JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal is directed against the judgment dated 9.5.2013 passed by the Additional Sessions Judge No.2, Behror, District Alwar in Sessions Case No.29/2010, whereby the accused-appellant has been convicted for offence u/s.302 IPC and sentenced to life imprisonment with fine of Rs.10,000/- and in default of payment of fine, he was to further undergo imprisonment of six months. 2. Brief facts of the case are that on 06.01.2010, complainant Naresh Kumar submitted a written complaint (Ex.P.1) in Police Station Mandhan, District Alwar with the averment that his sister Sunita was married to accused Yogesh S/o Gajraj Singh Yadav, Resident of Mandhan, District Alwar in the month of May, 2003. Yogesh used to demand dowry and after drinking liquor, he used to beat her sister. They requested him several times not to do so, but he did not mend his ways. His sister persisted in the habit of beating. He even threatened to kill her. His sister also made complaint to him several times that he would kill him one day. One day before her death on 05.01.2010, his sister was beaten by Yogesh. His sister was bearing pregnancy of advance stage and she called him on phone. He immediately along with his cousin went to her house in Village Mandhan on 05.01.2010, however, he did not find Yogesh there. He wanted to bring Sunita with him but Sonu, sister of Yogesh, requested him not to take Sunita otherwise Yogesh would beat her (Sonu) and she would be left alone in the house as mother and father of Yogesh has already expired. Due to insistence of Sonu, he left Sunita there. On 06.01.2010, Yogesh after drinking liquor had beaten his sister, who was pregnant and after giving her some poisonous substance, killed her and absconded from the house. Sonu, sister of Yogesh, after reaching home from school at 1.00 PM called him that Sunita was in critical condition and was not feeling well. After that, son of Yogesh's aunt (Mausi) called him that they were taking Sunita to Hospital at Rewari and he should also reach there. When he started from his house, son of his Mausi told him on the way at Ateli that Sunita has breathed her last. Thereafter, when he reached at Mandhan, he found Sunita lying dead and Yogesh had absconded. 3. When he started from his house, son of his Mausi told him on the way at Ateli that Sunita has breathed her last. Thereafter, when he reached at Mandhan, he found Sunita lying dead and Yogesh had absconded. 3. On the aforesaid complaint, a regular first information report bearing no.5/2010 was registered at the Police Station Mandhan District Alwar under Sections 498-A and 304-B of IPC and investigation started. During investigation, police arrested accused-appellant on 13.01.2010. After investigation, police filed charge sheet under Sections 498-A & 304-B of IPC before learned court below. Thereafter, the case was committed to the learned Additional Sessions Judge, Behror, from where case was sent for trial to learned Additional Session Judge No. 2 Behror. The learned trial court framed the charges under Sections 498-A, 304-B of IPC and in the alternate, u/s.302 of IPC, against the accused. Accused denied the charges and claimed to be tried. The prosecution in support of its evidence produced 25 witnesses and 22 documents. Defence did not produce any witness and exhibited 9 documents. After recording evidence of the prosecution, accused appellant was examined under section 313 of Cr.P.C. and he pleaded innocence stating that false case has been registered against him by the family member of his in-laws and his sister Sonu. 4. The learned trial court after hearing both the parties vide judgment dated 09.05.2013 acquitted the accused appellant from the charge under Sections 498-A and 304-B of IPC, but convicted him for offence under Section 302 of IPC and sentenced him to life imprisonment with fine of Rs 10,000/- and in default to further undergo imprisonment for six months. Hence this appeal. 5. Shri Rohit Kumar Tuteja, learned counsel for the accused-appellant has argued that the learned trial court while convicting and sentencing the accused appellant for offence under Section 302 IPC has ignored the very important aspect of the matter that the prosecution has failed to prove its originally set up case of 498-A, and of 304-B of IPC and investigation for murder has not been conducted by the investigating agency. There is no independent eye witness to prove that murder has been committed by the accused appellant. There was no justification for the learned trial court for arriving at the finding of guilt of murder against the accused appellant. There is no independent eye witness to prove that murder has been committed by the accused appellant. There was no justification for the learned trial court for arriving at the finding of guilt of murder against the accused appellant. The trial court has not discussed the fact that valuable property of accused is under control and possession of complainant who wanted to grab it and also the fact that all witnesses are disliking the accused. In order only to harass him, they have conspired to depose against him so that accused-appellant would remain in jail for an indefinite time and benefit may be taken from the property of accused-appellant. It is contended that there is no external sign of beating or injuries received by the deceased as per postmortem report also. 6. It is contended that the accused-appellant was not present at the relevant time and the statement of Vimla and Shakuntala Devi, who were first to see deceased, has not been relied by the learned trial court. It is clear from their evidence that the deceased was firstly seen by Vimla Devi and deceased told her that she should be saved as she has taken the poisonous tablet. It is also clear from the evidence that Sonu hated her brother Yogesh for one reason or the other. She wanted to implicate him in this case under the influence of Naresh and gave false statement against the accused appellant. Overlooking all the aforesaid evidence, the learned court below has mechanically convicted the accused appellant. 7. Learned counsel submitted that the learned court below further overlooked the evidence of Smt. Gyarsi Devi (PW8), who in her evidence clearly stated that on 06.01.2010 when she reached to deceased at village Mandhan, the deceased was lying on bed and crying for gestation pain and said that please save me. She never told that Yogesh had given poison to her. The learned trial court did not appreciate the aforesaid important evidence of witness. It is contended that witness Vimla Devi (PW10) in her statement clearly stated that the deceased herself told her that she has taken tablet. This witness is an important independent witness, whose testimony could not be ignored. According to her statement, it was a case of suicide and accused deserves to be acquitted on this ground alone. 8. It is contended that witness Vimla Devi (PW10) in her statement clearly stated that the deceased herself told her that she has taken tablet. This witness is an important independent witness, whose testimony could not be ignored. According to her statement, it was a case of suicide and accused deserves to be acquitted on this ground alone. 8. It is submitted that cause of death has also not been proved by prosecution. Learned trial court ignoring this important aspect has illegally convicted the accused appellant. Self contradictory evidence of witnesses and untrustworthy witnesses cannot be treated to be the basis for conviction of the accused appellant as according to the main witness Sonu, who herself is under the influence of complainant, accused was not present at the time of occurrence of offence, so much so that she even in the cross examination, has said that she dislikes her brother Yogesh and it was better that he stayed in jail. In such like situation, statement of Vimla Devi could not be ignored. However, this important fact has not been noticed by the learned trial court. 9. Learned counsel for the accused-appellant further submitted that case of the prosecution is falsified by the single fact that as per the prosecution case, deceased alleged to have been assaulted by accused Yogesh but on the contrary in the postmortem report, the deceased has not been shown to receive even a single injury on any part of body. According to the postmortem report itself, no external injury was seen on the body of deceased. Had the accused assaulted the deceased, she would have received at least a single injury on her body. Moreover, the accused appellant was not present on the spot and no witness was seen near deceased from 8.30 AM but no explanation has been given by the prosecution as to how and under what circumstances the poison has been given by the accused to the deceased. Further, there is no evidence that deceased vomited on the spot. There is no sign of presence of poison at the time of postmortem. Further, sample of viscera was not sealed properly and if there is probability of any doubt, benefit of that always goes in favour of accused. Hence conviction is not legally sustainable in the eye of law. Further, there is no evidence that deceased vomited on the spot. There is no sign of presence of poison at the time of postmortem. Further, sample of viscera was not sealed properly and if there is probability of any doubt, benefit of that always goes in favour of accused. Hence conviction is not legally sustainable in the eye of law. It is therefore prayed that the appeal be allowed and the impugned judgment of conviction and sentence be quashed and set aside. 10. We have given our anxious consideration to the rival submissions and perused the material on record. 11. The star witness of the prosecution is Sonu Yadav (PW5), who happens to be real sister of the accused-appellant and therefore sister-in-law of deceased Sunita. It is this sole witness, who has stated that Sunita, while she was dying, told her that accused-appellant had forcibly put some tablet into her mouth, she thereupon felt uneasy and breathless. But before that allegation, Sonu has also alleged that the accused had murdered her father i.e. his own father, three years ago. He was prosecuted for that offence and remained in jail for about 7-8 months. Thereafter, he was acquitted. She, her ‘bhabhi’ Sunita, younger brother Rinku and two nieces were staying in the house. Rinku was sick and he died on 25.01.2008. Thereafter, her brother started taking liquor. He used to often quarrel with deceased Sunita and beat her. He used to pressurise her that she should get more dowry from her parents’ house. Accused-appellant Yogesh did not earn anything. She (this witness) and her ‘bhabhi’ Sunita used to work in their agriculture field to earn their livelihood. Her brother Yogesh would spend all the money in buying liquor and used to frequently ask her to bring more money from her parents which she had to bring from her parents’ house. 12. Sonu Yadav (PW5) further stated that father of her ‘bhabhi’, gave a buffalo to her. They used to meet the daily expenses of the household by selling milk of the buffalo. Yogesh used to snatch even that money for satisfying his habit of consuming liquor. Yogesh sold the buffalo after 6-7 months. On this, quarrel took place between the husband and wife. Her ‘bhabhi’ refused to perform household work till the buffalo was not brought back. On this, accused-appellant Yogesh threatened Sunita to kill her. Yogesh used to snatch even that money for satisfying his habit of consuming liquor. Yogesh sold the buffalo after 6-7 months. On this, quarrel took place between the husband and wife. Her ‘bhabhi’ refused to perform household work till the buffalo was not brought back. On this, accused-appellant Yogesh threatened Sunita to kill her. Her ‘bhabhi’ telephoned her two brothers Naresh and Mahipal, who came on 05.01.2010. She complained to them that Naresh had sold the buffalo and that he was demanding more dowry. When her brother asked her to come with them to their maternal house, this witness requested them to allow her ‘bhabhi’ to stay or else she would be left alone in the house. Ultimately, Yogesh had to bring back the buffalo. In the evening again a quarrel took place between husband and wife. Then this witness went to the school. In the afternoon, her aunt and neighbour Shakuntala came to the school to call her at about 1.30 pm. She told that her ‘bhabhi’ was not well and was lying in the chowk. She hurried for her house and found Sunita lying in the chowk. When she inquired from her, Sunita told that her brother Yogesh had forcibly put some sour tablet in her mouth and that now she was feeling uneasy and breathless. This witness then has stated that she initially requested her neighbours to help her to take Sunita to the hospital, but when they did not help, she called her ‘mausi’ Gyarsi on telephone, who got a vehicle and then they took Sunita to hospital at Mandhan wherefrom she was referred to Rewari, but before they could reach at Rewari hospital, she breathed her last. This witness has been subjected to detailed cross examination in which again she has narrated the entire story as to how she and her ‘bhabhi’ were being harassed by Yogesh and they were fed up with him. Though she is real sister of the accused-appellant but the intensity with which she has made allegations against him can be easily understood, particularly when appellant was also accused of committing murder of his own father, who was also father of this witness. 13. Naresh Kumar (PW1) is another important witness, who happens to be brother of the deceased Sunita. He has stated that marriage of Sunita was performed with accused-appellant Yogesh in May, 2003. Yogesh was a habitual drunkard. 13. Naresh Kumar (PW1) is another important witness, who happens to be brother of the deceased Sunita. He has stated that marriage of Sunita was performed with accused-appellant Yogesh in May, 2003. Yogesh was a habitual drunkard. After consuming liquor, he used to beat his sister for demand of dowry. His sister would often complain to him that accused was beating her almost on daily basis and was demanding dowry. He used to also demand money for buying liquor. Yogesh has murdered his sister on 06.01.2010 by administering poison. One day before her death, Sunita telephoned him (this witness) that Yogesh has beaten her and was threatening to kill her. He along with his cousin Mahipal came to the house of the accused, but accused was not traceable. When they insisted that Sunita should come with them to her parents’ house, Sonu, sister of the accused-appellant started crying and pleaded that they should not take Sunita with them, otherwise Yogesh would beat her and she would be left alone. Since mother and father of Yogesh had already died, they out of compassion for Sonu, left Sunita at Mandhan in the house of the accused-appellant. Sonu on 06.01.2010 telephoned this witness around 1.00 in the afternoon, she was crying. On inquiry, she told that Sunita was lying in the chowk and was saying that Yogesh had beaten her and forcibly made her to drink some poison. Sunita has now become unconscious. This witness then headed along with his cousin Mahipal and Satish for village Madhan. On the way, they received telephone call from the cousin of accused-appellant that they were taking Sunita to hospital at Rewari, but after 5-7 minutes they received another call that Sunita had breathed her last. In cross examination, this witness has admitted that Sunita was bearing pregnancy of advanced stage, but denied the suggestion that she had taken pills to terminate pregnancy and had died due to that reason. This witness has admitted that Sonu, sister of Yogesh was quite annoyed and angry with him. Sonu used to stay with this witness and that it was this witness who was maintaining Sonu and arranged for her marriage and after marriage, Sonu used to come to his house as his own sister. He used to incur all the expenses of Sonu. 14. Sonu used to stay with this witness and that it was this witness who was maintaining Sonu and arranged for her marriage and after marriage, Sonu used to come to his house as his own sister. He used to incur all the expenses of Sonu. 14. Dayaram (PW2), uncle of the deceased has also made similar statement that accused used to beat Sunita in connection with demand of dowry and corroborated what has been stated by Naresh. In cross examination, he admitted that Sonu told him that accused-appellant had given poison to Sunita and that he did not himself see this happen. He also admitted that Bhoop Singh, father of Sunita had given the land to Yogesh for cultivation on crop sharing basis. Yogesh had two daughters namely; Muskan and Sakshi, who used to stay with her maternal uncle. In further cross examination, he stated that Yogesh had murdered not only his father, but also his mother and, therefore, he hated him. Raj Kumar (PW4), cousin of deceased has stated that marriage of Sunita was solemnized with Yogesh on 18.05.2003. Whenever she would come to her parents house, she used to tell them that accused was frequently beating her. Accused-appellant used to demand money as also motorcycle, jewellery, necklace and rings. He used to pressurise the deceased to bring all these dowry articles. His uncle Bhoop Singh once gave a buffalo to deceased Sunita, but Yogesh sold it. When Sunita complained thereabout to her brother Naresh, thereupon Naresh and Mahipal came to village Mandhan, but Yogesh disappeared from there. Later, he learnt that Yogesh killed Sunita by administering poison. In cross examination, this witness has reiterated that Sunita used to tell him that Yogesh was frequently beating her in connection with demand of dowry and that he was a habitual drunkard, but he admitted that he was not present at the place where Sunita died. He denied the suggestion that Sunita did not want to give birth to third child and therefore she consumed poison. 15. Gyarsi Devi (PW8) happens to be aunt of deceased i.e. sister of Sunita’s mother. She has stated that Sonu made a telephonic call to her son and asked them to immediately come to their house. She along with her son Nirdesh went to the house of Sunita. Sunita was lying on a cot in the chowk. She pleaded with this witness to save her. She has stated that Sonu made a telephonic call to her son and asked them to immediately come to their house. She along with her son Nirdesh went to the house of Sunita. Sunita was lying on a cot in the chowk. She pleaded with this witness to save her. Sunita was bearing pregnancy of nine months. When she inquired from Sunita as to what happened to her, she told that a vehicle should be arranged and she should be immediately taken to the Doctor. When they went to local Doctor, he advised them to take her to Rewari, but before they could reach Rewari, Sunita breathed her last on the gate of the hospital. This witness was allowed to be cross examined by the learned Public Prosecutor because she did not support that part of her statement given to the police where it was alleged that Sunita told that accused-appellant had given poison to her. She denied having given such statement to the police. Nirdesh Yadav (PW9) son of Gyarsi Devi (PW8) also accompanied his mother Gyarsi Devi and both took Sunita to the hospital at Rewari in the vehicle. He has corroborated the statement of his mother. Even this witness has not supported the case of the prosecution on the allegation that Sunita told them that accused Yogesh had forcibly given some poisonous pill to her. When he was confronted with his police statement (Ex.P7), he denied having given such statement to the police. 16. Bimla Devi (PW10) has stated that when she inquired from Sunita as to what happened to her, Sunita told her that she has consumed the poisonous pill and thereafter she could not speak. She stated that Yogesh was a habitual drunkard and Sunita was fed up with him as he used to frequently beat her. Kanwar Singh (PW11) is yet another prosecution witness, who has not supported the prosecution and has been declared hostile. Lali Devi (PW15) happens to be the aunt of the deceased and Mahipal (PW16) is cousin of deceased. They also not supported the case of the prosecution. Savitri Devi (PW20) has not supported the prosecution case and has been declared hostile. Hemant Kumar (PW21), was driver of the vehicle, in which Sunita was taken to hospital at Rewari. Virendra (PW22) was the first Investigating Officer and Raj Kamal (PW25) was second Investigating Officer and Circle Officer, Behror. They also not supported the case of the prosecution. Savitri Devi (PW20) has not supported the prosecution case and has been declared hostile. Hemant Kumar (PW21), was driver of the vehicle, in which Sunita was taken to hospital at Rewari. Virendra (PW22) was the first Investigating Officer and Raj Kamal (PW25) was second Investigating Officer and Circle Officer, Behror. They proved different stages of investigation. 17. Bhoop Singh (PW12), father of deceased however has supported the case of the prosecution and gave statement similar to that of his son Naresh (PW1). Even he has alleged that Yogesh had murdered his father, but he was acquitted in that case. He used to harass his daughter on demand of dowry. Whenever his daughter would come to their house, she would tell that accused used to beat her on demand of dowry. Accused-appellant was a habitual drunkard. It was Sonu, who told them that accused had given some poisonous substance to Sunita and then ran away. Nirmala Devi (PW14) is mother of the deceased. She has also made allegation that deceased used to subject her daughter to beating in connection with demand of dowry and that she was fed up with her husband. Sonu told that Yogesh has administered poison to her. 18. Dr. Jaldeep Singh Yadav (PW18), who was member of the Medical Board conducting the postmortem has proved the postmortem report of the deceased Ex.P12 and FSL report Ex.P13. The report of FSL (Ex.P13) indicates that on chemical examination, portions of viscera (1-5) from two packets marked A & B respectively gave positive tests for the presence of aluminium phosphide and gave negative tests for other metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides. Thus the cause of death was poison, which she consumed. Similar statement has been made by Dr. Raghuwar Dayal Mandiya (PW19). 19. Analysis of the evidence afore-discussed clearly show that there are two sets of witnesses. While one set of witnesses is of those who were closely related to the deceased including Sonu, who, for the obvious reasons, hated her own brother accused-appellant. This set of witnesses has given the statement that Sunita told Sonu that it was accused-appellant, who gave poisonous tablet to her, as a result of which she died, thus suggesting that she had died because accused administered poison to her. This set of witnesses has given the statement that Sunita told Sonu that it was accused-appellant, who gave poisonous tablet to her, as a result of which she died, thus suggesting that she had died because accused administered poison to her. All other witnesses of the prosecution in this first set of witnesses are repeating similar allegation and stated that they learnt this from Sonu. Another set of witnesses is of those, who are residents of village Mandhan, which include real aunt of the deceased Gyarsi Devi (PW8), who was the first to arrive at the house of the deceased and took her to Rewari hospital in the vehicle of Hemant Kumar (PW21) and her son Nirdesh (PW9). These witnesses are not supporting the allegation attributed to them in their statement under Section 161 Cr.P.C. that Sunita told that accused gave poison to her due to which she died. While it may be true that accused-appellant could be a person of bad character and that he could have also been accused of committing murder of his own father and as per statement of Dayaram (PW2), even of his own mother. However finding of conviction in a criminal case cannot be returned on the basis of strong feeling of hatred against accused, but has to be based on the evidence which is credible and reliable. Though there is ample evidence in the present case that deceased was subjected to cruelty soon before her death in connection with demand of dowry, but the evidence of murder fall short of standard beyond reasonable doubt. Therefore, in our considered view, the learned trial court was wholly unjustified in convicting the accused-appellant for the offence under Section 302 IPC. The accused as per the evidence discussed above, is liable to be convicted only for offence u/s.304B IPC. 20. Consequently, this appeal is allowed in part. The conviction of the accused-appellant for offence u/s.302 IPC is set aside, instead he is convicted for offence under Section 304B IPC and sentenced to rigorous imprisonment of ten years with a fine of Rs.10,000 and in default of payment of fine, to further undergo imprisonment of six months.