Judgment M.L.Visa, J. 1. Ram Sewak Ram, the sole-appellant, has preferred this appeal against the judgment and order dated 2nd January, 1987 passed by the Sessions Judge, Gopalganj, in Sessions Trial No. 81 of 1986 convicting and sentencing him to undergo R.I. for life under Section 302 of the Indian Penal Code. 2. The prosecution case, in short, as stated in the fardbeyan said to be recorded on the statements of Informant Marchhia Devi (PW-1) is that on the night of 10-8-1985 after taking meal her daughter Shanti Devi along with her husband, the appellant Ram Sewak Ram, went in the house to sleep and Informant also after taking meal went in the Palani of Flour Mill situate towards east of a road which itself is on south of her house. On the next day in the morning before sunrise, the Informant awoke and started giving fodder to her cattle and she also started uttering that her daughter and her son-in-law were still sleeping and she thereafter started calling her daughter but when she did not get any reply, she went to her house and started knocking the door but then found that the door was bolted from outside by chain and she then opened the door of her house and found that a diya (earthen lamp) was still burning but her daughter and appellant were not in the house. When she came out from her house she was informed by villager Sagina Rai (PW-2) that dead body of her daughter Shanti Devi was lying in the paddy field of one Bhikhari Ram and she then along with Sagina Rai, Badri Rai (PW-6), Rameshwar Rai (not examined) and others went to the paddy field of Bhikhari Ram where she found the dead body of her daughter Shanti Devi with dagger injury on her neck. It is further stated that 10-12 years ago Shanti had been married to appellant and two years after their marriage Informant transferred her entire property in favour of appellant by a deed of gift because Shanti Devi was the only child if Informant and since then appellant used to live in the house of Informant and he had set up a flour mill there and some days prior to the date of occurrence he had removed one Chandrama Rai who used to look after the flour mill alleging that he (Chandrama Rai) had illicit connection with Shanti Devi. It is further stated that since last some days appellant used to give threatening for committing murder of Shanti Devi because she had no issue and 2-3 months prior to the occurrence once he had run to assault Shanti Devi with a knife and Shanti Devi then took shelter in the house of Deo Nath Ram in order to save herself. In the fardbeyan Informant claimed that appellant must have killed her daugher Shanti Devi because on the night of the day of occurrence he was sleeping in her house with Shanti Devi and thereafter he absconded. Fardbeyan (Ext. 3) of Informant was recorded in the orchard of one Mahabir Rai situate towards west of the field of Bhikhari Rai where at the time of recording fardbeyan the dead body of Shanti Devi was lying. On the basis of fardbeyan (Ext. 3) a case under Section 302, IPC. was registered against the appellant and Police after investigation submitted charge-sheet against him under Section 302, IPC. After commitment of the case to the Court of Sessions. The appellant was tried under Section 302, IPC after framing charge against him under this head and he was found guilty and was accordingly convicted and sentenced to undergo R.I. for life. 3. The case of the appellant before the Court below as it appears from his examination under Section 313, Cr PC as well as from the evidence of two defence witnesses was that on the night when the occurrence had taken place he was in the flour mill of one Birendra Kumar Thakur (DW-1) situate at village Chainpatti and on receipt of information about the murder of his wife he came to the village of Informant on 11-8-85 at about 12 Oclock in the noon. His further defence was that because Informant Marchhia Devi who is her mother-in-law had gifted all her properties in his favour and he has set up a flour mill in his sasural, the pattidars of her mother-in-law were quarrelling with him and they used to threaten him that they will not allow him to own the property gifted to him byhis mother-in-law. 4. In order to prove its case, the prosecution has examined 11 witnesses. Dr. R. B. Chaudhary (PW-9) is the doctor who had conducted autopsy on the dead body of deceased Shanti Devi and he, in his evidence, has said that on 11-8-1985 he was posted at Sadar Hospital, Gopalganj, and on that day atabout 4.30 p.m. he held post-mortem examination on the dead body of deceased Shanti Devi and found one incised wound 4" x 1/2" on the throat below the hyoid bone cutting the whole trachea vessels and muscles, two cut injuries one on the left and other on right side of the aforesaid injury. One spindle shaped injury 1/2" long and muscle deep on left deltoid muscle, angle of mouth on the left side had sharp cut injury about 1/4" long and half lip deep and one cut injury on the back of the left wrist. According to him, all these injuries were caused by sharp-cutting weapon and death was due to haemorrhage caused by these injuries and the injury which was found on throat was sufficient to cause death in normal course of nature. He has further opined that death was caused within 24 hours from the time of post-mortem examination. From the evidence of this witness, it appears that the death of deceased Shanti Devi was caused by injuries inflicted on her by sharp-cutting weapon and it was homicidal and from the time of her death, as opined by this witness, it supports the case of the prosecution that the murder was committed on the night intervening 10-11th day of August, 1985. 5. Out of the remaining witnesses Marchhia Devi (PW-1) is the Informant and is mother of the deceased and mother-in-law of the appellant. Sunil Ram (PW-4), Lakhazia (PW-5) and Panma Devi (PW-8) have been tendered by the prosecution. 5. Out of the remaining witnesses Marchhia Devi (PW-1) is the Informant and is mother of the deceased and mother-in-law of the appellant. Sunil Ram (PW-4), Lakhazia (PW-5) and Panma Devi (PW-8) have been tendered by the prosecution. Sagina Rai (PW-2), Badri Rai (PW-6) Navchhed Ram (PW-7) and Phula Devi (PW-10) who has been declared hostile by the prosecution had seen the dead body of deceased Shanti Devi in the field of Bhikhari Ram. Badri Rai (PW-6) has further stated that in his presence the Police prepared inquest report of the dead body on which he put his signature (Ext. 1) and Police also seized blood-stained soil from the field of Bhikhari Ram and prepared seizure list on which also he put his signature (Ex.1/3) and Sagina Rai (PW-2) had also put his signature (Ext. 4) on the seizure list but Sagina Rai (PW-2) has not stated that any seizure list was prepared in his presence by Police and on the contrary he has specifically stated that he had not seen the Police collecting blood-stained soil from the place of occurrence. Lalmati Devi (PW-3) is a witness on the point that on the night of occurrence in late hours when she was returning after easing out she saw Shanti Devi going towards west from her house for the said purpose of easing out and in the morning she came to know that Shanti Devi had been killed. She has further stated that appellant used to live in his sasural and on the preceding night of occurrence she had seen the P.O. (PW-11) is the I.O. of the case. 6. She has further stated that appellant used to live in his sasural and on the preceding night of occurrence she had seen the P.O. (PW-11) is the I.O. of the case. 6. Informant Marchhia Devi (PW-1) supporting the case of the prosecution as stated in the fardbeyan has said that on the night of occurrence her deceased daughter Shanti Devi and appellant who is her son-in-law and husband of Shanti Devi went to sleep in her house but she herself was sleeping in a bathan and in the morning when she woke up, she found that the room in which the deceased and appellant had gone to sleep on the previous night was bolted from outside and when she opened the room, she found that neither the appellant nor her deceased daughter was there and a dibia (earthen lamp) was still burning there and she then came to know that dead body of her daughter Shanti Devi was lying in a field and when she went in the paddy field of Bhikhari Ram she found dead body of her daughter with cut injury on her neck and blood was also found there. She has stated that deceased was her only child and she had transferred her entire property by a deed of gift in favour of her deceased daughter and appellant and appellant was married to her daughter about 7-8 years ago but appellant never tortured the deceased and both were on good terms. In cross-examination, she has stated that appellant used to love the deceased. She has also said that she did not get her statements recorded by the Police and it were the villagers who got the matter recorded by the Police. 7. From the evidence of witnesses examined on behalf of the prosecution, I find that not a single witness has come forward to depose that the relations between the appellant and deceased were strained. It is true that Phula Devi (PW-10) who has been declared hostile by the prosecution has stated that about 6 months prior to the occurrence on a particular day the deceased had come to her house and she then came to know that a quarrel had taken place between the deceased and appellant. She has not given the details of the quarrel which, according to her, had taken place between the deceased and appellant about 6 months prior to the occurrence. She has not given the details of the quarrel which, according to her, had taken place between the deceased and appellant about 6 months prior to the occurrence. At the same time, she has stated that no quarrel between the deceased and appellant had taken place in her presence. So her evidence that six months prior to the date of occurrence she came to know that a quarrel had taken place bet-ween the deceased and appellant is not suggestive of any motive for committing murder of his wife by the appellant because difference and trifling quarrels between the wife and husband on domestic matters often happen. Besides this, the positive evidence of Marchhia Devi (PW-1), who is none else but the mother of the deceased that relations between the deceased and appellant were quite cordial and appellant used to love the deceased like any thing has been further supported by Nakchhed Ram (PW-7) who has stated that he had never seen the appellant assaulting the deceased. All these facts do not establish the presence of any motive of appellant for committing murder of his wife, the deceased in this case. 8. The Court below has observed that in this case there is no eye-witness on the point of murder of the deceased but it has opined that because appellant and deceased were issueless and in case of death of deceased the appellant would become absolute owner of the property gifted to him and the deceased by his mother-in-law and this was the motive of the appellant for com-mitting the murder of his wife. This observation cannot be accepted because it will lead to a situation to presume that in every case where a couple possessing some property is issueless then each member of the couple will have a motive to eliminate the other member in order to become absolute owner of property. I further find that after observing that the appellant had motive to eliminate his wife in order to become absolute owner of the property, the Court below adding two more circumstances, which are that the deceased was last seen with the appellant and that the appellant after the occurr-ence was absconding has come to a conclusion that the appellant has committed murder of his wife, deceased Shanti Devi. No witness examined on behalf of the prose-cution has come forward to state that after the occurrence the appellant was absconding. It is true that in the fardbeyan it is mentioned that appellant absconded but then the author of this fardbeyan, the Informant Marchhia Devi, in her evidence has nowhere whispered this fact. The fact that the fardbeyan was got recorded by the Informant is itself doubtful in view of evidence of the Informant that she never got her statement recorded by Police, but then considering her evidence in examination in chief that her statements were recorded by Police, if it is taken that this fardbeyan was in fact recorded on the statement of Informant, I find that the fardbeyan cannot be taken as substantive piece of evidence and the statements made in it that appellant absconded after the occurrence cannot be used against the appellant, particularly when this fact is not stated in the evidence of Informant. 9. About the circumstances that deceased was last seen with the appellant, I find that this is also not supported by the evidence led on behalf of the prosecution. Lalmati Devi (PW-3), in her evidence, has stated that in late hours in the night of occurrence she had seen the deceased going alone towards west of easing out. No witness has come forward to say that deceased was again seen after it. So, when the deceased was last seen alive, she was alone and appellant was not with her. So I find that even the circumstance of appellant being last seen with the deceased has not been proved. The case of appellant is that on the night of occurrence, he was in village Chainpatti in the Flour Mill of (DW-1) Birendra Thakur where he used to work as a mechanic. The Informant in her evidence has supported that at the time of occurrence the appellant was working in a Flour Mill at Chainpatti. For the sake of argument if this plea of alibi is not taken into consideration, even then the only evidence against the appellant in this case is that on the night of occurrence he after taking meal along with deceased went to bed to sleep. This circumstance is not unusual because admittedly the appellant was the husband of deceased and he used to reside in his sasural. This circumstance is not unusual because admittedly the appellant was the husband of deceased and he used to reside in his sasural. Except this circumstance there is absolutely nothing against appellant in this case and in this view of the matter, the conviction of the appellant by no stretch of imagination can be upheld. 10. In the result, this appeal is allowed. The Judgment and order of the Court below convicting and sentencing the appellant under Section 302, IPC is set aside. The appellant who is on bail is discharged from the liability of his bail-bonds. R.N.Prasad, J. 11 I agree.