MIRDHE, J. ( 1 ) THIS criminal appeal is pre ferred against the Judgment dated 24-3-94 passed by the I. Addl. Sessions Judge, Belgaum, in S. C. 131/93 convicting the appellant-accused for the offence punishable under Sec. 302, I. P. C. , and sentencing him to undergo life imprisonment. ( 2 ) WE have heard the learned counsel for the appellant-accused Sri. R. B. Deshpande and the learned Addl. S. P. P. Sri Jadav for the State fully and perused the records of the case. ( 3 ) THE case of the prosecution is as follows : - that deceased Hasina was married to accused No. 1 on 26-12-92 and thereafter she started leading marital life with accused No. 1 at Kudachi and ac cused Nos. 2 to 7 were also living in the same house with the deceased and accused No. 1 at Kudachi, that Hasina was 18 years old and the appellant was old compared to her and he was stammering and there fore, Hasina was not happy with him and was refusing to give him company and A-1 to A-7 were angry with her on the ground that she failed to bring gold ornaments and money as dowry and for these reasons A-1 to A-7 ill-treated her and subjected her to cruelty in their house at Kudachi and thereby they committed the offence punishable under Sec. 498-A r/w S. 34, I. P. C. The further case of the prosecution is that on 26-11-92 at about 1. 30 am. in his bed-room situated in his house at Kudachi, A-1 strangulated Hasina by pressing her neck with his hands and caused her death and thereby committed the offence punishable under Sec. 302, I. P. C. and accused Nos. 2 to 7 committed the said offence under Sec. 302 r/w S. 34, I. P. C. ( 4 ) THE prosecution examined the mother of the deceased as P. W. 1 Mumtaz, P. W. 2 Surayya who was a friend of the deceased, P. W. 3 Dr. Siddappa Beelappa Terdal who conducted the post-mortem examination over the dead body of deceased Hasina and P. Ws. 4 and 5 the police officers who investigated the case. The trial Court has acquitted accused 2 to 7 of the offences with which they have been charged. There is no appeal preferred by the State against the order of acquittal of the said accused. 4 and 5 the police officers who investigated the case. The trial Court has acquitted accused 2 to 7 of the offences with which they have been charged. There is no appeal preferred by the State against the order of acquittal of the said accused. The trial Court convicted accused No. 1 alone who is the appellant in this appeal for the offence punishable under Sec. 302, I. P. C. , the murder of his wife Hasina and sentenced him to life imprisonment. The contention of the learned counsel for the appellant is that there is no evidence to prove beyond any reasonable doubt that it is the accused who committed the murder of his wife Hasina. ( 5 ) P. W. 1 is the mother of the deceased and P. W. 2 is the neighbour of P. W. 1 and a friend of the deceased. The evidence of P. Ws. 1 and 2 goes to show that just 3 months prior to the murder of Hasina, she was married to accused No. 1. Both of them also stated that when Hasina had come to her parental house, she was forcibly taken by the ac cused from the house of P. W. 1 and thereafter, she was murdered at Kudachi. The Court has disbe lieved the evidence of P. W. 1 regarding demand of dowry and harassment of the deceased on account of dowry. The case of the prosecution is that accused was an old person and stammering and therefore, Hasina did not like him and she was refusing to co- habitate with him. P. W. 1 has stated that the appel lant is older to her by 2-3 years. P. W. 1 has given her age as 45 years. It appears that the appellant was old as compared to the age of Hasina who was only 18 years of age when she was got married to the appellant. He appears to be more or less of the age of his mother-in-law P. W. 1, if not older than her. Accused No. 2 who is the brother of the appellant has stated that his age is 38 years. He appears to be more or less of the age of his mother-in-law P. W. 1, if not older than her. Accused No. 2 who is the brother of the appellant has stated that his age is 38 years. Though appellant has given his age as 35 years, his age must be more than 38 years in view of the statement made by his younger brother i. e. accused No. 2 that he was aged 38 years when he gave his age. The evidence goes to show that the accused was more than 20 years old than Hasina who was only 18 years old when she got married to him. P. W. 1's evidence goes to show that there were 3 abrasions - 2 over the neck and 1 just below the angle of the mandible and all the injuries were covered with blood clots. There were lacera tions on the right side of neck muscles also and the right cornua of the hyoid bone was fractured. The doctor has also noted that thumb and finger impres sions appeared on the neck of Hasina. The doctor has stated that the cause of death was asphyxia due to throttling and the death had occurred 12 to 24 hours prior to the post mortem examination. In view of this evidence the prosecution has been able to prove that the deceased Hasina died a homicidal death in the house of the appellant and the possibility of her committing suicide is clearly ruled out in view of the nature of the injuries found on her body. ( 6 ) THE prosecution was required to further prove that it was this appellant who caused the death of the deceased. The trial Court's reasoning for convicting the appellant is to be found in para 20 of its Judgment which reads as follows :-"it is not the case of the accused persons that in the night between 25th and 26/11/1992 A-1 Abdulgani and ha wife Hasina were not sleeping together in their bedroom for any reason. It may be remembered that they had been married within 3 months and it is not the case of the accused persons that A-1's younger brothers A. 2 to A. 4 had been married after the second marriage of A-1 with Hasina. It may be remembered that they had been married within 3 months and it is not the case of the accused persons that A-1's younger brothers A. 2 to A. 4 had been married after the second marriage of A-1 with Hasina. So, only A-1 and Hasina were the newly married couple and naturally had a right to have one room as their bed room in preference to the other couple in the joint family. "the Court presumes that the appel lant was sleeping in the bed room on that night. No such presumption can be raised. It will have to be proved like any other fact in the case. But the perusal of the prosecution evidence goes to show that there is no such material through its evidence, from which the Court can infer that the appellant was sleeping with his wife in his bedroom on that night. When P. W. 1 came and saw the dead body, it was in the second room of the house of the accused persons. Though inquest was conducted by Taluka Executive Magistrate, the Taluka Executive Magistrate has not been examined by the Court. If the inquest report is perused, it goes to show that the dead body was in the bed room. Even if it is taken that the dead body was found in the bed room, without there being any material to infer that the accused appellant had spent the night with the deceased in the bed room, the Court would not be justified in convicting the appel lant merely on the basis of premises and conjectures. There is no basis to infer that the deceased was seen alive last in the company of the accused-appellant or that they stayed together and spent the night together in the bedroom. If there were to be any such material, perhaps it would have been a strong case for the prosecution, but without there being any such material, the Court cannot act on presumptions and conjectures and presume that the appellant might have spent the night with Hasina as he was the husband and thereby he might have committed the murder. The trial Court was not justified in raising such presumption without any basis for such pre sumption in the evidence of the prosecution. The trial Court was not justified in raising such presumption without any basis for such pre sumption in the evidence of the prosecution. ( 7 ) THE evidence discloses that the appellant was nearly of the age of his mother-in-law and he mar ried a tender aged girl Hasina who was only 18 years old at the time of her marriage. The marriage record of the appellant is also not credit worthy. Hasina was his second wife. He had already divorced his first wife. Hasina was forcibly taken from the house of P. W. 1 and brought to Kudachi. The dead body of Hasina was found in the house of the appellant and it was not a case of suicide but it was a case of death by strangulation with hands. The needle of suspicion points clearly to the appellant in this case. But merely on the basis of suspicion, however grave it may be, a person cannot be convicted. Looking to the facts and circumstances surrounding the death of the deceased, we are also morally convinced that it is the appellant who had done the deceased to death by strangulating her with his hands but we cannot convict the appellant merely on the basis of moral conviction without any legal proof. We are con strained to acquit the accused-appellant for want of legal proof in this case. ( 8 ) HENCE, we proceed to pass the following order : order the appeal is allowed. The Judgment of the trial Court is set aside and the appellant is acquitted of the offence of which he has been convicted and he is set at liberty forthwith, in this case. Appeal dismissed. --- *** --- .