B. A. ZAIDI, J. ( 1 ) CHALLANGE in this appeal is to the judgment dated 11. 1. 2005 passed by the Addl. Sessions Judge, Fast Track Court , Sonebhadra in S. T. No. 132 of 2002, whereby he convicted the appellant under Section 302 Indian Penal Code and awarded him a sentence of imprisonment for life and to pay a fine of Rs. 5000/- and in default to further undergo imprisonment for two years. ( 2 ) ACCORDING to the prosecution version, deceased Ganga Ram has two sons, one Subhash who is the accused while Shri Ram, who is the informant in this case. Shri Ram had two sons, elder Raj Narayan and the younger Sanjay. Ganga Ram and Sanjay are the deceased of this case. ( 3 ) GANGA Ram had 7-8 Bighas of land in village Bharkana, which he had divided ten years ago in three parts between himself, Shri Ram and Subhash. Thereafter, Subhash separated and his mother Jayanti Devi started living with him, while Ganga Ram continued to live with his elder son, Shri Ram. For about a month before the occurance, Jayanti Devi shifted and started living with her elder son Shri Ram. ( 4 ) IT is alleged that two months prior to the occurrence, the informant purchased a Tractor in the name of his son Sanjay. Accused Subhash suspected that the Tractor was purchased out of the funds of Ganga Ram , therefore, he started demanding Rs. 50,000/- from Ganga Ram and threatened in case, the money was not paid, he will kill him. ( 5 ) IT is alleged that on 10. 08. 2002 around 8 Oclock in the night Ganga Ram, father of the informant, was on the way to his house, from the shop of the informant for taking meals, informant following his father, and when Ganga Ram, took a turn from the way towards the house, accused Subhash assaulted Ganga Ram with a Spear, which pierced his thigh and stuck into it, Ganga Ram then fell down and raised alarm calling Sanjay for help, and then, accused landed Gandasa blows on Ganga Ram. The informant also started crying. Meanwhile Sanjay came out of the house and accused Subhash leaving behind Ganga Ram assaulted with a Gandasa and killed him at the spot in consequence whereof , his head was severed from the body. The informant also started crying. Meanwhile Sanjay came out of the house and accused Subhash leaving behind Ganga Ram assaulted with a Gandasa and killed him at the spot in consequence whereof , his head was severed from the body. The cries raised attracted co-villagers Sita Ram and others on the place of occurrence and seeing them, Subhash ran away. The incident was also witnessed by his wife and mother, who had also come out of the house alongwith Sanjay after hearing screams. Dead bodies of Ganga Ram and Sanjay were lying out side the house. ( 6 ) SHRI Ram went to the police station in the same night and filed a written report Ex. Ka-1 of the incident at P. S. Pannuganj at 11. 30 , on the basis of which Constable Moharrir Hari Prasad Dwivedi, prepared chik FIR Ex. Ka-23 and made an entry Ex. Ka-24 in the G. D. , P. W. 6 S. I. Pradeep Kumar Chaudhary investigaion officer recorded the statement of informant Shri Ram, and proceeded to the place of occurrence along with the informant and another police officer at 12. 05 P. M. ( 7 ) SINCE it was drizzling, the inquests could not be prepared and only the statements of Smt. Ghana wife of the informant and that of Smt. Jayanti Devi were recorded. ( 8 ) P. W. 6 S. I. Praveen Kumar inspected the place of occurrence in the next morning at 6. 05 A. M. , prepared the site plan Ex. Ka-21 and got the Panchnama Lash Ex. Ka-3 and Ex. Ka- 4 of Ganga Ram Sanjay prepared by S. I. Hari Murti Singh and sent the dead bodies for post mortem examination. P. W. 6 seized the Torch from the informant Shri Ram, in the light of which, the informant claimed to have seen the occurrence, the GANDASA and BHALA from the place of occurrence, vide recovery memos Exs. Ka-2, and Ka-18 and also collected the sample of blood stained and plain earth by preparing seizure memos Exs. Ka-16 and Ka-17. ( 9 ) POST mortem on the dead bodies of the deceased was conducted by PW-5, Sanjay Singh, Medical Officer, Robertsganj, on 11. 08. 2002 around 3. 45 p. m. and 4. 15 p. m. by post mortem reports Exs. Ka-16 and Ka-17. ( 9 ) POST mortem on the dead bodies of the deceased was conducted by PW-5, Sanjay Singh, Medical Officer, Robertsganj, on 11. 08. 2002 around 3. 45 p. m. and 4. 15 p. m. by post mortem reports Exs. Ka-19 and Ka-20 and he found them one day back dead and the folowing ante mortem injuries on the persons of deceased. Ganga Ram:- 1. Chop wound 9 cm x 3 cm x bone deep on the Rt. Side of back of skull, in trans. Diameter. 2. Chop wound 12 cm x 6 cm x 8 cm extending from back of Rt. s. of mandible. 3. Chop wound 11 cm. X 5 cm x 6 cm on back of neck, in trans diameter. 4. Incised wound 4 cm x 1 cm on back of Rt. Shoulder. 5. Incised wound 7 cm x 2 cm x bone deep on Rt. Above Rt. Eyebrow. 6. Contused swelling 10 cm x8 cm on Rt. Forearm, # both bone joint below Rt. Elbow. 7. Stab wound 5 cm x 1. 5 cm x17 cm deep on ante romedial aspect of (Lt.) thigh,11 cm below public sympahysis. Depth: 17 cm Exten. . . . . . upto postero-lateral aspect of (Lt.) thigh wound of exit 4 cm x 1 cm margin averted. ( 10 ) SANJAY Kushwaha:- (1) Incised wound 10 cm. X 3 on. X bone deep on (Lt) side of back of skull, in lower direction. (2) Incised wound 8 cm. X 2 cm. x bone deep on back of skull in trense. Diameter. (3) Chop wound 12 cm. x6 cm. x muscle deep on back of (Rt.) side of chest 5 cm. below shoulder. (4) Chop wound 6 cm x 3 cm x muscle deep on back of chest, 3 cm below C-7 spine. (5) Chop wound 4 cm x 3 cm x muscle deep just medial to Injury No. (4 ). (6) Chop wound 8 cm x 4 cm x 7 cm deep on (Lt.) side of neck in trans. diameter. (7) Incised wound 10 cm x 1 cm x muscle deep on back of (Lt) leg. 13 cm below (Lt) knee. (8) Incised wound 5 cm x 1 cm x muscle deep on central aspect of (Lt) leg, just below ( Lt.) knee. diameter. (7) Incised wound 10 cm x 1 cm x muscle deep on back of (Lt) leg. 13 cm below (Lt) knee. (8) Incised wound 5 cm x 1 cm x muscle deep on central aspect of (Lt) leg, just below ( Lt.) knee. (9) Incised wound 3 cm x 1 cm x muscle deep on central aspect of Rt. Forearm, 4 cm. Above wrist. (10) Incised wound 2 cm x 1 cm x muscle deep on Rt. Thumb. (11) Incised wound on Ft. Index finger. According to the doctor the cause of death in both the cases was shock and haemorrhage, due to the injuries found on their dead bodies. ( 11 ) THE clothes of the deceased Bhala, Gandasa and other articles seized by the Investigation Officer were sent to serologist who found the human blood on them. ( 12 ) P. W. 6 filed the charge sheet under Section 302 I. P. C. against the accused. ( 13 ) TO substantiate the charge, the prosecution examined informant Shri Ram Kushwaha P. W. 1, and his wife Ghana, PW-2. S. I. Hari Singh PW-3, Ram Brikcha, PW-4, Dr. Sanjay Singh, PW-5 and S. I. Praveen Kumar Chaudhary, PW-6 in its evidence before the Court. ( 14 ) OUT of these witnesses, Shri Ram and his wife Ghana are the witnesses of fact, while Ram Brikcha is a witnesses of seizure, in whose presence the investigation officer had seized GANDASA , BHALA, Blood Stained and plain earth. ( 15 ) S. I. Hari Murti Singh is the witness, who had accompanied PW-6, S. H. O. Praveen Chaudhary at the place of occurrence and had prepared the inquests and also the necessary papers for the post mortem report. P. W. 5 Dr. Sanjay Singh is the witness who conducted the post mortem on the dead bodies of Ganga Ram and Sanjay and prepared the post mortem reports, P. W. 6 Praveen Chaudhary was the Station Officer, Police Station Pannuganj in whose presence the chik F. I. R. was prepared,the case was instituted in the G. D. and who went at the spot soon thereafter recorded the statements of the prosecution witnesses under Section 161 Cr. P. C. and got the inquests prepared by S. I. Hari Murti in his presence and had despatched the dead bodies for post mortem examination. P. C. and got the inquests prepared by S. I. Hari Murti in his presence and had despatched the dead bodies for post mortem examination. ( 16 ) THE accused has denied his involvement in the Crime and pleaded that there is prior ill will on the issue of partition between him and Shri Ram P. W. 2. His father had started a general store in the village in name of Raj Narain whom he later removed from the shop and had given the shop to Sanjay, and for this reason it was Raj Narain who boar grudge with Ganga Ram and Sanjay. On the day of occurrence, he was away from his home and returned only the next morning after hearing about the incident. He was implicated due to enmity. ( 17 ) TWO witnesses have been examined in defence Smt. Jayanti Devi D. W. 1 and maternal uncle of his wife Nirmal Singh D. W. 2. ( 18 ) THE trial judge on elaborate consideration of the evidence on record, arrived at the conclusion that the appellant was guilty of the offence with which he stood charged. ( 19 ) WE have heard Sri Arjun Singhal, learned counsel for the appellant and Addl. Government Advocate for the State. ( 20 ) QUESTIONING the correctness of the decision passed by the Trial Judge, the counsel for the appellant argued that P. W. 1 and P. W. 2 are highly interested and partisan witnesses and only on the basis of their evidence conviction should not have been recorded. ( 21 ) TO examine the above contention, we come to the evidence of P. W. 2 who lodged the F. I. R. . It will appear that he has supported the prosecution story given in the first information report. His statement is consistent and clear, left, right and centre. He has stated that on 10. 8. 2000 around 8 P. M when his father started from his shop for the house, he f was behind his father. When his father took a turn, towards his house, from the main path, Subhash assaulted his father with Spear and Gandasa and killed him at the spot. His father raised alarm and called Sanjay. He also cried. The alarm raised attracted his son Sanjay, wife Ghana and mother to come on the spot just infront of his house. When his father took a turn, towards his house, from the main path, Subhash assaulted his father with Spear and Gandasa and killed him at the spot. His father raised alarm and called Sanjay. He also cried. The alarm raised attracted his son Sanjay, wife Ghana and mother to come on the spot just infront of his house. Subhash then left the father and assaulted Sanjay with Gandas and killed him right there. Nothing whatsoever has come out in his cross examination, which may tend to discredit the statement of this witness. The clarity and his narrative vouches for its veracity. Cross-examination by the counsel has not created a single dent. The incident took place after 8 Oclock in the night in front of his house. Going to the house after closing the shop following his father is quite natural. It has been argued from the side of the appellant that it looks unnatural that P. W. 2 remained simply an onlooker when his father and son, were assassinated by his own brother. There is no element of surprise or abnormality in it. Had he intervened , it was quite natural that accused would have attacked him. Crying for help by him at such a juncture inspires confidence. ( 22 ) THERE was also no delay at his part in lodging the F. I. R. , which was lodged the same night at 11. 30 P. M. at police station Bharkana, which is 18 Kms. away from the place of occurrence and that is how inquests, site plant etc. were prepared the next morning. ( 23 ) NOW coming to the evidence of Smt. Ghana P. W. 2 , she has stated that it was 8 Oclock in the night. She her son Sanjay and her mother-in-law were inside the house. There were crises for help from outside the house in name of Sanjay, all of them came out and she saw the accused assaulting her father-in-law with Gandasa and seeing Sanjay there, the accused assaulted Sanjay and killed him. She had tried to to intervene but the accused pushed her aside. Her statement is lucid and clear. She denied suggestions of defence that on the issue of purchase of tractor in name of Sanjay, there was some altercation between her elder son Raj Narain on the one side and Sanjay and her father-in-law on the other. She had tried to to intervene but the accused pushed her aside. Her statement is lucid and clear. She denied suggestions of defence that on the issue of purchase of tractor in name of Sanjay, there was some altercation between her elder son Raj Narain on the one side and Sanjay and her father-in-law on the other. She has emerged unscathed from the cross-examination and has tenaciously stuck to her statement, that she did see the accused with a spear and Gandasa assaulting her father-in-law and also killing her son. The incident took place in front of her house. When she alongwith Sanjay had come out of the house in response of the screams of her father-in-law. She is a house lady. Her presence on the spot cannot, therefore, be doubted. ( 24 ) IT was argued on behalf of the appellant that the investigating officer found the Spear thrust into the thigh of deceased Ganga Ram while the accused is said to have carrying a Gandasa besides a spear and it would not have been possible to struck the spear so powerfully as to pierce the thigh and this improbability makes the testimoney of P. W. 2 doubtful. In the first instance, it cannot be said that a powerful thrust even with one hand will not pierce the thigh and besides the possibility of the accused having kept the Gandasa and having struck the spear with both hands, cannot be excluded. It was also argued in connection of post mortem report of Ganga Ram that it mentions that incised wounds, abrasions and contusions were also found on the body of Ganga Ram and these injuries could not have been caused by Gandasa or spear. ( 25 ) IT was for the counsel for the accused to ask the doctor when he was in the dock as to in what manner and from what weapons such injuries were caused, and whether they could have been caused by a Gandasa, but no such question was put to the doctor. Abrasions and contusions can be caused to any one falling on the ground. In any case, there is no such direct conflict between the ocular testimony and the medical evidence, which may provide grounds for doubts about the veracity of the oral evidence. ( 26 ) REFERENCE in this case may be made to the case of Shyam Vs. Abrasions and contusions can be caused to any one falling on the ground. In any case, there is no such direct conflict between the ocular testimony and the medical evidence, which may provide grounds for doubts about the veracity of the oral evidence. ( 26 ) REFERENCE in this case may be made to the case of Shyam Vs. State of M. P. Through P. S. Bercha, J. T. 2007 (3) S. C. 497, where it has been observed that unless there is a vertical conflict between the medical evidence and the oral evidence, inasmuch as according to the medical evidence, it was impossible for the injuries to have been caused as alleged in the oral evidence, the oral evidence cannot be rejected and will have primacy over medical evidence because medical evidence is opinionative. ( 27 ) THE trial court has thus rightly relied on the testimony of both the eye witnesses P. W. 1 and P. W. 2. The evidence of P. W. 2 is not an ordinary evidence. It is the evidence of a brother against his brother about the murder of his father and his own son. It is blood speaking against blood and it is difficult to comprehend that a person will implicate his real brother falsely in the murder of his father and his son. ( 28 ) AS regards the testimony of P. W. 1 Jayanti Devi, on the basis whereof, defence contended that the mother has not supported the prosecution case, it needs to be said that the love of a mother for her issues is proverbial, and she could have certainly found it extremely difficult to depose against her own son, which could send him straight to the gallows. Her negative evidence will not, therefore, create any dent in the prosecution version. ( 29 ) THE other defence witness is the maternal uncle of the wife of accused namely D. W. 2 Nirmal Singh. He has stated that at the time of occurrence, the accused was at his house in village belgayee, 8 miles away from village Bharkana. His statement is not reliable in the view of testimonies of P. W. 1 and P. W. 2 and is, therefore, not worthy of reliance. He has stated that at the time of occurrence, the accused was at his house in village belgayee, 8 miles away from village Bharkana. His statement is not reliable in the view of testimonies of P. W. 1 and P. W. 2 and is, therefore, not worthy of reliance. ( 30 ) IN view of the facts and circumstances enumerated above, the accused was rightly held as a patricidal offender and also as killer of his nephew by the Trial court and this Court unhesitatingly affirms the conviction. The trial judge imposed the minimum sentence of life imprisonment, plus fine, which shall stand. Appeal dismissed.