The main legal point established in the judgment is the court's discretion to modify the conviction based on the evidence presented and the applicability of the relevant section of the IPC.

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. 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 Hospita