ORDER

The respondent-accused was tried for an offence under section 302/201, IPC on the allegations that on 6-2-1988 at about 11.30 p.m., he caused the death of his wife Malanbi by strangulation and thereafter with a view to destroy evidence, set her body on fire. After investigation was complete, which commenced on the recording of an FIR at the instance of Sadashiv Jagtap, PW-5, challan was filed and the respondent after being charged, was put on trial. The trial court after examining the evidence of the prosecution witnesses notice that the case against the respondent-accused was based on circumstantial evidence and the four circumstances relied upon by the prosecution in support of its case were, (i) motive; (ii) conduct of accused; (iii) medical evidence; and (iv) state of body of the deceased.

2. The trial court found that the motive, i.e. that there were strained relations between the husband and the wife on account of illicit marital relations of the respondent-accused, was not established because the three witnesses whom the prosecution examined in support of the allegations to prove motive, Muktabai Jadhav PW-7, Chitra PW-8 and Sahirabi Sayyed, PW-9 did not support the prosecution case and were declared hostile. The trial Court, however, relied upon medical evidence of Dr. Prabha Kesaralimath, PW-10 and did not accept the testimony of DW-1 Dr. L. Amaikant Bade to hold the appellant guilty. The trial court also found that the conduct of the respondent in not taking any step to extinguish fire when his wife was burning, coupled with the naked body of the deceased showed that it was only husband and wife who were in the kitchen when the husband could have strangulated her and thereafter to screen himself, burnt her body. On the basis of this evidence, the trial court convicted the respondent for an offence under section 302 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo RI for 6 months. The respondent was also convicted of the offence under Section 201 IPC and sentenced to undergo 3 years RI and to pay a fine of Rs. 500/- and in default of payment of fine to undergo RI for 3 months. The substantive sentences were directed to run concurrently. The respondent challenged his conviction and sentence in the High Court. A division bench of the High Court by its judgment and order dated 12.4.1991 accepted the appeal and set aside the conviction and sentence of the respondent-accused. By special leave, the state is in appeal before us.

3. Indeed, this case is based only on circumstantial evidence. There is no eyewitness. We shall deal with each of the circumstances hereafter.

4. We agree with the trial court as well as the High Court that the prosecution has failed to prove the motive for commission of the crime.

5. So far as the conduct of respondent-accused is concerned, we find from evidence of PW-9, mother of the deceased that she had been told by Ashanbi, daughter of deceased, that the accused had tried to extinguish the fire when his wife was burning. Ashanbi had been cited as a witness but was not examined. She is the daughter of the deceased and was aged 14 years. She was a material witness. Her non-examination creates a doubt about the bona fides of the investigation. This aspect of the evidence appears to have been lost sight of by the trial court.

6. According to the prosecution, at the time when PW-5 rushed to the quarter of the respondent on hearing cries, the respondent, was wearing his full uniform. The case of the respondent was that he was to go for night duty and since his wife did not like his going out at night, out of anger she may have committed suicide. PW-5 admitted in his cross-examination that the respondent was working as an armed constable and that the duty of an armed constable is to guard and take night rounds in the area which starts from 12:00 midnight till 5.00 a.m. Despite this evidence, the prosecution made no attemp