-3 are the eye witnesses to the occurrence involved in the case. There is nothing to disbelieve their evidence. As per their evidence, there were 05 (five) assailants armed with deadly weapons like Bow and Arrow, Khukri and Swords and came to the place of occurrence in a body and at a time from behind the bamboo bushes and wrongfully restrained PW-2 and PW-3 on the road and thereafter assaulted them causing injuries on their persons. 20. It is in the aforesaid circumstance, the learned trial Court has convicted the accused/appellants as indicated above. I see no reason to interfere with the impugned judgment of conviction. 21. Learned counsel for the accused/appellants during the course of hearing submitted that in case of sustaining the impugned judgment of conviction, leniency is required to be shown as regards the sentence imposed on the accused/appellants. I see no reason to interfere with the impugned judgment of conviction. 21. Learned counsel for the accused/appellants during the course of hearing submitted that in case of sustaining the impugned judgment of conviction, leniency is required to be shown as regards the sentence imposed on the accused/appellants. The accused/appellants are on bail for the last about 11 years in terms of the order dated 27.02.2004 passed in Criminal Misc. Case No. 82/2004. It was submitted that all of them have settled down in the society and if they are required to undergo the jail term at this stage, same would be disastrous. The accused/appellants having obtained bail and remaining on bail for the last about 11 years cannot take this ground to show leniency in respect of the sentence imposed. However, considering the matter in its entirety and the age of the accused/appellants at the time of commission of the offence, I am inclined to reduce the sentence to 02(two) years in place of 03(three) years and to that extent the sentence imposed by the impugned judgment of conviction shall stand modified. The sentence of rigorous imprisonment for 03(three) years appearing in the impugned judgment of conviction shall be read as rigorous imprisonment for 02(two) years. As regards the fine that has been imposed, the same shall remain intact. 22. The appeal stands partly allowed only in respect of the sentence. The accused persons/appellants shall now surrender before the jurisdictional Court to serve out the sentence imposed on them and modified vide this judgment. 23. Registry shall transmit the case record to the learned Court below along with a copy of this judgment.