JUDGMENT Munishwar Nath Bhandari, J. - By this batch of criminal appeals, a challenge is made to the order dated 26th September, 2018 passed by the Additional Sessions Judge, Chirawa, District Jhunjhunu (Raj.) in Session Case No.10/2016 (42/2014). The accused-appellants have been convicted for offences under Sections 302 and 201 IPC and sentenced as under: Accused-appellant-Bajranglal: For offence under Section 302 IPC - Life imprisonment with fine of Rs. 50,000/-, in case of default to pay fine, to further undergo six months simple imprisonment. Accused-appellant-Pramod Kumar: For offence under Section 201 IPC - Five years rigorous imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo three months simple imprisonment. Accused-appellant-Aslam: For offence under Section 201 IPC - Five years rigorous imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo three months simple imprisonment. 2. Learned counsel appearing for accused-appellant-Bajranglal, initially, contested the appeal to seek acquittal of the appellant for offence under Section 302 IPC but, later on, arguments were pressed to bring the case under one of the Exceptions given under Section 300 IPC. It was with the prayer that even if the entire prosecution case is accepted, it does not travel beyond Section 304 Part-II IPC. It is not only that no motive to cause occurrence could be proved by the prosecution but it was not otherwise a case of pre-meditation so as to cause occurrence. In fact, the occurrence took place on the spur of the moment, that too, under the provocation given by none else but by deceased-Mukesh. According to learned counsel for appellant-Bajranglal, the case falls under one of the Exceptions of Section 300 IPC. For the reasons given above, conviction for offence under Section 302 IPC has been challenged with the prayer to bring it under Section 304 Part-II IPC and, consequently, to interfere in the sentence. The detailed arguments therefor have been made and would be dealt with by us in later part of this judgment. 3. So far as accused-appellants-Pramod Kumar and Aslam are concerned, arguments have been made to challenge their conviction for offence under Section 201 IPC. A reference of the statements of PW4-Pawan Kumar and PW5-Mahipal apart from written report, Exhibit-P5 and FIR, Exhibit-P6, has been given. 3. So far as accused-appellants-Pramod Kumar and Aslam are concerned, arguments have been made to challenge their conviction for offence under Section 201 IPC. A reference of the statements of PW4-Pawan Kumar and PW5-Mahipal apart from written report, Exhibit-P5 and FIR, Exhibit-P6, has been given. It is to show that they did not supply any false information to screen the offender so as to convict accused-appellants-Pramod Kumar and Aslam for offence under Section 201 IPC. The perusal of Exhibit-P5 and Exhibit-P6 shows that allegation against the accused is not for supply of false information so as to screen the offenders but is that proper treatment to deceased-Mukesh could not be given due to it. 4. A reference of statements of PW5-Mahipal and PW6-Madan has been given to support the arguments. The deceased-Mukesh was taken to different hospitals i.e. Pilani, Chirawa, Hissar and even to Jaipur. As per statements of the witnesses, proper treatment to the deceased could not be given in absence of proper information by appellants-Pramod Kumar and Aslam. 5. Learned counsel submits that proper disclosure about incidence was made by appellants. They had stated that deceased-Mukesh was under the influence of liquor and sustained head injury. In view of the above, conviction for offence under Section 201 IPC is not made out. The argument has also been raised for causing interference in the sentence. It is after referring facts of the case. He submits that sentence of five years rigorous imprisonment needs to be interfered. 6. The arguments have been raised by both the counsel even in regard to delay in lodging of FIR. The FIR was lodged with delay of 37 days and it remained unexplained. The delay in lodging FIR is fatal and on the aforesaid ground also, accused-appellants deserve to be acquitted. 7. Learned counsel for appellants have given the facts in seriatim to show their innocence and at the same time, to press for interference in the sentence if, at all, conviction is maintained though learned counsel for accused-Bajranglal has prayed for substitution of conviction for offence under Section 302 IPC by bringing it under Section 304 Part-II IPC. 8. Learned Public Prosecutor and counsel for complainant have opposed the arguments. It is submitted that trial court has considered evidence led by the prosecution so as the defence before passing the order. The prosecution could bring evidence to prove its case beyond doubt. 8. Learned Public Prosecutor and counsel for complainant have opposed the arguments. It is submitted that trial court has considered evidence led by the prosecution so as the defence before passing the order. The prosecution could bring evidence to prove its case beyond doubt. The prayer is accordingly made not to cause interference in the order of the trial court, rather, it may be confirmed. 9. The arguments of learned Public Prosecutor and counsel for complainant would be considered while dealing with the facts as well as arguments of learned counsel for appellants. Consideration Of The Arguments By The Court: 10. The facts available on record show that an FIR bearing No.330/2014 was registered by the Police for offences under Sections 302, 201 and 120B IPC on a written report, Exhibit-P5, given by complainant-Pawan. After registration of the FIR, the investigation was caused. The statements of witnesses were recorded under Section 161 Cr.P.C., 1973 The Investigating Officer found case against the accused-appellants and, accordingly, a charge sheet for offences under Sections 302 and 201 IPC was filed. Since offences were triable by the Court of Sessions, the case was committed to it. 11. The charges were framed against accused-Bajranglal for offence under Section 302, whereas, against Pramod Kumar and Aslam for offence under Section 201 IPC. The charges were explained to the accused but were denied thus trial commenced. 12. The prosecution produced twenty one witnesses apart from twenty four documents to support its case. The statements of the accused were recorded under Section 313 Cr.P.C., 1973 They produced three documents in defence. The trial court, after marshaling the evidence, convicted accused-appellant-Bajranglal for offence under Section 302 while convicting accused-appellants-Pramod Kumar and Aslam for offence under Section 201 IPC. 13. Learned counsel for appellants has raised issue about delay in lodging the FIR. It is with the delay of 37 days. It is moreso when complainant could know about occurrence and even death of deceased-Mukesh took place. To consider the argument aforesaid, we need to refer statements of witnesses produced by the prosecution. It is moreso when learned Public Prosecutor and counsel for complainant have contested the issue aforesaid. 14. The justification of delay in lodging of the FIR with the delay of 37 days is due to false information about the incidence. To consider the argument aforesaid, we need to refer statements of witnesses produced by the prosecution. It is moreso when learned Public Prosecutor and counsel for complainant have contested the issue aforesaid. 14. The justification of delay in lodging of the FIR with the delay of 37 days is due to false information about the incidence. The accused-Pramod Kumar and Aslam said to have not disclosed real incidence, rather, complainant was made to believe a case of accident out of consumption of liquor. It was stated by accused-Pramod Kumar and Aslam that after taking liquor by deceased-Mukesh, he fell down and sustained injury. He was initially taken to hospital at Chirawa. He was then taken to Pilani followed by Hisar and lastly to Jaipur. Mukesh died in the hospital at Jaipur and believing the story given by accused-Pramod Kumar and Aslam, he was cremated. The complainant could know about the actual incidence later-on. It was found that occurrence took place at the residence of PW2-Suman. There, Bajranglal caused head injury to deceased-Mukesh with a bat. On the aforesaid, a written report was immediately given. The facts aforesaid justify delay in lodging of the FIR and, for that, reference of statements of PW1-Smt. Manesh, PW2-Suman, PW3-Subhash, PW4-Pawan Kumar apart from statements of PW5-Mahipal and PW9-Bhanwarlal are relevant. 15. PW1-Smt. Manesh, PW2-Suman and PW3-Subhash have been declared hostile. In the cross-examination, they have admitted some part of their statements either before Police or before learned Magistrate wherein occurrence said to have been committed by accused-Bajranglal by causing head injury to deceased-Mukesh with a bat. The statements of those witnesses show that occurrence was caused by Bajranglal by causing head injury to deceased-Mukesh with a bat. It was not initially disclosed. It has also come that subsequently, it came in the notice of the complainant thus we do not find delay in lodging of FIR. It has been explained properly by the prosecution in reference to statements made by the witnesses. 16. At this stage, it would be relevant to describe the incidence and for that, we give reference of statement of PW1-Smt. Manesh though she was declared hostile. It is stated that she knows Bajranglal but was not knowing Pramod Kumar and Aslam. She was knowing, at whose residence occurrence said to have taken place. 16. At this stage, it would be relevant to describe the incidence and for that, we give reference of statement of PW1-Smt. Manesh though she was declared hostile. It is stated that she knows Bajranglal but was not knowing Pramod Kumar and Aslam. She was knowing, at whose residence occurrence said to have taken place. Smt. Manesh has admitted her visit at the residence of Suman and due to late night, she stayed there. 17. It is stated that Aslam was with Mukesh at that time. The accused-Bajranglal caused head injury to Mukesh with a bat while she was sleeping at the residence of Suman. It was around at 10- 11 PM in the night, three persons namely, Mukesh, Aslam and Pramod were identified as they were calling each other by their names. She has, however, refused about the cause of incidence. The said witness was declared hostile but, in the cross-examination, she has admitted part "C to D" of Exhibit-P1 before the police. Therein, she has stated about the occurrence caused by Bajranglal and presence of other accused was also shown. In the cross-examination, she has stated about genesis of occurrence. She has, however, refused that a dispute arose when Suman refused to allow Mukesh to go for intercourse with Manesh. 18. In the cross-examination, Smt. Manesh has admitted about her visit at the residence of Suman by a taxi. She has further admitted about availability of three boys at that place. The age group of boys has also been given. The said witness has stated about use of abusive language by deceased-Mukesh and at that stage, head injury was caused by Bajranglal. She has, however, admitted that he was not knowing Pramod Kumar and Aslam. 19. PW2-Suman has also been declared hostile. In the cross-examination, she has refused suggestion given about dispute of money for a girl. She has even refused for payment to Manisha (Manesh) herself or by anyone else. She did not accept the suggestion that Mukesh (deceased) come out from the room and thereupon, insisted to go inside again as he was not satisfied in the first attempt by Manesh. The suggestion about head injury by Bajranglal has also been refused. The suggestion about calling girls by Suman to make illicit relations has also been refused. She did not accept the suggestion that Mukesh (deceased) come out from the room and thereupon, insisted to go inside again as he was not satisfied in the first attempt by Manesh. The suggestion about head injury by Bajranglal has also been refused. The suggestion about calling girls by Suman to make illicit relations has also been refused. It was admitted in her statement before learned Magistrate under Section 164 Cr.P.C., 1973 though, subsequently, said to be under threat. In the statement under Section 164 Cr.P.C., 1973 PW2-Suman has admitted incidence at the instance of Bajranglal while other two accused were present. 20. The statement of PW3-Subhash is also relevant though he was declared hostile. It is to the extent of corroboration of his statement by other evidence or favourable to the prosecution. He is none else but husband of PW2-Suman. He has identified accused-Bajranglal in the court and admitted that he was a driver running our Tempo. He has not identified Smt. Manesh said to be visiting her wife. The admission has, however, been made that many girls used to visit her wife. The boys were called for making illicit relations. PW3 asked her wife (PW2) to stop but it was not accepted. He is, however, not knowing Mukesh, Pramod and Aslam and even about incidence though stated that he could know about occurrence caused by Bajranglal by giving head injury to deceased-Mukesh. The head injury was caused with a bat. 21. It is also stated that Mukesh, Aslam and Pramod were talking to Manisha (Smt. Manesh) and his wife (Suman) while he was lying on a separate cot. He does not know how much amount was paid to his wife (Suman) by the deceased and, out of which, how much money was given to Manisha (Smt. Manesh). It is, however, admitted that if his wife would have accepted his suggestion, the incidence could not have taken place. 22. PW4-Pawan Kumar is a complainant and supported the prosecution case. He has given corroborative evidence and, accordingly, we are relying on the statements of hostile witnesses not only to the extent they are favourable to the prosecution or supported by other evidence. PW4-Pawan Kumar has given complete description of the incidence. It is stated that on 11th June, 2014 at 11.30 PM, Pramod and Aslam came at his residence and asked about deceased-Mukesh. At that time, Mukesh was sleeping. PW4-Pawan Kumar has given complete description of the incidence. It is stated that on 11th June, 2014 at 11.30 PM, Pramod and Aslam came at his residence and asked about deceased-Mukesh. At that time, Mukesh was sleeping. They asked him to inform about their visit. Mukesh was then taken by them for private talk. At around 12.30 AM in the night, Pramod came at his residence and informed that Mukesh is under the influence of liquor. He immediately went to the place of Pramod and found deceased-Mukesh to be unconscious. He was immediately taken to a hospital in Chirawa and thereafter, to Pilani followed by Hisar and lastly, he was taken to Jaipur. 23. It is also stated that as per information given by Pramod and Aslam, deceased-Mukesh was cremated finding it to be a case of accident under consumption of liquor where Mukesh may have received injury. This is even to justify the delay in lodging of the FIR. The said witness made reference of information given by Pramod and Aslam. Mukesh said to have fell down under the influence of liquor and sustained injury. 24. The other material witness, PW5-Mahipal, has given corroborative statement. He has made a reference of extra judicial confession of Pramod and Aslam in a meeting called by the villagers. They informed about cause of occurrence and the head injury caused by Bajranglal. 25. PW6-Madan made statement and is corroborative to the statements of other witnesses. He has, however, admitted in cross-examination that if Aslam and Pramod would have given correct information, proper treatment could have been arranged for the deceased. 26. The statements of PW9-Bhanwar Lal and PW10-Karamveer are again corroborative in nature. In view of the above, evidence led by the prosecution shows that deceased-Mukesh was called by Pramod and Aslam at around 11.00 PM on 11th April, 2014. They visited the residence of PW2-Suman where Manisha (Smt. Manesh) was available. The deceased-Mukesh seems to have made relation with Manisha (Manesh) and when he remained unsatisfied then insisted to go in the room again. When he was stopped, then used abusive language, as a result of which, accused-appellant-Bajranglal caused head injury to deceased-Mukesh with a bat. He was then taken on the motorcycle to the place of appellant-Pramod and thereupon, to various hospitals. The recovery of bat has been made vide Exhibit-P14 and is proved by PW14-Babulal and PW20-Virendra Singh. When he was stopped, then used abusive language, as a result of which, accused-appellant-Bajranglal caused head injury to deceased-Mukesh with a bat. He was then taken on the motorcycle to the place of appellant-Pramod and thereupon, to various hospitals. The recovery of bat has been made vide Exhibit-P14 and is proved by PW14-Babulal and PW20-Virendra Singh. In view of the above, prosecution could prove the occurrence. 27. The question now remains as to whether evidence led by prosecution makes out a case for offence under Section 302 IPC or it falls in one of the Exceptions of Section 300 IPC. If evidence led by the prosecution is taken into consideration as it is, it is not a case where occurrence took place with pre-meditation. It seems to be under provocation by deceased-Mukesh when he was not allowed to enter the room to make relation with Manisha (Manesh). He started abusing and at that stage, accused-Bajranglal caused head injury with a bat. 28. In view of the above, we find that occurrence took place under provocation thus it is not a case of culpable homicide amounting to murder, rather, it falls in one of the Exceptions given under Section 300 IPC. 29. Learned Public Prosecutor and counsel for complainant have contested the aforesaid but could not show occurrence with premeditation or to show that it was not under provocation. Accordingly, we find substance in the argument of learned counsel for appellant-Bajranglal to cause interference in the order of conviction for offence under Section 302 IPC. It is with the prayer to bring it under Section 304 Part-II IPC. 30. The other two accused-appellants are Pramod Kumar and Aslam. They have been convicted for offence under Section 201 IPC. Learned counsel submit that they had disclosed occurrence to the complainant and others, thus a case for offence under Section 201 IPC is not made out. 31. For the aforesaid, we may give reference of Exhibit-P5 and Exhibit-P6 referred by learned counsel for appellants. Exhibit-P5 and Exhibit-P6 do not show a disclosure by appellants-Pramod Kumar and Aslam about incidence where Bajranglal caused head injury to deceased-Mukesh with a bat. According to the statements of PW1-Smt. Manesh, PW2-Suman and PW3-Subhash, to the extent their statements can be relied, apart from statements of PW4-Pawan Kumar, PW5-Mahipal and PW9- Bhanwarlal, the accused-appellants-Pramod Kumar and Aslam did not disclose about incidence caused by accused-Bajranglal. According to the statements of PW1-Smt. Manesh, PW2-Suman and PW3-Subhash, to the extent their statements can be relied, apart from statements of PW4-Pawan Kumar, PW5-Mahipal and PW9- Bhanwarlal, the accused-appellants-Pramod Kumar and Aslam did not disclose about incidence caused by accused-Bajranglal. They had, rather, stated about incidence out of falling down under the influence of liquor but what was not disclosed was head injury caused by Bajranglal with a bat. It was nothing but amounting to giving false information to screen the offenders. 32. In the instant case, main offender was Bajranglal, who caused head injury to deceased-Mukesh and tried to screen him, they did not disclose true facts. In view of the above, we find that a case for offence under Section 201 IPC is made out against accused-appellants-Pramod Kumar and Aslam. 33. Learned counsel for appellants has challenged sentence for the aforesaid offence by referring facts of the case. It is emphasised that disclosure about injury by Bajranglal to the deceased was made by them later-on, thus cannot be said to be complete suppression of true facts. It is also stated that the way occurrence took place, sentence needs to be interfered. 34. We find substance in the argument of learned counsel for appellants for the aforesaid. It is moreso when as per statement of PW9-Bhanwar Lal, accused-appellants-Pramod Kumar and Aslam had later-on disclosed about occurrence caused by accused-Bajranglal. It is while a meeting was organised by the villagers. 35. In view of the facts given above, we cause interference in the sentence of five years rigorous imprisonment with fine of Rs. 10,000/- in the facts and circumstances of the case. It is while maintaining conviction of accused-appellants-Pramod Kumar and Aslam for offence under Section 201 IPC. 36. We have caused interference in the order of conviction of accused-Bajranglal for offence under Section 302 IPC also while substituting it under Section 304 Part-II IPC. In view of the above, we are inclined to cause interference even in the sentence of accused-appellant-Bajranglal and also of the accused-appellants-Pramod Kumar and Aslam for offence under Section 201 IPC. 37. We substitute the sentence of all the three accused-appellants, as under: (i) Accused-appellant-Bajranglal is convicted and given sentence of five years' rigorous imprisonment for offence under Section 304 Part-II IPC with fine of Rs. 50,000/-, in case of default to pay fine, to further undergo three months simple imprisonment. 37. We substitute the sentence of all the three accused-appellants, as under: (i) Accused-appellant-Bajranglal is convicted and given sentence of five years' rigorous imprisonment for offence under Section 304 Part-II IPC with fine of Rs. 50,000/-, in case of default to pay fine, to further undergo three months simple imprisonment. It is by substituting conviction of offence under Section 302 IPC to Section 304 Part-II IPC. (ii) Accused-appellants-Pramod Kumar and Aslam are given six months simple imprisonment with fine of Rs. 10,000/- each, in case of default to pay fine, to further undergo fifteen days simple imprisonment for the offence under Section 201 IPC. 38. With the aforesaid, criminal appeals are allowed in part. 39. In view of disposal of the criminal appeals, applications for suspension of sentence are also disposed of. 40. A copy of this order be placed in each connected file.