- (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.) The recitals of the F.I.R. Ex.P/1 reads as under:- ...[VERNACULAR TEXT OMITTED]... This FIR is lodged on 28.08.2008 at 10.15 AM at P.S. Jhadol under Sections 452 and 302 I.P.C. as FIR No.102/1998.
(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.;