JUDGMENT : Biren Vaishnav, J. 1. The appellant Ratilal Talsibhai Vasava has filed the present appeal against the judgment and order dated 20.11.2009 passed by the learned Additional Sessions Judge, Rajpipla. The appellant together with two others, was charged for offences punishable under sections 302, 325, 323 and 114 of Indian Penal Code. Ratilal was the accused No. 1. Accused Nos. 2 and 3 were acquitted by the judgment dated 20.11.2009. 2. Exh. 6 is the charge framed by learned Additional Sessions Judge. Ratilal-the accused, his brother Soma and the deceased Ramanbhai were brothers. Apparently over the dispute of family property, there was an argument between the accused No. 1-Ratilal and his brother Somabhai. Deceased Raman, the other brother tried to take sides with the younger brother Soma. Upset by this, Ratilal, on 03.04.2009, at 5:30 in the evening, assaulted the deceased Raman in the veranda of his house. Ratilal, the accused No. 1 hit Raman with a stick. According to the charge, the other accused who were carrying iron rods, also attacked Raman. The charge therefore was for the offences under sections 302, 325, 323 and 114 of the Indian Penal Code. 3. Ramanbhai's wife Kashiben was the first informant who lodged the FIR at Exh. 14 on 03.04.2009. The reading of the FIR reveals that on 03.04.2009, Raman and his wife Kashi had returned from Rajpipla. After spending sometime at Vavdi, Raman went to Sundarpura on being informed that brother Ratilal had pulled down the ancestral house. Sanjay, Raman's nephew in the evening dropped back Raman to Vavdi. On his way to Vavdi, Ratilal and Shailesh, the brothers of Raman, intercepted them on the road and started beating Raman. When in the evening, Raman was at home with his wife-the complainant, Ratilal together with Shailesh and two others came to their house at Vavdi and started indiscriminately beating Raman with sticks and iron rods in their hands. Ratilal-accused No. 1 who was carrying a stick, hit Raman on the head and on the hands. When Kashiben tried to intervene, she also sustained injuries. 4. Kashiben, the first informant was examined as PW-2 at Exh. 13. In her testimony, she states that on the date of the incident, they had returned in the evening to Vavdi from Rajpipla. The brothers Ratilal, Raman and Soma had an ancestral property at Sundarpura. When Kashiben tried to intervene, she also sustained injuries. 4. Kashiben, the first informant was examined as PW-2 at Exh. 13. In her testimony, she states that on the date of the incident, they had returned in the evening to Vavdi from Rajpipla. The brothers Ratilal, Raman and Soma had an ancestral property at Sundarpura. On being informed that Ratilal had pulled down the ancestral house, her husband had proceeded to Sundarpura. After sometime, Sanjay, the nephew dropped him back to Vavdi. Sanjay left after dropping Raman outside the house. Later in the evening, Ratilal together with his son and two others, entered the house and started beating Raman with a stick. She further stated that Ratilal, when she tried to intervene, hit her on the left hand with the stick. This witness stated categorically that Ratilal and two others were carrying sticks in their hand and her husband was beaten all over the body. Having sustained serious injuries, Raman was shifted to Rajpipla government hospital. From Rajpipla hospital, he was shifted to Vadodara. She confirms to have lodged the FIR at Exh. 14. According to this witness, the motive behind this attack was a dispute regarding the ancestral property at Sundarpura. She identified Ratilal who was present in the Court. As far as the other two accused are concerned, she could not identify them. Kashiben was cross-examined. She agreed to the suggestion that in the evening after having returned from Rajpipla, her husband had left for Sundarpura and thereafter soon returned in the company of Sanjay. She also stated in her cross-examination that she came out on hearing the shouts and she saw her husband being attacked by Ratilal and two others. Her husband was being hit indiscriminately with a stick. When she tried to intervene, Ratilal hit her with a stick. 5. Sanjay, the nephew of the deceased Raman and son of Somabhai was examined as PW-1 at Exh. 11. Sanjay, in his testimony, stated that on the date of the incident, Ratilal had pulled down the ancestral house. Therefore, his father Somabhai and Ratilal had an argument. The other uncle Ramanbhai tried to intervene and placate the situation. After sometime, he went back to drop his uncle Raman on a cycle to Vavdi. 11. Sanjay, in his testimony, stated that on the date of the incident, Ratilal had pulled down the ancestral house. Therefore, his father Somabhai and Ratilal had an argument. The other uncle Ramanbhai tried to intervene and placate the situation. After sometime, he went back to drop his uncle Raman on a cycle to Vavdi. When they were on their way to Vavdi, their uncle Ratilal intercepted the bicycle on way to Vavdi and started hitting Raman with his sticks. There was a scuffle between the two. Minaben and Kanubhai who were in the field nearby, intervened and stopped the fight. He went to Raman's home, dropped him at his home and returned. At around 7:30 in the evening, Ratibhai together with his son Manu and Shanu, came to his house and shouted for him to come out. When he came out, they threatened to kill him. They further informed him that they had returned after killing their uncle Raman. In order to confirm the fact, he called on the mobile and was informed by the person on the other side that his uncle was done to death and how they had shifted him to Rajpipla hospital. Sanjay was cross-examined. He agreed that when he returned to drop his uncle at Vavdi, he had stopped for few minutes. That he had spoken to her aunt about the incident that had occurred while on the way to the house at Vavdi. 6. Dr. Maheshbhai Dahyabhai Talpada, PW-6, was examined at Exh. 21. He was the doctor who had treated Kashiben. The doctor in his testimony states that Kashiben had informed him that she had sustained the injuries as a result of being attacked with sticks. She has specifically disclosed the name of Ratilal as the person who had caused such injuries. The doctor confirmed the injuries and issued the medical certificate which is produced at Exh. 21. The certificate too records that the injuries that Kashiben sustained were as a result of being hit with sticks at the hands of Ratilal. 7. Dr. Bijalsinh Rathod, PW-3, at Exh. 16 was the doctor who carried out the postmortem of the body of Ramanbhai Vasava. The postmortem report at Exh. 70 indicates that the deceased had sustained external injuries. "Ext Injuries: 1. SSW of 6 cm on lt. 7. Dr. Bijalsinh Rathod, PW-3, at Exh. 16 was the doctor who carried out the postmortem of the body of Ramanbhai Vasava. The postmortem report at Exh. 70 indicates that the deceased had sustained external injuries. "Ext Injuries: 1. SSW of 6 cm on lt. parietal region in straight plane 1 cm left to midline five stitches is seen in margin contused. 2. SLW of 5 cm on left occipital temporal region oblique 7 cm b/d left ear, 5 stitches in wound, margin contused 3. SLW of 2 cm in front of left ear surrounding contused swelling in area of 6 x 4 cm 1 to 3 stitches in STU 4. Abrasion of 1 x 0.5 cm right eyebrow laterally mid 5. Abrasion of 1 x 0.5 cm in harion midline red 6. Abrasion contusion in area of 7 x 4 cm right supraclavicular region and right clavicle palyaslened 7. Contusion midline in area of 5 x 5 cm right and upper laterally red 8. Abrasion of 1 x 1 cm 2 in No. at right elbow, posterolaterally red 9. SSW of 3 cm on Rt forearm upper 1/3 partly 6 cm b/l elbow surrounding contusion of 5 x 3 cms 10. Abrasion onturium area of 4 x 2 cm right forearm anteromedially upper 1 x 6 red 11. Contuse swelling over back of right head, right wrist all side with palyscle of right wrist # of right first artery changed, first phalan of right index finger red 12. Abrasion multiple in area 7 x 4 right flank of abdomen red 13. Abrasion of 2 x 2 cms right flank of abdomen lower part 14. Abrasion of 3 x 1.5 cms right anterior superior iliac spine red 15. Abrasion contusion 2 x 2 cms middle 1 x 3 laterally and right thigh red 16. Abrasions 4 in number swelling of size 0.5 x 0.5 to 1 x 1 cms size at right knee antly lower part red 17. Abrasion line of 1 x 0.3 cms at left leg middle 1 x 3 anteromedially red 18. Fatricium red of 28 x 1 cm on left back of chest starting from medial acute at left going oblique downwards and laterally to left hordic cage red 19. Contusion red of 11 x 1 x 5 cm on left back of chest 1 cm lateral midline vertically in lower red 20. Fatricium red of 28 x 1 cm on left back of chest starting from medial acute at left going oblique downwards and laterally to left hordic cage red 19. Contusion red of 11 x 1 x 5 cm on left back of chest 1 cm lateral midline vertically in lower red 20. Abrasion of 5 x 2.5 cms at left flank of abdomen left 21. Contusion of 2 x 1 cms at back of left shoulder yes antemortem" The internal injuries that the deceased had sustained are as under: "1. Lt hesospheric scalp contusion 2. Left temporal verito occipital circle diagonal bone of triangle shape left parietal extending to middle oval front face of skull. 3. Left perietal corosual gaeruniter left parieto temporal occipital SDH + SAH BICARESELLAR SAH" In the opinion of the doctor, the cause of death was the result of injuries that were sustained on the head. In the opinion of this doctor, the injury so sustained was possible to have been caused as a result of use of iron pipe or a stick. 8. Supporting evidence, in terms of discovery panchnamas are on record. As far as the accused No. 1-the appellant is concerned, Exh. 30 is such discovery panchnama. 9. The discovery panchnama at Exh. 30 indicates that the weapon used was voluntarily discovered at the hands of the accused No. 1-Ratilal from a dried pond and stick was discovered from the bushes. 10. Scientific evidence in terms of serological report was also recorded at Exh. 53. Blood group-B of the deceased is found on the weapon stick. 11. The assessment of evidence at our hands is as under. 12. The simmering discontent that triggered the incident is the dispute over the ancestral property that the brothers Raman-deceased, Ratilal-the accused together with Somabhai had inter-se between themselves. Sanjay, PW-1, in his testimony comes out with this. Sanjay is the son of Somabhai, the younger brother of Raman. Eventually, Raman had a soft corner for Somabhai and when Ratilal pulled down the ancestral home at Sundarpura, Raman tried to take side with Sanjay's father Somabhai which was not to the liking of the brother Ratilal-the accused. Sanjay's testimony further indicates that when he was on his way back to drop Raman to Vavdi on a bicycle, Ratilal followed them on scooter, intercepted them on the road to Vavdi and hit Raman with a stick. Sanjay's testimony further indicates that when he was on his way back to drop Raman to Vavdi on a bicycle, Ratilal followed them on scooter, intercepted them on the road to Vavdi and hit Raman with a stick. Sanjay then dropped Ramanbhai at Vavdi at 7:30. In the evening, Ratilal with his two sons Manu and Shanu, followed Sanjay to his house, challenged him to come out and face them. They threatened to kill him. His testimony further indicates that Ratilal informed him that they had returned after putting their brother Raman to death. The motive therefore is evident from the testimony of Sanjay. It is evident that Ratilal with an intention to settle scores, followed his brother when he was being dropped by Sanjay to Vavdi and attacked him with sticks. He challenged Sanjay also and threatened him that he would meet the same fate that his uncle had met. 13. Kashiben Ramanbhai, the complainant lodged the FIR. Reading of the FIR confirms the unfolding of the events preceding the attack as testified by Sanjay. Without repeating the chain of events that followed, what is evident from reading of the FIR is that Kashiben no uncertain terms stated that it was the brother-in-law Ratilal who had come home that evening, indiscriminately hit Ramanbhai who was home that evening when she was present. The narration in the FIR that she also sustained injuries when she tried to intervene, confirms her presence. When Kashiben's testimony is seen in light of the narration of the FIR, there are no variations in her testimony. Even in her evidence before the Court, she categorically stated that when she returned from Rajpipla with her husband and when Sanjay dropped Raman-her husband, back from Sundarpura to Vavdi, in the evening when they were at home, Ratilal entered the house with two others and attacked Raman with a stick. When she tried to intervene, she also sustained injuries. 14. Mr. Kapadia, learned advocate for the appellant has tried to point out before the Court that Kashiben's evidence need not be taken as gospel truth in view of the fact that what comes out from the testimony is that she has not clearly and unequivocally identified the assailants. He further doubted the prosecution story inasmuch as his contention that Kashiben cannot be termed as eyewitness as she had come later on hearing the shouts. 15. He further doubted the prosecution story inasmuch as his contention that Kashiben cannot be termed as eyewitness as she had come later on hearing the shouts. 15. The narration of Kashiben in her evidence when compared to her version as made out in the FIR, what stands out is that Kashiben was not very sure of the identity of the other assailants. However, that Ratilal was a prime suspect and had carried out the offence in question, was not in doubt as is evident from the version of Kashiben. The incident occurred in the evening when Kashiben was present in the house. That she had witnessed the incident and was present when it occurred, is established even from the medical evidence on record. PW-6, doctor Mahesh Talpada has in his examination-in-chief, stated that while recording the history, Kashiben had stated that the injuries she had sustained was as a result of being hit with the stick at the hands of Ratilal. Even the injury certificate at Exh. 22 records this fact. 16. Mere inability to identify the other assailants, who on the basis of their identity being not established and therefore being acquitted will not bring the case of Ratilal at par with the others. When his role is seen as is unfolded from the testimony of Sanjay and Kashiben that he was the prime offender is evident. He has followed Ramanlal when he was being dropped back to Vavdi from Sundarpura by Sanjay. He challenged Sanjay and that he would meet the same fate that of his uncle, is evident from the testimony of Sanjay. Kashiben's testimony also establishes her presence when Ratilal entered the house at the time and the hour of the evening when the presence of all family members of the house is possible. Minor variations in her testimony would not lead one to discard the version that she narrates. 17. Dr. Bijalsinh Rathod, PW-3, who carried out the postmortem of Raman and the postmortem report at Exh. 17 indicates that the deceased sustained injuries on being hit with a stick. The external and the internal injuries that the deceased sustained, make it evident that the attack was premeditated and planned and the intention was established from the manner in which Ratilal carried out the offensive act. Supporting evidence in terms of discovery panchnama at Exh. 30 and the serological report at Exh. The external and the internal injuries that the deceased sustained, make it evident that the attack was premeditated and planned and the intention was established from the manner in which Ratilal carried out the offensive act. Supporting evidence in terms of discovery panchnama at Exh. 30 and the serological report at Exh. 81 add to the credibility of the prosecution case that Ratilal was the prime offender. 18. Having assessed the evidence independently, we see no reason to come to conclusion different to the one rendered by the learned Additional Sessions Judge. 19. The appeal accordingly fails and is dismissed. R & P to be sent back to the Trial Court.