Judgment M.L.Visa, J. 1. This appeal by sole appellant Ram Dulari Sinha, who along with two others faced trial before the Court below, is directed against the judgment and order dated 6.1.1986 passed by 4th Addl. Sessions Judge, Patna in Sessions Trial No. 1 of 1977 arising out of Barh P.S. Case No. 19 dated 19.7.1972 convicting the appellant under Section 302/34 and Section 120-B of the IPC and sentencing her to undergo imprisonment for life under Section 302/34, IPC. No separate sentence has been passed under Section 120-B of the IPC. The case of prosecution, in short, is stated below. 2. Deceased Viswa Kant Sharma @ Viswanath was the son of Dr. Chandrawali Prasad Sinha, who himself died during the course of investigation of this case. The wife of Dr. Chandrawali Prasad Sinha died in the year 1953 leaving behind her husband, the deceased Viswanath, two daughters, namely, Sunaina Sinha (PW 1) and Anjali (not examined). At that time deceased Viswanath was aged about 7-8 years and after the death of his mother, he was not properly looked after by his father, who was living a luxurious life and being dissatisfied with his conduct and behaviour Dwarka Prasad, father of Dr. Chandrawali Prasad Sinha, partitioned his property between his son Dr. Chandrawali Prasad Sinha and his grand son Viswanath half and half in the year, 1954. After the death of his father, Dr. Chandrawali Prasad Sinha started living with appellant Ram Dulari Sinha treating her as his wife and deceased Viswanath came to the house of his elder sister Sunaina at Village-Berhna and started living with her. Appellant Ram Dulari Sinha at that time was young and beautiful and wanted to grab the properties of the deceased allotted to him by his grand father. She also developed close intimacy and clandestine relationship with Raj Dular Singh @ Kaviji and Chandrabanshi Seth. Kaviji was the elder brother of husband of Anjali, the younger daughter of Dr. Chandrawali Prasad Sinha. The deceased did not like Kaviji and Chandrabanshi Seth because of their clandestine relationship with appellant, who got a partition Suit No. 62/69 filed through Jairam Singh in which her two minor sons were plaintiffs and she along with Dr. Chandrawali Prasad Sinha and the deceased were made defendants. Chandrawali Prasad Sinha. The deceased did not like Kaviji and Chandrabanshi Seth because of their clandestine relationship with appellant, who got a partition Suit No. 62/69 filed through Jairam Singh in which her two minor sons were plaintiffs and she along with Dr. Chandrawali Prasad Sinha and the deceased were made defendants. The deceased Viswanath contested the suit and he also filed some letters written by co-accused Chandrabanshi Seth to appellant disclosing their illicit relationship. Dr. Chandrawali Prasad Sinha also filed a false case of cycle theft against deceased Viswanath which after investigation was found false and police recommended prosecution against Dr. Chandrawali Prasad Sinha under Section 211 of the IPC. 3. The deceased Viswanath few months prior to 30.6.1972 which is the date of occurrence in this case, got employment in B.M.P. VI at Muzaffarpur and on 29.6.1972 (Saturday), he applied for leave for 1.7.1972 but it was not allowed and he then after attending his duty on 29.6.1972 came to the house of Sunaina (PW 1) at village Berhna where the deceased stayed in the night. On 30.6.1972 at 3.00 p.m. Kaviji came to the house of Sunaina and took the deceased with him to the residence of Dr. Chandrawali Prasad Sinha on the pretext for talks with his father for amicable settlement of the dispute concerning the title suit. Rajiv (since dead), son of Sunaina (PW 1) also accompanied the deceased to the residence of his father at Barh. The deceased was offered rasgula (a sweetmeat) by his father Dr. Chandrawali Prasad Sinha and from there at about 7.00 p.m., he went to Barh Station and boarded Danapur-Samastipur Express train for going back to Muzaffarpur for joining his duty on 1.7.1972. At that time, the appellant along with Dr. Chandrawali Prasad Sinha and Kaviji also came to Barh Railway Station and appellant and Kaviji boarded the same train but in different compartment next to that which the deceased Viswanath entered but Dr. Chandrawali Prasad Sinha remained at the Railway Station. In the compartment in which the deceased Viswanath entered, Balmiki Prasad Sharma (PW 4), maternal brother of the deceased and Triyogi Narain Sharma (PW 5) an agnate of Balmiki Prasad Sharma were also there from before as they had boarded the train at Bakhtiyarpur. Chandrawali Prasad Sinha remained at the Railway Station. In the compartment in which the deceased Viswanath entered, Balmiki Prasad Sharma (PW 4), maternal brother of the deceased and Triyogi Narain Sharma (PW 5) an agnate of Balmiki Prasad Sharma were also there from before as they had boarded the train at Bakhtiyarpur. They enquired from the deceased about his welfare upon which the deceased told them that he was called by his father at Barh from Berhna through Kaviji for talks in connection with Title Suit. He also told them that he had taken rasgula at the residence of his father and since then he was feeling vomiting. Thereafter, the tram left Barh Station and went to reach more stations. PW 4 and PW 5 found the deceased vomiting and thereafter, once again they found him vomiting when the train reached another Railway Station, namely, Mokamah. PW 4 and PW 5 got down at Mokamah Railway Station and they asked him to get down but the deceased said that he was to join duty on the next day. At Mokamah Railway Station, PW 4 and PW 5 met one Gorakh Babu (not examined), who also, after hearing the condition of the deceased from PWs 4 and 5 went to the deceased and asked him to get down from the train but the deceased declined his request. 4. When the train reached the Barauni Railway Station, Sita Ram Thakur (PW 11) who was then posted as Officer-in-Charge Barauni G.R.P. received information at 9.40 p.m. that one passenger was lying unconscious in Compartment No. 4489 of 46 Up Train on Platform No. 2 and he made Station Diary Entry No. 785 dated 30.6.1972. Immediately thereafter, he received another information that the passenger had died. He then entered another Entry No. 786 dated 30.6.1972 and entrusted investigation to A.S.I. Satyanarayan Jha (PW 31) who went to platform No. 8 and found one unidentified dead body lying there. He prepared inquest report (Ext. 18) of the dead body and also seized the articles found from the dead body such as railway ticket (Mat. Ext. IV), wrist watch (Mat. Ext. V), Money bag (Mat. Ext. VI) and bunch of keys (Mat. Ext. VII) and prepared an inventory (Ext. 19). He got photograph of the dead body (Ext. He prepared inquest report (Ext. 18) of the dead body and also seized the articles found from the dead body such as railway ticket (Mat. Ext. IV), wrist watch (Mat. Ext. V), Money bag (Mat. Ext. VI) and bunch of keys (Mat. Ext. VII) and prepared an inventory (Ext. 19). He got photograph of the dead body (Ext. 1/1) and sent the dead body through constable Satya Narain Thakur (PW 20) to Begusarai for post-mortem and sent photograph of dead body to S.P.P.S. Office, Muzaffarpur; from there the same was sent to C.I.D. for publication. 5. On 14.7.1972 Ramashish (PW 22) Informant, who is brother-in-law of the deceased Viswanath, and husband of Sunaina (PW 1) learnt from a constable, who had gone with some letters from the office of B.M.P. VI, Muzaffarpur to Patna Secretariat where the Informant was posted as Assistant in D.I.G. Military Police Officer, that deceased Viswanath had been discharged from his service for not reporting on duty. Informant then came to his house at Berhna from where he came to know from his wife that on ,29.6.1972 the deceased had come there and on 30.6.1972 Kaviji had come to his house and took the deceased saying that he would get settled the matter in connection with Title Suit with his father and he also came to know that the deceased along with Kaviji went to the house of his father at Barh where he was offered something to eat and deceased Viswanath boarded Danapur Samastipur Express train and witnesses had seen the deceased at Barh Station where the deceased was told that he was feeling vomiting after taking eatable at the house of his father and when the witness told him to stay there, the deceased said that he was urgently required to report for duty. Thereafter, the Informant came to know that a dead body had been found in the train and when the Informant went to G.R.P., he saw the photograph of the dead body which he identified as the deceased. The Informant further came to know that the appellant and accused Kaviji were found travelling beyond Mokamah Railway Station in the same train. The Informant then wanted to lodge a report at G.R.P., Barauni but G.R.P. did not record his statement and advised him to file a case at Barh. The Informant then filed a complaint against the appellant, Dr. The Informant further came to know that the appellant and accused Kaviji were found travelling beyond Mokamah Railway Station in the same train. The Informant then wanted to lodge a report at G.R.P., Barauni but G.R.P. did not record his statement and advised him to file a case at Barh. The Informant then filed a complaint against the appellant, Dr. Chandrawali Prasad Sinha and Raj Dular Singh @ Kaviji before the S.D.M., Barh. The copy of complaint of Informant was forwarded to Barh Police Station for recording the case and, accordingly, Barh P.S. Case No. 19 dated 19.7.1972 under Section 302 was registered. Sri Kishore Raman Prasad Sinha (PW 29), Officer-in-Charge of Barh Police Station took up investigation, recorded statements of some of the witnesses, made local inspection of the place of occurrence, perused the Station Diary entries at Barauni G.R.P., obtained carbon copies of inquest report and post-mortem examination report and also took charge of articles recovered from the dead body. The Informant, not satisfied with the investigation, filed a petition to the D.I.G. and investigation of the case came to be controlled by the C.I.D. and, subsequently, the case was investigated by Md. Munish Khan (PW 27), Kishori Raman Prasad Sinha (PW 29) and lastly by Sri Ramadhar Pandey (PW 30), who submitted charge-sheet in the case. In course of investigation, some letters alleged to be written by co-accused Chandrabhanshi Seth to Dr. Chandrawali Prasad Sinha and the appellant and the diary alleged to be written by the deceased were made over to the Police by the Informant. 6. The Police after investigation submitted charge-sheet under Sections 302/201/120-B of IPC against the appellant, Raj Dular Singh @ Kaviji as well as against Chandrabanshi Seth, who was not made an accused in the complaint petition of Informant. No charge-sheet was submitted against Dr. Chandrawali Prasad Sinha because during the course of investigation he died. The cognizance of the case was taken by the A.C.J.M., Barh, who later on committed the case to the Court of Session where the appellant, as stated earlier, faced trial along with other co- accused persons, namely, Raj Dular Singh @ Kaviji and Chandrabanshi Seth. The Court below after trial found co-accused Chandrabanshi Seth not guilty and, accordingly, acquitted him but it held the appellant and co-accused Raj Dular Singh @ Kaviji guilty and convicted and sentenced them as indicated above. The Court below after trial found co-accused Chandrabanshi Seth not guilty and, accordingly, acquitted him but it held the appellant and co-accused Raj Dular Singh @ Kaviji guilty and convicted and sentenced them as indicated above. Only the appellant has preferred the present appeal against her conviction and sentence. 7. In the Court below, the defence of the appellant, as it appears from the trend of cross-examination of prosecution witnesses and her examination under Section 313 of Cr PC, was of her complete innocence; of her false implication at the instance of the sister and brother-in-law of the deceased; plea of her alibi that at the time of occurrence, she was at Gaya and the diary produced by Informant was not in the handwriting of deceased. In order to prove its case the prosecution has examined 31 witnesses. PW 9 Dora Dome, PW 12 Kusheshwar Prasad, and PW 16 Gorakh Pd. Singh have been tendered. PW 1 Sunaina Sinha, the sister of deceased, has stated that the deceased had gone to the house of his father Dr. Chandrawali Prasad Sinha on the date of occurrence. PW 25 Ramashish Prasad Singh is Informant. PW 2 Chandra-shekhar Prasad Singh is also witness who had seen the deceased along with Kaviji and his nephew going towards the house of Dr. Chandrawali Prasad Sinha and he had a talk with the deceased. PW 3 Ramdeo Singh is witness who had seen the deceased and the appellant with Kaviji boarding the same train at Barh Railway Station PW 4 Balmiki Sharma and PW 5 Triyogi Narain Sharma are the witnesses who were travelling in the same train in which the deceased boarded and they had a talk with the deceased. PW 6 Chandrashekhar Pd. Singh is a formal witness, who has produced the photograph of the deceased published in Criminal Intellegence Gazette (Ext. 1). PW 7 Sitaram Sao is a photographer, who had taken the photograph of the deceased at Barauni G.R.P and prepared negative (Ext. 2) and developed the photograph (Ext. 1/1). PW 8 Nemu Dome, a sweeper, has stated that he had cremated the dead body of the deceased. PW 10 Dr. S.M. Mehdi is a doctor who had held post-mortem examination on the dead body. 2) and developed the photograph (Ext. 1/1). PW 8 Nemu Dome, a sweeper, has stated that he had cremated the dead body of the deceased. PW 10 Dr. S.M. Mehdi is a doctor who had held post-mortem examination on the dead body. PW 11 Sitaram Thakur, was posted as Officer-in-Charge at Barauni G.R.P. at the relevant time and he drew Station Diary Entry No. 785 dated 30.6.1972 on receipt of information that a passenger was lying unconscious in a compartment No. 4449 of train No. 46 Up. PW 13-Ram Narain Singh has produced an attendance register of the office of B.M.P. IV, Muzaffarpur where the deceased was posted (Mat. Ext. I). PW 14 Makeshwar Nath Srivastava, a C.I.D. Inspector is a witness who had written a letter (Ext. 7) to the Civil Surgeon, Patna and had received his reply (Ext. 7/1). PW 17 Hari Shanker Lal Srivastava was posted as Ticket Collector at Barauni Railway Station, who has proved his signature as well as signature of one Paras Nath Singh on the inquest report (Ext. 8 and 8/1). PW 18 Kulvendra Prasad Verma is a handwriting expert, who had compared the handwriting of co-accused Chandra-banshi Seth on some letters said to be written to appellant which were produced during the course of investigation. PW 19, Ramji Sao is a witness who had last seen the deceased with Kaviji and nephew of the deceased on 30.6.1972. PW 20 Satya Narain Thakur was posted as Constable at Barauni G.R.P. and he had taken the dead body of the deceased to Begusarai Sadar Hospital for post-mortem examination. PW 21 Rajendar Singh was posted as Executive Officer, Barh Municipality, in whose presence the specimen handwriting and signature of co-accused Chandrabanshi Seth were taken. PW 22 Rajeshwar Pandey has proved the report (Ext. 11 and 11/1) maintained by Barauni G.R.P.F. PW 23 Binda Prasad and PW 24 Jatanand pandey are formal witnesses who had typed the plaint (Ext. 12) and written statement (Ext. 13) of a title suit which was pending between the deceased and his father. PW 26 Dr. Kishori Mohan Nand was Civil Surgeon-cum-Senior Executive Medical Officer at Patna. PW 27 Md. Munish Khan, PW 28 Ran Vijay Singh, PW 29 Kishori Raman Pd. Sinha and PW 30 Ramadhar Pandey all are Police Officers, who were sometime or the other Incharge of investigation of the case. PW 26 Dr. Kishori Mohan Nand was Civil Surgeon-cum-Senior Executive Medical Officer at Patna. PW 27 Md. Munish Khan, PW 28 Ran Vijay Singh, PW 29 Kishori Raman Pd. Sinha and PW 30 Ramadhar Pandey all are Police Officers, who were sometime or the other Incharge of investigation of the case. PW 31 Satya Narayan Jha was posted as A.S.I. at Barauni G.R.P.S. and who conducted inquiry on the Station Diary Entries Nos. 785 and 786 both dated 30.6.1972. PW 11 Sitaram Thakur in his evidence has stated that on 30.6.1972, he was posted as Officer-in-Charge at Barauni G.R.P. and on that day at about 21.40 hours, he received an information that one passenger was lying unconscious in compartment No. 4449 of Train No. 46 Up at Platform No. 2 and he then got this information entered in Station Diary No. 785 and immediately he then received another information that the passenger lying unconscious had already died and he then entrusted the matter to A.S.I. Satya Narayan Jha. PW 31 Satya Narayan Jha in his evidence has stated that he was entrusted the inquiry in respect of Entry Nos. 785 and 786 and he then went to platform where he found the dead body of an unknown. By identifying the photograpn, he has stated that the dead body was of the deceased. He has further stated that he prepared inquest report (Ext. 3), seized the articles found from the dead body and prepared inventory (Ext. 19) and has proved the railway ticket, wrist watch, money bag with currency note of Rs. 5/- and a key bunch (material Ext. IV, V, VI and VII). He has further stated that because the dead body was of an unknown man, he got the photograph of the body from a local photographer as there was no posting of Range Photographer at Barauni and, thereafter, sent the dead body of the deceased to Begusarai Hospital for post-mortem. He has further stated that subsequently, Informant came to him and after seeing the photograph identified that the photograph was of his brother-in-law-the deceased. He has proved true copies of Station Diary Entry No. 785 dated 30.6.1972 and other entries (Ext. 19/1 to 19/4). About the original Station Diary, the case of the prosecution is that same has been destroyed and the destruction report (Ext. 11/1) has been proved by PW 22 Rajeshwar Pandey. He has proved true copies of Station Diary Entry No. 785 dated 30.6.1972 and other entries (Ext. 19/1 to 19/4). About the original Station Diary, the case of the prosecution is that same has been destroyed and the destruction report (Ext. 11/1) has been proved by PW 22 Rajeshwar Pandey. PW 20 Satya Narain Thakur has identified the photograph of the deceased (Ex. 1/1) and has said that he had taken the dead body of the deceased to Begusarai Hospital for post- mortem. PW 8 Nemu Dome after identifying the photograph of the deceased has stated that he had cremated the dead body of the deceased. PW 7 Sitaram Sao, Photographer, has stated that at Barauni G.R.P, he took the photograph of the dead body and he has proved the negative (Ext. 2) and photo print (Ext. 1/1). PW 25 Ramashish Pd. Singh, the Informant has identified this photograph and has stated that it was of his brother-in-law, the deceased. PW 10 Dr. S.M. Mehdi in his evidence has stated that on 1.7.1972, he held the post-mortem examination on the dead body which was brought by PW 20 Satya Narain Thakur and constable Rameshwar Singh. According to him, the time elapsed since the death was within 24 hours. The evidence of all these prosecution witnesses establishes the fact that the deceased died on 30.6.1972 in Danapur Samastipur Express Train at Barauni Railway Station and the time of death which is 9.00 p.m. as per the case for prosecution is also supported by the evidence of PW 10 who had held postmortem examination on the dead body. The fact that the deceased on 30.6.1972 died at Barauni Railway Station in the train in which he was travelling for going to Muzaffarpur has not been disputed by the defence. 8. Now, the point for consideration is what evidence has been led by the prosecution in order to prove the charge of murder of the deceased against the appellant. 9. PW 1, Sunaina Sinha, sister of the deceased, in her evidence has stated that deceased Viswanath was her brother and her mother died in the year 1953 and at that time his grand father Dwarka Prasad was alive and after the death of her mother, her grand father partitioned the property between the deceased and father of the deceased. 9. PW 1, Sunaina Sinha, sister of the deceased, in her evidence has stated that deceased Viswanath was her brother and her mother died in the year 1953 and at that time his grand father Dwarka Prasad was alive and after the death of her mother, her grand father partitioned the property between the deceased and father of the deceased. She has further stated that after the death of her mother, the appellant started living with her father and the relations between the deceased and his father were strained. She has also stated that on 29.6.1972 in the night her brother came to her house at Berhna which is situated one mile away from Barh and stayed with her and on 30.6.1972 after taking meal when she and deceased were talking with each other co-accused Kaviji came there and asked the deceased to accompany him to the house of father of the deceased who wanted to have talks to compromise the case which was at that time pending between the deceased and his father. Thereafter, the accused along with her (PW 1) minor son Rajiv left the house with Kaviji and he never returned, thereafter. She has further stated that her son Rajiv, who had accompanied the deceased till Barh Railway Station after returning to her house told her that he along with the deceased had gone to the house of father of deceased where deceased may have had some talks there. She has further said that about a fortnight thereafter, she came to know from her husband that the dead body of her brother was found in a train at Barauni Station and he had identified the dead body by seeing its photograph. PW 25 Ramashish Pd. She has further said that about a fortnight thereafter, she came to know from her husband that the dead body of her brother was found in a train at Barauni Station and he had identified the dead body by seeing its photograph. PW 25 Ramashish Pd. Singh, informant, who is brother-in-law of the deceased, has said that on 14.7.1972 one Constable from the office of B.M.R IV, Muzaffarpur came to D.I.G. Military Police Office where he was working as an Assistant and from that constable, he came to know that the deceased had been discharged from service for not reporting on duty and he then on 15.7.1972 after taking leave from the office went to his native house at Berhna where he came to know from his wife that the deceased had come there on 29.6.1972, and on 30.6.1972 at about 3.30 p.m. co- accused Kaviji had come to his house and told that the deceased had been called by his father for getting the dispute between the deceased and his father settled and the deceased then along with co-accused Kaviji and with his (informant) minor son Rajiv left the house and he further came to know from his son Rajiv that the deceased had gone to the house of his father where appellant and one unknown were present besides the father of the deceased and during the talks rasgula was offered to the deceased and after taking the rasgida, the deceased left the house of his father along with Rajiv and went to Barh Railway Station. He has further stated that Rajiv told him that the deceased had told Rajiv that after eating rasgula, he was not feeling well and, thereafter, deceased boarded the Danapur-Samstipur Express Train at Barh at about 6.45 p.m. and Rajiv also told him that while returning to house, he saw the appellant, co-accused Kaviji, father of the deceased and one unknown at Barh Railway Station. The informant has further added that on 16.7.1972, he went to Barauni Railway Station and on enquiry from the Officer-in-charge of Barauni G.R.P, he came to know that on 30.6.1972 the dead body of an unknown was found in Danapur-Samastipur Train and photographs of the dead body were shown to him and he then identified that the photographs were of deceased Viswanath, who was his brother-in-law. According to him, the witnesses, namely, Chandrashekhar Pd. According to him, the witnesses, namely, Chandrashekhar Pd. Singh (PW 6), Ramnandan Singh (not examined), Ramdeo Singh (PW 3) and Sitaram Singh (not examined) told him that on 30.6.1972 they had seen the deceased and Rajiv along with Kaviji going from Berhna to Barh Railway Station. He has further stated that at about 6.30 p.m. the aforesaid witnesses had seen the deceased at Barh Railway Station and they had also seen there the appellant, Kaviji and father of the deceased. He has also said that on 18.7.1972 when he was going to Barauni for enquiry about the case, he met witnesses, namely, Balmiki Sharma (PW 4) and Triyogi Narain Sharma (PW 5) who told him that on 30.6.1972, they were also travelling in the Danapur-Samastipur Express Train when they met the deceased and they saw the victim vomiting and they also saw the appellant and Kaviji getting down from that train at Mokama Railway Station. He has further stated that when he went to Barauni G.R.P., he came to know that no case had been registered and only entries in Station Diary were made and he then on 19.7.1972 filed a complaint in the Court of S.D.M., Barh and the copy of complaint petition was sent to the Police Station for instituting a case and he thereafter, not being satisfied with the case investigation filed a petition in the officer of C.I.D., D.I.G. and thereafter, the investigation of the case came under the control of C.I.D. He has also stated that during the course of investigation he produced some letters which, according to him, arc in the writing of co-accused Chandrabanshi Seth and a diary in the writing of deceased. He has proved these letters (Ext. 10 and 10/1) and writings of deceased of different dates in a diary (Ext. 16/1 to 16/16). He has also stated about the living of appellant with the father of the deceased, the indifferent attitude of appellant and father of deceased towards the deceased, filing of a Title (Partition) Suit at the instance of the appellant against the deceased, filing of false case by the father of the deceased against the deceased and intimate relation between the appellant co-accused Kaviji and co-accused Chandrabanshi Seth. Admittedly, he is a hearsay witness on the points of visit of the house of his father by the deceased, taking sweetmeat there, boarding a train and travelling with co-accused Kaviji up to Mokama Railway Station by the same train. 10. PW 2 Chandrashekhar Pd. Singh in his evidence has stated that on 36.6.1972, he had seen the deceased going towards Barh Railway Station from Berhna Village along with Rajiv and co-accused Kaviji and he also at that time was going to Barh Railway Station and he got an opportunity to have a talk with the deceased at Barh Station when the deceased told him that co-accused Kaviji had gone to his house and had told that there will be talks of a compromise between him and his father and thereafter, the deceased along with Kaviji and Rajiv went to the house of father of the deceased. He has further stated that on the same date at about 7.00 p.m. he saw the deceased boarding Danapur-Samastipur Train and he also saw co-accused Kaviji and appellant boarding the same train and, thereafter, about 15-16 days he came to know from the informant that the dead body of the deceased was found in the train at Barauni Railway Station. PW 3 Ramdeo Singh has stated that on 30.6.1972 at about 6.00 p.m., he had seen the deceased in a Hotel situated near Barh Railway Station belonging to co-accused Kaviji where he had gone for taking tea and he enquired from deceased about his welfare and the deceased was to go to Muzaffarpur and he then accompanied the deceased up to platform where the deceased boarded 46 Down and the appellant and co-accused Kaviji also boarded the same train. He has further stated that after the train left, he saw father of deceased also at the platform. He has further stated that after the train left, he saw father of deceased also at the platform. PW 4 Balmiki Sharma and PW 5 Triyogi Narain Sharma both have stated that on 30.6.1972 they boarded Samastipur-Danapur Express Train at Bakhtiyarpur and when the train reached at Barh Railway Station, they found deceased entering the same compartment in which they were sitting and on enquiry the deceased disclosed that co-accused Kaviji on that day had gone to his house and stated that he had been called by his father for having some talk of compromise and deceased further told that he had taken some sweetmeat at the house of his father and since then he was having vomiting tendency. They have further stated that when the train proceeded further, they saw the deceased vomiting and then they reached Mokama Railway Station where they were to get down from the train they asked the deceased to come with them but the deceased did not agree saying that he had to join duty They have further stated that they met one Gorakh Babu at the station and told him about the condition of deceased and Gorakh Babu also requested the deceased to get down from the train but the deceased did not agree. PW 19 Ramji Sao has stated that on 30.6.1972 at about 5.30 p.m. the deceased came to his shop and ordered him to keep ready ten bundles of biddi saying that he will collect it after some time and at that time co-accused Kaviji and Rajiv were with the deceased and after an hour, the deceased again came to his shop and demanded the bundles of biddi but as the bundles were not ready, the deceased did not wait for biddi saying that he had to catch Samastipur Express and, thereafter, the deceased along with co-accused Kaviji and Rajiv went towards the Railway Station and since then the deceased has not been seen by him. 11. PW 10, Dr. S.M. Mehdi who is the doctor who had held post-mortem examination on the dead body of the deceased in his evidence has said that on 1.7.1972 when he was posted as Dy.Supted., Begusarai Hospital, at about 11.30 a.m., he conducted the autopsy and found that the dead body was of an anemic amerated person, both the lungs densely and firmly adherent to the parities and the plura was markedly thickened. In his opinion, the death was due to natural causes. PW 26 Dr. Kishori Mohan Nand was Civil Surgeon-cum-Senior Executive Medical Officer at Patna and he in his evidence stated that on 6.11.1972 he received a letter from the Superintendent of Police C.I.D. (Ext. 7) making certain queries from him on the basis of extract from the post-mortem examination report. He has stated that he submitted his reply of queries by his letter No. 9640 dated 16.11.1972 (Ext. 7/1) and he again received another letter dated 18.11.1972 (Ext. 7/2) from the office of S.P, C.I.D. and he sent his final reply by his letter No. 10342 dated 5.12.1972 (Ext. 7/3). In his evidence, he has made clear the queries and his reply to those queries and has stated that he endorsed the view of the doctor holding the autopsy as to the cause of death. 12. From the medical evidence which in this case is by two experts, it is clear that both of them are having the same view that the death of deceased was caused due to natural causes. 13. The Court below in its judgment has observed that Dr. S.M. Mehdi in his evidence has stated that on postmortem examination, he found the spleen was markedly enlarged, firm and diseased and the liver was also enlarged, firm and diseased and a person in such condition can do his normal work whereas PW 26 Dr. Kishori Mohan Nand in his evidence has stated that it was not possible for such a person to pursue his normal way of life both physically and mentally. Taking these two contradictory opinions, the Court below opined that the post-mortem examination report submitted by Dr. S.M. Mehdi (PW 10) is not correct because according to it if the physical condition had been so, as given by this doctor, the deceased would not have been able to perform his duties as per the opinion of Dr. Kishori Mohan Nand (PW 26) whereas the fact is that the deceased was performing his duties in B.M.P.VI. Office, he never took leave on medical ground and before his appointment, he must have been medically examined and found fit. In other words, it has placed reliance on the opinion of PW 26 Dr. Kishori Mohan Nand on this point. After highlighting this contradiction, it has also observed that none preservation of viscera by PW 10 Dr. Office, he never took leave on medical ground and before his appointment, he must have been medically examined and found fit. In other words, it has placed reliance on the opinion of PW 26 Dr. Kishori Mohan Nand on this point. After highlighting this contradiction, it has also observed that none preservation of viscera by PW 10 Dr. S.M. Mehdi is also suggestive of the fact that he wanted to help the accused persons although it has also accepted the plea given by PW 10 Dr. S.M. Mehdi that there was no request from the Police for preservation of viscera but at the same time, it has also omited the consideration of evidence of PW 26 Dr. Kishori Mohan Nand on this point that it is neither incumbent nor obligatory for Doctor conducting post-mortem examination on a dead body to preserve viscera where the cause of death could not be ascertained and only in those cases when the Police makes a request for preservation of viscera the Doctor performing the post-mortem examination preserves it. The Court below in its judgment has observed that although there is no direct evidence of the fact that PW 10 Dr. S.M. Mehdi had any prior connection with the accused but if the complicity of the accused is established in the commission of murder by poisoning, collusion of the doctor with the accused, as suggested by the prosecution, cannot be easily brushed aside. Thereafter, the Court below after taking into consideration the evidence adduced on behalf of the prosecution came to conclusion that the deceased died of poisoning administered by the appellant and other co-accused. 14. So far as the evidence on behalf of prosecution is concerned, there is no evidence on record by any witnesses who had seen the deceased on 30.6.1972 in the house of his father, Rajiv was said to be the only witness on this point, who is admittedly dead and for this reason could not be examined. PW 1 Sunaina, sister of the deceased and PW 25 Ramashish Pd. PW 1 Sunaina, sister of the deceased and PW 25 Ramashish Pd. Singh, the Informant who is brother-in-law of the deceased both have deposed on the basis of information which they received from Rajiv and other witnesses have simply stated that they had seen the deceased going towards the house of his father, but as stated earlier, there is not a single witness on the point of meeting the deceased with his father at latters house. The Court below believing the evidence of prosecution witnesses that the deceased had told them that he was offered some rasgula at the house of his father and since then he was having vomiting tendency and also that the deceased vomited in train has come to a conclusion that the deceased was administered poison by the appellant and others. Admittedly, the Court below has drawn its conclusion on the basis of circumstantial evidence as there is no direct evidence of administering poison to the deceased by ahy one in this case. But then, it has to be seen whether the circumstances which have come on record by the evidence led on behalf of prosecution are sufficient to lead to the only possible conclusion that it was the appellant who along with others was equally responsible for administering poison to the deceased. It is true that the appellant during her examination under Section 313, Cr PC took the plea of alibi and she failed to prove it but then merely on this ground, it cannot be said that the charge against appellant stands proved. If for the sake of argument, it be assumed that on 30.6.1972 the deceased had gone to the house of his father where he was offered rasgula even then there is absolutely no evidence on record to establish that at that time the appellant was also present there. In absence of this evidence how the appellant can be held responsible for administering poison to the deceased. Moreover, the factum of administering poison to the deceased has also not been proved in this case. 15. In absence of this evidence how the appellant can be held responsible for administering poison to the deceased. Moreover, the factum of administering poison to the deceased has also not been proved in this case. 15. In the case of Sharad Birdhi-chand Sarda V/s. State of Maharashtra, AIR 1984 SC 1622 : 1989 East Cr C 559 (SC), it has been held that: "In the case of murder by administration of poison, the Court must carefully scan the evidence and determine the four important circumstances which along can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased." 16. In the present case, although prosecution has led evidence by adducing some letters said to be written by co-accused Chandrabanshi Seth to the appellant, the diary of the deceased, the plaint and the written statements of a title suit between the father and the deceased showing that the father of deceased was not having good relations with the deceased. By this evidence, the case of prosecution is that relations of appellant with the deceased were also strained because appellant was living with the father of the deceased as his wife. If this evidence is taken on its face value, it at best will prove that the appellants was having strained relations with the deceased and it is just possible that she was having a motive to eliminate the deceased but then there is no evidence to prove that she was having a clear motive to administer poison to the deceased. Again for the sake of argument if it be assumed that she was having a motive to administer poison to the deceased even then the prosecution case does not stand to other three tests which have been laid down in the judgment of Sharad Birdhichand Sarda V/s. The State of Maharashtra, (supra) because there is no evidence that the deceased died of poison, that the appellant had poison in her possession and that she had an opportunity to administer the poison to the deceased. The Court below simple admitting the evidence of PWs 4 and 5 that they had seen the appellant travelling along with co-accused Kaviji in the same train in which the deceased was travelling has opined that the appellant was travelling in order to watch the reaction of poison which was administered to the deceased. In absence of any evidence that the deceased was offered rasgula by appellant; that rasgida contained poison or that the appellant was even present there when the deceased was given rasgida said to contain any poison, to come to a finding that the appellant was travelling in the same train in which the deceased was boarded to only to see the reaction of poison is only a guess work. Travelling of appellant in different compartment of a train in which the deceased had boarded will not itself prove that the appellant had administered the poison and she was so travelling to see the reaction of the poison. Not only this finding but the other findings of the Court below that the doctor who held autopsy submitted a collusive report in order to save the appellant and other co-accused persons in absence of any evidence on this point is also a finding which is based on simple an imagination and not on any evidence. In this view of the matter, the order and judgment of Court below convicting and sentencing the appellant cannot be upheld particularly in absence of any evidence that the death of deceased was a case of homicide. 17. In the result, this appeal is allowed and the judgment and order of Court below sentencing and convicting the appellant is hereby set aside. The bail bonds of appellant are cancelled and she is discharged from the liability of her bail bonds. Nagendra Rai, J. 18 I agree.