JUDGMENT H. Suresh. J. - This is an appeal by the appellant/accused against the order of conviction under Section 302 of the Indian Penal Code by the learned Sessions Judge, Akola. 2. The prosecution case is that on 26-5:85 at about 3 p.m. the accused assaulted his wife Nirmala several times with a knife and that thereafter he assaulted himself with the same knife and fell down. Nirmala died. Thereafter the accused was arrested and he was charged. for the offence punishable under Section 302 of the Indian Penal Code as far as the death of Nirmala was concerned and 310 under Section 309 of the Indian Penal Code on a charge of attempt to commit suicide. The latter charge could not be sustained as the said provision of Section 309 of the Indian Penal Code had been struck down as ultravires the Constitution of India by our Court. 3. The evidence shows that at the time of the incident deceased Nirmala was staying with her sister Chandrabhaga at Melegaon. The accused had also come there about 16 days prior to the incident. It appears that Nirmala was ill-treated by the accused and that therefore, she was not willing to go back to the house of the accused. On the day of the incident Chandrabhaga had gone to the market. It is her case that at about 3'0 clock she was informed by her grand-daughter Lila that accused has assaulted Nirmala with the knife and that is now she rushed back to the house, she saw that Nirmala had fallen down also the accused. She went to the police station, made a statement which is Exh. 13. This was recorded at about 3.30 p.m. The police came to the scene of offence and thereafter started investigation of the offence. A further statement of Chandrabhaga was recorded at about 5.p.m. and that has also been exhibited as Ex. 12. The prosecution has examined that grand daughter of Chandtabhaga, by same Lila, a child of m about 9 years old and one Syed Latif, a neighbour as eye-witnesses of the incident. There was another eye-witness, the sister of Chandrabhaga by name Radhabai, whose evidence has not been accepted by the learned Trial Judge. 12. The prosecution has examined that grand daughter of Chandtabhaga, by same Lila, a child of m about 9 years old and one Syed Latif, a neighbour as eye-witnesses of the incident. There was another eye-witness, the sister of Chandrabhaga by name Radhabai, whose evidence has not been accepted by the learned Trial Judge. Since Chandrabhaga I was not an eye-witness, the learned Judge mainly relied on the basis evidence of Lila and Syed Latif and it is on the basis of this evidence he held the accused guilty under Section 302 of the Indian Penal Code. 4. Since the evidence shows that Chandrabhaga was not in the house at the time of the incident and since she was the one who reported to the police first about this incident, the question is how did she come to know of the incident. It is in this sense that her statement recorded at 3.30 p.m. as same considerable importance. In that statement! (Ex. 13) she has stated that she had been to the market for doing work and that at that time her mother-in-law Tanabai, deceased sister Nirmala and the accused were in the house. She then says that quarrel took pl ce 'between these two persons namely NiImala and the accused and that accused dealt a knife blow on the stomach of her sister and the accused himself dealt a knife blow on his own stomach and that he was lying at the door. She had not checked up at that time whether Nirmala was alive or dead. What is important in this statement is that there is no mention of her grand-daughter Lila being present in the house when she left for the market. She also does not say as to how she came to know of the quarrel and how did she return from the market, did she return earlier and was she present at the time when the quarrel took place or did she return on somebody's having informed her. If so who informed her and what information was given to her. All these questions have not been answered in Ex. 13. In the absence of any other names as to who remained the house, we have to accept her statement that Tanabai, her mother-in-Jaw was present in the house. It appears that Tanabai's statement was recorded but Tanabai was not examined in this case. All these questions have not been answered in Ex. 13. In the absence of any other names as to who remained the house, we have to accept her statement that Tanabai, her mother-in-Jaw was present in the house. It appears that Tanabai's statement was recorded but Tanabai was not examined in this case. The absence of the evidence of Tanabai considerably witness the prosecution case. 5. In the case of Chandrabhaga, she stated that her grand-daughter Lila came and informed her of the assault, in the market. That is how she rushed back to the house. Her name figures for the first time in a subsequent statement which was recorded at 5. p.m. which has been treated as F.I.R. and has been exhibited as Ex. 12. Dr. Daga, learned Counsel for the appellant submitted that since the police had already come to the scene after her statement Ex. 13, certainly the second statement Ex. 12 could not have been referred to as F.I.R. and in any event could not have been exhibited, Mr. Daga is right in his submission. Therefore, it is not proper for us to rely on the statement Ex. 12. If that is so, the prosecution will have to independently establish that Lila had gone to the market and informed Chandrabhaga of this incident. 6. Let us consider the evidence of Lila. In her deposition her age has been shown as 6 years. Her evidence was being recorded after more than 2 years of the incident. If that is so, she could be a child of about 4 years at the time of the incident. If one has regard for her evidence recorded in this proceeding we got an impression that her age has not been correctly recorded by the learned Judge. We looked into her police statement and we found that at the time when her statement was recorded, she was a child about 7 years. That is how when her evidence was recorded she must be of about 9 years or more. In her evidence she said that she was in the house with her brother Gaja. According to her, the accused brought mutton and gave the same to Nirmala, who started cooking it. Thereafter accused caught hold of Nirmala from back side and started assaulted her with knife. The deceased then shouted as and she sustained bleeding injuries. In her evidence she said that she was in the house with her brother Gaja. According to her, the accused brought mutton and gave the same to Nirmala, who started cooking it. Thereafter accused caught hold of Nirmala from back side and started assaulted her with knife. The deceased then shouted as and she sustained bleeding injuries. He also inflicted two injuries of knife on himself. However, in her cross-examination she has admitted that she has not stated to the police that the accused had caught hold of Nirmala from behind. She had also not stated in her statement that the accused had assaulted Nirmala by knife first on her chest. She has also not stated to police in her statement before the police that accused fell on the door after self inflicting blows. The most important lacuna in her evidence is, she has not stated anywhere in her evidence that as soon as the incident took place she ran to the market and informed Chandrabhaga about the incident. In other word in all probability she was not an actual eye-witness to the incident. Perhaps she was playing in front of the house or playing on the road. She must have come to the scene of offence after the incident took place. 7. The evidence of Radhabai who is supposed to having come to the scene of offence immediately after hearing the cries of NirmaIa again cannot help us inasmuch as she had not stated in her statement before the police that she had seen the accused assaulting Nirmala with the knife. She must have come to the scene of offence after the incident: She also does not say that Lila had either informed her or had immediately rushed to Chandrabhaga about his incident. Badhabai stays just behind the house of Chandrabhaga. If Lila was an eye-wintess and she being the daughter of Radhabai, it would be most natural to presume that she would have rushed to her mother first to inform about the incident and thereafter if necessary she would have rushed to Chandrabhaga. The evidence suffers from these weakness and it is not safe to act upon other the evidence of Lila or of Radhabai. The only other eye-witness is Syed Latif; a neighbour. The evidence suffers from these weakness and it is not safe to act upon other the evidence of Lila or of Radhabai. The only other eye-witness is Syed Latif; a neighbour. His case is that he heard the cries of Ninnala and, therefore, he came out of his house and went to the house of Chandrabhaga and then he saw the accused having caught the legs of Nirmala in between his legs and he was assaulting Nirmala with knife giving blow one after another. He saw the accused giving 4 blows on Nirmala's stomach by knife. He could not bear the sight and started fainting. He says that accused was moving the knife in the air and was coming toward him to assault him and, thereafter, he went back and stood in the courtyard of his house. The accused then came out and self inflicted two blows with the knife on his stomach. This witness then went inside his house and thereafter went out. He went away for his job as he was working on a truck. His statement is recorded two days later. In his cross-examination it has been established that he has not stated a word about the accused giving any blows or the accused having caught hold of Nirmala with his legs or had attempted to assault the witness with the knife etc. If he had actually seen the incident the first thing which he should have done was to raise an alarm and call other people. He ought to have rushed to the police. On the other hand, he goes away for his work and returns after two days. His statement was recorded after two days. In all probability he was not at all present at the time of the incident. 8. In the result we have very slender evidence of the prosecution, namely the evidence of child Lila. We have already referred to the infirmities in her evidence and it is not very clear that she was really an eye-witness to the incident of course, the accused was there. He admits that he was there. But, he says that he does not know how Nirmala received the injuries on her body. He explains about the injuries on himself. According to him, Nirmala was willing to go back but Chandrabhaga. He admits that he was there. But, he says that he does not know how Nirmala received the injuries on her body. He explains about the injuries on himself. According to him, Nirmala was willing to go back but Chandrabhaga. Radhabai and one Gyanu wanted Nirmala to stay there and according to him, it was Gyanu who assaulted the accused with knife. This suggestion has been denied by all the prosecution witnesses. If one analyses the evidence coupled with the statement of accused, it established that round about the time of the incident Nirmala and the accused were not the only two persons who were there in that house. Tanabai was there. Perhaps others were there. The question is can it be said that the accused was responsible for causing injuries on the person of Nirmala. If the case of the accused is true that Nirmala was willing to come with him there is no reason as to why she should be assaulted by him. The accused was therein that house with Nirmala and others for 15 days. If that is so, what transpired during that period. The prosecution case is silent on this aspect. What is the immediate cause for the accused assaulting Nirmala on that day. The prosecution does not explain it. Mr. Daga says, there is no burden cast upon him to explain as to how Nirmala suffered injuries. In our view since these questions having not been answered satisfactorily and since there is no satisfactory evidence as to the actual assault on Nirmala, it cannot be said that the prosecution has proved the case against the accused beyond reasonable doubt. The mere circumstance that they were together prior to the incident, in the absence of any other reason is not sufficient to hold that the accused alone was responsible for that incident. It is in this sense, perhaps, the evidence of Tanabai would have been very material, she being an elderly lady and perhaps she could have deposed as to what transpired at that time. On the other hand, if it is to be inferred that she too was not there then Chandrabhaga's statement as to how she came to know of the incident remains unexplained. 9. On the other hand, if it is to be inferred that she too was not there then Chandrabhaga's statement as to how she came to know of the incident remains unexplained. 9. In the result we said the conviction of the appellant under Section 302 of the Indian Penal Code and hold that the case of the prosecution has not been proved beyond reasonable doubt. The appellant/accused should get the benefit of doubt and he is acquitted of the charge levelled against him. The appellant/accused be released forthwith.