D. P. S. CHAUHAN, J. ( 1 ) APPELLANT Sewak Ram was convicted in Sessions Trial No. 132 of 1995 for commission of offences punishable under Sections 302 and 201 of the Indian Penal Code and was sentenced to imprisonment for life and R. I. for two years, vide judgment and order dated 5-8-1996 passed by Second Additional Sessions Judge. Durg. The accused-appellant has challenged his conviction in this appeal. ( 2 ) ASTORIA Bai whom the accused had recently taken as his wife was found dead in her mothers house in the night intervening 6th and 7th October, 1992. On receipt of information about unnatural death. Marg was registered at Police-Station Pulgaon. The body of the deceased which was hanging from the beam was brought down in the presence of Executive Magistrate and Lash Panchnamat (Ex. P. 2) was prepared. The body was then sent for post-mortem examination and on receipt of the postmortem report (Ex. PA), the police registered an offence under Sections 302 and 201 of the Indian Penal Code against the accused on 17-10-1992. ( 3 ) THE prosecution case was that deceased Astroia Bai was earlier married to a person in Village Anda. She left him 7 or 8 years ago and came back to her motherts house. She was having a minor son from her first husband. Thereafter she married a person of Village Supela. But he too abandoned her after a couple of months. This appellant had made her his wife only a fortnight before this incident. His parents and children were also living in Village Anda and his first wife had died a year ago. After his re-marriage the accused used to live in the house of the mother of deceased. ( 4 ) THIS incident took place on the festival day of Dussehra. That evening the minor son and the mother of the deceased had gone to see Ramlila leaving behind deceased Astoria Bai and the accused in the house. When they returned home next morning they found the door of the house closed from inside. Finding no response to her knocks she called persons of the village. The door was broken open. Astoria Bai was found dead hanging from the beam. Her neck was tied up with Niwar. Accused Sewak Ram was not present in the house. Poshanlal. When they returned home next morning they found the door of the house closed from inside. Finding no response to her knocks she called persons of the village. The door was broken open. Astoria Bai was found dead hanging from the beam. Her neck was tied up with Niwar. Accused Sewak Ram was not present in the house. Poshanlal. Kotwar of the village (PW 7) reported her death to the police on 7-10-1992 at 10. 15 A. M. on the basis of which the Marg (Ex. P. 5) was registered. ( 5 ) THE prosecution examined as many as 7 witnesses. Chinda Bai the mother of the deceased was examined as PW 1 Abhayram a relative of the deceased was examined as PW 2 but he was declared hostile and R. C. Deshlahara another relative of the deceased was examined as PW 3. He is the person who after receiving the information of death participated in the last rites of the deceased and to whom Chinda Bai (PW 1) disclosed about the presence of the appellant in the house. Shikari who was the witness of inquest (Ex. P2) and also seizure memo (Ex. P3) was examined as PW 4 and Dr. K. K. Mishra who conducted the autopsy (Ex. P4) was examined as PW 5. Basant Kumar Mishra. Investigating officer was examined as PW 6 and Poshanlal Kotwar who lodged the report on the basis of which Marg was registered was examined as PW 7. In defence no witness was examined and the case in defence was that of denial. The cause of death was asphyxia due to strangulation 6. Learned counsel for the appellant submitted that so far as death of the deceased is concerned that is not disputed. What is disputed is that the appellant had caused her death. He submitted that Chinda Bai (PW 1) is the solitary witness in this regard but her statement is not reliable and conviction cannot be maintained on the basis of such a statement. ( 6 ) LEARNED Counsel had disputed the presence of the appellant in the house in the night of the incident. In this connection he has submitted that in Ex. P2 which is the Lash Panchnama it has been stated that the statement of Chindabai (PW 1) was recorded wherein she has stated that the deceased was all alone in the house in the night. In this connection he has submitted that in Ex. P2 which is the Lash Panchnama it has been stated that the statement of Chindabai (PW 1) was recorded wherein she has stated that the deceased was all alone in the house in the night. This statement was recorded by Investigating Officer Basant Kumar Mishra (PW 6) who has not denied that such a statement was made by Chindabai (PW I ). He says that she was weeping at that time and he did not ask anything from her. The Investigating Officer has not denied in his statement that he had recorded such statement in Ex. P2. He has stated that he took the statement of PW 1 Chindabai on 10-10-1992 and anterior to this no doubt was expressed to him. And Chindabai in her cross-examination in Paragraph 7 stated that her statement was taken by the police at the time of Lash Panchnama that statement was reduced to writing and at that time she told the police that on that night her daughter was all alone in her house. She in paragraph 9 stated that police people took several times her statement and they used to take her statement -daily and used to take her thumb impression on those papers. On the record there is no such statement. There is nothing on record except the statement which is said to be one under Section 161 of the Code of Criminal Procedure dated 10-10-1992. In paragraph 11 of cross-examination she has stated that when the accused came back after burning of the body and completing the disposal of the remains, the police caught hold of him. She was present there at that time and she wanted to know where they were taking him. At that time the police people told her that he was in the house in the night of the incident and thereupon she stated that may be he was there inside the house that fateful night. In her cross-examination this witness has given a version contrary to her statement made in examination-in-chief and also to prosecution version. But she was not declared hostile. ( 7 ) LEARNED Counsel further submitted that Basant Kumar Mishra (PW 6) did not record her statement though she was available on 7-10-1992 and the only explanation given is that till then nobody raised suspicion against the accused. This explanation is not satisfactory. But she was not declared hostile. ( 7 ) LEARNED Counsel further submitted that Basant Kumar Mishra (PW 6) did not record her statement though she was available on 7-10-1992 and the only explanation given is that till then nobody raised suspicion against the accused. This explanation is not satisfactory. She should have been examined on 7-10-1992 itself as she was available to the police that day. He further submitted that the First Information Report was lodged on 17-10-1992 and as such there was no question of taking the statement under Section 161. Cr. P. C. before recording of the First Information Report. The fact is borne out from the record and there is no explanation on record as to why statement was recorded before recording of the First Information Report. Learned Counsel further submitted that from the evidence on record the circumstance that accused was in the house in the night is not borne out and there was no motive for the accused for committing the murder of Astoria Bat ( 8 ) HEARD the learned State Counsel. Learned State Counsel submitted that so far as the motive is concerned, motive was that as she was insisting that the appellant take her to his house but he refused to do so as parents were not willing to accept her. We do not think this could provide the motive for causing death of Astoria Bat. ( 9 ) HAVING heard both the sides and having perused the record we are of the opinion that this appeal must be allowed. The statement of Chindabai (PW 1) does not inspire confidence. It is significant that at the initial stage she had herself told the police that Astoria Bai was alone in the house that night. The Investigating Officer Basant Kumar Mishra (PW 6) also admitted in cross- examination that no one had suspected foul play till as late as 10th and the First Information Report was lodged only after the receipt of postmortem report. It is then that the matter took a turn, and Astoria Baits death was registered as murder. It was at this late stage that Chindabai spoke of the presence of the accused with her daughter on the fateful night. But even after a careful Scrutiny of the evidence of Dr. It is then that the matter took a turn, and Astoria Baits death was registered as murder. It was at this late stage that Chindabai spoke of the presence of the accused with her daughter on the fateful night. But even after a careful Scrutiny of the evidence of Dr. K. K. Mishra (PW 5), we do not find any basis to hold that Astoria Bai had died a homicidal death. Dr. Mishra (PW 5) has not given any opinion whatsoever, on the question whether the death was suicidal or homicidal. The prosecution failed in its duty to seek a clarification from him while he was in witness-box. And in this state of affairs, when homicide itself has not been proved, we do not consider it proper to convict the accused of murder simply on the basis of contradictory and wavering- evidence of Chindabai (PW 1) that she had left this accused with the deceased when she left home for the Ram lila. ( 10 ) IN view of the above the appeal deserves to be allowed. The appeal is allowed. The conviction of the appellant is set aside. He set at liberty unless required in connection with some other case. Appeal allowed .