JUDGMENT B.V. Pinto, J.—This appeal is filed challenging the Judgment, dated 3.11.2004 passed by the Additional Sessions Judge, Shimoga in S.C. No. 130/2001. convicting the appellants under Section 326 of IPC and sentencing them R.I. for 3 years and to pay a fine of Rs. 3,000/- each in default to undergo further S.I. for 3 months. 2. It is the case of the prosecution that on 22.6.2001. at about 9.30 p.m., the appellants alongwith three others formed themselves into an unlawful assembly in front of Double Talkies at Chaiinagiri road, Bhadravathi holding deadly weapons such as choppers and assaulted CW-1 Eshwara Rao on his person by restraining him from moving ahead and also criminally intimidated him and caused injuries on him with an intention to cause his murder thereby they are charged to have committed offences under Sections 143, 144, 148, 341, 504, 307, 323 read with 149 of IPC. After securing the presence of the accused, the trial Court got examined P.Ws. 1 to 20 and got marked exhibits P-l to P-27 and produced M.Os. 1 to 7, The defence of accused was one of total denial. They have got marked Ex. D1 being the portion of the statement of P.W. 7 Prakash. 3. After hearing the prosecution and. the defence, the learned Sessions Judge was pleased to acquit accused Nos. 3 to 5 while convicting appellants as aforestated. This appeal has been filed, by the convicted accused. 4. Heard Sri Y.S. Shiva Prasad, learned Counsel for appellants and Sri Vijaykumar Majage, learned High Court, Government Pleader. 5. The learned Counsel for appellants submits that the evidence of the injured P.W. 1 is to the effect that the appellant Nos. 1 and 2 have caused injuries on the stomach and chest of P.W. 1 by means of a chopper. According to P.W. 19, the said injuries are simple in nature and no grievous injuries have been sustained by P.W. 1 either on his stomach or on his chest. According to the evidence of P.W. 1, the injuries sustained by him on the backside are caused by accused Nos. 3 and 4 and according to the Doctor, injuries caused at serial No. 5 and 6 are grievous in nature which are caused by accused Nos. 3 to 5. Hence, in view of the acquittal of accused Nos. According to the evidence of P.W. 1, the injuries sustained by him on the backside are caused by accused Nos. 3 and 4 and according to the Doctor, injuries caused at serial No. 5 and 6 are grievous in nature which are caused by accused Nos. 3 to 5. Hence, in view of the acquittal of accused Nos. 3 to 5 by the trial Court, the appellants are also entitled for an order of acquittal. He further submits that in the alternative, the offence made out against the accused is one under Section 324 of IPC and not under Section 326 of IPC. He also submits that the prosecution evidence is tendered to the effect that the injured-P.W. 1 was an eye witness in the murder of one Devendra, the brother of P.W. 1 in which all the accused were facing trial for having committed the murder of Devendra. Under the circumstances, the witnesses were enemical against the accused and therefore, since the evidence has been disbelieved in so far as accused Nos. 3 to 5 are concerned, the same yardstick may be applied to accused I and 2 also and benefit of doubt may be extended to accused 1 and 2. 6. Sri Vijayakumar Majage, learned HCGP on the other hand, submits that the evidence of P.Ws. 1, 2 and 7 is supported by the evidence of P.W. 10, Dr. M.S. Subbanna and P.W. 19, Dr. Shyamsundar Bhat. He further submits that the F.S.L report would indicate that, the weapons used by accused. Nos. I and 2 were strained with ‘O’ group blood and therefore, even if there is a minor discrepancy in the narration of events by P.W. 1, the F.S.L. Report corroborates the version of P.Ws. 1, 2 and 7. He submits that though the learned Sessions Judge has found that the evidence is not sufficient to convict accused Nos. 3 to 5, the evidence on record conclusively establishes the presence, participation and overt acts of the appellants and therefore, the order of conviction against them is based on the evidence on record and submits that the appeal may be dismissed. 7. The prosecution in this case commenced with the recording of complaint by Bhadravathi Old Town Police Station on 22.6.2001 at about 10.30 p.m., in the Mc. Gann Hospital, Shimoga. 7. The prosecution in this case commenced with the recording of complaint by Bhadravathi Old Town Police Station on 22.6.2001 at about 10.30 p.m., in the Mc. Gann Hospital, Shimoga. In the said complaint, the complainant-Eshwar Rao has stated that he is a resident of Bhovi Colony of Bhadravathi and his parent’s have got seven male and three female children, all of whom are living separately. He is eking his livelihood by selling clothes and his brother by name Dyarna @ Devendra was murdered about, 3 years back by the accused, Ayub Khan and others and in this connection, there is another case pending before the local Court and he is the prominent; witness in the said case. The accused have come out on bail in the said case and whenever the accused used to meet him, they used to threaten him that they would kill him In the same way as they have killed his brother and they are waiting for an opportunity. He has not given any complaint anticipating a quarrel again. On 22.6.2001, he had come to the Rangappa Circle in the evening and went to the Double Talkies at about 7.15 p.m. in order to see the picture at Venkateshwara Talkies. After the picture was over, he came out at about 9.30 p.m. He found the accused and the accused restrained him and told him that his activities in Bhadravathi are in excess and that the would be finished on that day. At that time, accused Ayub Khan and Jameerulla were holding knives and they stabbed him on the chest and caused bleeding injuries. The other three accused assaulted him on his back by means of a chopper. He raised voice and at that time, Pilli @ Prakash s/o Muniswamy and others came to the scene of occurrence and separated him from the accused. The accused ran away. Thereafter, the police on receipt, of the said complaint registered a case in Crime No. 99/2001 for offences under Sections 341, 504, 307 read with 34 of IPC and commenced investigation. On completion of the investigation, charge sheet, came to be filed. 8. P.W. 1 is the injured. He has reiterated the version found in the complaint. Thereafter, the police on receipt, of the said complaint registered a case in Crime No. 99/2001 for offences under Sections 341, 504, 307 read with 34 of IPC and commenced investigation. On completion of the investigation, charge sheet, came to be filed. 8. P.W. 1 is the injured. He has reiterated the version found in the complaint. He has specifically stated that accused M.O. 1 Ayub Khan and accused No. 2 Jameerulla obstructed and abused him and Al and A2 stabbed on his chest, by means of knife, thereafter A3 and A4 assaulted on his back by chopper and A5 assaulted him by his hands and kicked him. At that time, Dhanraj Desai and Prakash came and extricated them. In the cross-examination it is elicited that in respect of the previous incident of threat to commit murder no complaint has been filed by him. He has stated that, he has told his friends to purchase the film ticket in advance. However, he does not remember the name of his friend. He has further stated that, he has not noticed C.Ws. 2 and 3 coming to the spot. However, they were present at the time of incident. It is suggested that he has filed a false complaint in order to wreck vengeance for the murder of his brother Devendra by the accused P.W. 2 Dhanaraj Desai has also stated regarding his presence at the time of incident and that P.W. 1 was at a distance of 5 to 10 feet from him. He has stated that 2 accused have assaulted the Injured by means of chopper and others have also assaulted from behind. When he and others reached the spot, the accused ran away and P.W. 1 sustained bleeding injuries. He has further stated that, he was present at the time when police had drawn the panchnama at the scene of occurrence as per Ex. P.2. He has identified the shirt worn by the injured on the date of the offence. In the cross-examination, it is suggested that, he is deposing falsely since he is friend of P.W. 1. P.W. 3 Balram is the brother of P.W. 1. However, he is not an eye witness but he has shifted his brother to the hospital after the injury. P.W. 4 Shivaji Rao is also a brother of P.W. 1. In the cross-examination, it is suggested that, he is deposing falsely since he is friend of P.W. 1. P.W. 3 Balram is the brother of P.W. 1. However, he is not an eye witness but he has shifted his brother to the hospital after the injury. P.W. 4 Shivaji Rao is also a brother of P.W. 1. On learning that P.W. 1 has sustained injuries he has removed his brother to the hospital. P.W. 5 is signatory to Ex. P5 under which the police have seized the shirt of his brother. P.W. 6 Kamalakar is the signatory to Ex. P2 spot mahazar. P.W. 7 Prakash is another eyewitness. He has stated that on the date of the offence, at about 9 O’ clock, he has gone to the beeda shop near Venkateshwara theatre in Bhadravathi. He has stated that he knows the complainant and the accused and that on the date of offence, Al and A2 by holding a knife assaulted Eshwar Rao on his chest and Eshwar Rao fell down. P.W. 3 Balram came near the scene of occurrence and thereafter, injured was shifted to the hospital. Apart from Al and A2, some others have also assaulted P.W. 1 on his back, but he cannot identify them. However, he has identified accused Nos. 1 and 2 as the same persons who were present and assaulted on P.W. 1. In the cross-examination, he has stated that accused and the injured are very well known to them, because all of them belong to same village. It is further elicited that he has not spoken to P.W. 1 on the date of the incident. He has also stated that from amongst M.Os. 2 and 3, he cannot say which of the weapons was there in which of the hand of Al and A2. It is suggested that at the instigation of P.W. 1, he is deposing falsely, P.Ws. 8 and 9 have turned hostile to the case of the prosecution. P.W. 10 Dr. Subtaanna has stated that on 22.6.2001, while he was working as the Senior Specialist in the General Hospital, Bhadravathi, P.W. 1 was brought to the hospital with an history of assault by Ayub and three others. 8 and 9 have turned hostile to the case of the prosecution. P.W. 10 Dr. Subtaanna has stated that on 22.6.2001, while he was working as the Senior Specialist in the General Hospital, Bhadravathi, P.W. 1 was brought to the hospital with an history of assault by Ayub and three others. He has stated that history of the assault was given by the patient himself and he had sustained 9 injuries, He has sutured the said wounds on the person of P.W. 1 and advised him to go to Mc.Gann Hospital for the better treatment. He came to know that the injured had gone to Manipal Hospital. He has opined that the injuries caused to P.W. 1 can be caused by M.Os. 2 and 3 and knife. P.W. 11 Balaji Singh is the PSI of Bhadravathi Police Station, On the date of the offence, he has visited the hospital on receipt of the intimation regarding the treatment of Eshwar Rao in the said hospital. He has recorded the complaint at 10.45 p.m. and registered the ease in I Cr. No. 99/01. and thereafter, conducted the investigation by holding a spot mahazar and recording the statement of eye witnesses and arresting accused Nos. 2 and 4. P.W. 12 is the constable who has searched for Al on 27.1.2001. He has apprehended him and produced before Investigating Officer. P.W. 13 has carried the samples to the FSL, P.W. 14 has visited the FSL, Davanagere as the part of investigation. P.W. 15 is the head constable who has also assisted the Inspector Madan Gounkar in the investigation and apprehended A3. P.W. 16 Jagannath has stated that, accused have given voluntary statement and as a consequence of which they have shown the weapons, which the police have seized while being in custody of the police. He has identified the said weapons as M.O. 5. P.W. 17 has stated that he has signed Ex. P.9 under which a chopper was seized on the information of A3. P.W. 18 Chandrappa is the CPI in Bhadravathi of old town police station, which comes within his jurisdiction. He has recorded the statement of accused and thereafter, seized certain articles including the weapons and thereafter, recorded the statement of other witnesses and after receipt of the documents from FSL and hospital filed a charge sheet in this case. P.W. 19 Dr. He has recorded the statement of accused and thereafter, seized certain articles including the weapons and thereafter, recorded the statement of other witnesses and after receipt of the documents from FSL and hospital filed a charge sheet in this case. P.W. 19 Dr. Shamsundar Bhatt is the Assistant Professor of Orthopedic of KMC Manipal and he has stated that on 23.6.2001 at 6-10 a.m., he has examined P.W. l and has found these notable injuries: (i) 3 cms long sutured wound, 5 cms below the lateral third of right, clavicle. (ii) 3 cms long sutured wound over the left sub coastal margin. (iii) 3 cms long sutured wound over left eighth and ninth ribs, 20 cms lateral to mid line. (iv) 3 cms long sutured wound over T-2 and T-3 vertebral region, (v) Fracture of ribs right side 3, 4, 5th with pneamothorax. (vi) L-3 transverse process fracture right side. He has stated that injury Nos. 5 and 6 are grievous in nature, P.W. 20 is signatory to Ex. P22, under which on the basis of the information of first accused, a knife was recovered by the police, which is marked as M.O.3. 9. It is from the evidence of the above witnesses, the learned Sessions Judge has found the accused Nos. 1 and 2 guilty while holding that accused Nos. 3 to 5 are not found to have committed the offence. 10. On a careful consideration of the material on record, it is seen that neither P.W. 10 Dr. M.S. Subbanna and P.W. 19 Dr. Shamsundar Bhatt have stated regarding the X-ray taken on the body of P.W. 1. Though they say that there were fractures on the person of P.W. 1, in the absence of any X-ray and their production before the Court, the offence of grievous hurt cannot be said to have been proved. Under the circumstances, I am of the opinion that the prosecution has proved that A1 and A2-appellants herein have committed offence punishable under Section 324 IPC and are liable to be convicted for the said offence. Hence, the accused are convicted for the offence punishable under Section 324 read with 34 IPC. 11. So far as the sentence is concerned, It is seen that A1 was in custody for 106 days and A2 was in custody for 118 days during the trial stage. Hence, the accused are convicted for the offence punishable under Section 324 read with 34 IPC. 11. So far as the sentence is concerned, It is seen that A1 was in custody for 106 days and A2 was in custody for 118 days during the trial stage. Having regard to the nature of injuries, I am of the opinion that the said under-trial sentence would be sufficient punishment for the act done by A1 and A2. Hence the following: ORDER 1. The appeal is hereby allowed in part. 2. The conviction of the appellants for the offence punishable under Section 326 IPC is modified to the one under Section 324 IPC. 3. Sentence of 3 years R.I. and fine is set aside. 4. Accused appellants are sentenced to undergo R.I. for the period already undergone and to pay a fine of Rs. 1,000/- each for the offence under Section 324 IPC committed by them. Since, the accused have already deposited the said amount, the balance in excess of Rs. 1,000/- each shall be refunded to them. 5. Bail bonds executed by them are hereby cancelled.