JUDGMENT : Gopal Krishan Vyas, J. 1. The instant criminal appeal has been filed by the appellant, Kalu Das, under Section 374(2) Cr.P.C. assailing the validity of judgment dated 18th October, 2011 passed by learned Addl. Sessions Judge (F.T.) No. 1, Hanumangarh (for brevity, hereinafter referred to as "trial court') by which the accused appellant was convicted for the offence under Section 302 of IPC and sentenced for life imprisonment with a fine of Rs. 10,000/-, with the default stipulation to further undergo six months additional simple imprisonment. 2. As per brief facts of the case, complainant, Jalebi Das (PW.1) lodged a written report (Ex. P/1) before the S.H.O, Police Station- Hanumangarh Junction alleging therein that in the last night of 17.02.2016, his son-in-law, Kalu Das, came to his house at about 11.30 PM and asked about whether all family members have slept or not, at that time, my wife said yes, then Kalu Das went in the room of his daughter, Sita. The son of the complainant, namely, Ramesh came back to the house from his duties at about 12.00 PM in the night and also went to his room and slept. In the morning at about 06.00 AM, wife of complainant, namely, Triveni Devi, woke up and went for taking bath while calling his daughter, Sita, to prepare tea. When wife of complainant came back after taking bath, she found that still Sita neither woke up nor prepared tea, then, she went into the room and saw that Sita was lying on the cot. The wife of complainant, Triveni Devi touched her leg and called her to wake up but she did not wake up as she died. Triveni Devi, wife of complainant raised hue and cry, upon which all family members immediately rushed to the room and found that Smt. Sita dead due to strangulation by "Dupatta" and Kalu Das was missing from the room. In the FIR it was suspected by the complainant that Kalu Das (husband his daughter Sita Devi) killed his daughter and escaped from the place of occurrence. 3. Upon the aforesaid complaint, formal FIR No. 105/2006 was registered at Police Station- Hanumangarh Town on 18.02.2006 under Section 302 of IPC and after registration of the FIR, investigation was commenced. In the FIR it was suspected by the complainant that Kalu Das (husband his daughter Sita Devi) killed his daughter and escaped from the place of occurrence. 3. Upon the aforesaid complaint, formal FIR No. 105/2006 was registered at Police Station- Hanumangarh Town on 18.02.2006 under Section 302 of IPC and after registration of the FIR, investigation was commenced. The investigation of the FIR culminated into the submission of a charge sheet against the accused appellant, Kalu Das, on the basis of circumstantial evidence for the offence under Section 302 of IPC in the court of Addl. Civil Judge (Sr. Division)-cum-Addl. Chief Judicial Magistrate, Hanumangarh, from where the case was committed to the court of learned Sessions Judge, Hanumangarh, but later on transferred to the court of Addl. Sessions Judge (FT) No. 1, Hanumangarh vide order dated 07.10.2006 for trial. 4. The learned trial court after providing an opportunity of hearing to the accused appellant framed charges against him for the offence under Section 302 of IPC, which he (appellant) denied the prayed for trial. 5. To prove the prosecution case, the prosecution examined as many as 11 witnesses, viz. PW.1 Jalebi Das (father of deceased), PW.2 Smt. Triveni Devi (mother of deceased), PW.3 Dr. Manoj Sharma (who performed the postmortem of body of deceased, Sita), PW.4 Kalu Ram (Motbir witness, in whose presence Ex. P/3, 4, 5, 6 and 9 were prepared), PW.5 Subhash (Photographer), PW.6 Ramesh Das (brother of deceased), PW.7 Bheem Singh (Head Constable, witness of investigation), PW.8 Subhash Chandra (Foot Constable of Police Station Hanumangarh town, who deposited the articles for chemical analysis to the FSL, Jodhpur), PW.9 Ravindra (witness before whom two articles were recovered viz. silver amulet and ring vide Ex. P/24 and Ex. P/25), PW. 10 Kashi Ram (Witness of the investigation and at the relevant time he was working as S.I., Police Station Hanumangarh Town) and PW.11 Atar Singh who was working as S.H.O., Police Station Hanumangarh Town (said witness registered the FIR and made investigation of the same). 6. silver amulet and ring vide Ex. P/24 and Ex. P/25), PW. 10 Kashi Ram (Witness of the investigation and at the relevant time he was working as S.I., Police Station Hanumangarh Town) and PW.11 Atar Singh who was working as S.H.O., Police Station Hanumangarh Town (said witness registered the FIR and made investigation of the same). 6. After recording the statements of aforesaid witnesses, statements of the accused appellant were recorded under Section 313 of Cr.P.C., in which he (accused appellant) denied the allegations and gave explanation that, eSSuss essjh iRuh dkss mldh e``R;qq lss N%% ekg igyss lss NkssM++ j[kk FkkA mldh e``R;qq dss le; eSSaa guqqekux<++ Vkmu essaa ughaa FkkA eqq>ss >wwBk Qaalk;k x;kA eSSaa funkssZZ"k gwwaaA^^ 7. The learned trial court thereafter granted opportunity lead evidence to the accused in defence, but no evidence was produced by the accused appellant in his defence. 8. The learned trial court after hearing the arguments of both the parties vide judgment impugned dated 18.10.2001 convicted the accused appellant for the offence under Section 302 of IPC and passed sentenced of life imprisonment with a fine of Rs. 10,000/- with the default stipulation to further undergo six month's additional simple imprisonment. 9. In this appeal, the judgment impugned is under challenge on various grounds. "(A). Learned counsel for the appellant submitted that there is no eye-witness of the incident and admittedly the incident took place in the house of in-laws of the appellant. According to appellant, the prosecution has fabricated a false and concocted story so as to indulge the accused appellant in the alleged crime of murder of his own wife but there is no allegation of past incident about cruelty, beatings or demand of dowry against the accused appellant. More so, PW.1, Jalebi Das, author of the FIR, PW.2 Triveni Devi (mother of deceased) and PW.6, Ramesh (brother of deceased), categorically stated before the court that there was no quarrel in between the appellant and deceased Sita, more so, Sita was residing in her parents' house where accused appellant used to come to meet his wife, Sita. Therefore, in absence of any allegation of cruelty, demand of dowry or quarrel against the accused appellant, it cannot be presumed that there was any motive or intention of the accused appellant to commit murder of his own wife. Therefore, in absence of any allegation of cruelty, demand of dowry or quarrel against the accused appellant, it cannot be presumed that there was any motive or intention of the accused appellant to commit murder of his own wife. Therefore, the finding arrived at by the trial court is contrary to facts and evidence on record. (B). While inviting attention towards the statements of PW.2, Triveni Devi, (mother of deceased) it is submitted that mother of deceased categorically stated on oath in the examination-in-chief that after seeing the dead body of her daughter, Sita, she raised hue and cry, and upon hearing her cries, all the family members along with neighbours and residents of the locality came on spot and thereafter my husband went to the police station for registration of the FIR but none of the resident of the locality or relative are produced as witnesses before the trial court to prove the incident, the entire case is based upon the testimony of three witnesses PW.1, Jalebi Das, father of deceased, PW.2, Triveni Devi, mother of deceased, and PW.6 Ramesh, brother of deceased, who are interested witnesses, and their testimony has not been corroborated by any other independent witness. Therefore also, the judgment impugned deserves to be quashed and set aside. (C). With regard to recovery of ornaments vide Ex. P/24 and Ex. P/25 (amulet and silver ring) effected from the house of accused appellant, it is submitted that said recovery is not relevant so as to connect the accused appellant with the alleged crime because neither in the FIR nor in the statements of witnesses any allegation was made that these ornaments were missing from the body of deceased. Admittedly, the silver ornaments were recovered from the house of the accused appellant, therefore, it is obvious that being wife, the deceased was residing with her husband, where she might have put those ornaments, therefore, on the basis of so-called recovery of ornaments of deceased, it cannot be said that prosecution has proved its case beyond doubt against the accused appellant because recovery is not relevant to prove the allegation of murder. (D). (D). In the alternative, it is argued by the learned counsel for the appellant that even if the prosecution case is accepted as it is, then also, it cannot be said that offence under Section 302 of IPC is made out, because in the night some quarrel might have taken place in between the husband and wife in which occurrence took place in spur of moment, because inspite of having two issues, the deceased was living with her parents house and on number of occasion despite making repeated request by the accused appellant to reside with him in his house, she (deceased) was not willing to reside with her in-laws' house. Therefore, the findings of the trial court so as to hold accused appellant guilty for committing offence under Section 302 of IPC, on the basis of testimony of interested witnesses, it cannot be said that the prosecution has proved its case beyond reasonable doubt. At the most, even if the testimony of these witnesses is accepted, then also, it might be possible that in a quarrel took place in between husband and wife, in a spur of moment without any pre-meditation or intention, in which wife died, therefore, it is a case in which the conviction can be altered from offence under Section 302 of IPC to Section 304 Part I of IPC. (E). Upon the aforesaid grounds, it is submitted that judgment impugned passed by the trial court in Session Case No. 166/2006 deserves to be quashed or the finding of conviction for the offence under Section 302 of IPC may be converted to the offence under Section 304 Part I of IPC." 10. Per contra, learned Public Prosecutor appearing on behalf of State of Rajasthan vehemently submitted that although there is no independent witness except the family members but there is no reason to disbelieve the testimony of PW.1, Jalebi Das, author of FIR, PW.2, Smt. Triveni Devi and PW.6, Ramesh, because their presence in the house cannot be questioned because the house in which the occurrence took place, belong to these witnesses. It is also submitted that although plea of alibi has been taken by the accused appellant in his statements recorded under Section 313 Cr.P.C. but no oral or documentary evidence is produced by the accused appellant in support of explanation given in his statement recorded u/s. 313 Cr.P.C. 11. It is also submitted that although plea of alibi has been taken by the accused appellant in his statements recorded under Section 313 Cr.P.C. but no oral or documentary evidence is produced by the accused appellant in support of explanation given in his statement recorded u/s. 313 Cr.P.C. 11. Learned Public Prosecutor further submitted that as per postmortem report (Ex. P/7), deceased Sita died due to strangulation and as per statement of PW.1, Jalebi Das, PW.2 Triveni Devi, and PW.6 Ramesh, the day on which incident took place at about 11.30 PM, accused appellant came to their house and remained in the room with deceased, Sita, but in the morning he left the house without any information and later on he was arrested after six months of the incident i.e. on 14.08.2006 vide Ex. P19. Meaning thereby, he was absconding after occurrence, therefore, arguments advanced by the learned counsel for the accused appellant that whole prosecution story is false has not foundation to stand, more so it is a case in which the prosecution has proved its case beyond reasonable doubt, therefore, this appeal may kindly be dismissed. 12. After hearing the learned counsel for the parties, we have perused the statements of all the witnesses recorded during trial by the trial court from the prosecution side. Admittedly, PW.1, Jalebi Das (father of deceased), PW.2 Smt. Triveni Devi (mother of deceased), and PW.6 Ramesh Das (brother) were in the house on the date of occurrence. The author of FIR, PW.1 Jalebi Das stated before the court that on 17.02.2006, my daughter was in her room and in the night at about 10-30 - 11.00 PM accused appellant, Kalu Das, came and asked After making enquiry as to whether all members have slept or not, the accused appellant came inside the house and went in the room of my daughter Sita. PW.1, Jalebi Das, specifically stated before the court that in the morning at 6'O clock my wife woke up and while going for taking bath, she called her daughter, Sita Devi to wake up and prepare the tea. However, when his wife came back after taking bath, she did not found Sita, therefore, she went inside the room where his daughter lying on the coat dead. However, when his wife came back after taking bath, she did not found Sita, therefore, she went inside the room where his daughter lying on the coat dead. On seeing his daughter, Sita, died, his wife (PW.2 Triveni Devi) made hue and cry, upon which all the family members and other persons rushed to the room and said that do not touch her and first inform the police. 13. Similarly PW.2, Smt. Triveni Devi, wife of the complainant stated before the court on oath that marriage of my daughter was solemnized before seven years back and on the date of incident i.e. on 17.02.2006, I, my husband, son, daughter-in-law and daughter were in the house. In the night at about 11.30 PM, accused appellant, Kalu Das, came and made enquiry that, 14. The aforesaid statement clearly established that on the day on which the incident took place, Kalu Das came to the house of in-laws and remained in the house. The statement of both these witnesses are corroborated by the witness PW.6, Ramesh Das, who came from his duties at 12.00 PM where Kalu Das was already in the house with his wife, Sita. 15. We have perused the cross-examination of PW.1 Jalebi Das, father of deceased, to ascertain the conduct and behaviour of the accused appellant with the deceased. It is stated by the father of deceased that the day on which the occurrence took place, there was no electricity in house because the electricity connection was cut down by the Electricity Department on account of non-deposition of electricity charges. It is also stated by him that my grand-daughter ¼nksfgrh½ was also living with us and Sita was living in his room with accused husband. It is also stated by him that three issues were born to his daughter, Sita, out of which one died and daughter was residing with us and son was residing with in-laws of my daughter. Upon perusal of the entire statement, it will reveal that there is no allegation of quarrel in between accused appellant/husband and wife nor any incident is reported by him with regard to any quarrel in between accused appellant, Kalu Das and deceased Sita, in past. 16. Upon perusal of the entire statement, it will reveal that there is no allegation of quarrel in between accused appellant/husband and wife nor any incident is reported by him with regard to any quarrel in between accused appellant, Kalu Das and deceased Sita, in past. 16. The witness PW.2, Triveni Devi, mother of deceased stated in the cross-examination that for solemnizing marriage of my son, I bring my daughter from her in-laws house but she was repeatedly asked her mother that I will not go with Kalu Das to his house nor I will give divorce to him, because Kalu Das is indulged in commission of theft and not coming in time to the house in the night. It is also stated in the cross-examination that from last 4-5 months my daughter was residing with us and during said period 10 to 15 times, accused appellant visited their house to meet my daughter. It is specifically stated by her in her cross-examination that, ^^tc 4&5 eghuss gekjh cssVh gekjss ?kj jgh bl nkSSjku dkyqqnkl 10&15 ckj gekjss ?kj vk;k Fkk vkSSj dkyqqnkl essjh cssVh dkss I;kj djrk Fkk essjh yM++dh dgrh Fkh fd laaxr essaa rww lgh ugh jgrk essjss ihgj vkdj jg yss vkSSj dkyqqnkl bldss fy;ss jkth ughaa FkkA^^ 17. The aforesaid statement made by PW.2, Smt. Triveni Devi, mother of deceased, clearly speaks that relation of accused appellant, Kalu Das with deceased, Sita, were cordial and they were loving each other and having two kids out of their wedlock but without any reason wife (deceased Sita) was residing at her parents' house where the appellant used to come to meet her, which is apparent from the statements of three witnesses viz. PW.1, Jalebi Das, PW.2 Triveni Devi and PW.6 Ramesh Das. It is relevant to observe that there is no independent witness to prove the prosecution case but we can presume that prosecution has failed to prove the incident on the basis of oral evidence of three relative witnesses, who were present at the time of occurrence and their presence is in the house cannot be disputed. 18. It is also obvious that the plea of alibi taken by the accused appellant is not acceptable without any evidence, therefore, the same is hereby rejected. 18. It is also obvious that the plea of alibi taken by the accused appellant is not acceptable without any evidence, therefore, the same is hereby rejected. Upon assessment of entire evidence it is apparent that no weapon was used by the accused appellant and no injury was found upon the body of deceased; and the relation between the appellant and his wife were cordial. No incident or instance of cruelty being committed by the appellant qua his wife (deceased) or demand of dowry has been reported by any of the prosecution witnesses. More so, the deceased was residing in her parents' house as per her own will and there is ample evidence on record that accused appellant usually meet his wife in his in-laws's house but on the day of occurrence it is possible that some quarrel took place in between accused/husband and deceased/wife, Sita, while they were in the room. 19. As per statement of Dr. Manoj Sharma (PW.3) there is no dispute that the cause of death is strangulation. No other injury was found upon the body of deceased, therefore, we have no hesitation to hold that the day on which the occurrence took place, some quarrel took place in between accused appellant (husband) and deceased (wife) because appellant was repeatedly insisting his wife to live with him in his house, but she (deceased) was not accepting the said proposal. In our opinion, though incident took place in the room in the night of 17.02.2006 in between accused and his wife quarrel might have took place because accused/husband was insisting his wife to live with him. 20. In our opinion, though incident took place in the room in the night of 17.02.2006 in between accused and his wife quarrel might have took place because accused/husband was insisting his wife to live with him. 20. According to prosecution case, there was no premeditation or intention of the accused appellant to kill his wife because there is no allegation about his conduct, therefore, there is strength in the argument advanced by the learned counsel for the appellant that even if the entire prosecution case is accepted, then also, the prosecution has not led evidence of worth credence so as to hold accused appellant guilty for offence u/s. 302 of IPC but has proved the case for the offence u/s. 304 Part I of IPC because the incident took place in the room where husband and wife remained together and before entering in the house, accused was permitted to live with his wife by the in-laws and it has also came on record that husband used to meet his wife but wife was not ready to go with him. 21. On the basis of above discussion, we have no hesitation to hold that some quarrel took place in between the husband and wife on the date of incident and in a spur of moment, occurrence took place that too without any motive or intention, in which Sita Devi, wife of accused, died due to strangulation. Therefore, the conviction of the accused appellant for offence u/s. 302 of IPC is not sustainable in law because upon assessment of entire evidence all of sudden occurrence took place in the room in a spur of moment in which Sita Devi died, therefore, accused can be held guilty for offence under Section 304 Part I of IPC not for offence under Section 302 of IPC. 22. Consequently, this appeal is partly allowed, the conviction and sentence of accused appellant under Section 302 of IPC is hereby altered to the offence under Section 304 Part I of IPC and the sentence of life imprisonment is hereby reduced to ten years' R.I. while maintaining the order of fine.