JUDGMENT 1. - This appeal is directed against the judgment dated 19.10.1992 passed by the Additional District & Sessions Judge, Banswara, by which the learned Additional Sessions Judge convicted the appellant for the offence Under Section 302 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's rigorous imprisonment. 2. Appellant Bhariya was tried by the learned Additional Sessions Judge for committing the murder of his wife Smt. Jhulki in his own house situated in village Tamatiya on 1.2.1991 at 4.30 p.m. The case of the prosecution, as unfolded in the FIR lodged at Police Station, Lohariya on 2.2.1991 at 10.30 a.m. on the basis of the statement of PW 2 Dhulla, is that on 1.2.1991, at about 4.00/4.30 p.m. Dhulla had gone to his field. His wife Smt. Vesti raised an alarm "run... run." On hearing her cries, he came to his house where his wife informed that Bhariya has killed his wife by strangulation and after killing his wife he ran away. Thereafter he went to the house of accused-appellant Bhariya and saw Smt. Jhulki lying dead and accused-appellant Bhariya was not there. He made a search of the accused, who met him in village Chirola. He brought the accused to the house where Amra, also, came. They tied the accused with a rope. The incident was witnessed by Kachari - the daughters of accused Bhariya, and on raising the cries by Kachari, Smt. Vesti and Smt. Jamna went there. On enquiry, the accused-appellant disclosed that he has committed a mistake in an anger. Accused Bhariya untied himself in the night and ran after removing the Kellu on the roof, went out side the house. The motive suggested for murdering Smt. Jhulki, as disclosed in the FIR, was that accused Bhariya's brother Kachru died 2-1/2 months before and deceased Smt. Jhulki wanted to get his widow married to her brother-in-law Amra; which proposal was not accepted by the accused and, therefore, he murdered his wife. 3. The prosecution, in support of its case, examined ten witnesses, viz., PW 1 Dr. 3. The prosecution, in support of its case, examined ten witnesses, viz., PW 1 Dr. S.S. Sinha, who was one of the Members of the Medical Board which performed the autopsy on the deadbody of Smt. Jhulki; PW 2 Shambhu Lal, H.C., posted at Police Station, Lohariya on the date of the incident, who, on the basis of the statement of Dhulla (Ex. P/1) recorded by PW 10 Durg Singh, SHO while on patrolling duty, registered the FIR (Ex. P/3); PW 3 Dhulla S/o Roopa, on the basis of whose statement the FIR was registered and who, on the cries being raised by his wife Smt. Vesti (PW 4) came to his house and thereafter went to the house of the accused-appellant and when the appellant was not found there, he went to his search, brought him to his house and before whom the extrajudicial confession was made by the accused-appellant; PW 4 Smt. Vesti and PW 5 Smt. Jamna are the eye-witnesses of the occurrence, who were attracted by the cries raised by Kachri and saw the accused strangulating his wife; PW 6 Amra is the witness who came at the house after the occurrence and to whom the incident was narrated by the witnesses; PW 7 Lakhma, PW 8 Vateng and PW 9 Dhulla S/o Premji are the Motbir witnesses of the Panchnama (Ex. P/4) and PW 10 Durg Singh is the Station House Officer, Police Station, Lohariya, who investigated the matter and presented the challan. 4. PW 5 Smt. Jamna, PW 6 Amra and PW 7 Lakhma have not supported the prosecution case during the trial and they were declared hostile and nothing could be turned out from the evidence of these witnesses. The evidence of these witnesses do not connect the accused-appellant with the crime. 5. The prosecution case mainly rests upon the statement of PW 3 Dhulla and PW 4 Smt. Vesti, which is sought to be corroborated by the evidence of PW 1 Dr. S.S. Sinha, who was one of the Members of the Medical Board which performed the post-mortem on the deadbody of deceased Smt. Jhulki. 6. PW 4 Smt. Vesti has stated that about one year before, she was grazing her cattle. Smt. Jamna was, also, grazing her cattle there. S.S. Sinha, who was one of the Members of the Medical Board which performed the post-mortem on the deadbody of deceased Smt. Jhulki. 6. PW 4 Smt. Vesti has stated that about one year before, she was grazing her cattle. Smt. Jamna was, also, grazing her cattle there. They heard the cries of Kachri - the daughter of accused Bherji that her mother has been killed by her father Bherji and called them to run towards the place of the incident. On hearing these cries, she and Smt. Jamna went to Bhariya's house where Kachri and her younger brother were standing in the court yard. When they went inside the house, they saw the deadbody of Smt. Jhulki but accused Bheriya was not there and he had already ran away.In the cross-examination conducted by the Public Prosecutor, this witness has first stated that she had not seen the accused strangulating the deceased but then said that she saw the accused throttling his wife and on seeing them the accused ran away. The accused was thereafter brought back and was tied down in the house. In the cross-examination conducted by the counsel for the accused, this witness has admitted that the accused was lunatic and was insane and accused Bhariya himself called the police. She has, also, admitted that their relations with the accused-appellant are strained and inimical. She has, also, admitted that the place where they were grazing their cattle is a hillock and in between the hillock and the house of the accused there were trees. She has, also, admitted that Kachri came to the hillock to call them. After coming of Kachri they collected the cattle and went to the house of Bhariya and Bhariya, on seeing them coming, ran away. 7. It is true that the evidence of the witness who has been declared hostile, is not wiped off from the record and it can be relied upon if it inspires confidence and connect the accused with the crime. In the cross-examination this witness has specifically admitted that Kachri came running at the hillock to call them and after coming of Kachri they collected their cattles and went to the house of Bhariya and on seeing them coming, Bhariya ran away. This witness has, therefore, not seen the accused-appellant throttling his wife. She is, therefore, not an eye-witness of the occurrence. This witness has, therefore, not seen the accused-appellant throttling his wife. She is, therefore, not an eye-witness of the occurrence. She came to the place of the incident when she was called by Kachri. 8. Kachri (daughter of accused-appellant) was the only eye-witness of the occurrence but she has not been produced by the prosecution. She was present on the trial Court on 16.4.1992 and on that day two witnesses, i.e., PW 3 Dhulla and PW 4 Smt. Vesti were examined. The Public Prosecutor did not examine Kachri on that day and she was bound-down for the next date of hearing. On 15.7.1992, bailable warrant of this witness was issued for securing her presence on 25.7.1992. On 25.7.1992 fresh warrant was issued for securing her presence on 4.8.1992. The Public Prosecutor was directed to produce Kachri on the next date of hearing and the Superintendent of Police was, also, directed to get this witness served. On 4.8.1992 the Public Prosecutor closed the evidence and did not produce Kachri. 9. Kachri was an important witness and she was only the eye-witness of the occurrence and still the prosecution did not produce her. PW 4 Smt. Vesti had not seen the occurrence. PW 3 Dhulla has stated only what was disclosed to him by his wife Smt. Vesti. When Smt. Vesti hereself had not seen the occurrence, therefore, the evidence of Dhulla is, also, of no consequence. 10. So far as making of extrajudicial confession by the accused-appellant before PW 3 Dhulla is concerned, we are of the opinion that he was not a person having any influence, before whom the accused-appellant could have made his clean breast. The relations between them were not cordial, rather they were strained and inimical as stated by Smt. Vesti. There was, therefore, no occasion for the accused-appellant to have made extrajudicial confession before this witness. The evidence of PW 3 Dhulla relating to making of extrajudicial confession by the accused-appellant before him does not inspire confidence. 11. Though from the medical evidence it is proved that the death of deceased Smt. Jhulki was the result of strangulation but there is no evidence on record to connect the accused-appellant with the crime. 12. Learned trial Court, while convicting the appellant, relied-upon the evidence of PW 3 Dhulla and PW 4 Smt. Vesti regarding motive. 11. Though from the medical evidence it is proved that the death of deceased Smt. Jhulki was the result of strangulation but there is no evidence on record to connect the accused-appellant with the crime. 12. Learned trial Court, while convicting the appellant, relied-upon the evidence of PW 3 Dhulla and PW 4 Smt. Vesti regarding motive. The motive as suggested by the prosecution in this case was that deceased Smt. Jhulki was interested in re-marriage (Devar-Banta) of the widow of deceased Kachra with Amra, which was not liked by the accused-appellant. From the evidence produced by the prosecution, this motive has not been established beyond reasonable manner of doubt. Moreover, it was not such a motive which could have provoked the accused-appellant to this extent that he may kill his wife. The evidence produced by the prosecution, including that of PW 3 Dhulla and PW 4 Smt. Vesti, clearly establish that the relations between the accused and the deceased were cordial and they had not seen them quarrelling prior to this incident. The motive has neither been established nor was grave enough which could have led the appellant to commit the murder of his wife. The learned trial Court was not justified in relying upon this motive. 13. From the above discussion it is clear that the prosecution has failed to prove the case against the accused-appellant beyond reasonable manner of doubt. The learned Additional Sessions Judge was, therefore, not justified in convicting and sentencing the accused-appellant for the offence Under section 302 Indian Penal Code and the judgment dated 19.10.1992 passed by him, convicting and sentencing the appellant, deserves to be quashed and set aside. 14. In the result, the appeal filed by the accused-appellant is allowed. The judgment dated 19.10.1992 passed by the learned Additional Sessions Judge, Banswara, convicting and sentencing accused-appellant Bhariya for the offence under Section 302 Indian Penal Code is set aside and the appellant is acquitted of all the charges levelled against him. He is in jail and he may be released forthwith if he is not required in any other case.Appeal Allowed. *******