Hon'ble VYAS, J.—Instant criminal appeal has been filed by the appellant Narain against the judgment dated 23.06.2012 passed by learned Additional Sessions Judge (FT) Dungarpur in Sessions Case No. 47/2011 by which the appellant was convicted for offence under Section 302 IPC and sentenced for life imprisonment with fine of Rs. 10,000/- and in default of payment of fine, to undergo two years rigorous imprisonment. 2. As per brief facts of the case, the complainant Gangji (PW/7) submitted a written report Ex.P/7 before the S.H.O., Police Station Aaspur alleging therein that his daughter Smt. Valu, got married with accused appellant Narain ten years back, he is habitual for consuming liquor and he used to beat his daughter time and again because he was having suspicion about character of his daughter. It is alleged that prior to six months, his daughter came to his house and after some time, the accused appellant also came there and gave beating to her daughter, but upon intervention by Kachara, she was rescued and thereafter, the complainant and others went to the inlaws house of Smt. Valu and after making serious efforts, left his daughter in the inlaws house. As per allegation in the FIR, prior to two days, the complainant and his daughter went to village Dhanela and saw that accused was quarrelling with his daughter due to suspicion about her character. On 18.05.2011 at about 9 AM, the complainant received a telephonic call from Ex-sarpanch of village Gol about death of his daughter Valu and upon such information, he alongwith his relatives went to village Dhanela, where they saw that dead boy of his daughter was lying in the house and sign mark were seen on her neck, therefore, it was prayed that action may be taken against the accused Narain because he might have killed her due to suspicion about her character. 3. Upon aforesaid written report, Ex.P/7, an FIR No. 11 dated 18.05.2011 was registered at Police station Aaspur District Dungarpur under Section 302 IPC. The dead body of deceased was brought to the hospital for postmortem. The medical board performed the postmortem of the body and gave its report Ex.P/5 on 18.05.2011 in which opinion was given by the Medical board that deceased Valu died due to asphyxia which is due to throttling. 4. The dead body of deceased was brought to the hospital for postmortem. The medical board performed the postmortem of the body and gave its report Ex.P/5 on 18.05.2011 in which opinion was given by the Medical board that deceased Valu died due to asphyxia which is due to throttling. 4. The accused appellant was arrested and after completion of investigation, chargesheet was submitted against the accused appellant in the court of Judicial Magistrate, Aaspur from where the case was committed to the Sessions court of Dungarpur for trial. Learned Sessions Judge, Dungarpur transferred the case for trial in the court of Additional Sessions Judge (FT) Dungarpur. In the trial, after providing an opportunity of hearing, the charges under Section 302 IPC was framed against the appellant but he denied the charges and claimed for the trial. 5. In the trial, statement of 13 prosecution witnesses were recorded and 26 documents were exhibited by the trial court. Thereafter, the statement of accused appellant under Section 313 Cr.P.C were recorded but accused appellant completely denied the allegations levelled by the prosecution witnesses and said that he has been falsely implicated in this case in cannivance with the police by his inlaws. In defence, inspite of granting opportunity, no evidence was produced by the accused appellant. 6. Learned trial court after providing an opportunity of hearing to both the parties, decided the case vide judgment dated 23.06.2012 whereby, learned trial court voncited the accused appellant for offence under Section 302 IPC and passed sentence of life imprisonment with fine of Rs. 10,000/-. 7. In this appeal, the accused appellant is challenging validity of said judgment on various grounds. 8. Learned counsel for the appellant submits that trial court has committed gross error of law in convicting the accused appellant for offence under Section 302 IPC because no evidence is discussed by the trial court for the purpose of holding the accused appellant guilty for offence of murder. While inviting attention towards the fact that out of 13 witnesses, four important witnesses PW/1 Smt. Kanta, PW/4 Kachara, PW/7 Gangji (father) and PW/11 Bhera turned hostile and not supported the prosecution case, therefore, obviously it is a case in which the accused appellant has falsely been implicated by the prosecution. The learned trial court ignored very important fact that complainant father Gangji PW/7 himself turned hostile and has not supported the prosecution story. The learned trial court ignored very important fact that complainant father Gangji PW/7 himself turned hostile and has not supported the prosecution story. It is also argued that as there is no evidence on record to prove the fact that appellant has strangulated the neck of deceased, therefore, in absence of any evidence, the accused appellant has wrongly been convicted for alleged offence of murder. With regard to finding of last seen of accused appellant, it is submitted that accused and deceased were husband and wife, therefore, this cannot be treated reliable evidence to convict accused appellant for such a serious offence. The doctor PW/6 Sandeep Agarwal who conducted the postmortem of deceased admitted that for sign mark on the neck of deceased, it can be said that those marks of injury cannot be caused due to throttling, therefore, medical evidence is also not supporting the allegation of prosecution, therefore, the whole prosecution case is based on presumption but it has not been supported by the prosecution witnesses because they turned hostile. The learned trial court without assigning any reason or discussing the evidence in proper manner, convicted the appellant of offence under Section 302 IPC only on the basis of presumption on the ground that husband and wife were living together, therefore, such finding is totally baseless to convict accused appellant for offence of murder. 9. With regard to motive, it is submitted that none of the witnesses disclosed the motive/intention to support the prosecution case, therefore, it can be said that prosecution has failed to prove motive by leading satisfactory and reliable evidence, as such, in absence of any evidence of motive, the conviction is not sustainable in law. Lastly it is argued that there is major contradiction in the statement of prosecution witnesses, therefore, obviously it is a case in which prosecution has failed to prove its case beyond reasonable doubt but learned trial court convicted the accused appellant only on the basis of presumption which is not permissible in criminal jurisprudence. 10. Lastly it is argued that there is major contradiction in the statement of prosecution witnesses, therefore, obviously it is a case in which prosecution has failed to prove its case beyond reasonable doubt but learned trial court convicted the accused appellant only on the basis of presumption which is not permissible in criminal jurisprudence. 10. Per contra, learned Public Prosecutor vehemently argued that although the complainant PW/7 Gangji turned hostile but it is a case in which wife died when she was living with appellant husband in the same house and as per evidence on record, the relation in between the deceased Smt. Valu and appellant were not cordial because appellant was suspecting about her character, therefore, it is a case in which the accused appellant is guilty for committing murder of his own wife. Learned trial court after discussing entire evidence held that even if the prosecution witnesses turned hostile, this court cannot loose sight of the fact that theory of last seen coupled with the fact that deceased was residing with the appellant held the accused appellant guilty, therefore, the finding given by the trial court so as to convict the accused appellant does not require any interference. 11. Learned Public Prosecutor further submits that fact of beating is proved from the statement of witnesses turned hostile, therefore, their evidence can be taken into consideration so as to hold the accused appellant guilty, therefore, it cannot be said that any error has been committed by the trial court in convicting the accused appellant for the offence of murder, therefore, this appeal may kindly be dismissed. 12. After hearing learned counsel for the parties, we have perused the finding given by the trial court in judgment impugned and evidence on record. It is true that as per postmortem report Ex.P/5, the cause of death was asphyxia due to throttling. Now question arises whether any evidence is on record to prove the fact that throttling was committed by the accused appellant. In this regard, there is no direct eye-witness to prove the said fact so also almost all the important witnesses turned hostile. 13. Now question arises whether any evidence is on record to prove the fact that throttling was committed by the accused appellant. In this regard, there is no direct eye-witness to prove the said fact so also almost all the important witnesses turned hostile. 13. We have perused the statement of PW/1 Smt. Kanta , wife of younger brother of accused appellant who turned hostile and stated before the court that- ^^esjs vkSj esjs tsB ds ?kjksa ds chp nhokj gSA lqcg esa esjs tsB ukjk;.k us mldh ifRu okyw dks mBkus dh dksf'k'k dh] og ugha mBh rks esjk tsB jksus yxkA esjs tsB dh jksus dh vkokt lqudj eSa vkSj vkl ikl ds yksx vk x;sA okyw dSls ejh] mldks fdlus ekjk] ;g eq>s irk ughaaA eSaus okyw dks ekjrs gq, fdlh O;fä dks ugha ns[kkA** 14. Similarly, PW/2 Gajendra, real brother of accused appellant did not support the prosecution story because he has turned hostile and not levelled allegations against the accused appellant. The witness PW/3 Heera stated that although some time quarrel took place between the deceased and Narayan but he has no knowledge how she died. 15. PW/4 Kachara also turned hostile and did not prove the prosecution story. The said witness said that there was quarrel in between deceased Valu and Narain but dont know how she died. No other allegation is levelled by him against the accused appellant. The witness PW/5 Lalu did not support the pro-secution case because no allegations are levelled by him against the accused appellant. Dr. Sandeep Agarwal PW/6 stated before the Court that there were four scratches upon the neck of deceased and she died due to asphyxia due to throttling but there is no evidence of throttling by the accused appellant. 16. The witness PW/7 Gangji is complainant and father of deceased. Dr. Sandeep Agarwal PW/6 stated before the Court that there were four scratches upon the neck of deceased and she died due to asphyxia due to throttling but there is no evidence of throttling by the accused appellant. 16. The witness PW/7 Gangji is complainant and father of deceased. It is stated in his statement that before six months, there was quarrel in between his daughter Smt. valu and accused appellant but he has no knowledge whether any quarrel took place in the house and completely denied allegation made in the FIR and specifically stated in his statement on oath that - ^^?kVuk ls nks fnu igys eSa o esjh ifRu Jherh dkUrk] esjh lkyh Jherh xyky ds yM+ds dh 'kknh esa xzke /kU/ksyk x;s Fks rc ge okyw ls feyus mlds llqjky esa Hkh x;s FksA ogkW eqyfte ukjk;.k us [kqn us gedks pk; cukdj fiykbZ Fkh rFkk ukjk;.k dk HkkbZ xft;k ge nksuksa dks M/C ij xkWo NksM+dj x;k FkkA ogkW ukjk;.k us dgk Fkk fd okyw esjs lkFk jkstkuk /keky djrh gSA okyw us gesa ;g ugha crk;k Fkk fd ukjk;.k mlds lkFk ekjihV djrk gSA fQj geusa nksuksa dks jkth jkth jgus ds fy;s le>k;k Hkh FkkA nks fnu ckn Hkxorhyky ljiap dk esjs ikl Qksu vk;k Fkk fd rqEgkjh csVh ej xbZA bl ij eSa] xkao ds dqN yksxksa o ljiap dks ysdj okyw ds llqjky x;k rks ogkW ns[kk fd ckyq dh yk'k [kkV ij ysVh gqbZ FkhA eSaus okyw ds xys esa pksV ds dksbZ fu'kku ughas ns[ks FksA okyw dSls ejh] fdlus ekjh bldk eq>s irk ugha gSA ogka esjs ls fcuk iwNs xkWo okyksa ds ,d fjiksVZ fy[kdj ml ij esjh vaxwBk fu'kkuh yxok yh FkhA ;g fjiksVZ gekjs xkao ds ljiap Jh [ksejkt us fy[kh gksxhA fjiksVZ Ex.P/7 esa fy[kh gqbZ ckrksa ds ckjs esa eq>s irk ugha gSA** 17. The witness PW/7 Gangji, father of deceased has completely denied the allegation levelled in the written FIR and said on oath that FIR was written by the villagers upon which his thumb impressions were obtained, meaning thereby, the main allegation imposed in the FIR has not been proved by the prosecution. 18. PW/9 Smt. Kanta is mother of deceased. Although the said witness did not turn hostile but stated that I have seen the dead body of my daughter but how she died, I don't know. 18. PW/9 Smt. Kanta is mother of deceased. Although the said witness did not turn hostile but stated that I have seen the dead body of my daughter but how she died, I don't know. In her cross-examination, it is stated by her that- ^^;g lgh gS fd eSa o esjs ifr xaxk th okyw ds ejus ls igys vius llqjky x;s FksA ;g lgh gS fd ml oä okyw o ukjk;.k nksuksa jkth [kq'kh FksA muds dksbZ >xM+k ugha FkkA geus dHkh Hkh ukjk;.k ds fo:) iqfyl Fkkus esa dHkh dksbZ f'kdk;r ugha dh FkhA D;ksafd nksuksa vkil esa jkth [kq'kh ls jgrs FksA ;g lgh gS fd okyw dSls ejh mldk vkt rd dksbZ irk ugha pyk gSA ;g lgh gS fd esjs lkeus dHkh dksbZ >xM+k ugha gqvk FkkA** Thus, she is not supporting the prosecution case. 19. PW/10 Khemraj is the witness who went alongwith Gangji PW/7 to the village Dhaneal when information with regard to death of Smt. Valu was received. The said witness turned hostile and did not support the prosecution case. The witness PW/11 Bhera also went to the village Dhanela alongwith father of deceased Gangji. He said that although I saw the dead body of Valu in his house but I did not see any injury on her body. The witness PW/12 Bhagwati lal also turned hostile and not made any allegation against the appellant. 20. Heera Lal PW/13 also turned hostile and not supported the prosecution case and no allegation is levelled by him against the accused appellant. More so, it is stated by him that relation in between the deceased and the appellant were cordial. 21. After considering the above evidence in the light of finding given by the trial court, we are of the opinion that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. The trial court held the accused appellant guilty of offence under Section 302 IPC only on the basis of presumption. Therefore, the finding given by the trial court to hold the accused appellant guilty is not sustainable in the eye of law. 22. We have also considered the judgments cited by the learned Public Prosecutor. The trial court held the accused appellant guilty of offence under Section 302 IPC only on the basis of presumption. Therefore, the finding given by the trial court to hold the accused appellant guilty is not sustainable in the eye of law. 22. We have also considered the judgments cited by the learned Public Prosecutor. In the case of Kiriti Pal vs. State of West Bengal reported in 2015 Cri.L.J 3152, the deceased Anjali was not wife of accused appellant and she was found dead and upon her body, there were injuries and upon sending the wooden butts recovered from the accused to Forensic Science laboratory, the blood was detected upon that, therefore, the Hon'ble Apex Court gave following finding in Para 19 and 20 of the judgment which reads as under :- “19. Wooden butts recovered on 28-1-2009 were sent to the Forensic Science Laboratory. On the seized wooden butts, blood was detected ; but the same was insufficient for serological test (Ext.56). Detection of blood on the seized wooden butts cannot be discarded on the ground that it was insufficient for serological test. There is no legal proposition, the detection of blood is unworthy of acceptance merely because it was insufficient for serological test and the case of the prosecution cannot be doubted on that score. 20. State of A-4 Durga Sutradhar recorded under Section 164 Cr.P.C is yet another incriminating circumstance against A-1 Kiriti Pal. A-4 Durga Sutradhar has stated that A-1 Kiriti Pal called her over telephone and threatened her not to disclose anything against A-1 Kiriti Pal pointing to his guilt.” 23. It is also very material to mention that in above case, the prosecution witnesses did not turn hostile, therefore, the facts of the present case are altogether different from the case cited by learned Public Prosecutor. 24. We have also perused yet another judgment of Division Bench of this Hon'ble Court in the case of Hari Ram vs. State of Rajasthan reported in 2015 Cri.L.J 2970 in which the Division Bench held that accused was last seen with deceased wife near well from where her dead body was recovered. In the said case, due to demand of dowry, the deceased was subjected to cruelty on the day of occurrence and there was ample evidence with regard to demand of dowry. In the said case, due to demand of dowry, the deceased was subjected to cruelty on the day of occurrence and there was ample evidence with regard to demand of dowry. Hereinthis case, the father of deceased PW/7 Gangji himself turned hostile, therefore, upon the facts, the above judgment of Division Bench in the case of Hari Ram is not applicable. 25. Further we have also perused the judgment of Hon'ble Apex Court in the case of Suresh and Anr. vs. State of Haryana. The said case related to kidnapping for ransom and in para 8 of the said judgment, the Hon'ble Supreme Court considered Section 106 of Evidence Act and held that Section 106 of Evidence Act is clearly attracted which requires the accused to explain the fact in their exclusive knowledge but in this case, there is no direct evidence on record, more so the father of deceased turned hostile and did not support the prosecution story. 26. Upon assessment of entire evidence, it emerges from the evidence on record that there is no evidence to support the prosecution story because most of the witnesses including the complainant PW/7 Gangji father of deceased turned hostile. It is true that conviction can be based on last seen evidence but hereinthis case, although deceased and appellant are husband and wife but the father of deceased Gangji PW/7 who lodged FIR himself turned hostile and stated that FIR was not written by him, it was written by the villagers upon which his thumb impression was obtained, meaning thereby, all the allegations of prosecution lack foundation to stand to prove the allegation against the accused appellant. The witnesses who went with Gangji at village Dhanela after receiving information of death of Shri Valu stated that they did not see any injury upon the body of deceased. The witnesses who went with Gangji at village Dhanela after receiving information of death of Shri Valu stated that they did not see any injury upon the body of deceased. The trial court put one question to the doctor PW/6 Sandeep Agarwal who performed the postmortem which reads as under:- ^^U;k;ky; iz'u % xyk fdl pht ls nck;k x;k FkkA mÙkj % xyk gkFk ls nck;k x;k Fkk D;ksafd geus viuh jk; esa Ashpyxia dk dkj.k throttling fy[kk gS] tks gkFk ls xyk nckus ij gqbZ ekSr ds fy;s mi;ksx esa fy;k tkrk gSA** However, in the cross-examination, it is stated by the doctor PW/6 Sandeep Agarwal that; ^^e`rdk ds xys esa tks [kjkspsa ikbZ xbZ Fkh os gkFk ls xyk nckus ls ugha vkbZ FkhA vt[kqn dgk fd xyk nckus okys O;fä ds uk[kwu yx tk;s ;k vU; Nhuk >iVh gks rks [kjkspsa vk ldrh gSA ;g lgh gS fd PMR esa [kjkspksa dk uk[kwu ls vkuk vafdr ugha gSaA** 27. In view of above, it cannot be said that the prosecution has proved its case beyond reasonable doubt against the accused appellant. More so it is a case in which the prosecution has miserably failed to prove its case beyond doubt because the finding of guilt recorded by the trial court is totally perverse and not based upon sound appreciation of evidence on record. 28. This being the position, we hold that the judgment impugned is not in consonance with law, therefore, instant appeal is allowed and the impugned judgment dated 23.06.2012 passed by learned Additional Sessions Judge (FT) Dungarpur in Sessions Case No. 47/2011 is hereby quashed and set aside. Accordingly, while giving benefit of doubt, the appellant is acquitted from the charges levelled against him. The appellant may be released, if not required in any other case.