Judgment : (Delivered by Pratyush Kumar, J.) Criminal Appeal No.1840 of 1980 has been filed under section 374 Cr.P.C. by accused/appellant Hirdesh Kumar challenging the correctness of judgment and order dated 25.8.1980 passed by Shri M. Wahaj Uddin, Sessions Judge, Agra in S.T. No.223 of 1979, State Vs. Hirdesh Kumar and others, under sections 302, 120-B, IPC, P.S. New Agra whereby he was convicted and sentenced to imprisonment for life under section 302, IPC and further convicted under section 328, IPC and sentenced to eight years rigorous imprisonment with a direction that both the sentences would run concurrently. Government Appeal No.2429 of 1980, State Vs. Hirdesh Kumar has been filed on behalf of State of U.P. seeking enhancement of sentence of imprisonment for life to death sentence passed by the Sessions Judge in the said sessions trial, vide judgment and order dated 25.8.1980. Criminal Revision No.1550 of 1980 has been preferred by the first informant with a similar prayer as has been made in the Government Appeal. Since these three cases arise out of the same sessions trial assailing the validity of the same impugned judgment and order, we propose to dispose of all the three cases by a common judgment. Briefly stated the prosecution story is that on 14.7.1977 at 8.30 a.m. at P.S. New Agra, Ganga Ram gave a written report stating therein that his daughter Bimla Devi was married to Hirdesh Kumar 2-1/2 years earlier. For dowry and domestic dispute his son-in-law Hirdesh Kumar, his father Om Prakash and his mother used to ill treat his daughter and abuse her. They used to talk about second marriage (of Hirdesh Kumar). Three months prior to the incident Hirdesh Kumar had called him to his house and said that his daughter could not be adjusted in his house. He should take her with him. For one month he had kept his daughter in his house, thereafter, they called her. He used to receive news from his daughter that her harassment continued as before. That day at 6.30 a.m. he received telephonic message from Hirdesh Kumar informing him that condition of Bimla was very serious. When he reached there, her condition was serious. She was attended by Dr. N.N. Khanna on his call. At about 9.00 a.m. she expired. He was sure that his daughter was murdered. He requested legal action against the guilty persons. When he reached there, her condition was serious. She was attended by Dr. N.N. Khanna on his call. At about 9.00 a.m. she expired. He was sure that his daughter was murdered. He requested legal action against the guilty persons. On this report chik FIR was scribed. Case crime no.241 of 1977 under section 302, IPC was registered and investigation started. Inquest proceedings were held, search of the premises was made. Sample of vomitus inside the room of Hirdesh Kumar along with DDT powder weighing 1/2 kg. kept in a wax paper was taken into possession. Recovery memos were prepared. From the dead body of Smt. Bimla ornaments golden as well as silver were taken off and given in custody of Hirdesh Kumar. From the room of Om Prakash Agarwal, father of Hirdesh Kumar five types of medicines were taken into possession and recovery memo was prepared. On the same day at 2.50 p.m. autopsy on the dead body of Smt. Bimla was conducted. Cause of death could not be ascertained and parts of internal organs were preserved. Viscera was preserved and along with petticoat bearing stool stain sample of vomit were sent for forensic examination. Witnesses were examined. Report of chemical analyst was obtained wherein it was opined that in all the aforementioned items Zinc Phosphide poison was found. Medicines taken from the room of Om Prakash Agarwal were found branded and unbranded medicines. In the sample of DDT Powder no Zinc Phosphide was found. The Investigating Officer prepared the site plan, examined the witnesses, completed the investigation and submitted the charge sheet against Hirdesh Kumar, Om Prakash and Angoori Devi. Charges under sections 302, 328, 120B, IPC were framed against the accused persons. They pleaded not guilty. The prosecution in support of the charges has examined 16 witnesses. Statements of the accused persons were recorded under section 313, Cr.P.C. Hirdesh Kumar admitted that he was married to deceased Bimla and lived with her along with his mother and father, however, he denied that he was dissatisfied with the dowry given by Ganga Ram. He also denied that for this reason he and his parents used to harass and torture the deceased. He admitted that on 10.4.1977 he called Ganga Ram to his house, but denied that he had made complaint against the behaviour of Smt. Bimla. He also denied that for this reason he and his parents used to harass and torture the deceased. He admitted that on 10.4.1977 he called Ganga Ram to his house, but denied that he had made complaint against the behaviour of Smt. Bimla. He pleaded ignorance about whether Ganga Ram wanted to sent Bimla for further studies. According to him, Bimla came back to her sasural on her own accord. He admitted that on 14.7.1977 he had a telephonic conversation with Ganga Ram, but when Ganga Ram came to his house he was not present there. He had gone to fetch the doctor and when he came along with the doctor, Bimla had died. He admitted that autopsy was conducted on the dead body of Bimla and viscera was sent to the Chemical Examiner, but he did not say anything about the findings of the Chemical Examiner that viscera and parts of internal organs, vomitus and petticoat of Bimla contained Zinc Phosphide or she had died due to administration of Zinc Phosphide. He also pleaded ignorance that Zinc Phosphide is used for elimination of rodents and it was available in the chemist shop. He pleaded ignorance that after consumption of Zinc Phosphide the person would start feeling its bad effects and die within eight hours. He pleaded ignorance that Dr. Dhameja and Dr. Arjun Dev were practising medicine in his colony. He denied that 3-4 months after the incident he and his father admitted their mistake to Lakhan Lal. He also denied that he had ever purchased Zinc Phosphide. According to him, he was falsely implicated. According to him, witnesses were deposing against him after taking money. According to him, he is 30 years old. He has further stated that Bimla was well educated and she used to purchase household articles from the market. The other accused Angoori Devi and Om Prakash, who were acquitted by the Sessions Judge, also made almost similar statements. On behalf of the prosecution first informant Ganga Ram was examined as PW-1, who is father of deceased Bimla. In his statement he has supported the facts stated in the FIR. According to him, in his caste it is customary to give and take dowry. On behalf of the prosecution first informant Ganga Ram was examined as PW-1, who is father of deceased Bimla. In his statement he has supported the facts stated in the FIR. According to him, in his caste it is customary to give and take dowry. At the time of marriage of Bimla he had given dowry to the accused persons, but they ill-treated her on account of dowry and complained that Bimla used to misbehave and she does not know household work. The accused made this complaint to Daya Shankar Gupta, Ram Autar, Ramesh Chand Sharma, Ram Sharan Agarwal and Lakhan Lal Gupta. According to him, he had explained that all the settled items were given in the dowry. If any item was found to be sub-standard, it would be changed. On 10.4.1977 Hirdesh Kumar telephoned him that Bimla was not well, but when he reached, she was all right. Accused persons made a complaint against the behaviour of Smt. Bimla and asked him to take her back. After he brought Bimla to his house, he wrote to Principal of Vanasthali Institute for admission of Smt. Bimla for further studies. He has proved letter dated 26.4.1977 and 5.5.1977 marked as Exhibit Ka-17 and Ka-18. According to him, on 17.5.1977 Sarla, daughter of Smt. Laxmi telephoned him that Bimla be sent to her sasural with seasonal gifts. On the same day with appropriate seasonal gifts he sent Bimla to her sasural, but their behaviour did not change and they continued to torture her. On 14.7.1977 he received a telephonic message from Hirdesh Kumar at 6.30 a.m. about the serious condition of Bimla. He immediately reached there. She was lying inside the room on a cot in a restless condition. She was unable to speak. Om Prakash, Angoori Devi along with other neighbours were present there, but Hirdesh Kumar was not there. He called Dr. N.N. Khanna, who came at 7.00 a.m. and examined Bimla and informed him that she had died. According to Dr. Khanna her death was not natural. A day earlier Bimla was in a sound health. She had a long talk with his wife and son, thereafter, he prepared a report and lodged it at P.S. concerned. The witness has proved the report Exhibit Ka-1. Shri Ram Agarwal, PW-2 is the real brother of deceased Bimla and son of the first informant. A day earlier Bimla was in a sound health. She had a long talk with his wife and son, thereafter, he prepared a report and lodged it at P.S. concerned. The witness has proved the report Exhibit Ka-1. Shri Ram Agarwal, PW-2 is the real brother of deceased Bimla and son of the first informant. He has deposed that one day earlier he and his mother went to Bimla's house and stayed there up to 8.30 p.m. When they were leaving, Om Prakash had asked Hirdesh not to forget to give medicine to Bimla. According to him, on the following morning news was received that Bimla was in a serious condition. Following his father he also reached there, but Bimla had died. Laxmi Devi, PW-3 is neighbour of the accused person. She has deposed that Sarla is her daughter. Bimla was the wife of Hirdesh Kumar. Sometimes she visited the house of Om Prakash. Om Prakash never told him that Hirdesh Kumar wanted to give divorce to Smt. Bimla. Ram Autar, PW-4 has stated that 2-1/2 months after marriage of Hirdesh Kumar with Bimla, Ganga Ram and Om Prakash came to him. Om Prakash complained to him that in the marriage Rs.15,000/- were to be given, however, he had received only Rs.7,000/-. According to Ganga Ram he gave Rs.7,000/- in cash and one scooter of Rs.8,000/-. He asked them to leave the matter for him to consider. After 3-4 days he asked Om Prakash that Rs.8,000/- was a huge amount. It could not be given. Thereafter Ganga Ram told him that accused persons were ill treating Bimla. Two months before the death of Bimla, Ganga Ram approached him that Om Prakash had called him. He asked Ganga Ram to have a talk with Om Prakash. Ganga Ram informed him that they had asked him to take back Bimla, at this he had a talk with Om Prakash and asked him not to break the marriage. It would bring bad name to the families, but Om Prakash did not listen to him, however, after some time accused persons had asked Bimla to come back. Shyam Babu Jain, PW-5 has deposed that he knew Hirdesh Kumar and Bimla from six months before the death of Bimla. Thereafter, the witness said he did not recollect correctly how much earlier he had seen Hirdesh Kumar purchasing rat poison at Rawat Pada. Shyam Babu Jain, PW-5 has deposed that he knew Hirdesh Kumar and Bimla from six months before the death of Bimla. Thereafter, the witness said he did not recollect correctly how much earlier he had seen Hirdesh Kumar purchasing rat poison at Rawat Pada. Lakhan Lal, PW-6 has deposed that he knew accused persons and Ganga Ram. They had approached him to mediate between the two families, but he could not hold the panchayat. 3-4 months after the death of Bimla, Hirdesh Kumar telephonically requested him to come to his house. When he had gone to meet them, Hirdesh Kumar and Om Prakash had stated that they were being harassed by the police. He might go to Ganga Ram and apologise on their behalf. Ramesh Chandra, PW-7 has deposed that he knew both the parties. According to him, Om Prakash had told him that though Ganga Ram spent money, but he did not give good articles in dowry. Lila Khan, PW-8 is the police officer, who on the direction of Station Officer had visited the house of accused on 14.7.1977 at about 8.00 a.m. There on instruction he conducted the inquest proceedings of the dead body of Smt. Bimla, proved the inquest report Exhibit Ka-2. He also prepared diagram and challan of the dead body Exhibit Ka-3 and Ka-4, letter addressed to Civil Surgeon, Exhibit Ka-5, recovery memo of medicines, Exhibit Ka-6, recovery memo of sample of vomitus, Exhibit Ka-7 and memo of handing over of ornaments, Exhibit Ka-8. Ziledar Singh, PW-9 is the Head Moharir, who scribed the chik FIR, Exhibit Ka-9 and entered its registration in the General Diary, extract whereof is Exhibit Ka-10. He has proved report of the General Diary whereby samples taken from the house of the accused were deposited in the police station, copy whereof is Exhibit Ka-11. Dr. R.K. Sharma, PW-10 is the Medical Officer, who conducted the autopsy on the dead body of Smt. Bimla. According to him, rigour mortis was present all over the body. There was one black spot on the lower side of the jaw. Eyes were slightly congested. Stool stain was found which came out of anus. Lips, gums and hands and nails were pale in colour. After describing the internal examination he has stated that internal organs were congested. Trachea was heavily congested. Inside the stomach 80 ounces dirty blackish fluid was found, which contained some bubbles. Eyes were slightly congested. Stool stain was found which came out of anus. Lips, gums and hands and nails were pale in colour. After describing the internal examination he has stated that internal organs were congested. Trachea was heavily congested. Inside the stomach 80 ounces dirty blackish fluid was found, which contained some bubbles. Large intestine was full of faecal matter. Dr. N.N. Khanna, PW-11 has stated that he is Medical Practitioner having degrees of M.B.B.S. and M.D. He knows family of Ganga Ram very well. In the month of June or July 2-1/2 years ago he examined the body of Bimla at Balkeshwar Colony. He had received telephone of Ganga Ram at 6.30 a.m. requesting him to come immediately as his daughter was in a critical condition. When he examined Bimla, she had died. Her body was lying outside in courtyard on a cot. Her fingers were clenched. He has further stated that if 10 gms of Zinc Phosphide are administered, it would cause death. Zinc Phosphide is not used for treatment of any illness. This poison is slow acting and it causes death in 8-10 hours. After it reaches stomach within 2-3 hours, the patient would feel discomfort. The patient would have urge to vomit, have difficulty in breathing, but would be able to speak till he/she became unconscious. Zinc Phosphide is used for killing rats and it is available in the market. Dr. R.C. Dhameja, PW-12 has stated that in Balkeshwar Colony he is practising medicine for 11 years. He lives there. He identified male accused persons by saying that they also live there. In July 1977 he was not called by the accused persons to attend to Bimla. Dr. Arjun Dev, PW-13 has stated that for last 15 years he is residing at Balkeshwar Colony and for last 10 years he is practising medicine there. He was not called by any accused person for treatment. Vidhyadhar Tiwari, PW-14 has stated that for the last 20 years he is working as Principal of Banasthali Higher Secondary School where education to girls is imparted. His institution is a renowned institution in India as well as in foreign countries. He has identified his signature on Exhibit Ka-13. He has filed two letters written by Ganga Ram addressed to him, proved by Ganga Ram, PW-1 and marked as Exhibits Ka-17 and Ka-18. His institution is a renowned institution in India as well as in foreign countries. He has identified his signature on Exhibit Ka-13. He has filed two letters written by Ganga Ram addressed to him, proved by Ganga Ram, PW-1 and marked as Exhibits Ka-17 and Ka-18. S.P. Harplani, PW-15 is Assistant Chemical Examiner in Chemical Examination Laboratory. He has stated that he is working on this post since August 1972. He is M.Sc, PHD in chemistry. He had analysed several thousands viscera. He has also examined the samples sent by the Investigating Officer of this case which included some samples taken by Dr. R.K. Sharma, Medical Officer, who conducted the autopsy on the dead body of Smt. Bimla. He has stated that the samples were received in sealed packets. Viscera was sent in another packet in a glass jar. Parts of stomach, intestine, liver, kidney and spleen were sent for chemical examination. In the lower part of second packet other materials like medicines etc. were kept. In the samples of viscera, vomitus and petticoat taken from the body of Bimla bearing brown stain Zinc Phosphide was present. The witness has proved his report Exhibit Ka-16. According to him, Zinc Phosphide is used for killing rats. 12 grams Zinc Phosphide is fatal dose. K.K. Tyagi, PW-16 is the Investigating Officer, who has stated that report was lodged in his presence. He had deputed S.I. Lila Khan and some constables to go on the spot. Inquest proceedings were conducted under his supervision. He had inspected the spot and prepared site plan, Exhibit Ka-19. He has further stated that sample of vomitus was also taken. He had examined Ganga Ram and Laxmi Bai. According to him, the room where Bimla Devi had slept during the fateful night was the room of Bimla Devi and Hirdesh Kumar. Thereafter he has stated on which date he had examined which witness. He has further stated that after receiving report of Chemical Examiner he took steps for the arrest of accused persons and submitted the charge sheet. In the defence no evidence was led. Learned Sessions Judge after hearing the arguments of both the parties has pronounced the imugned judgment and order. In the impugned judgment on the basis of evidence of Dr. R.K. Sharma, PW-10, report of Chemical Examiner S.P. Harplani, PW-15, his testimony and also on the strength of the statement of Dr. In the defence no evidence was led. Learned Sessions Judge after hearing the arguments of both the parties has pronounced the imugned judgment and order. In the impugned judgment on the basis of evidence of Dr. R.K. Sharma, PW-10, report of Chemical Examiner S.P. Harplani, PW-15, his testimony and also on the strength of the statement of Dr. N.N. Khanna the learned Sessions Judge came to the conclusion that Bimla Devi died due to administration of Zinc Phosphide poison. He has also believed the statement of Ganga Ram, PW-1, Lakhan Lal, PW-6 and recorded the finding that there was dissatisfaction in the family of Hirdesh Kumar concerning the things given in the dowry. He has also recorded the finding that there were strained relations between the two families on account of Bimla. On the strength of statement of Shyam Babu Jain, PW-5 he has recorded the finding that Hirdesh Kumar purchased rat poison. On the basis of the evidence of Ganga Ram, PW-1 he has also recorded the finding that Hirdesh Kumar telephoned him when Bimla was not able to speak or even breathe. According to him, as a husband Hirdesh Kumar owed the duty to Bimla to take her care. He neither took her to hospital nor summoned any doctor, such conduct remains unexplained. On the basis of these findings he rejected the theory of suicide and found Hirdesh Kumar guilty of causing death of his wife Smt. Bimla. The learned Sessions Judge taking into account the additional evidence i.e. procurement of rat poison by Hirdesh Kumar gave benefit of doubt to co-accused Om Prakash and Smt. Angoori Devi and acquitted them. Feeling aggrieved on behalf of Hirdesh Kumar appeal has been filed against his conviction and sentence. We would deal later on with the Government Appeal and Criminal Revision separately. Here we would like to consider the arguments advanced in support of the appeal filed on behalf of the appellant Hirdesh Kumar. Shri Apul Mishra, Advocate has challenged the correctness of all the findings recorded by the learned Sessions Judge though he did not question the finding that Bimla died due to administration of Zinc Phosphide poison, however, his stand is that it was a case of suicide. The learned counsel has argued that ordinarily poison cannot be forcibly administered, mostly it is self administered. The learned counsel has argued that ordinarily poison cannot be forcibly administered, mostly it is self administered. He further submits that had the poison been forcibly administered to Bimla, some ante mortam injuries would have been found on her person. He has referred to the testimony of Dr. R.K. Sharma, PW-10, who had stated that during autopsy he did not find any ante mortem injury on her dead body in support of this argument. Learned counsel for the appellant has also attacked the findings recorded by the learned Sessions Judge in reference to dissatisfaction with the articles given in dowry and strained relations between Smt. Bimla on one hand and her husband and in-laws on the other hand. According to him, statements of Ganga Ram, PW-1, Sri Ram Agarwal, PW-2, Ram Autar, PW-4, Ramesh Chand, PW-7 are not trustworthy. He has also submitted that whatever correspondence had taken place between Ganga Ram and Principal Banasthali Higher Secondary School in May 1977 is not related to the admission of Smt. Bimla. Learned counsel for the appellant has also argued that the learned Sessions Judge has wrongly placed burden of proof on the appellant while misinterpreting the provisions contained in section 106, Evidence Act. According to him, it is the obligation of the prosecution to prove the guilt of the accused. This burden can never be shifted on the accused. In support of the argument he has referred the case of Dharmendra Vs. State of U.P., LAWS (ALL)-2010-8-139. He has placed reliance on paras 7 to 12 of the judgment. Division Bench of this Court while referring various judgments of the Supreme Court in para 12 of the report has held the following:- "The above discussion, thus, reveals that the statement of the accused can only be utilized to lend credence or negate the prosecution version. If the prosecution fails to prove its case, then statement under Section 313 Cr.P.C. cannot be resorted to nor section 106 Evidence Act can be had to convict an accused. Section 313 of the Code can be utilized by the prosecution only for a limited purpose to lend credence to its evidence....." The second case relied on by the learned counsel for the appellant is Subramaniam Vs. State of Tamil Nadu, LAWS (SC)-2009-5-149. According to him, this is also a case wherein husband was prosecuted for the murder of his wife. State of Tamil Nadu, LAWS (SC)-2009-5-149. According to him, this is also a case wherein husband was prosecuted for the murder of his wife. In reference to provisions contained in section 106 of the Evidence Act the Supreme Court in para 7 of the report has observed the following:- "So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor." Lastly, while relying upon the judgment of the Supreme Court rendered in Jaipan Vs. State of Haryana, LAWS (SC)-2002-10-41 the learned counsel for the appellant while referring to the observations made in paras 12, 13 and 15 he has read the caution sounded by the Constitution Bench of the Supreme Court in Raghav Prapanna Tripathi and others Vs. State of U.P., AIR 1963 SC 74 . The relevant part is quoted as below:- "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual the more likely was it, considering such matter, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." Learned AGA has supported the findings recorded by the learned Sessions Judge and also submitted replies to the arguments advanced by the learned counsel for the appellant indicated as above. First we would like to make clear the legal position of the duties of the appellate court in an appeal against conviction and scope open to it for re-appreciation of evidence. First we would like to make clear the legal position of the duties of the appellate court in an appeal against conviction and scope open to it for re-appreciation of evidence. We would like to refer observations of the Supreme Court made in following two cases:- 1.Devi Singh and others Vs. State of M.P., (2002) 9 Supreme Court Cases 631. In para 4 of the said case, the Supreme Court has observed as under:- "......As a court of first appeal it was required not only to appreciate the evidence on record but also to refer to the arguments raised before it and after applying its mind to decide the appeals. A citizen who has been sentenced to life imprisonment, has a right to be heard in the first appeal and have his case considered in its proper perspective by the first court of appeal............." 2. Ram Bharosey Vs. State of U.P. in Criminal Appeal No.1059 of 2005. In para 7 of the said case, the Supreme Court has observed as under:- "........It is true that while deciding a Criminal Appeal filed under Section 374 of the Code of Criminal Procedure, 1973, the High Court must go into all the details of oral and documentary evidence adduced in the case and conclusions should be drawn on the basis thereof......" Now, we propose to deal with the arguments advanced in support of the appeal. Unnatural death of Smt. Bimla is an admitted fact. Testimony of Dr. R.K. Sharma, who conducted the autopsy on the dead body of Smt. Bimla only proves the death of Smt. Bimla. The doctor could not ascertain the cause of death. The witness has no enmity with the accused persons or no affinity towards the first informant. He in discharge of his official duty had conducted the post mortem and noted the condition of dead body in the post mortem report prepared by him at the time of autopsy. His statement is corroborated from the observations recorded in post mortem report, Exhibit Ka-12. During the cross examination the deposition made by the witness has not been challenged. This establishes death of Smt. Bimla on 14.7.1977. The next relevant piece of evidence is statement of Dr. N.N. Khanna, PW-11, who has stated symptoms of Zinc Phosphide poisoning. His statement is corroborated from the observations recorded in post mortem report, Exhibit Ka-12. During the cross examination the deposition made by the witness has not been challenged. This establishes death of Smt. Bimla on 14.7.1977. The next relevant piece of evidence is statement of Dr. N.N. Khanna, PW-11, who has stated symptoms of Zinc Phosphide poisoning. S.P. Harplani, PW-15 duly corroborated by his report Exhibit Ka-16 has stated that in the sample of viscera, samples of internal organ of Smt. Bimla, sample of vomitus and petticoat taken from the body of Bimla bearing brown stain contained Zinc Phosphide. During cross examination correctness of the result of chemical examination by S.P. Harplani has not been challenged. The only point on which the cross examination was made is to what would be the fatal dose of Zinc Phosphide. The witness has explained that it would be 12 grams, which has been referred as 5 grams in the Text Book of Medical Jurisprudence on a Toxicology by Modi. We think that statement of Dr. R.K. Sharma duly corroborated by the post mortem report, Exhibit Ka-12, statement of Dr. N.N. Khanna, PW-11 and statement of S.P. Harplani duly corroborated by chemical examination report Exhibit Ka-16 prove it beyond any doubt that Smt. Bimla died on 14.7.1977 due to administration of Zinc Phosphide poison. Learned counsel for the appellant argued that either it was a case of suicide or accidental poisoning. It was not a case of homicidal poisoning. This argument needs to be dealt with when we would examine whether findings recorded by the learned Sessions Judge in reference to dissatisfaction about articles given in dowry and strained relations between Smt. Bimla and her husband and in-laws. We are conscious of this fact that either there should be some reason, to commit suicide or for committing murder or there should be some chance for accidental poisoning. All the three aspects would be covered while dealing with the second and third arguments advanced on behalf of the appellant. Section 8 of the Evidence Act provides that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. It also provides conduct of any person whether it was previous or subsequent which influenced any fact in issue or relevant fact. Section 8 of the Evidence Act provides that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. It also provides conduct of any person whether it was previous or subsequent which influenced any fact in issue or relevant fact. Though it is not obligatory on the prosecution to prove motive for committing the crime on the part of the accused, however, in a case based on circumstantial evidence motive plays an important role. The Supreme Court in the case of Amitava Banerjee Vs. State of West Bengal, AIR 2011 SC 2913 in para 27 of the report discussed the issue of motive and observed the following:- "Motive for the crime of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty. Absence of motive in a case depending entirely on circumstantial evidence is a factor that shall no doubt weigh in favour of the accused, but what the Courts need to remember is that motive is a matter which is primarily known to the accused and which the prosecution may at times find difficult to explain or establish by substantive evidence. Human nature being what it is, it is often difficult to fathom the real motivation behind the commission of a crime." Keeping in view the importance noticed by the Supreme Court, we have gone through the evidence of witnesses, whose depositions bear any significance on the point of motive. First, we would like to deal with the evidence of Ganga Ram, PW-1. Gist of his statement had already been summarised. On behalf of appellant truthfulness of his deposition has been attacked on the ground that he is an interested witness, since he has lodged the FIR, he is naturally interested to see that the accused would be convicted. First, we would like to deal with the evidence of Ganga Ram, PW-1. Gist of his statement had already been summarised. On behalf of appellant truthfulness of his deposition has been attacked on the ground that he is an interested witness, since he has lodged the FIR, he is naturally interested to see that the accused would be convicted. Learned counsel for the appellant has indicated that in the first information report he has not mentioned all the facts which have been stated by him in his examination in chief, therefore, the omissions being material amount to contradictions and his testimony deserves to be disbelieved. It is not disputed that Hirdesh Kumar, his son-in-law had treated his daughter well. The witness would not have any occasion either to lodge the FIR or to give evidence against his son-in-law, therefore, this witness without any reason cannot be stigmatised as interested witness. The Supreme Court in a number of cases has held that only because witness is a relative or family member of the victim, his testimony cannot be discarded. Only it requires to be subjected to careful examination, Bheru Lal Vs. State of Rajasthan, 2009 (66) ACC 997 (SC). A brief glimpse at the first information report reveals that in the first information report all material facts have been mentioned. Whatever improvements have been made in the examination in chief are only explanatory or complimentary to the material facts mentioned in the first information report. The witness has withstood the test of cross examination very well. His testimony remains unshaken. While going through his testimony we find that during cross examination if answer to a question might be adverse to his interest, even then he has replied that question very candidly, therefore, we find no infirmity in his testimony. He has connected the correspondence exchanged between him and the Principal Banasthali Higher Secondary School. To some extent his testimony stands corroborated by the correspondence and from the evidence of Shri Vidhyadhar Tiwari, PW-14, we find him to be a trustworthy witness. Besides dissatisfaction about the articles given in the dowry and strained relations between Bimla on the one hand and her husband and in-laws on the other hand, the witness has given one more reason for causing death of Bimla. Besides dissatisfaction about the articles given in the dowry and strained relations between Bimla on the one hand and her husband and in-laws on the other hand, the witness has given one more reason for causing death of Bimla. Since that reason has not been put to the appellant in his statement recorded under section 313, Cr.P.C., we are not taking that reason into our consideration. The learned Sessions Judge has not found evidence of Sri Ram Agarwal, PW-2, brother of the deceased trustworthy. The evidence of this witness is confined to his visit along with his mother to the house of Bimla one day before her death. Laxmi Devi, PW-3 has not supported the prosecution case. She has turned hostile. Ram Autar, PW-4 is the uncle of the deceased, who was asked to mediate between Ganga Ram and Om Prakash in reference to dowry/ payment of settled amount of Rs.15,000/-. Of course this witness is a relative witness, but the genesis of the occurrence is a matrimonial dispute and in such matters only family members are conversant with the facts, therefore, out of necessity such witnesses are examined and their testimonies have to be scrutinised by the Court very carefully. During cross examination the statement made by the witness in examination in chief has not been challenged. He was only suggested that being relative of Ganga Ram he is giving false evidence. This reason is inadequate to discard his testimony. Therefore, we find that from the deposition of this witness statement of Ganga Ram in reference to dissatisfaction regarding articles given in dowry and strained relations stand corroborated. Lakhan Lal, PW-6 was approached at one time by Ganga Ram and on another time by accused persons to mediate. He is not related to any party, during cross examination his testimony remains unshaken. Though we are not inclined to take his statement amounting to extra judicial confession by the appellant and his father, however, his statement clearly indicates that between the two families there were strained relations due to dissatisfaction with regard to articles given in dowry. Ramesh Chand, PW-7 is also a witness in whom Om Prakash had confided his dissatisfaction with the articles given in dowry. Testimony of this witness was not challenged during the cross examination. Ramesh Chand, PW-7 is also a witness in whom Om Prakash had confided his dissatisfaction with the articles given in dowry. Testimony of this witness was not challenged during the cross examination. All of these witnesses barring Sri Ram Agarwal, PW-2 categorically state that the appellant and his father were dissatisfied with the dowry given in the marriage. There were strained relations between the two families and the husband and wife as well. The appellant had asked Ganga Ram in the month of April 1977 that Bimla could not live with him and he should take her back, thereafter, Ganga Ram brought his daughter to his house and made efforts for her further studies, but in the meanwhile accused persons had asked him to send Bimla with seasonal gifts, which he did so, but their behaviour with Bimla did not change. Approximately after two months she died due to Zinc Phosphide poisoning. In this reference learned counsel for the appellant has argued that correspondence of Ganga Ram, PW-1 with Principal Vanasthali Higher Secondary School does not indicate that it was made for admission of Smt. Bimla. This question also engaged the attention of learned Sessions Judge. Letter of Ganga Ram dated 28.4.1977 was responded by Shri Vidhyadhar Tiwari vide his letter dated 29.4.1977, Exhibit Ka-13. Ganga Ram, PW-1 has mentioned in his letter that one girl, who had passed matriculation and further studied for four months in the first year and then left her studies was to be admitted. Exhibit Ka-29 is the certified copy of the extract of scholar register and transfer certificate of Bimla, which would indicate that she had studied for four months in first year in Prem Vidhyalaya, Dayal Bag, Agra. Letter dated 6.5.1977 of Shri Ganga Ram, Exhibit Ka-18 would reveal that Ganga Ram had dispatched postal order required for sending prospectus, so that girl might be admitted. These documents unmistakably lead to the conclusion that in the later part of April 1977 Ganga Ram actually explored possibility of admitting his married daughter to Vanasthali Higher Secondary School for further studies and acquiring skill in knitting, tailoring and cooking. He also took steps for procuring the prospectus. It is not disputed that Smt. Bimla did not join Vanasthali Higher Secondary School. These facts raised two inferences, one is that something had gone wrong with the marriage of Smt. Bimla prior to 20.4.1977. He also took steps for procuring the prospectus. It is not disputed that Smt. Bimla did not join Vanasthali Higher Secondary School. These facts raised two inferences, one is that something had gone wrong with the marriage of Smt. Bimla prior to 20.4.1977. The second inference is that after 6.5.1977 something happened due to which Ganga Ram refrained from sending her daughter to Vanasthali. In his statement recorded under Section 313, Cr.P.C. Hirdesh Kumar says that they did not ask Ganga Ram to send Bimla, but she came to their house on her own accord and he does not know whether she brought any seasonal gifts or not. This reply also fortifies the inferences drawn by us as above. It is implicit in that reply that before 17.5.1977 Bimla was not living with her husband at Balkeshwar Colony. On that date she went to her marital home. In this backdrop when we reflect, we are inclined to believe that Ganga Ram is giving truthful account that Bimla was called by the accused persons and she had gone to her marital home and in our opinion, this is the reason why she could not be admitted by Ganga Ram in Vanasthali Higher Secondary School. This fact also strengthen our conclusion that relations between Bimla on one hand and her husband and in-laws on the other hand were strained and at one point of time she left her matrimonial house. Now, remains the statement of Ganga Ram, PW-1 that after 17.5.1977 relations between these two did not improve though Lakhan Lal, PW-6 and Ramesh Chand, PW-7 depose about bad relations, but they have not disclosed at which point of time they were asked to intervene, but from the material on record it comes out that after that Ganga Ram did not give any major article to the accused persons. Thus, it can be safely concluded that reasons for bad relations between Bimla on one hand and her husband and in-laws on the other hand continued to exist. Consequently, state of relations between these two must have remained the same. In view of the above discussion, we reject the argument of the learned counsel for the appellant contrary to above and find no infirmity in the findings recorded by the learned Sessions Judge in this regard. Consequently, state of relations between these two must have remained the same. In view of the above discussion, we reject the argument of the learned counsel for the appellant contrary to above and find no infirmity in the findings recorded by the learned Sessions Judge in this regard. Learned Sessions Judge has taken into account previous conduct of the appellant as a piece of circumstantial evidence which completed all the links in the chain of circumstantial evidence adduced by the prosecution. Argument of the appellant is manifold. First, according to learned counsel for the appellant, dead body of Smt. Bimla was found by the Investigating Officer in the Varandah of the house of the appellant not in his bed room. He further submits that in the house appellant, his parents and one tenant Smt. Saroj Devi were living on that day. Main thrust of the argument is that she had not died in the bed room of appellant, therefore, the appellant could not be saddled with the burden to explain how Smt. Bimla came to meet her end. He further submits that during the night appellant and other inmates of the house were sleeping soundly. If Smt. Bimla was restless or in discomfort, she did not wake the appellant or her in-laws. In the morning when the appellant and his parents came to know about Bimla's serious condition, immediately Ganga Ram was informed and appellant went to fetch the doctor. According to learned counsel for the appellant, learned Sessions Judge has erroneously disbelieved the theory of suicide and incorrectly recorded the finding that the appellant did not take steps for providing medical help to Smt. Bimla and he informed her after only when she became unconscious and unable to speak. From these facts learned Sessions Judge inferred guilt of the appellant which according to learned counsel for the appellant is a legal error. Perusal of the record reveals that Sessions Judge on the basis of statement of Lila Khan, PW-8 has concluded to the effect that sample of vomitus was taken from the room, which belong to the appellant. It is true that Dr. N.N. Khanna, PW-11 has stated that when he reached the house of the appellant, he found Bimla lying on a cot in a courtyard. It is true that Dr. N.N. Khanna, PW-11 has stated that when he reached the house of the appellant, he found Bimla lying on a cot in a courtyard. Site plan, Exhibit Ka-19 reveals that in the house of the appellant there was a big courtyard in the eastern side and towards its south there was a Verandah where the Investigating Officer found the dead body of Smt. Bimla. Ganga Ram, PW-1 says that when he reached the house of the appellant, Bimla was alive, but in a restless and critical condition she was lying on a cot inside the room. She was unable to speak. Correctness of his statement has been hotly disputed by the counsel for the appellant. We have no reason to disbelieve the statement of Dr. N.N. Khanna, PW-11 and we are of the view that when he examined Smt. Bimla, she was in the courtyard on a cot. This fact also remains uncontroverted that sample of vomitus was taken by S.I. Lila Khan, PW-8 inside the room of the appellant. This shows that during the night Smt. Bimla must have been inside the room. Preponderance of probability persuade us that it is natural and probable that husband and wife would sleep in the same room. Absence of vomitus either in the courtyard near the cot of Smt. Bimla or in the Verandah would go to establish that body of Bimla must have been transported from the room to those places when she became unconscious and unable to vomit. This leads us to record a finding that during the night till Smt. Bimla was conscious and feeling bad effect of Zinc Phosphide poisoning, she was inside the room of the appellant. We are unable to accept the argument of the appellant that as soon as Smt. Bimla felt restless, she went out of the room, so that sleep of her husband might not be disturbed is not tenable in the teeth of the facts noticed by us hereinbefore. With this finding the other arguments advanced on behalf of the appellant that Smt. Bimla did not die when she was in the company of the appellant, therefore, he has no obligation to explain his conduct also becomes unacceptable. Further in the teeth of these facts it cannot be accepted that the appellant came to know about critical condition of his wife only in the morning. Further in the teeth of these facts it cannot be accepted that the appellant came to know about critical condition of his wife only in the morning. Frequent vomiting with retching, tremors and respiratory distress would be sufficient to awake a person sleeping with a person undergoing these sufferings. We find no infirmity in the finding recorded by the learned Sessions Judge that the appellant did not perform his duty as husband to save Bimla, he was expected to immediately rush Bimla to hospital or summon doctors in such condition. This callous indifference was strong enough for the learned Sessions judge to infer that the appellant was preventing Bimla's recovery by withholding the immediate medical attention. According to him, non-explanation of such conduct is indicative of his guilty intention. Since it is the material link in the chain of circumstantial evidence, we have deliberated upon the evidence produced by the prosecution. Statements of Dr. R.C. Dhameja and Dr. Arjun Dev are evidences that though doctors were living in the vicinity of the house of the appellant, but during the night they were not called for. Though on behalf of the appellant it has been argued that since the appellant and his parents recently moved there, they did not know about these doctors. This argument is not acceptable to us. Though it is correct that the appellant and his parents were new at Balkeshwar Colony, but it is still difficult to believe that a person moving in a locality would not be aware about the medical help available there. It has come on the record that Zinc Phosphide is a slow acting poison. It takes effect into three hours after reaching the stomach. According to Dr. N.N. Khanna after a person consumes it, death occurs between 8-10 hours. We can safely say that at least for 5 hours Smt. Bimla was in a distressed condition. Before becoming unconscious she must be in a terrible stage, but in that condition her husband did not take steps to take her to hospital and he informed her parents only after she became unconscious. These facts are adequate to raise a presumption of guilt against the appellant specially when he has not offered any explanation for his omission. Before touching one important evidence here we would like to refresh what is the proof of standard when prosecution relies on circumstantial evidence. These facts are adequate to raise a presumption of guilt against the appellant specially when he has not offered any explanation for his omission. Before touching one important evidence here we would like to refresh what is the proof of standard when prosecution relies on circumstantial evidence. In the year 1955 in the case of Deonandan Mishra Vs. State of Bihar, AIR 1955 SC 801 in para 9 of the report the Hon'ble Apex Court has made the following observation:- "It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an addi- tional link which completes the chain." In the case of Umedbhai Jadavbhai Vs. State of Gujarat, AIR 1978 SC 424 in para 7 of the report the Supreme Court has laid down the same standard of proof. Almost the similar standard of proof has been envisaged by the Supreme Court in the case of Bhupinder Singh Vs. State of Punjab, AIR 1988 SC 1011 with this exception that in that case the prosecution could not prove that accused was in possession of poison. After referring the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 the Supreme Court came to the opinion that where it would be impossible for prosecution to prove possession of poison with the accused, the prosecution, if succeeded in establishing other circumstances consistent only with the hypothesis of the guilt of the accused, the Court would not be justified in acquitting the accused. Recently in the case of Swami Shradhanand @ Murali Manohar Mishra Vs. Recently in the case of Swami Shradhanand @ Murali Manohar Mishra Vs. State of Karnataka, AIR 2007 SC 2531 the Supreme Court, in the case of natural death of wife in bed room, failure on the part of the accused to explain her death has been considered to be an important link, it would lead to an inference against the accused. Though the Supreme Court in the case of Bhupinder Singh (supra) has held the chain of circumstantial evidence to be complete having all the links to prove the guilt of the accused and exclude every hypothesis, which may indicate the innocence of the accused even though the prosecution failed to prove possession of poison with the accused. In the present case, neither Lila Khan, PW-8 nor K.K. Tyagi, PW-16 were able to recover poison from the possession of the appellant, however, prosecution has examined Shyam Babu Jain, PW-5 to prove that the appellant was seen to be purchasing rat poison from a chemist shop at Rawat Pada. On behalf of the appellant veracity of the testimony of this witness has been assailed on many grounds. The first ground is that though charge sheet was submitted against the appellant on 31.1.1978/1.2.1978, however, statement of this witness was recorded under Section 161, Cr.P.C. on 4.4.1978. According to learned counsel for the appellant, the incident had occurred on 14.7.1977. The examination of this witness is belated one and he is a planted witness unworthy of reliance. We have considered this argument in depth. We find that after the appellant was charge sheeted, investigation against co-accused Angoori Devi continued and charge sheet was submitted against her only on 12.7.1978. This fact is relevant to show that the examination of this witness was made during the course of investigation. It was not part of further investigation, which may lead to conclusion that some legal person asked the Investigating Officer to procure the evidence of this fact i.e. purchase of poison. Thereafter, we proceed to assess the effect of delay in unearthing and examining this witness. Shyam Babu Jain, PW-5 has been cross-examined very extensively. During cross examination it has been brought on record though he is not the permanent employee of the firm where Ganga Ram worked as Head Munim, but he knew Ganga Ram and obtained work from him. Thereafter, we proceed to assess the effect of delay in unearthing and examining this witness. Shyam Babu Jain, PW-5 has been cross-examined very extensively. During cross examination it has been brought on record though he is not the permanent employee of the firm where Ganga Ram worked as Head Munim, but he knew Ganga Ram and obtained work from him. This witness has also admitted in the cross examination that he once visited one Sugar Mill at Aligarh with the son of Ganga Ram. In answer to the question put to him during cross examination the witness has disclosed that on the day he saw the appellant he also went to Rawat Pada to purchase rat poison and some other goods. He has replied during the cross examination that about the death of Bimla he came to know after 5-6 months when he visited the firm where Ganga Ram used to work and Ganga Ram informed him about Bimla's death. According to him, one other person working there told him that Bimla died due to rat poison. Only then he informed Ganga Ram that he saw the appellant purchasing rat poison. This reason for delayed examination of the witness has come out during the cross examination. In this way ignorance of Bimla's death that too by rat poisoning is an adequate reason to ignore the belatedness in his interrogation by the Investigating Officer. So far as question whether reason assigned by the witness is true or concocted is concerned, it can be thrashed out on two touch stones; first is the explanation which has been extracted out by the defence. It does not find place either in his statement recorded under section 161, Cr.P.C. or in the examination in chief that shows that the witness has not been tutored to state about his ignorance of Bimla's death due to administration of rat poisoning. The other as being creation of the defence perhaps the defence cannot dispute its correctness successfully. The third reason is that testimony of this witness appears to be very natural and the deponent, as we can gather from his testimony, appears to be a truthful witness. He did not hide his relationship with Ganga Ram. The other as being creation of the defence perhaps the defence cannot dispute its correctness successfully. The third reason is that testimony of this witness appears to be very natural and the deponent, as we can gather from his testimony, appears to be a truthful witness. He did not hide his relationship with Ganga Ram. He did not tell a lie about his visit with the son of Ganga Ram, when asked about the time when he saw the appellant purchasing rat poison after answering it to be six months he hesitated and candidly said that he did not correctly remember how many days earlier from the death of Bimla he saw the appellant purchasing rat poison. This witness cannot be treated to be an interested witness and falsely testifying as to what he saw on that particular day, therefore, we are unable to accept the objections challenging trustworthiness of the evidence of Shyam Babu Jain, PW-5. We find him to be a truthful witness and come to the conclusion that before the death of Smt. Bimla 5-6 months earlier this witness saw the appellant purchasing rat poison from a chemist shop at Rawat Pada. This evidence though does not prove possession of rat poison at the relevant time with the appellant and there still remains the question if the poison was purchased by the appellant for homicidal purposes, why it was used only after 5-6 months. An answer to this lies in the testimonies of the prosecution witnesses which reveal that talks were going on between the two families. Though relations were strained, but the hope of amicable settlement was still there. After the incident of April 1977 it may be presumed that Ganga Ram did not relent about giving more dowry and the appellant and his family members were forced to accept Smt. Bimla or reject her and face the adverse reaction of the society. After return of Bimla to her matrimonial house question of poisoning could have arrived. It has been argued by the learned AGA that such type of poison could not be administered at will. The person for whom it is intended either has to be forced or deceived to take that poison. According to learned AGA, for successful deception opportunities have to be watched. It has been argued by the learned AGA that such type of poison could not be administered at will. The person for whom it is intended either has to be forced or deceived to take that poison. According to learned AGA, for successful deception opportunities have to be watched. According to him, this explains interval which had elapsed between purchase of the rat poison and its administration to Smt. Bimla. There is nothing on record either to accept the reasons advanced by the learned A.G.A. or to reject them. We are very concious of this fact that we should stick to the legally admissible evidence and do not indulge into speculation, surmises and become victim of conjectures. Therefore, we conclude this piece of evidence to be of the fact that before the death of Smt. Bimla the appellant was seen purchasing rat poison from a chemist shop and his wife died to the administration of similar kind of rat poison whose remains could not be found by the police officers in the house of the appellant after her death. To conclude we would summarise the facts proved by the circumstantial evidence as under- 1. The relations of the appellant with his wife were strained due to dissatisfaction about the articles given in dowry and her being inefficient in domestic work. 2. Inspite of efforts for working out amicable settlement father of Bimla did not agree to give more dowry and he chose to send his married daughter to further study at Vanasthali Higher Secondary School and further to become expert in knitting, sewing and similar works. 3. Bimla came back to her marital home before she could be sent for further studies. 4. Bimla died in the morning of 14.7.1977 in her marital home due to poisoning by Zinc Phosphide. 5. Zinc Phosphide is a slow acting poison which induces vomiting, discomfort, restlessness 2-3 hours after reaching the stomach and causes death between 8-10 hours. 6. Her vomitus was found inside the room of the appellant though her body was moved first to the courtyard then to the verandah on a cot. 7. The appellant did not rush Smt. Bimla to the hospital or called any doctor of the locality to provide immediate treatment to her. 8. Father of Smt. Bimla was informed only at about 6.30 a.m. when Bimla became unconscious and unable to speak. 9. 7. The appellant did not rush Smt. Bimla to the hospital or called any doctor of the locality to provide immediate treatment to her. 8. Father of Smt. Bimla was informed only at about 6.30 a.m. when Bimla became unconscious and unable to speak. 9. Before death of Smt. Bimla appellant had purchased rat poison from a chemist shop at Rawat Pada. Here we would like to deal with the argument of the appellant that the learned Sessions Judge has wrongly held the death of Smt. Bimla to be homicidal and further the learned Sessions Judge has erred in holding that non-explanation by the appellant about what happened in the intervening night of 13/14.7.1977 as indicative of the guilt of the appellant by virtue of provisions contained in section 106, Evidence Act. Learned counsel for the appellant has relied on the principles referred hereinbefore in Subramaniam's and Dharmendra's cases (supra). So far as principle laid down in Dharmendra's case is concerned, it does not help the argument advanced on behalf of the appellant because whatever facts the prosecution could have proved, has proved them, the prosecution is not expected to prove those facts, which were exclusively within the knowledge of the appellant/accused. Within the four walls of the appellant's house during the night what transpired it could not be known to anyone except the inmates of the house. In the Subramaniam's case in para 7 of the report the Supreme Court has also observed the same. Therefore, we find no fault in the findings recorded by the learned Sessions Judge in reference to application of section 106, Evidence Act in the present matter and non-explanation to be indicative of the guilt of the appellant and thereby extra link in the chain of circumstantial evidence. After this the question remains whether it was a case of homicide or suicide or accidental administration of rat poison by the deceased. Rat poison is sold with sufficient safeguards to prevent its accidental administration. The second reason against such accident is that no packaging material wherein the rat poison is to be sold was found by the police officer in the house of the appellant. When these facts are taken into consideration cumulatively, we think the present case cannot be a case of accidental poison by the deceased. The second reason against such accident is that no packaging material wherein the rat poison is to be sold was found by the police officer in the house of the appellant. When these facts are taken into consideration cumulatively, we think the present case cannot be a case of accidental poison by the deceased. Whether it was a suicide or a homicide, this point has been argued at length by respective parties, but from the facts established by the prosecution by cogent and trustworthy evidence lead us to no other conclusion than that it was a case of homicide. The most compulsive reason, which persuades us to conclude so, is that being husband and wife during night they were sleeping in the same room lying side by side. When Bimla started to have symptoms of Zinc Phosphide poisoning and became restless, it was not possible for a normal person to continue in the sound sleep. The appellant must have come to know about the bad condition of his wife during the night and that he must have the reason which compelled him to shift Bimla from his room to courtyard but his failure to take her to the hospital or bring some medical help goes to show that he has omitted to save life of his wife, who was mother of a small baby. Except murderer no one would like his child to become motherless. Such callous attitude must be result of mens rea i.e. to murder his wife. This conclusion is fortified from the fact that father of Bimla, Ganga Ram was called at the very late stage when Bimla could not be saved. This previous conduct of the appellant under section 8 of the Evidence Act is relevant to show his state of mind and duly proved by the evidence of the prosecution, therefore, admissible for us to take into account. Our answer in this regard, to the argument of the appellant, is that it was the case of homicide not a case of suicide and Smt. Bimla was murdered by the appellant by administering her Zinc Phosphide and he has been rightly held guilty of murdering his wife and causing grievous injury to her by administering poison. Thus, charge against him punishable under section 302 and 328, IPC stand proved beyond doubt. Thus, charge against him punishable under section 302 and 328, IPC stand proved beyond doubt. Now, we will take the arguments advanced by learned AGA in support of the appeal and the revision seeking enhancement of sentence awarded to the appellant in the form of imprisonment for life. The State and the revisionist urged us to award death penalty to the appellant. They assailed the findings of the learned Sessions Judge on the basis of which he declined to sentence the appellant to death. Learned Sessions Judge assigned two reasons for giving sentence of imprisonment for life. First reason is that he is father of a young child and the second reason was he had married second time. When the statement of the appellant was recorded under section 313, Cr.P.C., his age was 30 years. At present he would be aged about 65-66 years. With this passage of time question of enhancement of sentence looses its relevance. There is nothing on record to show that Hirdesh Kumar proved to be a menace to the society. He continued to be released on bail and against him there is no complaint that he indulged in anti social activities. However, subsequent events will bear relevance to the commutation of death sentence to imprisonment for life. If we were to consider whether sentence awarded by the learned Sessions Judge is legally sound or not, we can safely say that brutal murder of wife within the marital home by the husband is a rare incident but by any stretch of imagination it cannot be said to be rarest of the rare. Murder of wife for the purpose of usurping property is a crime though rarely committed, but it cannot be said to be unheard of. For sentencing a guilty person to his death we have to take into account the total depravity of the mind of the murderer, enormity of the crime and number of persons of the society affected thereby. In the present case neither element is present though reasons assigned by the learned Sessions Judge for awarding lesser sentence may not be very legally sound but for awarding death sentence case has to be one of the rarest of the rare, which condition the present case does not satisfy. Therefore, appeal for enhancement of sentence and the revision for the same relief are bereft of merit. Therefore, appeal for enhancement of sentence and the revision for the same relief are bereft of merit. The Criminal Appeal, Government Appeal and the Criminal revision are without substance and deserve to be dismissed. Accordingly, Criminal Appeal No.1840 of 1980, Government Appeal No.2429 of 1980 and Criminal Revision No.1550 of 1980 are, hereby, dismissed. Section 302, IPC provides the punishment for committing murder. It reads as follows:- "302.Punishment for murder.-Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine." In the present case the trial Judge upon hearing on the question of sentence was of the view that it was not one of the rarest of the rare case in which death sentence could be awarded and accordingly, sentenced the accused-appellant for imprisonment for life, but did not impose any fine. A reading of Section 302, IPC clearly indicates that where punishment of imprisonment for life is being awarded, fine is also to be imposed as the two parts are connected by a word "and" and not "or". The language is very clear that the punishment is to be imprisonment for life and shall also be liable to fine. We, accordingly, while affirming the sentence of imprisonment for life impose fine of Rs.5,000/- also. The appellant is directed to surrender his bail before the Sessions Judge, Agra and serve out the sentences awarded by the impugned judgment and order, failing which the Sessions Judge, Agra is directed to send the appellant to jail to serve out the said sentences by issue of coercive process as he thinks fit.