JUDGMENT The appeal is directed against the judgment and order dated 19.2.1987 of IIIrd Addl. Sessions Judge, Jhabua passed in S.T. No. 299186 whereby accused appellant has been convicted u/s. 302 of IPC for having committed murder of his wife Thawa libai in the morning of 8.5.86 in village Ambakhedi and sentenced to imprisonment for life. It is alleged that deceased Thawalibai prior to her marriage had illicit relation with Dungariya Bhilala and had given birth to a child P.W.2 Chhagan is the brother of Thawalibai. As per the prosecution story two children one son and one daughter were born out of their wed-lock i.e. accused and deceased Thawalibai. The son died. The daughter was residing with Thawalibai. Thawalibai reared the son of Dungariya as well (probably he was the child born prior to the marriage). On 8.5.86 Thawlibai has found dead with incised wound on the neck. On hearing about the incident villagers including Kesu (PW. 5) and Balan (PW 6) came and saw her dead with injuries on the neck. The matter was reported to the police who conducted the investigation and after usual procedure of preparation of site-map, seizure of stained and unstained earth, preparation of inquest report the body was sent for post-mortem examination. P.W. 4 Dr. Goyal conducted post-mortem and prepared report Ex. P/16 on 8.5.86. He found one incised wound of the size of 4" x 2" cutting carotid Artery and carotid veins trachea and esophagus and that was the cause of death. It is alleged that accused made extra-judicial confession before P.W. 1 Nevsingh and P.W. 5 Kesu who is his own l1I'other and the conduct of accused was also found abnormal. As such challan against accused was filed which was committed to the Court of Sessions in due course. The accused-appellant abjured the guilt and pleaded innocence. Learned trial Judge had convicted the accused and sentenced as above. Hence this appeal. The contentions as raised in memo of appeal is that P.W. 1 Nevasingh and P.W. 5 Kesu have not supported the fact of extra-judicial confession and, therefore, accused could not be convicted merely on the basis of abnormal conduct. There is no dispute as to the fact of homicidal death as the same has been proved by Dr. Goyal who has conducted autopsy on the body of deceased Thawalibai. There is no dispute as to the fact of homicidal death as the same has been proved by Dr. Goyal who has conducted autopsy on the body of deceased Thawalibai. P.W. 1 has stated that" accused was questioned about how Thawalibai sustained injury. He pleaded ignorance. He has further stated that on question from the police also accused stated that some unknown person has caused injuries. Thereafter in paragraph 4 of his statement he has stated that on further question by police accused admitted in presence of police that he has caused injuries by means of sword. This part of evidence of P.W. 1 Nevasingh cannot be admitted as that would amount to confession before the police-officer. P. W. 5 Kesu was examinees for extra-judicial confession but he has also not supported the case of the prosecution. As against it he has stated that accused told him that some unknown person (thief) has caused injury to his wife. He was declared hostile. P. W. 6 Balam has also been examined to prove the extra-judicial confession but he did not support the case of the prosecution during trial. The statements of P.W. 5 Kesu and P.W. 6 Balam were recorded U/s. 167 Cr. P.C. by P.W. 7 Haribabu Soni, Judicial Magistrate First Class vide Ex. P/17 and Ex. P/19. Learned trial Judge has accepted that statement as substantial and based conviction on that. The statements recorded U/s. 161 Cr.P.C. is only a preious statement it cannot be termed to be a substantive evidence. It is the evidence or the statement given in the court that can be termed as substantial evidence. Since P.W. 6 Kesu and P. W. 6 Balam have denied the fact of extra-judicial confession made by the accused, which they stated earlier having been made by the accused cannot form basis of conviction. . Even otherwise a witness who makes different statements on oath at different occasions, cannot be relied on. The extra-judicial confession is otherwise also weak in nature. Since in this case that fact has also not been confirmed by the witnesses during their statement in the Court the same cannot be relied upon. In our opinion, learned trial judge has committed illegality in accepting document Ex. P/17 and Ex. P/19 as piece of substantial evidence. The extra-judicial confession is otherwise also weak in nature. Since in this case that fact has also not been confirmed by the witnesses during their statement in the Court the same cannot be relied upon. In our opinion, learned trial judge has committed illegality in accepting document Ex. P/17 and Ex. P/19 as piece of substantial evidence. The conduct of the accused has also been accepted to have been abnormal but that itself would not be sufficient to connect the accused with the crime as the abnormal behaviour may be because of the grief and fear as well. In our opinion, therefore, the conviction of the accused-appellant cannot be sustained and he is entitled for benefit of doubt. As a result appeal succeeds and is accepted. The accused is acquitted of the offence punishable U/s. 302 of IPC. He is on bail vide order dated 28.9.87 of this Court. His bail-bonds are, therefore, discharged.