JUDGMENT 1. - Cause of death of Beena, as per autopsy report was cardio respiratory arrest due to ingestion of poisonous material. According to the prosecution she was done to death by her husband and in-laws by administering poison. Whereas defence says that she swallowed Celphose and committed suicide. Let us find out the truth. 2. Appellant Ram Sahai (husband of Beena), alongwith three co-accused persons, was put to trial before the learned Additional Sessions Judge (Fast Track) Tonk, who vide judgment dated October 21, 2002 while acquitting co-accused, convicted and sentenced the appellant under Section 302 IPC to suffer imprisonment for life and fine of Rs. 100/-, in default to further suffer simple imprisonment for three months. 3. A written report (Ex.P-1) was lodged at Police Station Sadar Tonk at the instance of Ghasi Lal on July 24, 2001 at 7.30 PM. It was inter alia stated in the report that around 3 P.M. one Smt. Shanti came to the informant's house and intimated that Beena (daughter of informant) had been assaulted by her husband (appellant) and in-laws and she had been poisoned by them with an intention to kill her. The informant rushed to Ram Sahai's house where he found Beena vomiting and her condition was serious. She was removed to the hospital where she died eventually. It was further stated in the report that Beena was pestered by her husband and in-laws for want of Rs. 10,000/- which they required for construction of house. Beena was earlier renounced by her husband for a period about two years when she had also taken up proceedings for maintenance. However on the intervention of Community Panchayat Ram Sahai had taken her back and thereafter she was living with Ram Sahai at his house, though her maltreatment continued. On that report a case under section 302/34 IPC was registered and investigation commenced. Statements of witnesses got recorded, necessary memos were drawn, accused were arrested and on completion of investigation charge sheet was filed. in due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Tonk. Charges under sections 498A and 302 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Sec.313. Cr.PC, the appellant claimed innocence. Two witnesses were examined in defence. Charges under sections 498A and 302 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Sec.313. Cr.PC, the appellant claimed innocence. Two witnesses were examined in defence. The learned trial Judge on hearing final submissions while acquitting co-accused, convicted and sentenced the appellant as indicated herein above. 4. With the help of learned counsel we leafed through the pages of record. Shanti (Pw.15) is the star witness of the prosecution. In her deposition she stated that Ghasi Lal (father of deceased Beena) is her uncle. She and Beena got married ten years back and used to reside with their husbands in the houses of same Guwari. Her in-laws as well as in-laws of Beena used to harass them and for a period of two years their husbands left them to their parental house. During that period Beena filed a petition for maintenance against her husband. Thereafter Panchayat settled the matter and sent Beena to her in-laws house. Ram Sahai (husband of Beena) used to demand a sum of Rs. 10,000/- from Beena and used to harass her. On the day of incident Ram Sahai gave beating to Beena, admixtured 3-4 tablets of Celphose in water and administered the same to Beena. She (Shanti) then attended Beena and remained sitting with her for 15-20 minutes. She rushed to Beena's in-laws and narrated them the whole episode but they did not care. She thereafter went to Ghasi Lal and informed him. When Shanti was confronted with her police statement (Ex.D-8) she stated thus : " iqfyl c;ku izn'kZ Mh&8 esa xksfy;ksa dks dwVus ikoMj cukus dk mYys[k D;ksa ugha gS eSa ugha crk ldrhA " She further stated : " jkelgk; us chuk ds nksuksa gkFk nckdj tgj fiyk;k FkkA eSaus jkelgk; ds ml ij le; /kDdk ugha fn;kA eSa mlds ikl gh [kM+h FkhA " She also stated that : " jkelgk; us chuk dh ukd idM+ dj eqag esa tgj Mkyk Fkk] diM+ksa ij tgj ugha fxjkA chuk dh ukd ij dgha pksV ugha yxhA iqfyl c;ku izn'kZ Mh&8 esa ukd idM+us okyh ckr D;ksa ugha fy[kh irk ugha eSaus rks fy[kkbZ FkhA " 5. Having closely scrutinised the testimony of Shanti we find that it is riddled with numerous incongruencies and embellishments which render the same to be highly dubious and unworthy of credence. Shanti, by no standards of appreciation of evidence can be placed in the category of a wholly reliable witness. This possibility cannot be ruled out that after Beena consumed Celphose, she (Shanti) suddenly developed idea to take revenge from the husband and in-laws of Beena, who were also related to her (Shanti) husband. 6. Dr. Jagdish Chandra Gehlot (Pw.8) who treated the deceased stated that patient was taken to hospital by her parents at 5.45 P.M. and he felt smell of celphose from the mouth of patient. Dr. Poonam Chand Soni (Pw.22), who conducted post-mortem on the dead body, opined in the post-mortem report (Ex.P-20) that cause of death was cardio respiratory arrest due to ingestion of poisonous material. Vide FSL report (Ex.P-21) aluminium phosphide poison was consumed by the deceased. 7. In the facts and circumstances of the case we find that Beena used to be ill-treated by the appellant and because of this harassment she consumed poison. It is established from the evidence adduced at the trial that the willful conduct of appellant in harassing Beena was so cruel that she was driven to commit suicide and the offence of abetment of committing suicide, punishable under section 306 IPC is proved against appellant. Offence under section 302 IPC could not be established against the appellant beyond reasonable doubt. 8. Although charge under section 306 IPC was not framed against appellant but omission to frame charge under section 306 IPC has not resulted in any failure of justice. In Hira Lal v. State (Govt. of NCT) Delhi, [2003(2) WLC (SC) Cri. 216 : 2003(8) SCC 80 ] , their Lordships of Supreme Court in a similar situation observed as under : "Though no charge was framed under section 306, IPC, that is inconsequential. On the facts of the case, even though it is difficult to sustain the conviction under section 304-B IPC, there is sufficient material to convict the accused-appellants in terms of Section 306 IPC alongwith Section 498A IPC." 9. For these reasons, we partly allow the appeal and instead of section 302, we convict the appellant under section 306 IPC. On the facts of the case, even though it is difficult to sustain the conviction under section 304-B IPC, there is sufficient material to convict the accused-appellants in terms of Section 306 IPC alongwith Section 498A IPC." 9. For these reasons, we partly allow the appeal and instead of section 302, we convict the appellant under section 306 IPC. Looking to the fact that the appellant has already undergone confinement for a period of more than six years, the ends of justice would be served in sentencing the appellant to the period already undergone by him in confinement. Appellant Ram Sahai, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.The impugned judgment of the learned trial Judge stands modified as indicated above.Appeal Partly Allowed. *******