S. C. DATTA, J. ( 1 ) THE appellant was put on trial under, Secs. 302 and 201 of the Indian Penal Code for allegedly committing murder of his estranged wife Saudamini Majhi and for causing disappearance of evidence of the offence by burying the dead body in a stone quarry. He was found guilty under both the sections, convicted thereunder and sentenced to imprisonment for life on the first count viz. , under Sec. 302. I. P. C. and to a further sentence of imprisonment of two years on the second count viz. , under Sec. 201 I. P. C. Both the sentences were to run concurrently. ( 2 ) THE prosecution case is very short and simple. The appellant was married to deceased Saudamini Majhi in the year 1991 but it was none too happy. They broke away within two years of the marriage where after the wife started residing with her parents. She instituted a case under Sec. 498a of the Indian Penal Code in the Court of the Sub-divisional Judicial Magistrate, Athagarh, complaining dowry torture, she also filed a proceeding under Sec. 125, Cr. P. C. in the Court of S. D. J. M. Dhenkanal claiming maintenance from the appellant. The case for maintenance was fixed for hearing on 17-12-1994 but at the instance of the Court and well wishers both the husband and wife filed a joint petition for reconciliation and the Court directed them to live together for a month. Thereafter, both the parties left the Court premises at about 3. 30 P. M. for matrimonial home at Mahidharpur but at about 9. 30 P. M. The appellant lodged oral information at Athagarh Police Station to the effect that on their way home his wife left his company at Radhakishorepur and went away with an unknown young man. ( 3 ) ACCORDING to the prosecution, the accused on their way back home throttled the wife to death at an isolated place locally known as TGiringa Mundiat a hillock situated at a distance of 1/2 km. from Mahidharpur and buried her dead body in a stone quarry there. ( 3 ) ACCORDING to the prosecution, the accused on their way back home throttled the wife to death at an isolated place locally known as TGiringa Mundiat a hillock situated at a distance of 1/2 km. from Mahidharpur and buried her dead body in a stone quarry there. On getting information that the dead body of a female was lying in a stone quarry at Giringa Mundia hillock, the Officer-in-charge, Athagarh Police Station exhumed the dead body on 24-12-1994 at 10 a. m. in the presence of the accused, mother of the victim lady (P. W. 1), Executive Magistrate, Athagarh (P. W. 3), the doctors of Athagarh Sub-divisional Hospital and others. Both the accused and the mother of the victim woman identified the dead body to be that of Saudamini. Postmortem examination over the dead body was done and it was found that the death of the victim woman was homicidal in nature. Suo motu FIR was lodged at Athagarh Police Station and a case was registered. In due course, charge-sheet was submitted against the accused and the accused was put on trial before the Sessions Judge. ( 4 ) THE accused pleaded innocence denying his complicity in the murder of his wife. He took the plea that the, victim lady left him at Radhakishorepur bridge on the way back home from Dhenkanal Court on 17-12-1994 and went with a lover. The defence has examined one witness in support of its case. ( 5 ) THE trial Court found the accused person guilty of the offence in respect of which he was charged, convicted him thereunder and sentenced him for imprisonment as aforesaid. ( 6 ) BEING aggrieved by and dissatisfied with the order of conviction and sentence, the appellant has come in appeal. ( 7 ) THERE is no dispute that the death of the deceased was a homicidal one. P. W. 4 is the Assistant Surgeon of Athagarh Sub-divisional Hospital who conducted autopsy over the dead body of the victim lady on 24th Deccmher, 1994 at Girinja Mundi hillock with the assistance of her colleague Dr. Ashok Kumar Mallik of the said hospital. According to the Doctor, the victim lady died due to asphyxia caused by manual compression of neck. The next question that arises for determination is whether the appellant was involved in the commission of murder of his wife. viz. , Saudamini. Ashok Kumar Mallik of the said hospital. According to the Doctor, the victim lady died due to asphyxia caused by manual compression of neck. The next question that arises for determination is whether the appellant was involved in the commission of murder of his wife. viz. , Saudamini. ( 8 ) THERE is no ocular witness to the occurrence. The prosecution case rests mainly upon the circumstantial evidence as well as upon extra-judicial confession purported to have been made by the accused to his villagers viz. , P. W. 6 and P. W. 7, it is not disputed/that within a few years of their marriage, the relationship between the appellant and his wife became estranged eventually leading to the filing of a proceeding under Sec. 125, Cr. P. C. by the victim woman in the Court of the Sub-divisional Judicial Magistrate, Dhenkanal against her husband. The case was set down for hearing on 17-12-1994. P. W. 1 is a practising lawyer of Dhenkanal Bar. He has taken oath to testify that the accused and his lawyer approached him for a reconciliation between the parties. The victim lady was initially reluctant to sign the reconciliation petition. But she was prevailed upon by the Court and other well wishers to file the petition. Eventually, she signed the conciliation petition with the hope of reproach ment between them selves. On such petition being filed the Court directed them to live together for a month. We notice from the evidence of the Lawyer (P. W. 1) that as per the Court's order, the accused took the victim woman from the Court and both of/hem left the Court premises at about 3. 30 P. M. on 17-12-1994. No body has seen them thereafter. Later on, 24-12-1994 at about 10 A. M. the dead body of the victim woman was recovered from the stone quarry at Giringa Mundi hillock situated at a distance of 1-1/2 Km. from the village of the accused. In the meantime, the accused had lodged an information at Athagarh Police Station on 17-12-1994 at 9. 30 P. M. to the effect that on their way home the victim lady parted his company at Radhakishorepur bridge and went away with an unknown young man. This is apparent from the evidence of the Investigating Officer (P. W. 8 ). In the meantime, the accused had lodged an information at Athagarh Police Station on 17-12-1994 at 9. 30 P. M. to the effect that on their way home the victim lady parted his company at Radhakishorepur bridge and went away with an unknown young man. This is apparent from the evidence of the Investigating Officer (P. W. 8 ). We find that the dead body was exhumed in the presence of an Executive Magistrate, the accused, the mother of the victim woman and others. The dead body of Saudamini was identified by her mother as well as by her husband, viz. , the present appellant. According to the autopsy Surgeon the death occurred within seven days from the date of post-mortem examination. The deceased was last seen with the present appellant on 17-12-1994 and her dead body was recovered on 24-12-1994 in a decomposed state. The post-mortem report indicates that the victim lady was murdered on 17-12-1994. Normally when the deceased was seen last alive in the company of the accused and after some point of time he was found dead, theory of last seen together can be pressed into service. But when the time gap between the point of time the person was seen last and the dead body was found is considerable, the last seen theory cannot be the sole determinative factor for finding a person guilty. It would all depend on the circumstances of the case and the time gap. ( 9 ) ANOTHER factor which has been pressed into service is the alleged ext rejudicial confession made by the accused before two of his co-villagers, i. e. , P. Ws. 6 and 7 does not support the) prosecution case. He has resiled from the statement made before the Investigating Officer. P. W. 6 is another co-villager before whom the accused allegedly made extra-judicial confession. This witness too resiled from his statement made during investigation and with the permission of the Court was cross-examined by the prosecution. During cross-examination by the prosecution the witness admitted that he had told the Investigating Officer that the accused confessed before him that on their way home from Dhenkanal on 17-12-1994 night the accused had throttled the deceased to death at Giringa Mundia hillock, and the accused requested him to keep it secret under the threat of death. He claims to be a friend of accused. He claims to be a friend of accused. This witness was further cross-examined by the defence. It has been elicited from him during cross-examination by the defence that four days after the accused returned from Dhenkanal Court he (the witness) enquired from him (the accused) as to what happened to the case at Dhenkanal and in reply the accused had told him about having killed the deceased on their way home. An extra-judicial confession can be acted upon by the Court to fasten the guilt. When such confession is voluntary and the evidence of the person who states about the confession is clear, cogent and trustworthy that confession alone can be sufficient for recording conviction. ( 10 ) BUT certain peculiar features are to be noted in this case. The first statement of P. W. 6 under Sec. 161, Cr. P. C. was recorded on 24-12-1994. At that time he had not stated about the extra- judicial confession as evident from the evidence of the Investigating Officer. But subsequently, another statement under Sec. 161, Cr. P. C. was recorded where he stated about extra-judicial confession. The necessity for recording the second statement and the cause for omission to state on first occasion has not been explained. There is no bar for a subsequent statement being recorded. But the reason must be brought on record. The absence of reason and/or explanation are suspicious circumstances. That being the position, the statement of P. W. 6 about the so called extra-judicial confession cannot be acted upon. There is no other material to connect the accused with the guilt. The conviction and consequentially the sentence cannot be maintained and are set aside. The accused be set at liberty forthwith unless he is not required to be in custody in connection with any other case. The appeal is allowed. Appeal allowed.