JUDGMENT : Kanwaljit Singh Ahluwalia, J. In Sessions Case No.80/2004, three accused namely Kuldeep son of Bhanwar Lal, Neeraj son of Kaushal Kishore, and Bablaa @ Anil son of Kastoor Chand, were tried by the court of Additional Sessions Judge, No.2, Fast Track, Kota. The said court vide impugned judgment dated 24.3.2005, convicted the accused Kuldeep for the offence under Sections 302, whereas Neeraj and Bablaa @ Anil were convicted for the offence under Section 302 with the aid of Section 34 IPC. 2. Having convicted the appellants for the above said offences, the trial Judge vide a separate order of even date, sentenced the appellants as under :- Kuldeep : U/s. 302 IPC : to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo additional six months S.I. Neeraj and Bablaa @ Anil : U/s. 302 read with Section 34 IPC : to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo additional six months S.I. 3. Aggrieved against their conviction and sentence, all the three accused have filed three separate appeals. D.B. Criminal Appeal No. 122/2007 has been filed by the accused Kuldeep, D.B. Criminal Appeal No. 534/2005 has been preferred by Neeraj and D.B. Criminal Appeal No. 359/2005 has been instituted by appellant Bablaa @ Anil. In all the three appeals, the appellants have prayed that the impugned judgment dated 24.3.2005 whereby they have been convicted and sentenced, be set aside and they be acquitted of all the charges. 4. The criminal proceedings in the present case were set into motion on the basis of written report (Exhibit-P/1) presented by Sunil (P.W.1) before Sarjeet Singh (P.W.11), who was then posted as SHO, Police Station Gumanpura, Kota. 5. Sarjeet Singh (P.W.11) in the court deposed that on 21.2.2004, he received a telephonic information from the Police Post MBS, Hospital, Kota that Satyanarayan son of Om Prakash aged 17 years, resident of Hanumanji Mandir, Near Ballabhbadi, in injured condition has been admitted in the hospital and he has received injuries on the left side of ribs. The Investigating Officer noted the contents of information in the Daily Diary vide Entry No.D.6 and proceeded to the spot. 6. As stated earlier, in the MBS Hospital, Kota, Sunil (P.W.1) had presented the written report (Exhibit-P/1). The Investigating Officer noted the contents of information in the Daily Diary vide Entry No.D.6 and proceeded to the spot. 6. As stated earlier, in the MBS Hospital, Kota, Sunil (P.W.1) had presented the written report (Exhibit-P/1). The said written report (Exhibit-P/1), when translated into English, reads as under : "To SHO, Police Station Gumanpura. Subject: Lodging of the report. Sir, It is stated that today in the night at 11:30 PM, marriage procession of Raju and Jony two sons of Daulatram Dhobi resident of Ballabhbadi, was going. When the Barat reached in front of our house, I, my brother Satyanarayan and sister Mina came to watch marriage procession. My elder brother Satyanarayan had exchange of hot words with Kuldeep Dhobi ¼dgklquh gks xbZA½ . At that time, Neeraj Dhobi resident of Ballabhbadi also arrived at the spot. Neeraj caught hold of hands of my brother. Kuldeep gave a knife blow on the left side ribs of my brother Satyanarayan. Blood started oozing out. Satyanarayan turned and ran towards the house and he fell in front of the house of Lekhraj Bhai and became unconscious. We picked him up and on the moped (Luna) of Ramesh Bhai along with my brother-in-law Jai Prakash brought him to the hospital. Around 1:00 AM, brother Satyanarayan was declared dead by the doctor. His body has been kept in mortuary. My brother has been murdered by Kuldeep and Neeraj. The occurrence has been witnessed by me, my sister Mina and Ramesh Chandra Bhoi and my brother-in-law Jai Prakash. I am presenting the report. Legal action be taken. Dated 22.2.04 Sd/- Jai Prakash Sd/- Sunil S/o Om Prakash Bhoi aged 16 years, Resident of Ballabhbadi, Kota." 7. On the basis of above written report (Exhibit-P/1), a formal FIR (Exhibit-P/2) bearing No.130/2004, was registered at Police Station Gumanpura, Kota, for the offence under Section 302 read with Section 34 IPC. 8. From perusal of the above written report, following facts are discernible :- (a) That marriage procession was passing in front of the house of deceased Satyanarayan. (b) That the deceased Satyanarayan along with brother Sunil (P.W.1), sister Mina (P.W.9) was watching the marriage procession, when all of sudden, exchange of hot words took place. (c) That Neeraj had arrived at the spot after the exchange of hot words had taken place. (d) That Neeraj caught hold of the hands of deceased Satyanarayan. (b) That the deceased Satyanarayan along with brother Sunil (P.W.1), sister Mina (P.W.9) was watching the marriage procession, when all of sudden, exchange of hot words took place. (c) That Neeraj had arrived at the spot after the exchange of hot words had taken place. (d) That Neeraj caught hold of the hands of deceased Satyanarayan. (e) That Kuldeep caused single blow of knife in the left side ribs of the deceased Satyanarayan. (f) That in the written report (Exhibit-P/1) leading to registration of FIR (Exhibit-P/2), name of Bablaa @ Anil has not been mentioned. 9. We may notice here that the occurrence in the present case has taken place on 21.2.2004 at 11:30 PM. The written report (Exhibit-P/1) was presented before SHO Sarjeet Singh (P.W.11) on 22.2.2004 in the intervening night of 21st and 22nd of February, 2004 at 1:20 AM. Thereafter, at the same time case was registered at Police Station Gumanpura, Kota. Gumanpura is a locality in the city of Kota. The special report in the city of Kota itself reached concerned Illaqa Magistrate on 23.2.2004 at 11:00 AM. Thus, there is a delay of more than thirty-four hours in reaching of the special report. 10. The prosecution in all had examined eleven witnesses. Thereafter, the statement of the accused were recorded under Section 313 Cr.P.C. and all incriminating evidence was put to them. The accused denied the same and pleaded innocence and false implication. Thereafter, the accused examined five witnesses in defence namely Mahaveer (D.W.1), Heeralal (D.W.2), Subhash (D.W.3), P.K. Vashishtha (D.W.4) and Padam Kumar (D.W.5). We may notice here that the accused appellant Bablaa @ Anil during the course of trial took a plea of alibi. 11. Sunil (P.W.1) in the court stated that he is resident of Ballabhbadi. Satyanarayan was his brother. On 21.2.2004, at around 11:00 or 11:30 PM, they were watching marriage procession of Raju and Jony. The said procession was going in front of their house. This witness along with his brother Satyanarayan and sister Mina were watching the dance in front of Barat. Neeraj was looking at one girl. Then this witness stated that Neeraj was staring at his sister. This witness stated that his brother Satyanarayan had gone to warn Neeraj, then they grappled. Then Bablaa @ Anil and Ramesh came. Ramesh gave a push to Bablaa @ Anil. Then Kuldeep came. Neeraj was looking at one girl. Then this witness stated that Neeraj was staring at his sister. This witness stated that his brother Satyanarayan had gone to warn Neeraj, then they grappled. Then Bablaa @ Anil and Ramesh came. Ramesh gave a push to Bablaa @ Anil. Then Kuldeep came. Then his brother Satyanarayan wanted to run away from the spot. At that stage, Neeraj and Bablaa caught hold of each hand of his brother Satyanarayan and Kuldeep gave a blow with a knife in the ribs. This witness stated that his brother ran towards the house and fell at the spot. 12. To similar effect are the testimonies of Jai Prakash (P.W.2), Mina (P.W.9) and Ramesh (P.W.10). Another witness Jaspal (P.W.5) was declared hostile. 13. We may notice here that Jai Prakash (P.W.2) is brother-in-law of the deceased being husband of Mina, Mina is sister of the deceased. Ramesh is also related to the deceased Satyanarayan. 14. Before we notice and deal with the arguments raised by the learned counsel for the appellants and learned Public Prosecutor, it will be apposite for us to notice the testimony of Dr. G.S. Vishnoi who had conducted autopsy on the dead body of the deceased Satyanarayan. 15. Dr. G.S. Vishnoi (P.W.7) has proved on record the Post Mortem Report (Exhibit-P/10). In the Post Mortem Report (Exhibit-P/10), only one injury has been noticed. In the Post Mortem Report, following one injury has been specified :- (i) Stab wound 1" x 1/3" x cavity deep, Tr. going upward forward obliquely on postero lateral aspect of back M1/3 Lt. Gauge packing removed. (Gauge packing soaked with blood). 16. As per opinion of the doctor, the cause of death was due to shock as a result of ante mortem injury caused to Spleen as mentioned in the post mortem report. The said injury was sufficient to cause death in the ordinary course of nature. 17. We have heard Mr. N.S. Naqvi the learned Senior Counsel assisted by Mr. Nawab Ali Rathore, counsel for the appellant Bablaa @ Anil, Mr. Sharad Purohit counsel appearing for the appellant Kuldeep and Mr. Rakesh Kumar counsel for the appellant Neeraj and Mr. Aladeen Khan, the learned Public Prosecutor. 18. Mr. N.A. Naqvi, the learned Senior Counsel appearing for the accused appellant Bablaa @ Anil has contended that the prosecution witnesses have resorted to falsehood. Sharad Purohit counsel appearing for the appellant Kuldeep and Mr. Rakesh Kumar counsel for the appellant Neeraj and Mr. Aladeen Khan, the learned Public Prosecutor. 18. Mr. N.A. Naqvi, the learned Senior Counsel appearing for the accused appellant Bablaa @ Anil has contended that the prosecution witnesses have resorted to falsehood. It is contended that in the written report (Exhibit-P/1), FIR (Exhibit-P/2) and in the statement of witnesses recorded under Section 161 Cr.P.C., during investigation by police, Bablaa @ Anil has not been named. On 5.3.2004, after eleven days of the occurrence, the supplementary statement of the witnesses were recorded and Bablaa @ Anil was introduced as accused. It is further contended that in the present case, Bablaa @ Anil was arrested first and later supplementary statements under Section 161 Cr.P.C. were recorded and Bablaa @ Anil was introduced as accused. It is submitted that hence, we should discard the testimony of the witnesses by holding that they have scant regard for the truth and are not reliable witnesses. It is further contended that none of the witness has received injury in the occurrence and hence, their presence at the spot is improbable and doubtful. 19. Mr. Rakesh Kumar, the learned counsel for the appellant Neeraj, taking cue from the arguments advanced by Mr. N.A. Naqvi, the learned Senior Counsel, has submitted that no injury has been attributed in the occurrence to the Neeraj and this Court cannot say with certainty that so far Neeraj is concerned, he has also not been falsely implicated as accused, as at a later stage, Bablaa @ Anil was named and introduced as accused. 20. Mr. Sharad Purohit, the learned counsel for the appellant Kuldeep has submitted that in the present case, the appellant Kuldeep has only caused a solitary blow. The accused Kuldeep has not repeated the blow and it has also not come in evidence that after the deceased Satyanarayan ran, he was chased by the appellant. The learned counsel for the appellant has submitted that the medical evidence contradicts the ocular version. It is contended that even though in the written report and in the court witnesses stated that the appellant Kuldeep has caused injury in the left rib of the deceased, but the said injury has been found on the back of chest and it resulted into piercing of Spleen. 21. Mr. It is contended that even though in the written report and in the court witnesses stated that the appellant Kuldeep has caused injury in the left rib of the deceased, but the said injury has been found on the back of chest and it resulted into piercing of Spleen. 21. Mr. Aladeen Khan, the learned Public Prosecutor has submitted that the occurrence has taken place in front of the house of the deceased Satyanarayan and the witnesses and hence, their presence is natural at the spot. 22. We have given due consideration to the rival submissions advanced before us. 23. It is undeniable fact that there was no previous enmity between the parties. The occurrence had taken place on the spur of moment without any pre-meditation. In the initial version given in the written report (Exhibit-P/1), leading to registration of FIR (Exhibit-P/2), it has surfaced that when marriage procession was passing in front of the house of the deceased Satyanarayan, some hot words were exchanged ¼dgklquh gks xbZA½ , followed by a single blow caused by Kuldeep in the left side ribs of the deceased Satyanarayan. 24. It is true that it has surfaced in written report and in the evidence before the court that after receipt of injury, deceased Satyanarayan ran and fell in front of the house of Lekhraj Bhai. Admittedly, after single blow was caused, accused had not repeated the same and he has also not chased and followed the deceased Satyanarayan. In the court, witnesses have improved the version and stated that one of the accused was looking at sister of the deceased to which deceased had objected and raised a protest. Thereafter, hot words were exchanged and grappling had also taken place. From the sequence of version unfolded in the written report and in the court, we are convinced that the occurrence in the present case was without premeditation and had ensued as result of exchange of hot words and altercation. In the heat of passion, Kuldeep caused a solitary blow to the deceased Satyanarayan. Thus, in the present case, Section 34 IPC is not attracted, as we cannot say that Neeraj and Bablaa @ Anil shared common intention with their co-accused Kuldeep. They may not be aware that Kuldeep was carrying knife. 25. We may notice here that there is delay of thirty-four hours in reaching of the special report. 26. Thus, in the present case, Section 34 IPC is not attracted, as we cannot say that Neeraj and Bablaa @ Anil shared common intention with their co-accused Kuldeep. They may not be aware that Kuldeep was carrying knife. 25. We may notice here that there is delay of thirty-four hours in reaching of the special report. 26. The Hon'ble Supreme Court in the case of Bijoy Singh & Anr. v. State of Bihar [ (2002) 9 S.C.C. 147 ], while considering the effect of delay in reaching of the special report, has observed as under :- "6. This Court in Meharaj Singh (L/Nk.) v. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. 7. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. (Emphasis supplied). Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it. 8. In the instant case, the copy of the report referred to in Section 157 CrPC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 CrPC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the "may be"and "must be". The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 CrPC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission." 27. Taking origin and genesis of the occurrence, and the fact that it was a sudden affair, without any pre-meditation, we cannot rule out that the witnesses may have inflated the number of accused and have introduced Neeraj and Bablaa @ Anil as accused, as a result of consultations and deliberations. 28. There is some substance in such a submission." 27. Taking origin and genesis of the occurrence, and the fact that it was a sudden affair, without any pre-meditation, we cannot rule out that the witnesses may have inflated the number of accused and have introduced Neeraj and Bablaa @ Anil as accused, as a result of consultations and deliberations. 28. Even otherwise, we have already held that since the occurrence was a sudden affair, there was no occasion for other co-accused to share common intention with the accused Kuldeep. Thus, as a matter of abundant caution, we shall extend benefit of doubt to the appellants Neeraj and Bablaa @ Anil. We have also considered the fact that Bablaa @ Anil was introduced as an accused at a highly belated stage. 29. Having held that Section 34 IPC is not attracted, and the present occurrence was a sudden affair, we have to determine the offence qua the appellant Kuldeep. 30. For the reasons stated above, that the occurrence was a sudden affair, it was without pre-meditation, as a result of exchange of hot words followed by an altercation, we are of the view that no intention to commit murder can be attributed to the appellant Kuldeep. To us, he had knowledge that causing of solitary blow to Satyanarayan can lead to his death. Therefore, we are of the view that Kuldeep is guilty of offence under Section 304-II IPC and not under Section 302 IPC. 31. Consequently, we acquit the appellant Kuldeep of offence under Section 302 IPC and convict him for the offence under Section 304-II IPC. We set aside the sentence of life imprisonment and fine awarded by the trial court for offence under Section 302 IPC. 32. Having come to the conclusion that Kuldeep is guilty of offence under Section 304-II IPC, we have to determine the sentence to be awarded to the appellant Kuldeep. 33. Mr. Sharad Purohit, the learned counsel for the appellant Kuldeep has submitted that the appellant Kuldeep had already undergone ten years actual sentence. Normally and ordinarily, this Court award five years R.I. for the offence under Section 304-II IPC, but since the learned counsel for the appellant has made a statement at Bar that the appellant Kuldeep has already undergone ten years, we sentence Kuldeep appellant to ten years RI for the offence under Section 304-II IPC. 34. Normally and ordinarily, this Court award five years R.I. for the offence under Section 304-II IPC, but since the learned counsel for the appellant has made a statement at Bar that the appellant Kuldeep has already undergone ten years, we sentence Kuldeep appellant to ten years RI for the offence under Section 304-II IPC. 34. As a result of above discussion, the appeals filed by the appellants namely Neeraj and Bablaa @ Anil are accepted and their conviction and sentence is set aside and they are acquitted of all the charges. The appeal filed by the appellant Kuldeep is disposed of with the modification in conviction and sentence in above terms.