JUDGMENT 1. 1. The applicant Kana was charged with having committed the murder of his wife Vardi on the early morning of May 4, 1971 in the village Majra, District Udaipur. The learned Additional Sessions Judge, Udaipur by his judgment dated April 26, 1972 convicted the appellant under section 302, Indian Penal Code, arid sentenced him to imprisonment for life. Aggrieved by this decision the appellant has preferred this appeal. 2. The facts of the case lie in a narrow compass : The appellant was living with his wife Vardi in village Majra. He had three children, one was a baby. A few days prior to May 4,1972 Vardi went with Chhaga (P. W. 6) for a pilgrimage for about a week. After she returned back to the village she began to live with Chhaga. On the complaint of the appellant the villagers questioned Chhaga as to why he wa9 keeping the wife of the appellant. On persuasion by the villagers Vardi came back to live with the appellant. Chhaga inspite of the advice given by the villagers continued his visits to the house of the appellant. It is said that during the period Vardi was living with the appellant, after she came from the house of Chhaga the appellant ill-treated her. 3. The prosecution case was that on the morning of May 4, 1971 the appellant with his boy in arms went to the Police Station, Delwara at about 4.30 A. M. and reported to Poorna Shanker (P. W. 13), Sub Inspector of Police that his wife was lying dead with injuries on her and confessed before him that he was the man who committed the murder. Thereupon Poorna Shanker recorded the statement of the appellant as per Ex. P. 15. We may point out that the contents of Ex. P. 15 relating to the confession of the appellant relating to murder was inadmissible and the learned Additional Sessions Judge was wholly wrong in marking the entire statement. The appellant was arrested. Thereupon Poorna Shanker recorded the statement of the appellant as per Ex. P. 15. We may point out that the contents of Ex. P. 15 relating to the confession of the appellant relating to murder was inadmissible and the learned Additional Sessions Judge was wholly wrong in marking the entire statement. The appellant was arrested. Before the Sub-Inspector of Police the appellant amongst other things made a statement that he had kept the axe in the fodder of his but and that he would show the same if he was taken there Poorna Shanker sent Bhom Singh (P. W. 1), a police constable attached to the Police Station, to go to the village of the appellant and to keep a watch over the dead body. Bhom Singh went to the village at about 5 A. M. and found the dead body of Vardi and kept a watch over the dead body till the arrival of the Sub-Inspector of Police. Poorna Shanker arrived on the spot at about 8 A. M. and recovered the axe, which contained bloodstains, from the fodder as pointed out by the appellant. The prosecution case was that the appellant had a serious grouse against Vardi as she was in illicit intimacy with Chhaga, (P. W. 6) and due to that grouse while she was asleep, he committed her murder, and thereafter gave information to the Sub-Inspector of Police. 4. In support of its case the prosecution entirely relied upon the circumstantial evidence. The three circumstances on which reliance was placed by the prosecution were : (1) the motive, (ii) the appellant appearing before the Sub-Inspector of Police on the early morning of May 4, 1971 and giving information to him regarding the death of his wife, and (iii) that at his instance the axe, said to have been used for the commission of the offence was recovered from the fodder in the house of the appellant. 5. So far as motive is concerned some evidence has been led by the prosecution to show that the appellant had a serious grouse against his wife. From the evidence of Chhaga (P. W. 6) it could be gathered that Vardi had gone away with him for about a week on the pretext of going on a pilgrimage and after she returned back, along with Chhaga she continued to live in the house of Chhaga. From the evidence of Chhaga (P. W. 6) it could be gathered that Vardi had gone away with him for about a week on the pretext of going on a pilgrimage and after she returned back, along with Chhaga she continued to live in the house of Chhaga. At the instance of the villagers Vardi came back to live with the appellant and even thereafter Chhaga used to visit her. If this evidence is accepted, there cannot be any doubt that the appellant had a strong motive to murder his wife. But there is indication in this case to show that Chhaga himself had a serious grouse against Vardi as she went away from his house and began to live with her husband. 6. Whatever that be, we have yet to examine the circumstances on which considerable reliance is placed by the prosecution to connect the appellant with the crime. It is no doubt proved that Vardi was found murdered in the house of the appellant. According to the prosecution, the appellant went to the Police Station at about 4.30 A. M., and reported the matter to the Sub-Inspector of Police about the murder and in doing so he confessed before him that he himself was a murderer. So far as the confession made by the appellant before the Sub-Inspector of Police the Court cannot act upon it because that is wholly in-admissible in evidence. The Sub-Inspector of Police got the information about the murder of Vardi from the appellant himself. That circumstance by itself without any other evidence will not be a circumstance to establish the guilt of the appellant. 7. In order to establish the guilt of the appellant the prosecution substantially relied upon the recovery of the axe on the information given by the appellant. The Sub-Inspector of Police has stated that he recovered the axe (Ex. 14) from the fodder found in the hut of the appellant. This recovery, in our opinion, can not be in pursuance of the information given by the appellant. This we say so, because the appellant gave information with regard to the axe at about 4.30 A. M. when he went to the Police Station, but the Sub-Inspector of Police did not proceed to the spot immediately to verify that information but on the other hand sent a Constable Bhom Singh (P. W. 1) to keep watch over the dead body. Bhom Singh has stated that when he went to the house of the appellant, two children of the appellant stated to him that they were playing. It is not the case of the prosecution that the house had been locked. If that is so, the possibility of the axe being planted in the fodder cannot be ruled out because when the appellant made the statement with regard to the axe in the Police Station, admittedly Bhom Singh (P. W. 1) was at the Police Station. At any rate, the recovery of the axe is not free from doubt. Moreover the medical evidence in this case goes to show that the injuries found on the head of Vardi in all probability were caused by a blunt weapon, but the weapon, now said to have been used, according to the prosecution was an axe. Therefore, this also throws a considerable doubt whether this was the weapon which was used in the commission of the crime. The circumstances relied upon by the prosecution taken singly and cumulatively do not point out conclusively to the guilt of the appellant. 8. The defence of the appellant was that Chhaga was very much aggrieved because his wife, who was living with him, came to him and therefore he committed the murder of his wife on that night. On that night having come to know about the murder he went to the Police Station to report the matter. This story of the appellant although finds no corroboration cannot be thrown out as wholly untenable. 9. For the reasons stated above, we do not agree with the finding of the learned Additional Sessions Judge, Udaipur and allow this appeal, set aside the conviction and sentence passed against the appellant and acquit him and direct that he shall be set it liberty forthwith.Appeal Allowed appellant-Acquitted. *******