JUDGMENT Aran Komar Goel, J. 1. By this judgment, we propose to dispose of Criminal Appeal No. 165 of 1991 filed by the Appellant against his conviction and sentence under Sections 304 Part II and 323, I.P.C. and Criminal Appeal No. 126 of 1992 filed by Smt. Radha Devi, injured wherein she has prayed for enhancement of sentence against the Respondent from Section 304 Part II to Sections 302 and 323, I.P.C. 2. Brief facts giving rise to this appeal are that Hem Singh, accused (hereinafter referred to as 'Appellant') was charged under Sections 302 and 323, I.P.C. for having committed murder of Brij Lal by causing blow on his head and for having voluntarily caused simple hurt to Smt. Radha Davi on 29-4-1989 at 6.30 p.m. at village Nagahan, District Mandi. The prosecution case against the Appellant is that on 29-4-1989 at about 6.00 p. m. when PW 1, Smt. Saraswati alongwith her Jethani Smt. Radha Devi (PW 2) and her son Kashmir Singh were coming back after lopping off branches of Beul trees, they found Hem Singh Appellant standing near his cowshed with a 'danda' in his hand. Hem Singh is stated to have asked them as to why they have come from the path and Radha Devi told the Appellant that this is a common path and he should permit them to pass through the path. On this Hem Singh gave blows with 'danda' on the back of Radha Devi who raised an alarm and on hearing the noise, Brij Lal, father-in-law of Saraswati and Radha Devi came there and told the Appellant not to quarrel with the ladies. On this. Hem Singh is stated to have given two 'danda' blows on the head of Shri Brij Lal as a result whereof he fell down on the ground. On this, one Khem Singh and husband of PW 2, Smt. Radha Devi i.e. Harnam Singh (PW 3) also came on the spot. Accused was quarreling on this passage earlier also. Shri Brij Lal died on the spot as a result of the injuries sustained by him on account of 'danda' blows. When Harnam Singh (PW 3) reached the spot, he was informed by his wife that the deceesed had been killed by the Appellant and this witness saw the Appellant fleeing from the scene of occurrence alongwith 'danda'. Shri Brij Lal died on the spot as a result of the injuries sustained by him on account of 'danda' blows. When Harnam Singh (PW 3) reached the spot, he was informed by his wife that the deceesed had been killed by the Appellant and this witness saw the Appellant fleeing from the scene of occurrence alongwith 'danda'. Villagers gathered at the spot and Prakash Chand (PW 8) brother of PW 3 Harnam Singh and Ors. went to call the Pradhan of Gram Panchayat, namely, PW 5, Paras Ram who came to the spot and learnt from Radha Devi and Saraswati as to how Brij Lal had died and he sent a memo through Prakash Chand to police for registration of the case. The case was registered on the report made by PW 2 Radha Devi and the F.I.R. Ex. PA was registered The police came to the spot and the photographs of the dead body were taken by PW 9 Sher Singh, The police got prepared the Tatima Ext. PK from Patwari, PW 10 Suresh Kumar as well as a copy of jamabandi Ex. PL of the place of occurrence. The dead body was sent to Primary Health Centre, Kotli on 30-4 1989 at 12 30 p. m. alongwith inquest report Ex. PO for post-mortem. Dr. Gopal Kumar Sharma (PW 6) conducted the postmortem who gave his report Ex. PE and he also examined Smt. Radha Devi and gave his report MLC PD. During the investigation the police also took into possession the posting orders of the Appellant. 3. On completion of the investigation the challan under Section 302, I.P.C. was filed before the Chief Judicial Magistrate, Mandi, who committed the case for trial so the court of Sessions Judge, Mandi. The case was ordered to be transferred for trial from the court of Sessions Judge, Mandi to Bilaspur under the orders of this Court where he was charged for the aforesaid offences by the Sessions Judge, Bilaspur to which he pleaded not guilty and claimed trial. 4. In order to sustain its plea on the charges aforesaid, prosecution examined as many as 14 witnesses. Statement of the Appellant under section 313, Code of Criminal Procedure was also recorded. The trial Court also recorded the statements of three court witnesses. 5. 4. In order to sustain its plea on the charges aforesaid, prosecution examined as many as 14 witnesses. Statement of the Appellant under section 313, Code of Criminal Procedure was also recorded. The trial Court also recorded the statements of three court witnesses. 5. PW 1 is Smt. Saraswati daughter-in-law of the deceased', who had stated that she alongwith her Jethani, Smt. Radha Devi (PW 2) had gone to Magnu Nullah for lopping the branches of Buel tree alongwith her son Kashmir Singh and when they were returning after lopping the branches of Buel tree at about 6 p.m. the Appellant, Hem Singh, who was standing near his cowshed having a 'danda' in his hand, asked all of them as to why they were passing through this path. When her Jethani Smt Radha Devi (PW 2) informed the Appellant that it is their common path and he should permit them to pass through this, the Appellant gave blows with 'danda' on the back of Smt. Radha Devi on which they all started crying loudly. On hearing this, Brij Lal deceased her father-in-law arrived there and asked Hem Singh not to quarrel with his daughter-in-law on which the Appellant held out that he will see him also and gave two 'danda' blows on the head of the deceased as a result of which he fell down. When again these ladies raised alarm, one Khem Singh, their father-in-law in relation came to the spot as also Harnam Singh her Jeth (husband of PW 2, Radha Devi) also reached the spot. The Appellant is stated to have held out that they cannot do anything and he has done what he intended to do. This witness states that she saw her father-in-law dead. She further stated that she used to pass through this path since she had come to this village 9 years ago and Hem Singh Appellant used to quarrel with them on account of his path. In cross-examination except for minor omissions nothing matetial has come out from this witness. This witness states that she saw her father-in-law dead. She further stated that she used to pass through this path since she had come to this village 9 years ago and Hem Singh Appellant used to quarrel with them on account of his path. In cross-examination except for minor omissions nothing matetial has come out from this witness. However, in cross-examination of this witness as well as other witnesses examined, the defence of the Appellant appears to be that on hearing the noise, Harnam Singh (PW 3) came tolthe scene and a quarrel ensued between the Appellant and Harnam Singh at the spot and at such time the deceased came to the spot when he advised both i.e. Appellant as well as Harnam Singh (PW 3) not to quarrel. Further case of the Appellant appears to be that Brij Lal intervened while both of them were quarreling when he pushed aside by Harnam Singh. Consequently he fell down on a stoney surface and became unconscious. It was also suggested to witnesses that when Chet Ram, Devki and Shanti Devi wife of Brij Lal reached at the spot, Shanti Devi had sent for water from the house of the accused and Brij Lal was given water as well as massage. These suggestions were denied by PW 1. Suggestion of the prosecution that Hem Singh Appellant did not inflict any blows of 'danda' on the person of Brij Lal or Radha Devi or a false case has been made out against him, were also denied. 6. PW 2. Smt. Radha Devi has also made a similar statement and has given a vivid description of the incident as to how the occurrence took place. She has identified the 'danda' (Ext. P-1) with which the Appellant had given blows to her as well as to Brij Lal, deceased. She further states that a complaint was given by the Pradhan to her husband, Harnam Singh for being delivered at Police Station and the same was delivered to the police when they had gone to the Police Station. 7. PW 3 is Harnam Singh, husband of PW 2. Smt. Radha Devi, who reached the scene of occurrence after hearing the cries of his wife. He saw his father already lying dead and his wife Radha Devi informed him that Hem Singh Appellant had killed his father. 7. PW 3 is Harnam Singh, husband of PW 2. Smt. Radha Devi, who reached the scene of occurrence after hearing the cries of his wife. He saw his father already lying dead and his wife Radha Devi informed him that Hem Singh Appellant had killed his father. At that point of time, Hem Singh was having a 'danda' and he filed away from the scene of occurrence. At the relevant time number of persons including the villagers gathered on the spot. Pradhan was called by PW 8 Prakash Chand. This witness alongwith his wife Radha Devi and 2/3 other persons started on foot for lodging the report at Police Station at about 12/12.30 a.m. as at that time no bus was available and after covering a distance of about 26 Kms. they reached the police station at about 6.00 a.m. where F.I.R. is stated to have been lodged by PW 2. Smt. Radha Devi vide Ext. PA. He also states that police reached the spot and took blood-stained soil as well as shoes of the deceased which were lying at the spot and the same were identified by him as per memo Ext. PB. This pair shoes (Ext. P-2) was taken into possession. He also proved the recovery of 'danda' which was recovered by the police in the presence of PW 2 and PW 3 and was identified by him on the spot. 8. PW 4 is Chamaru Ram, who is the grand-father of the Appellant and has stated that the deceased was his nephew in relation. Since this witness resiled from his previous statement, he was declared hostile and was permitted to be cross-examined. He admits that the Appellant was brought up by him and he used to look after the Appellant in the absence of his father. He further admits that the Appellant is close to him. Amongst other things, he has stated that the path was being used by Brij Lal which was behind the cow-shed of the Appellant and it was a common path. PW 5 is Prakash Chand, Pradhan of the Gram Panchayat. He states that he was called by PW 8, Prakash Chand on 29-4-1989 at about 10 p.m. when these persons came to his house which is at a distance of 3 Kms. from the village of the deceased. PW 5 is Prakash Chand, Pradhan of the Gram Panchayat. He states that he was called by PW 8, Prakash Chand on 29-4-1989 at about 10 p.m. when these persons came to his house which is at a distance of 3 Kms. from the village of the deceased. Pradhan was informed that the Appellant had beaten Brij Lal, but the mode of beating was not disclosed to him. This witness was also informed by Prakash Chand that Brij Lal had since died and as such he desired the Pradhan to visit the spot, where he reached at about 12 (night). He came to the house of the deceased and made inquiry as to how the quarrel took place when Radha Devi, Saraswati and Kashmir Singh informed him. However, he stated that Kashmir Singh was not present there when he made the inquiry. When he was informed by the lady (Radha Devi) that they were returning from Magnu Nullah after lopping off the branches of Beul tree, Saraswati and Kashmir Singh had cross the path which was at a distance of 25 metres from the cow-shed of the Appellant. He was further informed by Saraswati that Radha Devi was pushed and given beating by the accused-Appellant and thus, she had become unconscious. After hearing the details of the incident, he deputed a Panch near the dead body and thereafter recorded the memo and sent the same to the police through Prakash Chand son of the deceased in bis capacity as Pradhan. He further stated that the police came to the spot on 30-4 1989. After making part of his statement, this witness also resiled and was declared hostile. 9. PW 6 is Medical Officer Incharge of Primary Health Centre, Kotli who on 30-4-1989 had examined Smt. Radha Devi (PW 2) as well as conducted the post-mortem of Brij Lal deceased on the same day. It appears that firstly he conducted the post-mortem of Brij Lal and then examined Smt. Radha Devi. After recording the injuries and giving the details, he issued the post-mortem report Ext. PE and in his opinion the death was due to head injury sustained by the deceased. In respect of Smt. Radha Devi, he opined that she had one injury caused by blunt weapon which was simple in nature as per his medico-legal certificate, Ext. After recording the injuries and giving the details, he issued the post-mortem report Ext. PE and in his opinion the death was due to head injury sustained by the deceased. In respect of Smt. Radha Devi, he opined that she had one injury caused by blunt weapon which was simple in nature as per his medico-legal certificate, Ext. PD He further opined that the injury in question caused to the deceased was sufficient in the ordinary course of nature to cause death in his cross-examination, while admitting that the injury sustained by Smt. Radha Devi can be the result of fall on a hard surface, but denied the suggestion that it is possible to be caused with a friendly hand. In respect of the injuries sustained by the deceased, he stated that there was one injury found on the person of the deceased which was on the head on its right side of parietal region and it was possible to sustain it by a fall on hard surface during scuffle if a push is given. 10. PW 7 is Devi Singh who is a witness to the disclosure statement made by the Appellant which was signed by Prakash Chand and the accused and the same is Ext. PH. After making this disclosure statement, the Appellant while in custody took the police to village when Prakash Chand accompanied the police and from his field in the village, 'danda' Ext. P-1 was got recovered which was taken into possession vide memo Ext. PJ. He admits his close relationship with the deceased. 11. PW 8 is Prakash Chand son of the deceased who states that on reaching his village late on the evening of 29-4-1989, he learnt from his brother Harnam Singh and other villagers that the Appellant had killed hit father when he accompanied by other persons visited the house of Paras Ram, Pradhan and Chander Mani, Up Pradhan He alongwith his brother Harnam Singh and his wife Smt. Radha Devi went to Police Station when report was lodged according to this witness by Smt. Radha Devi and Harnam Singh He states that he was outside the police station when the report was lodged. He further states that they went to Police Station on 3-4-1989 alongwith Devi Singh, PW when the Appellant made the disclosure statemen(sic) Ext. PH and pursuant to it, he got the 'danda' Ext. He further states that they went to Police Station on 3-4-1989 alongwith Devi Singh, PW when the Appellant made the disclosure statemen(sic) Ext. PH and pursuant to it, he got the 'danda' Ext. P-1 recovered from his fields in village Nagahan. 12. PW 9 is the photographer. He took photographs Exts. P-8 and P-10 and had produced negatives Exts. P-1 to P-7. 13. Suresh Kumar (PW 10) is the Patwari who prepared the Tatima, Ext. PK and also the jamabandi, Ext. PL on 2-6-1989. 14. Hem Singh, Appellant was serving as Process Server in the Civil Nazarat, Mandi and was sent on duty by PW 11, Kirpa Ram, Naib Nazir. He proved that between 25th April and 1st May, 1989, he was on duty of effecting service of summons in illaqa, Mandi town and the photostat copy of the register in this behalf is Ext. PM. Ext. PN is the certificate issued in this behalf by the Superintendent, Shri Ram Sarup. He has identified the signatures of the Superintendent on this certificate. 15. PW 12 is Head Constable, Rameshwar who states that the case property in this case was deposited in the 'Malkhana' of Police Station, Mandi on 30-4-1989 and on 3-5-1989 and these were sent to Chemical Examiner. PW 13 is Diwan Chand, Constable who had taken the articles handed over to him to Chemical Examiner, Patiala which he took and during the period the articles remained in his custody, those were not tampered with by anyone. 16. PW 14 is Kashmir Singh who stated that he went to the spot on receipt of the information on 30-4-1989 after he had registered the F.I.R. He got prepared the photographs of the dead body after inspecting the same and prepared the inquest report, Ext. PO. After observing other codel formalities and recording the statements of the witnesses, he arrested the Appellant on 1-5-1989. He also stated that on the disclosure of the Appellant on 3-5-1989, 'danda' (Ext. P-1) was recovered from his fields. He has tendered in Evidence the reports of Chemical Examiner, PT and Ext, PU. He has given the reasons for the late submission of the F.I.R. Ext. He also stated that on the disclosure of the Appellant on 3-5-1989, 'danda' (Ext. P-1) was recovered from his fields. He has tendered in Evidence the reports of Chemical Examiner, PT and Ext, PU. He has given the reasons for the late submission of the F.I.R. Ext. PA to Chief Judicial Magistrate, Mandi Although he states that he had given written instructions to send a copy of the F.I.R. through special messenger, the fact remains that F.I.R. was lodged on 30-5-1989 in the early hours of the day and it was delivered in the court of Chief Judicial Magistrate on 1-5-1989 at 9.55 a.m. which fact is recorded on the original F.I.R. Ext. PA. He denied the suggestion of the defence that when he reached on the spot, Appellant was present. He further denied the suggestion of the defence that Hem Singh, Appellant had informed that Brij Lal had failed down as a result of a push given by Harnam Singh and this fact was brought to the notice of other persons. 17. The trial Court also examined three court witnesses, namely, CW 1, Dalip Singh in order to ascertain the delivery of the copy of the F.I.R. and special report to the illaqa Magistrate. CW 2 is L.H.C. Beli Ram, who had brought the despatch register of F.I.R. and according to him, Bahadur Singh had taken the F.I.R. It was Sunday on that day. Bahadur Singh is stated to have died in an accident. As per this witness, according to available record of Police Station, Bahadur Singh had taken the F.I.R. to the residence of Chief Judicial Magistrate but he was not available on 30-4-1989. So, the Constable had taken the F.I.R. to the court on 1-5-1989 and the same was received by the Ahlmad against signatures. CW 3 is Smt. Durga Saini, Ahlmad in the court of Senior Sub- Judge, Mandi, who has stated that she had received the F.I.R. on 1-5-1989 at 9.55 a.m. and she had made an entry of the receipt of the original F.I.R. and she had signed the receipt register in this behalf. 18. After conclusion of the prosecution evidence, the Appellant was examined under Section 313, Code of Criminal Procedure His explanation of the incident is that his land adjoins the land of Harnam Singh. 18. After conclusion of the prosecution evidence, the Appellant was examined under Section 313, Code of Criminal Procedure His explanation of the incident is that his land adjoins the land of Harnam Singh. Harnam Singh's father (deceased) according to him, was talking to Harnam Singh on 29-4-1989 near his cow-shed when Appellant reached there and asked Harnam Singh as to why he came on the land of the Appellant. On this, Harnam Singh held out that he will settle the score with the Appellant. At this juncture, Harnam Singh was stated to have given a push to the deceased when his mother, Smt. Shanti Devi also reached on the spot and she picked up her husband. Shanti Devi is stated to have asked both of them as to why they had gone mad and her husband had got a fit At this stage, Chet Ram brought water from the house of the Appellant. Dwarku Devi wife of Ganga also came to the spot and water was given to the deceased when he was perfectly alright. The Appellant further stated that he is innocent and he has been falsely implicated in the case of Chhater Singh and Daulat Ram. Spot was also inspected in the present case by the trial Court on 20-4-1991 and inspection note is there on the file. 19. Learned Counsel for the appeilant has made the following submissions in support of this appeal and has prayed for acquittal of the Appellant after setting aside the impugned judgment: (a) There are material contradictions and inconsistencies in the ocular and medical evidence since both do not tally; (b) There is delay in sending the copy of the F.I.R. to Magistrate without any explanation. Thus, provisions of Chapter 25 49 of the Punjab Police Rules, as applicable to Himachal Pradesh, have been violated; (c) The F.I.R. lodged vide Ext. PA is not the first version because Shri Paras Ram, Pradhan (PW 5) admits that he had sent a ruqua, why it was withheld and thus the case has not been registered on the first version available with the police and the entire prosecution case becomes suspicious; and (d) The 'danda' (Ext P-1) was recovered from an open field and there is no independent witness to this recovery and thus the recovery is totally doubtful and the prosecution case becomes thoroughly suspicious. 20. 20. In support of his first submission, learned Counsel for the Appellant has pointed out that there is positive evidence of PW 1 that the Appellant gave 'danda' blows on the back of Smt. Radha Devi on which they all raised alarm and started crying loudly. This fact is supported by PW 2 when she states that the 'danda' blow was given by the Appellant on her hip. On this she raised alarm when her father-in-law, Brij Lal, deceased reached the spot. In respect of 'danda' blows inflicted upon the head of Brij Lal, PW 1 states that two blows of 'danda' were given on the head of Brij Lal, whereas PW 2, Smt Radha Devi stated that 'danda' blows (without giving the number of such blows) were given on the head of the deceased which resulted in the death of Brij Lal on the spot. According to the learned defence counsel, injury found on the head of the deceased was only one and on this basis, it has been submitted that in the face of the statements of P Ws 1 and 2 and that of PW 6, the medical evidence is in conflict with ocular version given by this witness In support of this submission, he has submitted that although PW 2 has stated to have received a 'danda' blow on her hip, but nothing was found by PW 6 of that nature and in such a circumstance, according to him, accused would not have given a tender blow because injury mark was found on the person of PW 2. Similarly, no blood mark was found on the 'danda' (Ext P-1). It has further been stated that looking to the type and size of injury, it will not be safe to infer that 'danda' (Ext P-1) was used and according to the learned defence counsel, defence version supports the case put forth by him that the injury sustained by PW 2 was the result of fall on hard surface and the head injury as a result of which Brij Lal died was also the result of fall on hard surface. It has also been argued that since the Appellant has given a probable explanation as such he has discharged the onus. In support of his submission, he has relied upon State v. Nidhan Singh and Ors. It has also been argued that since the Appellant has given a probable explanation as such he has discharged the onus. In support of his submission, he has relied upon State v. Nidhan Singh and Ors. 1984 CriLJ 1362 and Sariyal Udayar v. State of Tamil Nadu 1987 (2)SCC 359. 21. On the basis of the aforesaid facts and circumstances, it was argued that the defence put forth by the Appellant is more probable and the Appellant is entitled to acquittal. 22. In the present case, we have considered the aforesaid submission of the learned Counsel for the Appellant and we are of the view that firstly there is no such conflict which can be made a ground to throw out the prosecution case on this basis and secondly the so-called conflict is not of such a nature from which the Appellant can derive any benefit. From the statement of PW 6, it is clear that PW 2, Smt. Radha Devi had sustained an injury on left gluteal region and there was mild tenderness present. The nature of injury was stated to be simple caused with a blunt weapon. He has further opined that it can be caused by a 'danda' like Ext. P-1. In respect of injury caused on the person of the deceased Brij Lal, it was opined hy PW 6 that it was also possible that 'danda' (Ext. P-1) might have been used to cause the injury. He has further opined that the injury in question was sufficient in the ordinary course of nature to cause death. At this juncture, it may be noted that in respect of only one injury having been found on the head of the deceased Brij Lal was also made a ground asking for acquittal of the Appellant because according to the learned Counsel for the Appellant, two 'danda' blows are stated to have been inflicted on the head of the deceased It may be appropriate to mention here that the possibility of both the 'danda' blows having been inflicted on the same part of the head also cannot be ruled out because it is nobody's case that after the receipt of first blow at the hands of the Appellant, the deceased either tried to move away or to run from the scene of occurrence. The deceased is stated to be an aged person of 67 years and it appears that he was taken by surprise when he was hit with 'danda' (Ext. P-1) by the Appellant. So, the case of the Appellant does not improve as we are of the opinion that there is no conflict between the medical and ocular evidence which can be made the basis for giving any benefit of doubt to the Appellant and hence this submission of the learned Counsel for the Appellant is rejected on this point, 23. So far as the next point of delayed delivery of the F.I.R. and special report to the illaqua Magistrate is concerned, it is necessary to refer to the provisions of Chapter 24.5 of the Punjab Police Rules whereunder the copy of F.I.R. alongwith special report in cases like murder is required to be sent to the illaqua Magistrate and wherever necessary after court hours at his residence. In the event of the Magistrate being not there, it may be left at his residence after making an endorsement of date and time thereof and in the event illaqua Magistrate being not there, it is required to be delivered to other Magistrate. In the case in hand, so far lodging of the F.I.R. and commencement of investigation is concerned, there is no delay. The prosecution witnesses have stated the distance of Police Station from their village is about 26 Kms. whereas the trial Court on spot inspection found that the place of occurrence is 24 Kms. by road and thereafter 2 Kms. was 'kutcha' road. As such it has been rightly held that the F.I.R. has been lodged with promptitude. Thereafter the investigation was undertaken by PW 14 who came to the spot and after recording the statements of the witnesses on the spot and completing other formalities had sent the dead body to Primary Health Centre, Kotli for post-mortem alongwith inquest report (Ext PO), when endorsement was made by the Medical Officer (PW 6) on Ext. PG that it was received at 12.30 p.m. by this witness. 24. In respect of the receipt of F.I.R. by the Magistrate on 1-5-19S9 at 9.55 a. m., the trial Court had examined three court witnesses. According to CW 2, L.H.C. Beli Ram, late L.H.C. Bahadur Singh had taken the F.I.R. to the court and it was a Sunday on that day. 24. In respect of the receipt of F.I.R. by the Magistrate on 1-5-19S9 at 9.55 a. m., the trial Court had examined three court witnesses. According to CW 2, L.H.C. Beli Ram, late L.H.C. Bahadur Singh had taken the F.I.R. to the court and it was a Sunday on that day. So, it was delivered on 1-3-1989. As per this witness, Bahadur Singh had taken the copy of the F.I.R. to the residence of the Chief Judicial Magistrate, who was not available. It was in these circumstances that the same was delivered to the Chief Judicial Magistrate on 1-5-1989 at 9.55 a.m. 25. Learned Counsel for the Appellant has made two-fold submission. Firstly that the investigation has commenced first and the F.I.R. was lodged subsequently, therefore, delay had occurred in submission of the F.I.R. on 1-5-1989 which according to him, is the result of deliberations and improvement made by the prosecution. Secondly, the F.I.R. ought to have been lodged not by PW 2 but on the version submitted by the Pradhan (PW 5) which he had sent in writing through PW 8, Shri Prakash Chand. Although this writing of Pradhan has not been exhibited on the file and put to him when he appeared in the witness box, yet it was referred to by the learned Counsel for the Appellant which clearly shows that he had been informed at 10 p.m. by Prakash Chand, Murari Lal, Jai Prakash and Nek Ram that Brij Lal son of Puran has been killed by Hem Siugh son of Mahant Ram, whose dead body is lying near the cow-shed of Hem Singh. This clearly shows that information sent by Mark X also states about the death of the deceased at the hands of the Appellant. No doubt, other details as to how the incident took place and in what manner the deceased was inflicted injuries resulting in his death are not there, but that by itself does not show that any material particulars of the Appellant having caused the death of Brij Lal is completely ruled out Prompt submission of the F.I.R. and special report to Magistrate is an external check to ascertain whether the F.I.R. was filed in time. Delayed submission of the F.I.R. can lead to an inference that it was not registered at the time stated therein. Delayed submission of the F.I.R. can lead to an inference that it was not registered at the time stated therein. This is, however, subject to the condition that if plausible explanation is given of such delay, as has been done in the present case, Appellant cannot derive any benefit from delayed submission of F.I.R. to Magistrate on 1-5-1989, instead of 30-4-1989. Even otherwise evidence of PW 14 and PW 6 (doctor) establishes beyond any doubt that the investigation had been undertaken immediately on reaching the spot by the Investigating Officer. Dead body of Brij Lal was received by the doctor, PW 6 at 12.30 noon. In this view of the matter Appellant cannot get any support from the cases relied upon by him in this behalf reported in JT 1994 (3) SC 440, L/NK Mehraj Singh v. State of Uttar Pradesh 1982 (2) C LR 605, Dev Raj and Ors. v. State of Himachal Pradesh 1980 CLJ 542, Kamaljit Singh v. State of Punjab. Thus, we are of the view that the Appellant cannot derive any benefit of the alleged submission of the F. I. R. to the illaqa Magistrate on 1-5-1989 instead of its having been delivered immediately after it was recorded on 30-4-1989, does not improve the case of the Appellant in any manner whatsoever. Similarly, the Appellant cannot derive any benefit out of such delay nor it is fatal in the present case. We are also of the view that since the investigation had immediately started after the registration of the case and the dead body had been sent to the medical officer for post-mortem at 12 noon when the Investigating Officer (PW 14) had reached the spot at about 8.30/10 a. m. on 30-4-1989, who after recording the statements as well as completion of other formalities had prepared the inquest report and sent that to the Medical Officer (PW 6) for post-mortem. It may further be appropriate to mention here that in all cases the late submission of the F.I.R. by the investigating agency to the illaqa Magistrate is not always fatal. In this behalf, reference may be made to Kapil Singh and Ors. v. State of Bihar 1990 Cri LJ 1248 and Sarwan Singh and Ors. It may further be appropriate to mention here that in all cases the late submission of the F.I.R. by the investigating agency to the illaqa Magistrate is not always fatal. In this behalf, reference may be made to Kapil Singh and Ors. v. State of Bihar 1990 Cri LJ 1248 and Sarwan Singh and Ors. v. State of Punjab AIR 1976 SC 2304 Since we have held that there are no contradictions as well as inconsistencies between the ocular and medical evidence, as such no benefit can be derived by the Appellant for sending of the F.I.R. on 1-5-1989 to the illaqa Magistrate. At the same time, no prejudice has been shown to have been caused to the Appellant in any manner on this count. 26. So far as the last submission regarding recovery of Ext. P-1, 'danda' from an open field is concerned and there being no independent witness to the disclosure on the basis of which Ext P-1 was recovered, it is pointed out that the field in question was no doubt open, yet the 'danda' (Ext. P-1) was recovered when the Appellant was in custody of the police after the Appellant had made disclosure statement, Ext. PH followed by recovery which was effected vide Ext. PJ. In this view of the matter, there is no fault with the recovery in question at the instance of the Appellant pursuant to his disclosure statement that too from his field and the submission made in this behalf is also rejected. 27. Now, coming to the Criminal Appeal No. 126 of 1992 filed at the instance of Smt. Radha Devi, complainant, it may be noticed at the very outset that a serious contention was raised by the learned Counsel for Respondent No. 1 that since the State has failed to file an appeal, as such the appeal at the instance of the complainant is not maintainable. It has further been argued that the Appellant has been acquitted of the charge under Section 302, I.P.C. and has been convicted under Section 304, Part II as also under Section 323, I.P.C. So, in such a case the Appellant cannot be convicted under Section 302, I.P.C. Further according to the learned defence counsel, in case the appeal of the Appellant fails, in that event punishment inflicted vide impugned judgment does not call for any interference and the appeal filed by the complainant, Smt. Radha Devi deserves dismissal. In support of this submission, he has placed reliance on Kishore Singh and Anr. v. State of M.P. 1977 Cri LJ 1937; S.K. Grover v, Chandra Prakash and Ors. 1986 Cri LJ 56 Mad and Kadiresan v. Kasim and Ors. 1987 Cri LJ 1225 Mad. 28. On the other hand, learned Counsel for the State, who also represents the complainant Smt. Radha Devi has stated that her appeal may be treated as revision and the filing of the revision petition may be treated as a notice of enhancement to the Appellant and on the basis thereof, the Court is competent to convert the conviction of the Appellant from Section 304, Part II and Section 323, I.P.C. to Sections 302 and 323, I.P.C. In support of his submission, he has contended that the action of the Appellant was purely pre-meditated and in order to fulfil this object, he had committed the murder of the deceased, Brij Lal by giving him 'danda' blows on the vital part of his body i.e. head, While giving such blows, the Appellant was well aware that as a result of such blows, the deceased was likely to die. It has also been contended on behalf of the complainant-Appellant that in case of discrepancies between medical and ocular evidence, ocular evidence is to be preferred because medical evidence is only corroborative of the ocular evidence and thus, the defence cannot derive any benefit from such contradiction, if any. Since we have already held in the appeal of the Appellant, Hem Singh that there is no discrepancy, still learned Counsel for Smt. Radha Devi referred to statements of PWs 1 and 2 and suomitted that so far Brij Lal is concerned, he had given no provocation to the Appellant. Since we have already held in the appeal of the Appellant, Hem Singh that there is no discrepancy, still learned Counsel for Smt. Radha Devi referred to statements of PWs 1 and 2 and suomitted that so far Brij Lal is concerned, he had given no provocation to the Appellant. In fact, taking undue advantage of the old age of Brij Lal and without any justifiable cause, the accused-Appellant inflicted fatal 'danda' blows on the deceased. Accused-Appellant had intention as well as knowledge that the injuries inflicted on the deceased are sufficient in the ordinary course of nature to cause death. He has placed reliance on the cases reported in 1990 Cr LJ 839 All, Dharamvir and Ors. v. State of U.P. 1972 Cri LJ 587 SC, Gudar Dusadh v. State of Bihar 1597 Cri LJ 36 Chahat Khan v. State of Haryana; AIR 1983 SC 484, Solanki Chimanbhai Ukabhai v. State of Gujarat and AIR 1988 SC 2154, State of U.P. v. Krishna Gopal, and on the basis of these authorities submitted that ocular version is reliable and trustworthy in the present case to allow the appeal and to convict the accused-Appellant under Sections 302 and 323, I.P.C. He has farther submitted that eye-witnesses' account is to be preferred to the medical evidence. For the reasons set out in this judgment, we agree with the learned Counsel for the complainant, Smt. Radha Devi. 29. To our mind, the only serious contention raised by the Appellant is on the question whether the court in a case like the present one where the State has not filed appeal for enhancement of sentence by altering the sentence from the one imposed by the trial Court to a major offence can interfere in a revision petition filed at the instance of the complainant or not? 30. After considering the respective contentions of the parties, in our view, the Court cannot be a silent spectator where the State choses for whatsoever reason not to prefer an appeal for altering as well as for enhancement of sentence from a smaller offence to a major offence although the person may have been convicted for a minor offence as in the peesent case. If this is allowed to happen, then in that event if an Appellant is an influential person, he can close the judicial process by ensuring that the State comes to his rescue by not approaching the Court and thus make a mockery of the judicial system. Moreover, the purpose of filing an appeal at the instance of the State is that the person concerned should not be condemned unheard and should be put to notice, which is not only in accordance with law, but also in consonance with equity, fair play, good conscience and natural justice. In the instant case, without the appeal having been filed by the State for enhancement, the Appellant has been put at guard as well as notice by the complainant, according to whom, the Appellant has been convicted inadequately as the offence under Sections 302 and 323, I.P.C. had been brought home against the Appellant. So, the Appellant cannot derive any benefit on account of non-filing of the appeal by the State. Even otherwise it will not be reasonable to infer that simply because the State has not filed the appeal, complainant cannot bring to the notice of the court as has been done in the present case for considering the case for enhancement and conversion of sentence from Section 304, Part II to Section 302, I.P.C in the present case. For taking this view we are supported by a judgment of the apex Court reported in 1992 (2) Shim LJ 1985, Madan Gopal Kakkad v. Naval Dubey and Anr. Although it was a case of special leave petition having been allowed and consequently in appeal, the apex Court converted the conviction from Section 354, I.P.C. inflicted by the High Court to Section 376, I.P.C. On the basis of the said judgment, we are of the view that this is a fit case where the conviction and sentence imposed on the Appellant deserves to be modified from section 304, Part II to Section 302, I.P.C. in the peculiar facts and circumstances of the case and it is ordered accordingly. 31. Another question argued by the learned Counsel for the complainant is that in all cases delay in despatch of the F.I.R. to a Magistrate is not always a circumstance to throw out the prosecution case and has placed reliance on AIR 1976 SC 2304, Sarwan Singh and Ors. v. State of Punjab. 31. Another question argued by the learned Counsel for the complainant is that in all cases delay in despatch of the F.I.R. to a Magistrate is not always a circumstance to throw out the prosecution case and has placed reliance on AIR 1976 SC 2304, Sarwan Singh and Ors. v. State of Punjab. He also submits that while inflicting injury on the vital part i.e. head of the deceased, the accused-Appellant had an intention to kill him. For the reasons set out hereinabove in this judgment, we uphold both these Contentions. 32. No other point was urged before us. 33. As a result of the aforesaid discussion we dismiss Criminal Appeal No. 165 of 1991 filed by the Appellant, Hem Singh and while doing so, we order that the Criminal Appeal No. 126 of 1992 be treated as a revision petition and the Registry will register it accordingly. While allowing the same, we further order that the conviction of the Appellant is altered from Section 304, Part II to Section 302, I.P.C. for the reasons set out hereinabove. Accordingly, he is convicted under Section 302, I.P.C. and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000. In default of payment of fine, he will further undergo rigorous imprisonment for a further period of one year. His conviction and sentence under Section 323, I.P.C. is upheld. Both the sentences shall run concurrently. Appellant is on bail. He is directed to surrender to his bail bonds to serve the sentences.