C. L. PANGARKAR, J. :- Both accused-appellants were convicted by I1nd Additional Sessions Judge, Wardha for having committing offence punishable under sections 498-A, 302 and 201 of Indian Penal Code and were sentenced to imprisonment for life and fine of Rs. 100/-. The accused Nos. 2,4 and 5 were convicted under section 498-A alone, but they have not preferred appeal before this Court. We are, therefore, hearing appeal of accused Nos. 1 and 3 alone. 2. The facts giving rise to this appeal are as under: Deceased Bhagirathibai was married to accused-appellant No.1. Accused No.2 is the father of accused No.1, accused-appellant No.3 is the mother, accused No.4 is the sister. After the marriage the deceased came to live with the accused persons. It is alleged that while she was living with them she was subjected to mental and physical cruelty. She was also being beaten and teased by the accused persons, particularly accused-appellants Nos. 1 and 3. It is further alleged that on 17-2-2001 the Police Patil of village Girad found smoke emitting from the house of the accused persons. He, therefore, went there and found one woman and child lying in dead condition. They were completely burnt. A report thereof was sent by him to the police. The police came to the place of incident and found that Bhagirathibai and her son Aakash were completely burnt. Their dead bodies were sent for post-mortem examination. The brother of the deceased Bhagirathibai lodged report with the police upon which offence under sections 498-A, 302 and 201 of Indian Penal Code was registered. When the Police Patil had gone to the house of the accused-appellants none of the accused-appellants were present. It is alleged that after the accused were arrested, accused-appellants No.1 and 3 made a statement before the police that they would show the clothes which they were wearing at the time of commission of the offence. They led the police party to the house of accused No.4 from where those clothes were seized by the police. They were smelling of kerosene. The Medical Officer opined that the bum injuries on the person of both the deceased were post -mortem. They were however unable to arrive at conclusion as to the exact cause of death. The viscera was collected. Viscera was sent to the Chemical Analyser along with the clothes of the accusedappellants. They were smelling of kerosene. The Medical Officer opined that the bum injuries on the person of both the deceased were post -mortem. They were however unable to arrive at conclusion as to the exact cause of death. The viscera was collected. Viscera was sent to the Chemical Analyser along with the clothes of the accusedappellants. The statement of the witnesses were recorded by the police and upon completion of the investigation a charge-sheet was presented to the Magistrate. 3. The Sessions Judge framed the charge and recorded the evidence of the witnesses. All accused pleaded not guilty. Upon consideration of the evidence the learned Sessions Judge found accused Nos. 1 to 5 guilty of offence under section 498-A and accused-appellants No.1 and 3 of offences under sections 302 and 201 of Indian Penal Code. It is against this order of conviction that this appeal has been preferred by accused No. 1 and 3 alone. 4. We have heard the learned counsel for the appellants and the respondent. Main contention that was raised by the learned counsel for the appellants was that it is not at all proved that the death of the deceased is homicidal. 5. The prosecution has examined in all 9 witnesses. None of them is an eye witness. The prosecution relies on circumstantial evidence alone. 6. In cases of murder the prosecution has to first establish that the death of the deceased is homicidal. The prosecution has examined the Medical Officer Dr. Sanjay P. W. 7. He had carried out autopsy on the dead bodies of Bhagirathibai and Aakash. Reports of autopsy are at Ex. 40 and 41. Both reports show that the bum injuries on both the bodies were post-mortem. The last column shows that the cause of death was not given for want of report on viscera. The viscera it appears, from Ex. 49 and 50 the forwarding letters, was sent to Chemical Analyser. Surprisingly however, the Chemical Analyser's report thereon is not at all filed on record. The C. A. report that has been filed on record which is at Ex. 17 is in respect of examination of clothes of the deceased and the accused appellants and not in respect of the viscera. Surprisingly however, the Chemical Analyser's report thereon is not at all filed on record. The C. A. report that has been filed on record which is at Ex. 17 is in respect of examination of clothes of the deceased and the accused appellants and not in respect of the viscera. There is nothing on record to suggest that the opinion of the Medical Officer was sought after the receipt of the report of the C. A. nor is the C. A. report filed. The Investigating Officer does not appear to have acted diligently inasmuch as he failed to refer the matter to the Medical Officer after receipt of the report of the C. A. Since there was no final opinion on the cause of death, it was necessary to obtain the opinion of the Medical Officer after showing the C. A. report to him. It seems that the Investigating Officer has failed to do so. One wonders as to how the investigation could be said to be complete when the report on the final cause of death was not obtained. The charge-sheet has been filed without final opinion as to the cause of the death. We find thus that this would certainly cause serious prejudice to the accused. It is upon the cause of death that the defence of the accused always rests. In the absence of it the lawyer representing the accused may not be in a position to even cross-examine the Medical Officer. If the Medical Officer gives opinion only at the time of tendering evidence in Court, the lawyer representing the accused may not be prepared for the cross-examination and that would cause the prejudice. This has precisely happened in this case. We may mention that on the post-mortem note Exs. 40 and 41 the Medical Officer has made following note as to the cause of death : "Burns appeared to be post-mortem in nature with exact cause of death awaited till visceral examination. " If the bum injuries were post-mortem it was incumbent on the prosecution to have mentioned in the post-mortem note or by separate certificate as to the real cause of death. We deem it necessary to actually reproduce here paragraph 5 of the deposition of P. W. 7 Dr. Sanjay : Para 5 : "In my opinion in this case the burns were post-mortem in nature. We deem it necessary to actually reproduce here paragraph 5 of the deposition of P. W. 7 Dr. Sanjay : Para 5 : "In my opinion in this case the burns were post-mortem in nature. We could not reach to the exact cause of death, since the death was not due to burnt. " It is thus clear that both the doctors who carried out the autopsy were unable to determine the cause of death. If we look into the Post-mortem Note Ex. 40 and 41, it will be clear that no external injury is detected, nor any internal injury is detected. It is for the first time in evidence that P. W. 7 Dr. Sanjay says that since tongue was protruding, that the death could be by throttling. If such a stand is taken by the Medical Officer at the time of tendering evidence in the Court and accused is not warned of it, it is impossible for the accused to meet the case. P. W. 7 Dr. Sanjay's statement on oath needs to be once again reproduced here in this case in his own words : "I have stated in my examination-in-chief in opinion column of Exh. 40 and 41. As the cartileges of airway were intact I could not reach to the conclusion that the cause of death of Bhagiratha might be due to throttling and hence in opinion column of Exh. 41 it is not written specifically. " This statement goes contrary to his opinion that the death is by throttling. The above answer would suggest that the finding cartilages of airways being intact, rules out the possibility of throttling also. Furthermore, had Bhagirathi or her son been throttled there would have been atleast displacement of the hyoid bone and that too is not displaced. The Medical Officer does not even say that he could observe other symptoms of asphyxia, because by throttling the death would certainly be by asphyxia. Since no signs of asphyxia are noted in the P. M. note it cannot be concluded that the death could be by throttling. In any case, therefore, evidence is such that there is no positive or certain evidence as to the cause of death. 7. The bum injuries were post-mortem, particles of residue of kerosene were not found in thorax and trachea, therefore, they are certainly post-mortem. They could not, therefore, even be suicidal. In any case, therefore, evidence is such that there is no positive or certain evidence as to the cause of death. 7. The bum injuries were post-mortem, particles of residue of kerosene were not found in thorax and trachea, therefore, they are certainly post-mortem. They could not, therefore, even be suicidal. There is, therefore, absolutely no evidence to hold beyond reasonable doubt that the death of the deceased was homicidal. The learned Sessions Judge had failed to take into consideration this aspect of matter and as such arrived at a wrong conclusion. Since the death is not proved to be homicidal there is no question of accused committing murder of the deceased. Since the accused cannot be held guilty of murder the conviction of the accused-appellants No.1 and 3 also needs to be set aside so far as offence under Section 201 is concerned. 8. The accused-appellants were convicted by the learned Sessions Judge under Section 498-A of Indian Penal Code. It may be mentioned here that none of the witnesses examined, has claimed that he has personal knowledge with regard to the ill treatment to the deceased. None of them claims that he had ever seen the deceased being abused, beaten. Whatever evidence they have given is on the basis of the information given by deceased Bhagiratha to them. Their evidence is, therefore, hear-say. The hear-say evidence is admissible only under Section 32 of the Indian Evidence Act. Such evidence becomes admissible only if it relates to the cause of death of the deceased. Since the death is neither homicidal nor suicidal nor accidental any statement made by the deceased does not and cannot relate to the cause of her death. That evidence, therefore, in. respect of any illtreatment becomes inadmissible, as a result both accused-appellants deserve to be acquitted and the appeal needs to be allowed. Hence the order: The appeal is allowed. The order of conviction and sentence imposed on appellants by IInd Additional Sessions Judge is set aside. Appellants stand acquitted of the offences of which they were convicted. Appellants are in jail. They be set at liberty forthwith if not required in any other case. Appeal allowed.