Judgment M.L.Visa, J. 1. This appeal by sole appellant is directed against the judgment and order dated 6th of December, 1986 passed by the 4th Additional Sessions Judge, Purnea in Sessions Trial No. 14/1980/6/1986 convicting and sentencing the appellant to undergo imprisonment for life under Section 302 of IPC and RI for 10 years under Section 328 of IPC. Both the sentences have, however, been ordered to run concurrently. 2. It will not be out of place to mention that when this appeal was called out. for hearing nobody appeared on behalf of appellant but the Counsel on behalf of State appeared and he was heard at length. The appeal is, therefore, being disposed of on merit after perusal and scrutiny of the record in view of the decision of Apex Court in the case of Bani Singh and others V/s. State of U.P., AIR 1996 SC 243 : 1996 (2) East Cr C 615 (SC). 3. The brief facts of the case of prcsecution are that on 11.6.1977 at about 8.00 p.m. informant Bageshwar Mandal (PW-8), who was at that time in his house, heard kulla of his daughter Nira Devi from patua (jute) field situated in the west of his house and on hearing this hulla he along with his son Perveen Kumar Mandal (PW-5), Shivlal Mandal (PW-6), Sivan Mandal (PW-7) and others rushed to the patua field from where the hulla of his daughter was coming and he found his daughter Nira Devi was coming towards his house and she at that time was trembling and he also in the light of torch saw appellant, who is his son-in-law and husband of Nira Devi fleeing away towards north direction. Nira Devi then told that the appellant had forcibly administered a drug to her. The informant found that smell like of elderne was coming out from the mouth of Nira Devi. The informant brought Nira Devi to darwaja of his house and witnesses, who had accompanied him to the patua field, went in search of appellant. In the meantime, a number of villagers assembled at the house of the informant and before all of them, Nira Devi disclosed that her husband, the appellant, had forcibly administered a drug to her. The informant brought Nira Devi to darwaja of his house and witnesses, who had accompanied him to the patua field, went in search of appellant. In the meantime, a number of villagers assembled at the house of the informant and before all of them, Nira Devi disclosed that her husband, the appellant, had forcibly administered a drug to her. The informant thereafter by putting his daughter on a bullock-cart proceeded to Jalalgarh but in the way Nira Devi died at about 9.00 p.m. The informant then returned back to his house because it was night and kept the dead body of Nira Devi at his house. In the meantime, the persons, who had chased the appellant came back and told that they could not succeed in apprehending the appellant. Witness Luchai Mandal (not examined) in presence of villagers disclosed that when he was easing out in a field, he saw the appellant fleeing away. On the next day in the morning when the informant went to the patua field from where he had heard hulla of his daughter, he found a pair of nylon shoes belonging to appellant and a small glass phial containing some liquid smelling like elderne. Thereafter, the informant brought the dead body of his deceased daughter Nira Devi to Kasba Police Station and lodged the FIR (Ext. 2) which was recorded on 12.6.1977 at 10.15 a.m. by Kailash Bihari Tiwari (PW-10) who at that time was posted as S.I. there. The informant also produced the pair of nylon shoes and glass phial containing liquid which he had found in the patua field. About the motive of occurrence, informant stated that on the occasion of marriage of his son, his daughter Nira Devi had received a sum of Rs. 150/- as gift which was forcibly taken away from her by the appellant and this fact was disclosed by the deceased to her family members which had caused annoyance to the appellant who had abused and assaulted the deceased on this score and since then the deceased and appellant were not having good relations and quarrels often used to take place between them. Kailash Bihari Tiwary (PW-10)prepared inquest report of the dead body of Nira Devi, sent the dead body to Hospital for post-mortem examination and glass phial for chemical analysis. Kailash Bihari Tiwary (PW-10)prepared inquest report of the dead body of Nira Devi, sent the dead body to Hospital for post-mortem examination and glass phial for chemical analysis. He visited the place of occurrence and after completing investigation submitted charge-sheet under Sections 302 and 328 of IPC against the appellant. Accordingly, the appellant was put on trial after charges under Sections 328 and 302 of IPC were framed against him and after trial, he was found guilty for both the aforesaid charges and he was convicted and sentenced to undergo life imprisonment under Section 302 of IPC and RI for 10 years under Section 328 of IPC as stated above. Both the sentences have, however, been ordered to run concurrently. 4. The case of the appellant before the Court below was total denial of the charges framed against him and his false implication in this case. 5. In order to prove its case, the prosecution has examined 10 witnesses. Bageshwar Mandal (PW-8) is the informant. Hari Prasad Choudhary (PW-1J is a witness who or, hearing hulla had gone to the house of informant where he had seen the deceased. Nageshwar Mandal (PW-3), Perveen Kumar Mandal (PW-5), Shiv Lal Mandal (PW-6) and Sivan Mandal (PW-7) are the witnesses to whom the deceased had disclosed that the appellant had forcibly administered some drug to her. Fashik Lal Das (PW-2) is a tendered witness. Pandey Surendra Narain (PW-4) is the doctor who had held autopsy on the dead body of the deceased. Prabhu Nath Pandey (PW-9) is the Deputy Director, Forensic Science Laboratory, Patna, who had examined the liquid in the glass phial which was found by the informant in the patua field on the morning following the night of occurrence. Kailash Bihari Tiwari (PW-10) is the IO of the case. 6. Bageshwar Mandal (PW-8), the informant, has said that deceased Nira Devi was his daughter and was married to appellant in the year 1974 and she from the month of March 1977 along with appellant was living in his house and at the time of occurrence, she was pregnant. Kailash Bihari Tiwari (PW-10) is the IO of the case. 6. Bageshwar Mandal (PW-8), the informant, has said that deceased Nira Devi was his daughter and was married to appellant in the year 1974 and she from the month of March 1977 along with appellant was living in his house and at the time of occurrence, she was pregnant. He has further stated that on 11.6.1977 at about 8.00 p.m., he was in his house when he heard hulla of his daughter deceased Nira Devi coming from western direction and thereafter he and his son Perveen Kumar Mandal (PW-5) along with Shiv Lal Mandal (PW-6) and Sivan Mandal (PW-7) went running towards the place from where the hulla was coming and they were followed by Nageshwar Mandal (not examined) and he then in the light of torch found that by that time, her daughter had already reached a field and the appellant was running towards north side. When he went near his daughter, he found some smell of elderne coming from her mouth and when he enquired from her daughter, she told him that appellant had administered some drug to her. He then brought his daughter to his house whereas Perveen Kumar Mandal (PW-5) and Shiv Lal Mandal (PW-6) went in search of appellant. He has further stated that after some time, the deceased became unconscious and thereafter, he aftet, carrying her on a bullock-cart proceeded for Jalalgarh Hospital but the deceased died on the way and he then returned back to his house and kept the dead body there because at that time, it was night. About Perveen Kumar Mandal (PW-5) and Shiv Lal Mandal (PW-6), who had gone in search of appellant, he has stated that they returned immediately after some time saying that the appellant could not be apprehended. He has further added that Luchai Mandal (not examined) had also come to his house in the night after he heard the hulla to see his daughter and had told that when he was easing out, he had seen the appellant running away. He has further added that Luchai Mandal (not examined) had also come to his house in the night after he heard the hulla to see his daughter and had told that when he was easing out, he had seen the appellant running away. His further evidence is that next morning, he went to the place of occurrence where he found a pair of nylon shoes belonging to appellant and a glass phial containing some liquid and he then taking the dead body of deceased as well as pair of nylon shoes and a glass phial went to the police station and got the fardbeyan recorded (Ext. 2) and the police prepared a production list (Ext. 1) for a pair of nylon shoes and a glass phial on which he put his signature. According to him, the police prepared an inquest report also of the dead body of the deceased and sent the dead body for post-mortem examination and thereafter, the police visited the place of occurrence on that very day. Hari Prasad Choudhary (PW-1) in his evidence has said that on 11.6.1977 at about 8.00 p.m.. when he was in his house, he heard hulla from the house of informant and thereafter he went there where he found the deceased lying at the darwaja of the house and she was telling that the appellant had forcibly administered some drug to her and ten minutes thereafter, she became unconscious and thereafter the informant put her on a bullock-cart and proceeded for Jalalgarh Hospital and he also accompanied him but the deceased died on way and thereafter they all returned back to the house of informant. According to him, the appellant used to quarrel with the deceased. He has: further stated that on 12.6.1977 in the morning he along with informant went to the police station where dead body of the deceased was produced and the fardheyan of informant was recorded and the informant also produced a pair of nylon shoes belonging to appellant and a glass phial containing some liquid and the police prepared a production list on which he also put his signature. Nageshwar Mandal (PW-3), Shiv Lal Mandal .(PW-6) and Shivan Mandal (PW-7) have said that on the day of occurrence at about 8.00 p.m., they on hearing hulla had come out from their respective houses and they saw the informant taking his daughter Nira Devi towards his house and Nira Devi told that the appellant had forcibly administered some drug to her. They have further stated that after reaching the house, Nira Devi became unconscious after some time. Nageshwar Mandal (PW-3) Shiv Lal Mandal (PW-6) and Sivan Mandal (PW-7) have also stated about the recovery of a pair of nylon shoes and a glass phial from a field in their presence on the next day in the morning. Shiv Lal Mandal (PW-6) has also stated that he went in search of appellant but could not find him. Perveen Kumar Mandal (PW-5) is the cousin of deceased Nira Devi and he has said that on 11.6.1977 at about 8.00 p.m. when he was in his house, he heard the hulla of deceased and when he went in the field towards west and north side of his house from where hulla was coming, he found in the light of torch the appellant coming out from the patua field and he also saw his sister Nira Devi coming out from there who told him that the appellant had forcibly administered some drug to her and he then ran to catch hold of the appellant but he did not succeed and he then returned to his house where he found his sister Nira Devi almost in unconscious condition, who told him that her husband had administered poison to her. He has further stated that he and others proceeded for Jalalgarh Hospital taking her sister on bullock-cart but her sister died on the way. According to him, on the next day in the morning a pair of nylon shoes belonging to appellant and a small glass phial containing some liquid was found in the patwa field which was prqducded at the police station. About the relations between the deceased and appellant, he has stated that prior to occufrence appellant used to assault the deceased. 7. About the relations between the deceased and appellant, he has stated that prior to occufrence appellant used to assault the deceased. 7. Pandey Surendra Narain (PW-4) who is the doctor and who had held the autopsy of the dead body in his evidence has said that on 12.6.1977, he was posted as Civil Assistant Surgeon, Sadar Hospital, Purnea and same day he held post-mortem examination on the dead body of the deceased (although in his evidence he has named the deceased as Mira Devi but at the same time, he has described her as wife of appellant) and found that it was a suspected case of some sortof poisoning and, therefore, viscera was preserved and sent for chemical examination. He has clearly stated that the exact cause of death could not be ascertained. Prabhu Nath Pandey (PW-9), Deputy Director, Forensic Science Laboratory, Patria, has stated that on 21.1.1978 he received a glass phial containing certain poisonous substance and on examination, he found that the glass phial contained parathion which is highly poisonous and is commonly known as Folidol, Paramar or Ekotex and is widely used in agriculture for killing pest. He has proved his report (Ext. 5). 8. In this case, accused has been found guilty and convicted under Section 302 of IPC besides his conviction under Section 328 of IPC. The case of prosecution is that the appellant administered poison to his wife, the deceased, which resulted into her death but the evidence of doctor is that the exact cause of death of deceased could not be ascertained. The doctor has further stated that becuase on post-mortem examination on the dead body of deceased, it was found to be a suspected case of some sort of poisoning, therefore, viscera was sent for chemical examination. The prosecution has not brought on record any report of the chemical examination of viscera. In view of this fact, when the cause of death of deceased has not been established, it cannot be said that the deceased died of poisoning said to be administered by the appellant. So I find that the conviction of appellant under Section 302 of IPC is not based on the proof that death of deceased was because of poisoning administered by him to her. So I find that the conviction of appellant under Section 302 of IPC is not based on the proof that death of deceased was because of poisoning administered by him to her. So far as conviction under Section 328 of IPC is concerned, I find that apart from the evidence of informant, there is evidence of other witnesses including independent witnesses that the deceased had told them that the appellant had administered some drug to her. Their further evidence is that that they had seen the appellant running away from the field where the deceased, had gone to ease out and at the same time when they had reached on hearing the hulla of deceased, they found she was coming out from the same field. They have further brought it on record that on the next day in the morning, a pair of nylon shoes of appellant and small glass phial containing liquid were found at the place of occurrence which was produced at the police station. It is true that the prosecution during the trial did not produce the pair of shoes but then the evidence of witnesses coupled with the evidence of Kailash Bihari Tiwari (PW-10) and the production list (Ext.1) proves it beyond doubt that a pair of nylon shoes and a glass phial containing certain poisonous substance were produced at the time of lodging the FIR on the next day in the morning. The evidence of Perveen Kumar Mandal (PW-5) that he ran to catch hold of appellant, who at the time of occurrence was found coming from the same field from where the deceased was coming out finds support from the evidence of informant and other witnesses who had reached there on hearing hulla that the appellant was seen in the field at the time of occurrence and he fled away. The evidence of Prabhu Nath Pandey (PW-9) as stated earlier establishes that the small glass phial containing some poisonous substance which was recovered in the next day in the morning from where the appellant was found fleeing away contained Parathion which is highly poisonous. Besides this, there is evidence of witnesses that some time after the occurrence, the deceased became unconscious. All these facts combined together show that the appellant had forcibly administered the poison to the deceased. Besides this, there is evidence of witnesses that some time after the occurrence, the deceased became unconscious. All these facts combined together show that the appellant had forcibly administered the poison to the deceased. It is true that the defence has drawn attention of Hari Prasad Choudhary (PW-1), Shiv Lal Mandal (PW-6) and Sivan Mandal (PW-7) have tried to bring on record the contradiction in their evidence by getting it corroborated by the evidence of Kailash Bihari Tiwari (PW-10), the IO but I find the suggestion to Hari Prasad Choudhary (PW-1) is that earlier he had not stated that the deceased became unconscious after 10-15 minutes which he denied and the IO has stated that this witness has not stated before him that the deceased became unconscious after 15 minutes but stated that she became unconscious after some time. About Shiv Lal Mandal (PW-6), I find that there is some confusion in giving suggestion to this witness because in his evidence he has said that before the police he had stated that at the darwaja of his house the deceased told him that the appellant had forcibly administered some drug to her but the IO in his evidence has stated that this witness had not stated before him that the deceased was administered drug at her darwaja. It is nowhere the case of prosecution that the deceased was given poison at her darwaja. About Sivan Mandal (PW-7), I find that this witness has stated that when he went to the house of the deceased after hearing the hulla, the deceased was conscious but became unconscious after 10-15 minutes whereas the IO has stated that this witness had not stated before him that the deceased remained conscious for about 10-15 minutes after her arrival at her darwaja. So I find that the evidence of the aforesaid witnesses on the point of suggestions given to them as to their earlier statements and the evidence of IO on this point do not establish any major contradiction or omission. On the point that the deceased told the witnesses, who had reached the house of deceased after hearing the hulla, that the appellant had forcibly administered some drug, the defence has not given any suggestion to the prosecution witnesses about any contradiction in their earlier statements. On the point that the deceased told the witnesses, who had reached the house of deceased after hearing the hulla, that the appellant had forcibly administered some drug, the defence has not given any suggestion to the prosecution witnesses about any contradiction in their earlier statements. So I find that so far as charge under Section 328 of IPC is concerned, the prosecution has proved its case beyond all reasonable doubts and the Court below has rightly held the appellant guilty under this head. 9. So considering the evidence on record, the conviction and sentence of appellant under Section 302, IPC is hereby set aside but so far as the conviction and sentence under Section 328 of IPC is concerned, it is upheld. 10. In the result, this appeal is dismissed with the modification as indicated above and the judgment and order of the Court below is confirmed with modification. As the appellant is on bail, his bail-bond is cancelled and he is directed to surrender before the Court below to serve out the sentence passed against him for the charge under Section 328, IPC.