Judgment ( 1. ) APPELLANT has preferred this appeal against the judgment of conviction and sentence, dated 31. 1. 2001 passed by IVth Additional Sessions Judge, morena (M. P.) in S. T. No. 95/95, by which the appellant has been convicted under section 304 (I) of IPC and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs. 5,000 and under Section 324 of ipc, sentenced to undergo rigorous imprisonment for two years with a fine of Rs. 1,000 with default stipulation. ( 2. ) AS per the prosecution story, on 20. 8. 94 in the evening at about 5. 30 at village singpura, Mule Singh, the cousin of informant sobran Singh (PW2) was in the field and appellant Radheshyam along with co-accused Pappu and Sobir were grazing cattle in the field. Mule Singh opposed for grazing the cattle in the field. Thereafter, the accused and co-accused Sobir (who tried by Juvenile Court) came with ballam,farsa, lathi and gun. Appellant Radheshyam inflicted injury by ballam to the head of Mule singh by which he fell down on the ground. Co-accused Jai Singh and Ahibaran Singh also inflicted lathi blows to him. On hearing the noise of Mule Singh, Kamal Singh (PW1) and Udaybhan Singh (PW3) came on the spot. Then Radheshyam inflicted ballam blow to the chest of Kamal Singh (PW1) and co-accused Surajbhan inflicted injury to udaybhan by farsa. Sobran Singh (PW2)also sustained injuries by co-accused. Mule singh was unconscious and thereafter he was taken to the police station by Sobran singh (PW2 ) and on the same night, report was lodged at the police station which is Ex. P3 on the basis of which First Information report was lodged at the police station. Mule Singh was referred to Morena Hospital from where he was referred to J. A. Hospital and during the course of treatment, he died on 4. 9. 94. After completion of investigation, charge-sheet was filed under Sections 302, 307, 147, 148 and 149 of IPC before the competent Court against eight accused persons including the present appellant (accused No. 1 ). After conclusion of trial, the trial Court convicted and sentenced the present appellant accordingly as stated in para one of this judgment but the remaining accused persons were acquitted by learned trial Court. ( 3. After conclusion of trial, the trial Court convicted and sentenced the present appellant accordingly as stated in para one of this judgment but the remaining accused persons were acquitted by learned trial Court. ( 3. ) BEING aggrieved by the judgment of conviction and sentence, this appeal has preferred by the appellant. ( 4. ) THE main submission of the learned counsel for the appellant is that the prosecution examined three eyewitnesses, namely, Kamal Singh (PW1), Sobran Singh (PW2) and Udaybhan Singh (PW3 ). It is submitted by him that independent witnesses, namely, suresh Singh (PW5) and Ram Snehi (PW6) who were examined by the prosecution, turned hostile and not supported the prosecution case while Kamal singh (PW1), Sobran Singh (PW2) and udaybhan Singh (PW3) are relatives of the deceased and they were reached at the spot after the incident, therefore, they cannot be treated as eyewitnesses. Further, it is submitted that during the testimony of the witnesses, the spot of occurrence has also changed and the statements of the witnesses have recorded after eight days of the incident. Further, the report under Section 157 of Cr. P. C. was sent to the Magistrate after eight days of the incident. ( 5. ) ON the other hand, learned counsel for the respondent/state submits that it is not correct that the spot of occurrence has changed and the eyewitnesses, namely, kamal Singh (PW1), Sobran Singh (PW2)and Udaybhan Singh (PW3) were reached at the spot immediately and saw the occurrence. ( 6. ) THE case rests only on the testimony of eyewitnesses, namely, Kamal Singh (PW1), Sobran Singh (PW2) and Udaybhan singh (PW3) while Suresh Singh (PW5) and ram Snehi (PW6) turned hostile. Kamal singh (PW1) deposed that the incident took place on 20. 8. 94 in the evening at about 5. 30. The appellant belonged to same village and there was no previous enmity before this incident The dispute arose due to grazing cattle in the field. Appellant along with other co-accused came to the spot and there was quarrel took place. Appellant inflicted barchi blow to Mule Singh by which he sustained injury on his Kanpati (temple) of left side of head due to which he fell down on the ground. Other co-accused also inflicted injuries by lavhi. Appellant along with other co-accused came to the spot and there was quarrel took place. Appellant inflicted barchi blow to Mule Singh by which he sustained injury on his Kanpati (temple) of left side of head due to which he fell down on the ground. Other co-accused also inflicted injuries by lavhi. On hearing the cry of Mule singh, he went to the spot and saw that appellant Radheshyam has also inflicted injury to the chest of Mule Singh by ballam. He also inflicted one ballam blow to his chest. In the incident, Udaybhan Singh and sobran Singh have also sustained injuries. On the spot, Mule Singh was unconscious. Thereafter, he was taken to the police station and lodged the report by him. Mule Singh was examined at Morena Hospital from where he was referred to J. A. Hospital, gwalior and he died on 4. 9. 94 in the hospital. The witness also stated that he along with Udayhan Singh, Omkishan came gwalior along with Mule Singh. The police seized the blood-stained clothes of deceased mule Singh through seizure memo Ex. P. 1. In para 16 of his cross-examination, the witness denied that there is house in name of Himat Singh but Himat Singh was residing separately. In para17 of his cross-examination, the witness deposed that in his police diary statement he has stated that at the time of incident he was inside the house of Patiram and on hearing the cry of Mule singh, he came out of the house. If this fact is not mentioned in his police diary statement ex. D. 1, he cannot give any explanation. He also denied that he met the witness after seeing the medical report of the deceased. He told that the house of udaybhan Singh and his house is one and there was no other portion of the house. ( 7. ) SOBRAN Singh (PW2) who lodged the report at the police station, corroborated the version of the prosecution case as written in Ex. P3. In his examination-in-chief, he told that the quarrel started over grazing the cattle in the field. The appellant along with other accused came with deadly weapons. Appellant inflicted injuries by ballam to the head of Mule Singh. Mule Singh also sustained injuries on the other portion of his body. Kamal Singh (PW1) also sustained injury on his chest. ( 8. In his examination-in-chief, he told that the quarrel started over grazing the cattle in the field. The appellant along with other accused came with deadly weapons. Appellant inflicted injuries by ballam to the head of Mule Singh. Mule Singh also sustained injuries on the other portion of his body. Kamal Singh (PW1) also sustained injury on his chest. ( 8. ) SIMILARLY, Udaybhan Singh (PW3) also corroborated that the appellant inflicted injury on the head of deceased Mule Singh by ballam. He also sustained injuries during the incident. In para 14 of his cross-examination, the witness deposed that he has no documents which shows that in the field of Himat Singh he had share. In para l8, he admits that his statement was recorded at gwalior. He also denied that he went to the police station. There was contradiction on the spot which recorded in Ex. D3. ( 9. ) THE prosecution examined two more eyewitnesses, namely Suresh Singh (PW5)and Ram Snehi (PW6) but both of them have declared hostile and not supported the prosecution case. In the cross-examination of Ram Snehi (PW6), it appears that the quarrel took place between the appellant along with co-accused and Mule Singh. Mule singh sustained injury by ballam and kamal Singh sustained injury by lathi. ( 10. ) DR. J. N, Soni (PW9) on 4. 9. 94 examexamined the body of the deceased Mule Singh. The post-mortem report is Ex. P41. As per the report, duration of death of the deceased was within 6 hrs to 24 hrs since the postmortem examination. Regarding the nature of injury, it is opined by the doctor that it should be decided on the basis of circumstantial evidence. But the cause of death was due to cardio-respiratory failure as a result of head injury. In para 7, it is also deposed by the doctor that the injury sustained on the body of the deceased was caused by sharp and hard object. In para 8 of cross-examination, doctor denied that treatment for bed-shore was not given. In parall, he also disclosed that due to failure of respiratory system the blood was clotted on several tissues and turned blue. ( 11. ) DR. B. L. Mahor, who conducted the mlc, also examined by the prosecution as pw4. He also examined the deceased Mule singh on 20. 8. 94. In parall, he also disclosed that due to failure of respiratory system the blood was clotted on several tissues and turned blue. ( 11. ) DR. B. L. Mahor, who conducted the mlc, also examined by the prosecution as pw4. He also examined the deceased Mule singh on 20. 8. 94. According to doctor, penetrating wound was found on the left temple (kanpati ). Patient was unconscious. He was referred for X-ray to District Hospital, morena. The report is Ex. P19. On the same day, he also examined the injured udaybhan Singh (PW3) and found penetrating wound on the upper portion of left shoulder. The report is Ex. P21. He also examined the injured Kamal Singh (PW2) and found lacerated wound below the medial end of right clavice bone. The injury caused by hard and blunt object and was within 24 hours. The report is Ex. P23. He was also inquired about the nature of injuries of Mule singh, in which he gave his opinion vide Ex. P 25. ( 12. ) THE main grievance of learned counsel for the appellant is that the trial Court has not appreciated the evidence properly because according to him, Kamal Singh (PW1), Sobran Singh (PW2) and Udaybhan singh (PW3) reached on the spot after the occurrence and their testimony is not reliable. In this regard, he relied on the decision of Apex Court in the case of Mohinder singh and another v. State of Punjab and others, in which it is held that in a case where injured witnesses in the alleged incident examined. The Courts would endeavour to assess the evidence of eyewitnesses first. But, due to some glaring discrepancies in the prosecution case, it should be considered first and thereafter considering the evidence of injured eyewitnesses to have a better perspective of oral evidence. Regarding the appreciation of evidence, he also placed reliance in the case of Hardeep v. State of Haryana and another and Chhakki s/o. Ramnath v. State of Madhya Pradesh. ( 13. ) IT is further alleged that there is delay in recording the statements of the witnesses. In this regards, he relied on vijaybhai Bhanabhai Patel v. Navnitbhai nathubhai Patel and others and Ganesh bhavan Patel and another v. State of Maharashtra. ( 14. ( 13. ) IT is further alleged that there is delay in recording the statements of the witnesses. In this regards, he relied on vijaybhai Bhanabhai Patel v. Navnitbhai nathubhai Patel and others and Ganesh bhavan Patel and another v. State of Maharashtra. ( 14. ) REGARDING omission and contradiction and inordinate delay in sending the report to the Magistrate, learned counsel for the appellant relied on Suresh Chaudhary v. State of Bihar. ( 15. ) IT is also submitted by learned counsel for the appellant that crime number not mentioned in the medical requisition. He relied on Nabab Khan @ Nawab and others v. State of M. P ( 16. ) LEARNED counsel for the appellant also submitted that blood-stained clothes of the deceased were not produced by the prosecution. In this regard, he relied on State of rajasthan v. Taran Singh and another. ( 17. ) IT is also submitted by counsel for the appellant that site plan was not prepared as per the actual point of place of occurrence. In this regard, he relied on Vijay Singh v. State of M. P. and Bashir Shah and others v. State of Rajasthan. ( 18. ) IN the alternative, it is submitted/by counsel for the appellant that in this case, if the appellant found guilty, he prays for relaxation of sentence of the appellant and he may be given benefit of Probation of Offenders Act. In this regard, learned counsel for the appellant relied on Kamal Singh v. State of M. P. and State of Karnataka v. Muddappa. ( 19. ) THE counsel for the appellant gave much stress on the point that the eyewitnesses were reached at the spot after the occurrence. But, if we go through the evidence of Kamal Singh (PW1), Sobran Singh (PW2) and Udaybhan Singh (PW3), it is clear that the witnesses were present at the spot and they saw the incident. The trial court has found that the fatal injury which was caused by the appellant on the head of deceased Mule Singh by ballam, is further corroborated by MLC report Ex. P19 and post-mortem report Ex. P41. As per postmortem report, the injury caused to the deceased by penetrating object which was fatal for the deceased Mule Singh. The trial court has found that the fatal injury which was caused by the appellant on the head of deceased Mule Singh by ballam, is further corroborated by MLC report Ex. P19 and post-mortem report Ex. P41. As per postmortem report, the injury caused to the deceased by penetrating object which was fatal for the deceased Mule Singh. The presence of witnesses as mentioned above was established by their testimony and the learned trial Court has discussed in detail about their presence in paras 16, 17, 18 of the impugned judgment. Although, there are some contradictions and omissions came out in the testimony of eyewitnesses but they are not material in relevant against the present appellant for causing fatal injuries to deceased Mule Singh and also causing incised injuries to Kamal Singh (PW1 ). ( 20. ) THE other objection which was raised by learned counsel for the appellant that the report under Section 157 of Crpc was sent to the Magistrate after eight days of the incident and the statements were also recorded informally. On the other hand, learned counsel for the respondent/state submitted that deceased Mule Singh was taken to the police station by eyewitness and from where he referred to Morena Hospital and thereafter referred to J. A. Hospital for treatment and he died on 4. 9. 94. Due to this, there is no delay in recording the statements. When the evidence of eyewitnesses are trustworthy, therefore, the delay in sending the report under Section 157 of cr. P. C. will not affect the prosecution case. In this regard, reliance can be made in the case of Rabindra Mahto v. State of jharkhand, that mere delay in recording of FIR and sending same to Magistrate is not a circumstance to discard prosecution case in its entirety. It is observed by the apex Court that there cannot be any manner of doubt that Section 157 of Criminal procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of section 157, Crpc are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation. The cases cited by the learned counsel for the appellants do not lay down any law that simply because there is a delay in lodging the FIR or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. Thus in the present case the prosecution has led reliable evidence the veracity of which is not dislodged by delay in recording of the FIR and delay in sending the same to the Magistrate in the facts and circumstances of this case. At best it can be taken to be an infirmity in investigation. ( 21. ) IN this case, the oral testimony is supported by medical evidence and learned trial Court only found the appellant guilty for causing fatal injuries to Mule Singh, the manner in which the incident took place. The trial Court found the appellant guilty for the commission of offence punishable under Section 304 (1) of IPC instead of Section 302 of IPC and secondly, under Section 324 of IPC for causing incised injuries to kamal Singh. The learned trial Court has given cogent reason in 34 of the impugned judgment in holding the appellant guilty. I found that tb 3 finding of conviction as recorded by learned trial court in this regard is based on legal evidence available on record and trial Court not committed any illegality in holding the appellant guilty for conviction under Section 304 (I) of IPC regarding the death of Mule Singh and under section 324 of IPC for causing injuries to kamal Singh. Therefore, in view of the above discussions, the conviction under Sections 304 (I) of IPC and 324 of IPC is hereby maintained. ( 22. Therefore, in view of the above discussions, the conviction under Sections 304 (I) of IPC and 324 of IPC is hereby maintained. ( 22. ) COUNSEL for the appellant also submitted that the sentence of appellant is excessive and he may be given benefit of probation of Offenders Act. In this regard, he placed reliance in the case of Kamal Singh (supra ). ( 23. ) LOOKING to the gravity and seriousness of offence, it is not proper to give the benefit of Probation of Offenders Act to the appellant. In criminal justice system, there should be an equilibrium between the guilt and punishment. In a recent judgment of apex Court in the case of State of M. P. v. Kedar Yadav it is observed that imposing inadequate sentence due to undue sympathy would do more harm to justice by undermining public confidence in the efficacy of law. Society cannot long endure under such serious threats. Every Court has duty to award proper sentence having regard to nature and manner of execution of offence. No formula of foolproof nature is possible for determining just and appropriate punishment. But the object should be to protect society and to deter criminal. Courts should impose such sentence which reflects conscience of society. ( 24. ) THEREFORE, looking to the facts and circumstances of the case and manner in which the offence was committed by the appellant, i think the learned trial Court has awarded proper and adequate sentence. Thus, the conviction and sentence as awarded by learned trial Court is hereby affirmed. The bail bond of the appellant shall stand cancelled. He is further directed to surrender before the trial Court to serve out the remaining part ot sentence. In the result, the appeal is dismissed accordingly. Appeal dismissed.