A. V. CHANDRASHEKARA, J.

Appellants were accused Nos.1 to 6 in a criminal case in S.C.28/09 which was pending on the file of III Additional Sessions Judge, Bijapur. They had been charged for the offences punishable under Sections 147, 148, 326, 324, 308, 504, 506 read with Section 149, I.P.C. vide charge dated 8.5.2009. They had pleaded not guilty and claimed to be tried. But ultimately the learned sessions judge has convicted the appellants for the offences punishable under Sections 326 and 324 read with Section 149, I.P.C. and has directed them to undergo SI for six months and to pay fine of Rs.5,000/- each for the offence punishable under Section 326, I.P.C. and to undergo RI for 3 months and fine of Rs.1,000/- each for the offence punishable under Section 324, I.P.C., vide judgment dated 30.9.2010.

2. Allegation made against the accused as per the charges framed on 8.5.2009, is that the accused had formed an unlawful assembly holding deadly weapons like sticks, clubs and stones at 11.00 a.m. on 1.1.2008 near Kalasamma temple, Suragihalli village of Sindhgi Taluk, and committed rioting and assaulted witness Basavaraj on his legs, hands and neck and attempted to commit culpable homicide not amounting to murder and also abused him by using filthy language, thus provoking him to break public peace and threatened him with dire consequences to his life and limbs.

3. In order to bring home the guilt of the accused, 13witnesses have been examined and four exhibits have been got marked. Four M.Os. have also been got marked. After the conclusion of the evidence of prosecution, the accused were examined in regard to the incriminating circumstances emanating from prosecution case. Their case is one of total denial. No evidence is adduced on behalf of the accused.

4. Appellants-accused have filed this appeal under Section 374, Cr.P.C. The injured Basavaraj has filed a separate appeal in terms of Section 372, Cr.P.C. on the ground that the sentence of imprisonment and fine imposed on the accused is grossly inadequate and that in spite of proof of the ingredients of Section 308, I.P.C., they have not been convicted for the said offence. Since both these appeals have arisen out of one judgment passed in S.C.28/09, they are taken up together for common discussion.

5. Learned counsel for the appellants has vehemently argued that the prosecution has not proved the guilt of the accused beyond all reasonable doubt and that serious contradictions and omissions have been ignored by the trial court. He has argued that case came to be registered on the basis of omnibus allegations made by the father of the complainant and that no acceptable medical evidence is placed on record to show that the injured had sustained grievous injury or fracture to be punishable for the offence punishable under Section 326, I.P.C. It is further argued that the inordinate delay in lodging the first information to the police has been virtually ignored, while evaluating the evidence and that this delay weakens the substantum of the prosecution case.

6. Per contra, learned HCGP, Mr. Seshadri Jaishankar has vehemently argued that the prosecution has proved the guilt of the accused beyond all reasonable doubt. He has argued that the act done by one is deemed to have been done by all in view of the constructive liability found in Section 149, I.P.C. and that there is no reason to disbelieve the evidence of PW5 and the eyewitness-PW6 and medical evidence of PW8. It is argued that even in the absence of x-ray report, nothing is placed on record to suspect the medical opinion of PW8. It is argued that overwhelming evidence is placed on record in regard to the forming of unlawful assembly by the accused by holding deadly weapons and assaulting Basavaraj and causing grievous injuries. Hence, he requests the court to confirm the sentence.

7. Learned counsel, Sri. R.S. Lagali representing the injured-Basavaraj who is the victim in terms of Section 2(w), Cr.P.C., has argued that