JUDGMENT JASPAL SINGH, J The present appeal emanates from the judgment of conviction dated August 31, 2009 and order of sentence dated September 02, 2009, whereby, appellant was convicted for the offences under Sections 302 and 326 of Indian Penal Code (for short “IPC”) and was sentenced to undergo rigorous imprisonment for life with fine of Rs.5000/and in default, thereof, to further undergo RI for six months for an offence under Section 302 IPC and to undergo RI for ten years with fine of Rs.2500/and in default, thereof, to further undergo imprisonment for three months for an offence under Section 326 IPC. The substantive sentences were ordered to run concurrently and period of detention already undergone by convict was ordered to set off from his substantive sentence of imprisonment, under Section 428 of the Code of Criminal Procedure (in short “Cr.P.C). 2. In nutshell, the case of prosecution, as reported by Megh Nath complainant is that he hails from village Dharambadi, District Simrega (Jharkhand) and is employed at Stud Farm at village Mohra. Some temporary houses have been constructed for the residence of labourers in one corner of the Stud Farm. He, as well as appellant and some other labourers resided in those houses. 3. On, November 26, 2008 at about 5.00 A.M, he was going to serve feed to horses and accused/appellant came out of his house while armed with an axe (kulhari) and inflicted a blow of axe from its reverse side at his back. He raised an alarm and tried to fled away but he was chased by accused/appellant. On hearing shrieks, Sunita daughter of accused/appellant aged 8 years came out of her house. The accused/appellant dealt kulhari blow on the person of Sunita which landed on her right parietal region. Due to impact of injuries, she died at the spot. Sumari wife of accused also attracted to the spot. She was also attacked by the accused/appellant with kulhari and she sustained injuries on her head. Kishori and Brij Lal also attracted to the scene of occurrence. All of them tried to intercept accused/appellant but he escaped from the spot towards the fields in the darkness while wielding kulhari. When Megh Raj @ Megh Nath was going to the police station to lodge report, SI Suraj Bhan met him on the way near railway crossing. He got recorded his statement Ex.PK with SI Suraj Bhan. All of them tried to intercept accused/appellant but he escaped from the spot towards the fields in the darkness while wielding kulhari. When Megh Raj @ Megh Nath was going to the police station to lodge report, SI Suraj Bhan met him on the way near railway crossing. He got recorded his statement Ex.PK with SI Suraj Bhan. The contents of his statement Ex.PK were read over and explained to Megh Nath. Statement of Megh Nath was sent to police station by making endorsement Ex.P2, on the basis of which formal FIR Ex.PK/1 was reduced into writing and the investigation was put into motion. 4. During investigation of this case, SI Suraj Bhan conducted the spot inspection in the presence of complainant Megh Nath and other witnesses. In the meanwhile, he also received ruqa Ex.PE from Civil Hospital, Ambala Cantt, in pursuance of which, he visited there but came to know that injured Sumari was shifted to Civil Hospital, Ambala City and, thereafter to Government Medical College and Hospital (in short “GMCH”), Sector 32, Chandigarh. He also prepared rough site plan of the place of occurrence Ex.PU. Inquest report Ex.PV was also prepared by him in respect of corpse of Sunita @ Kanya. He lifted blood stained earth from the place where the corpse of Sunita @ Kanya was lying as well as from the place where injured Sumari @ Kamla fell down on sustaining injuries. The blood stained earth so lifted as well as simple earth were converted into separate sealed parcels and were taken into possession vide memo Ex.PR. He also got clicked photographs of the dead body of Sunita @ Kanya from Vijay Taneja, Photographer, who subsequently, produced the photographs Ex.P2 to Ex.P5. The corpse of Sunita @ Kanya was despatched to Civil Hospital, Ambala Cantt for autopsy along with request Ex.PG. Dr. Ashok Kumar Sharma conducted the autopsy on the corpse of Sunita @ Kanya and prepared autopsy report Ex.PG/1. Investigating Officer also arrested the accused/appellant and subjected him to custodial interrogation during which, he suffered disclosure statement Ex.PS to the effect that he has kept concealed Kulhari in the sugarcane fields of Kartar Singh about which, he has got an exclusive knowledge and could get the same recovered. Subsequently, in pursuance of disclosure statement Ex.PS of accused/appellant he got recovered kulhari from the predisclosed place. Subsequently, in pursuance of disclosure statement Ex.PS of accused/appellant he got recovered kulhari from the predisclosed place. Sketch of kulhari Ex.PO was prepared and after converting into parcel, it was taken into possession vide memo Ex.PQ. He also prepared rough site plan of the place of recovery of kulhari. He also recorded statements of witnesses and on return to police station, deposited the sealed parcel containing kulhari with MHC. He also took into possession wearing apparels of deceased removed from the corpse i.e. Jean, shirt and jersey smeared with blood. The statement of Sumari @ Kamla was also recorded by him while visiting GMCH, Chandigarh when she was declared fit to make statement on December 04, 2008. Investigating Officer also recorded the statement of various witnesses associated in the investigation of this case. 5. Finding a prima facie case from the report under Section 173(2) of the Code of Criminal Procedure and documents annexed with it, appellant was charged to face trial under Section 302 and 326 IPC. He did not plead guilty to the charge and claimed trial. 6. In order to substantiate the charge, prosecution examined as many as 16 witnesses; besides relying upon various documents. PW1 Dr. Viney Kumar, testified that he medico legally examined Kamla Devi wife of accused/appellant and on February 12, 2009, he gave his opinion Ex.PC, on police request Ex.PB, that the injuries were grievous and not dangerous to life. PW2 Dr. Vijay Kumar, testified that on November 26, 2008, he also medicolegally examined Kamla wife of accused/appellant and found following injuries on her person: 1. Lacerated wound of size of 4 cms x 1.5 cms on left parietal region. It was bony deep and fresh blood was oozing. Patient was advised Xray skull. 2. Lacerated wound of size of 5 cms x 1.5 cms on right parietal region. It was also bony deep and fresh blood was oozing. Xray of skull was advised. 3. Two lacerated wounds of sizes of 2 cms x 1 cm on left post auricular region and lacerated wound left ear lobe. Fresh blood was oozing ENT opinion was advised.” He also proved MLR Ex.PD and sent ruqa Ex.PE to the police station. PW3 Dr. Shiv Karan, proved Ex.PF/1, on police request Ex.PF. He further deposed that injuries could be dangerous to life if large haemorrhage occurs due to the injuries. PW4 Dr. Fresh blood was oozing ENT opinion was advised.” He also proved MLR Ex.PD and sent ruqa Ex.PE to the police station. PW3 Dr. Shiv Karan, proved Ex.PF/1, on police request Ex.PF. He further deposed that injuries could be dangerous to life if large haemorrhage occurs due to the injuries. PW4 Dr. Ashok Kumar Sharma along with Dr. Pooja Paintal conducted the postmortem on the corpse of Sunita @ Kanya (deceased) and found following injuries: “1. There were two incised bone deep wounds measuring 3 ½ ½ cm over the right side of forehead above eye brow. There was fracture of underlying bone with laceration of brain tissues and collection of blood in brain cavities. Bleeding from the mouth and nose was present.” He further testified that as per his opinion, the cause of death was haemorrhage and shock due to head injury, which was sufficient to cause death in an ordinary course of events. Injury was ante mortem in nature. He handed over to the police; dead body, copy of PMR, inquest report and parcel containing clothes of deceased. He further deposed that the time elapsed between injuries and death was within few hours and between death and postmortem was within 12 hours. He proved copy of autopsy report Ex.PG/1 and on police request Ex.PG/2 gave his opinion, which reads as under: “A parcel containing a 'kulhari' with wooden binda was opened by Suraj Bhan SI in front of me and the injury caused to the deceased by this weapon cannot be ruled out. All the measurements mentioned over pulanda are of the kulhari. The parcel was again sealed with one seal.” PW5 HC Som Nath tendered in evidence his affidavit Ex.PH. PW6 EASI Kaptan Singh also tendered in evidence his affidavit Ex.PJ PW7 ASI Som Nath deposed that on receipt of ruqa Ex.PK, he made endorsement, thereon Ex.PK/2 PW8 Constable Jagsheer Singh prepared the scaled site plan Ex.PL. PW9 Constable Deepak Mohan delivered the special reports. PW10 Vijay Taneja, proved photographs Ex.P2 to ExP5. PW11 Amarjit Singh deposed that on November 26, 2008, HC Jagdish Chander produced parcels of clothes of deceased, which were taken into possession by the Investigating Officer vide memo Ex.PN, which was signed by him. He further deposed that on the same day accused leading the police party got recovered kulhari Ex.P1 from the fields of Exsarpanch Kartar Singh, whose sketch Ex.PO was prepared. He further deposed that on the same day accused leading the police party got recovered kulhari Ex.P1 from the fields of Exsarpanch Kartar Singh, whose sketch Ex.PO was prepared. Kulhari Ex.P1 was taken into possession vide recovery memo Ex.PQ. PW12 Brij Lal deposed on the lines of his statement made before the police. PW13 Sumari is one of the injured and reiterated the contents made by complainant Megh Nath. PW14 ASI Karan Singh joined the investigation on November 26, 2008 with SI Suraj Bhan. PW15 Megh Nath deposed on the lines of his statement Ex.PK PW16 SI Suraj Bhan is the investigating officer of this case and deposed on the lines of investigation. 7. When the incriminating circumstances appearing in the prosecution evidence were put to the accused by the learned trial Court for eliciting his explanation as provided under Section 313 Cr.P.C., he denied them and pleaded innocence. He has further stated that neither he caused any injury to her daughter nor to her wife Kamla nor to PW Megh Nath. He has not committed the murder of her daughter. His thumb impressions have been obtained by the police on blank papers and he had not suffered any disclosure statement. In fact, he is the person of unsound mind and remains under treatment of doctors of Central Jail, Ambala. 8. Appellant was called upon to enter in defence but he closed the same without examining any witness in his defence. 9. After hearing both the sides, as also, after going through the evidence and material on record, accused appellant was convicted and sentenced as reflected in para1 of this judgment. Aggrieved against his conviction and sentence, appellant filed the instant appeal with prayer for acceptance, thereof and for his acquittal of offence for which he was charged by the learned trial Court, which was admitted for hearing. Trial Court record was requisitioned and received. 10. While assailing the impugned judgment of conviction and order of sentence, it has been ebulliently argued by the learned counsel for appellant that appellant has been falsely implicated in the instant case by complainant Megh Nath (PW15). Neither he committed the murder of his daughter Sunita @ Kanya, nor caused injuries to his wife Sumari @ Kamla (PW13), nor to Megh Nath (PW15). The police obtained his thumb impressions on blank papers. Neither he suffered any disclosure statement nor got recovered kulhari. Neither he committed the murder of his daughter Sunita @ Kanya, nor caused injuries to his wife Sumari @ Kamla (PW13), nor to Megh Nath (PW15). The police obtained his thumb impressions on blank papers. Neither he suffered any disclosure statement nor got recovered kulhari. The fact of the matter is that appellant is a person of unsound mind and is under treatment of doctors of Central Jail, Ambala. Even otherwise, evidence adduced by the prosecution is inadequate, insufficient, unreliable and is not worthy to base conviction of the appellant. Mis-appreciation of evidence by learned trial Court has resulted into miscarriage of justice. Moreover, the prosecution has miserably failed to bring home the guilt of accused/appellant beyond reasonable doubt and the case of prosecution suffers from various infirmities, which go to the root of case and shuttles its basic version. 11. First of all, learned counsel for the appellant challenged the case of prosecution on the ground that there is an inordinate delay in registration of FIR, which has been utilised by the complainant Megh Nath (PW15) roping in an innocent person, concocting false version and to collect the evidence. Occurrence is alleged to have taken place on November 26, 2008 at about 5.00 A.M., whereas statement of Megh Nathcomplainant (PW15) was recorded by SI Suraj Bhan (PW16) at 10.00 A.M., and FIR was registered at Police Station Parao at 10.40 A.M., whereas autopsy on the corpse of Sunita @ Kanya was conducted at 2.35 P.M. FIR was also registered after due deliberation and consultation, that too, after spot inspection. PW12 Brij Lal has deposed that police visited at the spot and recorded his statement at 6.30 A.M. Similarly, PW15 Megh Nath has stated that the police came at the spot at 7.00 A.M. and recorded his statement. So the statement of Megh Nath (PW15) as well as one of the eye witnesses was recorded much prior to the receipt of alleged information by the Investigating Officer i.e. at 9.30 A.M. The entire case of prosecution stands falsified. When the police has already visited the spot and recorded statements of complainantMegh Nath (PW15) and other witnesses, there was no necessity left with the doctor to send ruqa at 9.30 A.M., especially, when police officials were already present in the hospital. 12. Moreover, as per statement of PW1 Dr. When the police has already visited the spot and recorded statements of complainantMegh Nath (PW15) and other witnesses, there was no necessity left with the doctor to send ruqa at 9.30 A.M., especially, when police officials were already present in the hospital. 12. Moreover, as per statement of PW1 Dr. Viney Kumar, who medico legally examined Sumari @ Kamla (PW13), she remained conscious during her admission in the hospital. She also did not report the matter to police. Though, as per medical evidence, she sustained grievous injuries but were not dangerous to life. She could have also reported the matter immediately, after occurrence but she remained tight lipped for the reasons best known to her. So, delay in FIR and there being contradictory statements of witnesses with regard to time of recording of their statements by Investigating Officer make the case of prosecution doubtful and suspicious. 13. The second ground of attack raised by learned counsel for the appellant is that occurrence is not proved to have taken place at 5.00 A.M., as has been alleged by Megh Nath (PW15) and the injured/eye witnesses. Autopsy on the corpse of Sunita @ Kanya was conducted by PW4 Dr. Ashok Kumar Sharma at 2.30 P.M. on November 26, 2008. and the period that elapsed in between death and autopsy has been unfolded by him to be within few hours, which has been further clarified by him in his cross-examination that few hours means 2 to 3 hours. If the time is calculated prior to the conducting of autopsy at 2.35 P.M., the occurrence did take place at 11.30 A.M. The case of prosecution that occurrence took place at 5.00 A.M., stands completely falsified. Moreover, ocular and medical evidence in this case are absolutely contradictory. There were two injuries on the corpse of Sunita @ Kanya, as is evident from the copy of autopsy report Ex.PG/1, whereas there were four lacerated wounds on the person of Sumari @ Kamla (PW13). As per version of PW15 Megh Nath, only a single blow was given to the deceased. There is nothing on record as to how another injury was sustained by the deceased. Similarly, there is also no explanation or clarification that how PW13 Sumari @ Kamla sustained lacerated wounds, especially when it is the case of prosecution that injuries were caused to her with kulhari, which is a sharp edged weapon. 14. PW4 Dr. There is nothing on record as to how another injury was sustained by the deceased. Similarly, there is also no explanation or clarification that how PW13 Sumari @ Kamla sustained lacerated wounds, especially when it is the case of prosecution that injuries were caused to her with kulhari, which is a sharp edged weapon. 14. PW4 Dr. Ashok Kumar Sharma has also deposed during his cross-examination that kulhari is a sharp edged weapon and it can cause only incised wound, if inflicted from its sharp side. It is not the case of Sumari @ Kamla (PW13) and Megh Nath (PW15) that the injuries were caused from reverse side of kulhari. So, there being material contradictions in medical and ocular evidence coupled with inordinate delay in FIR put a serious dent in the case of prosecution. 15. The third contention raised by learned counsel for the appellant is that the prosecution has also not been successful to establish any motive qua appellant for committing murder of his daughter or causing injuries to his wife Sumari @ Kamla (PW13) and Megh Nath (PW15). The investigating officer did not make any effort to ascertain as to what was the motive behind the occurrence during the course of investigation. PW13 Sumari @ Kamla has categorically stated that there was no dispute or quarrel between her and her husband accused/appellant prior to the instant occurrence and he has suddenly inflicted injuries to her as well as her daughter. The accused/appellant was also working as labourer at the Stud Farm and residing with his family in the houses constructed there. Similarly, PW12 Brij Lal has also stated that he cannot say whether the occurrence was all of sudden or on some issue. So, in the absence of any motive, the culpability of the accused/appellant cannot be said to have been established. 16. While developing his further argument, it has been submitted by learned counsel for the appellant that since the occurrence took place on the spur of moment and was sudden and there was no intention on the part of the appellant, to commit the murder of his minor daughter and to cause injuries to his wife or the complainant Megh Nath (PW15) and no blow was repeated, so far as the deceased is concerned, offence under Section 302 IPC is not at all attracted. At the most, the case falls within purview of Section 304 Part I of IPC. While concluding his arguments, learned counsel for the appellant contended that firstly, the prosecution has not been successful to bring home the guilt of accused/appellant and the impugned judgment of conviction and order of sentence are not sustainable in the eyes of law, but if this Court comes to the conclusion that the accused/appellant does not deserve acquittal, an offence under Section 302 IPC deserves to be diluted to an offence under Section 304 Part I of IPC. 17. On the other hand learned State counsel has contended that there is no infirmity, illegality or impropriety in the impugned judgment of conviction and order of sentence. The same are based upon cogent, convincing and reliable evidence. No interference of this Court is justified in the findings and conclusions arrived at by the learned trial Court which are based upon the testimonies of injured/eye witnesses. The statements of injured/eye witnesses cannot be discarded or disbelieve on the basis of some contradictions. Though, there are some missing factors but the entire case of prosecution cannot be thrown away. Otherwise also, the testimonies of some other witnesses further find corroboration from the medical evidence. Recovery of blood stained kulhari in pursuance of disclosure statement of accused/appellant further fortifies, the case of prosecution. Appeal being devoid of merits is liable to be dismissed. 18. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and perused the record of learned trial Court with their assistance but we are not impressed with the submissions made by learned counsel for the appellant especially, in the circumstances that the case of prosecution is based upon direct evidence i.e. the testimony of PW13 Sumari @ Kamla, who is none else but the wife of accused/appellant corroborated by another injured Megh Nath (PW15) and an eye witness Brij Lal (PW12) coupled with recovery of blood stained kulhari at the instance of accused/appellant in pursuance of his disclosure statement Ex.PS, which was sent to Forensic Science Laboratory for analysis and was detected to be stained with human blood. 19. As regards the first submission made by learned counsel for the appellant, it is suffice to say that there is no delay in reporting the matter to the police. 19. As regards the first submission made by learned counsel for the appellant, it is suffice to say that there is no delay in reporting the matter to the police. The occurrence took place at 5.00 A.M., in which Sunita @ Kanya lost her life whereas her mother sustained serious injuries on her head at the hands of appellant. Not only this, he also caused injury on the person of Megh Nath (PW15) one of his neighbours. In such a situation, the primary duty of the persons present at the time of occurrence becomes to save the life of injured and reporting the matter to police becomes secondary. The police station was at a distance of 10 kms from the place of occurrence. Moreover, in the case in hand, Sumari @ Kamla (PW13) was admitted in the hospital in an injured condition. She was medico legally examined at 9.15 A.M. It was only thereafter an information Ex.PE was sent to the police station. But prior to that, Megh Nath (PW15) had met the investigating officer near railway crossing in the area of village Mora and got recorded his statement Ex.PK. So, the delay if any stood fully explained. 20 It is not the case of prosecution that the statement of complainant Megh Nath (PW15) was recorded in the police station that too after medico legal examination of Sumari @ Kamla (PW13). No doubt, that some contradictions have appeared, with regard to recording of statements of witnesses. As has been submitted by the learned counsel for the appellant, statement of Brij Lal (PW12) was recorded at 6.30 A.M. whereas statement of complainant Megh Nath (PW15) was recorded by the police at 7.00 A.M. but it has been contradicted by PW16 SI Suraj Bhan. These contradictions do not in any way raise any suspicion with regard to the case of prosecution, especially in the circumstances that there is a single accused to whom all the injuries have been attributed appearing on the person of the deceased as well as his wife Sumari @ Kamla (PW13) and complainant Megh Nath (PW15). 21. These contradictions do not in any way raise any suspicion with regard to the case of prosecution, especially in the circumstances that there is a single accused to whom all the injuries have been attributed appearing on the person of the deceased as well as his wife Sumari @ Kamla (PW13) and complainant Megh Nath (PW15). 21. As far as the nature of injuries and the nature of weapon used whether from its sharp side or blunt side are concerned, it is not possible to recollect as to whether the injuries were being inflicted from the sharp side or the reverse side, especially when the successive blows are given to different persons. Rather, this shows that the witnesses are truthful. Otherwise, if the FIR would have been registered after due deliberation and consultation, they might have changed their version that kulhari was used from its reverse side. Moreover, there was no other assailant except the appellant, as per the case of prosecution. 22. Though, during the course of arguments the learned counsel for the appellant has tried to believe this Court that the occurrence did not take place at 5.00 A.M., or that it did take place at 11.30 A.M., or so but the contention in this regard, of the learned counsel for the appellant is absolutely against the evidence available on file. It is well settled that statement of witness has to be taken as a whole and not by pick and choose, which is favourable to one of the parties. The scrutiny of statement of PW4 Dr. Ashok Kumar Sharma makes it crystal clear that probable time that elapsed between injuries and death was few hours and between death and autopsy was 12 hours. The words “few hours” have been clarified by PW4 Dr. Ashok Kumar Sharma in his cross-examination to it mean “2 to 3 hours”. So, it can be said that probable time that elapsed between injuries and death was within 2 to 3 hours and in between death and autopsy was within 12 hours. As such, it cannot be said that occurrence did take place at 11.30 A.M. 23. It is also pretty settled that when there is a conflict between ocular and medical evidence, the primacy is to be given to ocular evidence and the medical evidence is only an opinionative nature. 24. As such, it cannot be said that occurrence did take place at 11.30 A.M. 23. It is also pretty settled that when there is a conflict between ocular and medical evidence, the primacy is to be given to ocular evidence and the medical evidence is only an opinionative nature. 24. So far as the contention of learned counsel for the appellant with regard to non establishment of motive is concerned, it pales into insignificance, when the case is based upon direct evidence. Otherwise also motive is always locked in the heart of accused and it is very difficult for the prosecution to precisely state what prompted the accused to commit the offence. In the present case, there are certain features, which prove that PW12 Brij Lal, PW13 Sumari @ Kamla and PW15 Megh Nath are fully reliable and trustworthy. Firstly, PW13 Sumari @ Kamla and PW15 Megh Nath are the stamped witnesses and secondly; the weapon of offence i.e. Kulhari stained with blood was got recovered by the appellant, in pursuance of his disclosure statement which on analysis by Forensic Science Laboratory was found to be stained with human blood. There are as many as three injuries on the head of PW13 Sumari @ Kamla wife of the appellant and two injuries were caused by the accused/appellant on the head of his minor daughter, which proved fatal. In the case in hand, motive has rather been suggested by the accused/appellant during cross-examination of witnesses and it has been alleged that PW15 Megh Nath was having armorous relations with PW13 Sumari @ Kamla wife of the appellant but except bald suggestion, there is no evidence adduced by the accused/appellant. So, on this ground, the accused/appellant cannot derive any benefit. 25. Now coming to the last limb of submission made by learned counsel for the appellant that an offence under Section 302 IPC is not made out and that the case falls within the ambit of Section 304 Part I of IPC. It is pretty settled that various factors are required to be taken into consideration to arrive at a conclusion that an offence under Section 302 IPC is not made out or that the instant case falls within ambit of Section 304 Part I or II of IPC. The nature of weapon, site of injuries, force used coupled with the intention are relevant to determine aforesaid question. 26. The nature of weapon, site of injuries, force used coupled with the intention are relevant to determine aforesaid question. 26. In the case in hand, appellant was armed with kulhari, he came out and inflicted its blow on the back of Megh Nath (PW15). On hearing his shrieks, Sunita @ Kanya, daughter of the appellant came out while running. He dealt a kulhari blow on her head, which proved fatal. Thereafter, his wife Sumari @ Kamla (PW13) came out of the house, even she was not spared. He gave 2 to 3 kulhari blows on her head, as a result of which, she sustained grievous injuries and fell unconscious. The causing of injuries to three persons, that too, on the vital parts of their body i.e. Head and back with a heavy sharp edged object (kulhari) clearly depicts his intention to cause death or injuries which were likely to cause death. 27. So, in the case in hand from the facts and circumstances and evidence, the case is squarely covered under Section 300 Clause III of IPC and it has been rightly observed by the learned trial Court. 28. In the light of what has been discussed above, we are of the considered view that there is no illegality, infirmity or impropriety in the conclusions arrived at by the learned trial Court, which are absolutely in consonance with the evidence adduced by the prosecution as well as the legal proposition. No interference of this Court is justified. There is also nothing on record to take different view than that of view already taken by the learned trial Court. 30. Resultantly, appeal fails and the same is dismissed being devoid of any merits. The impugned judgment of conviction dated August 31, 2009 and order of sentence dated September 02, 2009 are upheld.