JUDGMENT : 1. The instant appeal has been filed against the judgment dated 15.06.2011 passed by learned Additional Sessions Judge, (Fast Track), No.2, Udaipur in Sessions Case No.5/2011 (309/2008) convicting and sentencing appellant-accused Kalu as under:- U/s. 302 IPC: Life imprisonment and a fine of Rs.1,000/- and in default to pay fine, to undergo for one month simple imprisonment. U/s. 458 IPC: Seven years’ simple imprisonment and a fine of Rs.500/- and in default to pay fine to undergo for 15 days’ simple imprisonment. 2. U/s. 458 IPC: Seven years’ simple imprisonment and a fine of Rs.500/- and in default to pay fine to undergo for 15 days’ simple imprisonment. 2. The recitals of the F.I.R. Ex.P/1 reads as under:- Þlsok esa Jheku Fkkukf/kdkjh lkgc iqfyl Fkkuk >kMksy ftyk mn;iqjA fo”k;& dkuwuh dk;Zokgh djkus ds fy;sA egksn; th] mijksDr fo”k; esa fuosnu gS fd eSa izkFkhZ jks’ku firk /kwykth eh.kk ¼[kjkMh½ mez 25 o”kZ is’kk [ksrh fuoklh cysfy;k Fkkuk >kMksy bZryk djrh gwa fd fnuakd 27-08-2008 dh ‘kke 8 cts esjs ?kj ij esjk dkdk Jh jketh firk gksekth vk;k FkkA ftlus dgk fd eSa ckMs ij jgrk gqaA ogka esjk [kkus&ihus dk lkeku [kRe gks x;k gSA esjs ?kj ij esjs yM+ds dkyq us eq>s ?kj tkus ls lkSxU/k ns j[kk gSA blfy;s eSa ;gha gwa rks esjh dkdh gqjdh o mldk yM+kd dkyq nksuks esjs ?kj vk;sA mUgksus jketh dks ?kj pyus dks dgk ijUrq dkdk jketh us dgk fd eSa ?kj ij ugha vkmaxk D;ksfd dkyq us eq>s lksxU/k ns j[kk gSA og nksuksa okil muds ?kj pys x;s dkdk jketh esjs ?kj ij gh lks;k eS rFkk esjh iRuh deyk ge rhuksa esjs edku iMlky es gh vyx&vyx [kkV ij lks;s FksA ge uhUn vkus ds ckn e/; jk=h ckn 3 cts vpkud HkhM+&HkkM+ ctk rks esjh esjh o esjh iRuh dh uhUn [kqyh rks eSus VWkpZ ls ns[kk rks dkyq firk jketh tks [kkV ij lks jgk FkkA mls yB caxM+h okys ls flj] dku ij ekj jgk Fkk eSus dgk dkyq ;g D;k dj jgk gSA dgrs gq,s eSus o esjh iRuh us idM+ fy;k chp&cpko fd;kA eSusa gkdk fd;k bl ij vkl&ikl vkokt lqu Jherh gqjdh] deys’k] ‘kadj] gjnkjk vk x;s eqyfte dkyq firk jketh [kjkMh fu cyksfy;k ogka ls Hkkx x;kA geus jketh ds fljo ‘kjhj ij VkWpZ ls ns[kk rks flj] nkfgus dku ds mij ls flj ij 4 pksVsa yxh gks [kqu fudy jgs FksA geus ikuh fiyk;k dqN nsj ckn jketh dh e`R;q gks xbZ FkhA jkr dk le; o lk/ku ugha gksus ls lqcg xkoa esa tkdj iqfyl pkSdh ck/kiqjk lwpuk nh FkhA bryk djuk gwa dk;Zokgh djkosAÞ This FIR is lodged on 28.08.2008 at 10.15 AM at P.S. Jhadol under Sections 452 and 302 IPC as FIR No.102/1998. 3. 3. Both the sides advanced their submissions and heard counsels for the parties, learned counsel for the appellant has submitted that the trial court has committed error in passing the impugned judgment because there is no reliable evidence of the prosecution and important contradictions are there in the evidence of the prosecution, motive is also absent and truth has been withheld by the prosecution, there is no substantive material evidence against the accused-appellant. Learned counsel has also contended that a ‘lathi’ has been recovered that too has said to have been used in the incident, but the injuries does not match with the nature of the recovered weapon because incised wounds have been reported by the medical evidence, which may not be caused by a ‘lathi’ and story of the prosecution is false. The impugned judgment lacks merit so it be quashed and appeal be allowed and the accused be acquitted. Learned Public Prosecutor has contended that prosecution has adduced ocular evidence relating to the incident, which is well corroborated by the medical evidence and there is no infirmity in the finding of the trial court. So far as, question of incised wound is concerned, the ‘lathi’ used in giving brutal beatings was having metal rings, which could very well result injuries of incised nature, so there is nothing unreliable and appeal does not bear any force so, it be rejected. 4. The case of the prosecution is based on ocular evidence and there appears to be no flaw in the findings of the lower court. PW1 Roshan brother of the deceased, in whose house, the deceased was sleeping after “family discontents” has corroborated the contents of the FIR and has said that his uncle (Kaka) Ramji came to him on 28.8.2008 and informed him that he is residing isolated in “Baara” and his ration was consumed, so he conveyed him that he will be staying at his residence in the night and his son bound him on oath not to visit his home and asked him to call his “Kaki” and “Kalu” there, he has further said that he went and called his Kaki Hurki and his son Kalu. Hurki had asked Kaka Ramji to go along with to their house but Ramji did not go because he was bound on oath and so slept there, Kalu and Hurki went away to their home and at about 2:00 in the midnight, due to noise, his sleep disturbed, he saw in the light of torch that “Kalu” was beating his father “Ramji” and was giving “lathi” blows, “lathi” was having steel (iron) links, he has further said that he asked Kalu not to beat Ramji, but he did not yield and went on beating. On his alarm, Sardara, Shankar and Kamlesh came there and Kalu fled away. He has further accepted giving FIR Ex.1 and averred his signatures on Ex.2, 3, 4 and 5 and has further said that police had recovered “lathi” from their house, in cross-examination, he has said that it takes 10 minutes to reach at the house of Kalu from his house and has said that in the light of torch, he had seen “Kalu” and said that he saw Kalu blowing once and he did not give blows before Hardara, Shankar and Kamlesh and has said that before his awakening, Kalu had given three blows and one blow was given before him. Ex.8 post mortem report has got description of four injuries as well, if we scan reliability of testimony of this witness, then we find that verity is there in the testimony of this witness. PW3 Hurki, wife of the deceased has explicitly said that in the midnight at about 3:00, Kalu went to the house of Roshan and has specifically said that six months back Roshan came to call her, then she and her son Kalu went to house of Roshan since Kalu had given and bound her husband Ramjee down on oath, not to visit at their home and subsequently they returned back from there. She has further said that Ramji had slept there and about 3:00 in the night “Kalu” woke up and went there, she has further said that Kalu asked her to sleep saying that soon he will be coming back. She has further said that Ramji had slept there and about 3:00 in the night “Kalu” woke up and went there, she has further said that Kalu asked her to sleep saying that soon he will be coming back. She has uttered an important thing that she ran behind Kalu, but could not reach up to him, he returned back after giving four wooden hits, she has further said that Kalu was asking her not to visit to the house of Roshan, but she went to the house of Roshan, an hour later to her arrival her husband died, her husband Ramji had sustained injuries on his head. 5. PW2 Kamla wife of Roshan complainant has also given testimony similar to the statements of Roshan and she has said that six to seven months back, it is a matter of 2 to 3 of midnight. our Kaka Ramji was sleeping there, Kalu came there, thrashed our Kaka, she has further said that in the midnight, they heard noise, her husband flashed torch and found Kalu with “lath” having steel links, which was blown on the head of Ramji, her husband checked and asked, wherefore you beat and has further said that she and her husband tried to spare and has said that in the meanwhile, her “Kaki”, Kamlesh, Shankar and Sardara also came there, “Lathi” was taken from him and Kalu ran away from there, she has further said that by the blows of Kalu’s lathi, Ramji died. This witness has put her thumb impression on the testimony, which goes to show that she is not a literate lady, so trifle contradictions, emerged in the cross does not bear any significance. 6. PW4 Kamlesh and PW5 Shankar as well as PW6 Sardara have also narrated same kind of utterances. This witness has put her thumb impression on the testimony, which goes to show that she is not a literate lady, so trifle contradictions, emerged in the cross does not bear any significance. 6. PW4 Kamlesh and PW5 Shankar as well as PW6 Sardara have also narrated same kind of utterances. PW4 Kamlesh has said that by the time of his arrival, Kalu had fled away whereas both the other witnesses, PW5 Shankar and PW 6 Sardara have specifically admitted that “Kalu” was there by the time of their arrival and he fled away from there in front of them, since PW 5 Shankar has said that when he went there Kalu was there and he fled away after their arrival, soon Ramji died, likewise PW 6 Sardara has also said that when they arrived, Ramji was breathing last and Kalu ran away after witnessing them, in cross-examination, he has also said that “Kalu” did not hit Ramji before him and on their arrival, they saw Kalu, Roshan and Hurki were there. 7. PW7 Dr. Chandan Kumar Agarwal has said that he conducted post mortem on the body of the deceased and post mortem report dated 28.8.2008 Ex.P.8 bears his signatures and he has narrated the injuries found on the body of the deceased were:- (i) Incised wound 1X3 cm skin deep on right mastoid region. (ii) Incised wound 1X3 cm skin deep, right temporal bone. (iii) Incised wound 1X2 cm skin deep, right side of vertex. (iv) Incised wound 1X3 cm, right side and forward to vertex. # of scalp bone from vertex to right temparoparietal lobe junction membrane are red and congested with accumulation of blood. And has said that the injuries were sufficient to cause his death. 8. (iii) Incised wound 1X2 cm skin deep, right side of vertex. (iv) Incised wound 1X3 cm, right side and forward to vertex. # of scalp bone from vertex to right temparoparietal lobe junction membrane are red and congested with accumulation of blood. And has said that the injuries were sufficient to cause his death. 8. Witnesses pertaining to Malkhana deposit of samples have also narrated links perfectly, recovery witness PW 11 Bhima and PW12 Limba have also accepted their signatures on recovery memo, which is weapon of assault i.e. ‘lathi” having metal links Ex.7 shows that recovery has been made from the house of Roshan and said recoveries have been made vide Ex.11 and description of the wooden lathi (Lakri) shows that it was having 8 (eight) serpentine metal links, which were placed at a distance of one inch each and blood was found there, vide Ex.6 worn cloths “Baniyan” and “Kamij” of the deceased were also seized and so far as link evidence pertaining to deposit of sample is concerned, it has remained properly linked and explained. PW8 Sukhlal, A.S.I. has confirmed Ex.1 and 8 FIR’s written in chaked one. 9. PW9 Jala Ram, I.O. has also narrated mode of investigation carried out and has accepted all the exhibits relating thereto, he too has said that “wearing cloths” of the deceased were taken and were sent for FSL and “lathi” was also recovered. He has also accepted Ex.14 being FSL report. 10. Perusal of Ex.14 reveals that “lathi” as well as “Kamij” and “Baniyan” and “blood smeared soil” have been found stained with ‘O’ Group human blood which fortifies and confirms the case of the prosecution as well. 11. Scrutiny and appreciation of the aforesaid manifestly connects accused with the crime. 12. There is ocular evidence relating to the crime. Wife of the deceased, who is none else but mother of the accused has also accepted that there were “discontents” between deceased father Ramji and accused son Kalu, because of which deceased Ramji was living separate and his son Kalu had bound him down with an oath to stay away from entering into the house. Wife of the deceased, who is none else but mother of the accused has also accepted that there were “discontents” between deceased father Ramji and accused son Kalu, because of which deceased Ramji was living separate and his son Kalu had bound him down with an oath to stay away from entering into the house. Hurki wife of the deceased and mother of the accused has candidly said that in the mid night around 3:00 “Kalu” woke-up and went to the house of Roshan, where “Ramjee” was sleeping, she also ran behind “Kalu”, in order to check him, but she could not hold him and “Kalu” went to the house of Roshan and gave fatal “Lathi” blows upon his sleeping father Ramji, one blow was even seen by Roshan, on clamour witness Kamlesh, Shankar and Sardara also reached there, Shankar and Sardara even found “Kalu” there, who had just given fatal blows to his father Ramji, who died before them and Kamlesh has also said that on his arrival “Kalu” ran away from there, so case of the prosecution is quite clear, well established and properly proved with material and reliable ocular evidence, which is well supported by medical evidence, so far as the nature of the injuries is concerned, it is also very much clear as discussed above that “lathi” was having eight serpentine metal links which gave the stated kind of injuries. 13. Upon considering the above discussed evidence of the prosecution and material available on the record, it is obvious that the case of the prosecution is proved, on the basis of the ocular and reliable evidence beyond all realms of reasonable doubt, so there appear no infirmity in the findings of the trial court. For the reasons discussed and deliberated aforesaid, we do not find any merit in the appeal. Therefore, the instant appeal is dismissed. The record of the trial court be sent back forthwith along with the copy of this judgment.