JUDGMENT S.K. MISHRA, J. : In this case of alleged uxoricide, the appellant assails his conviction under Section 304 Part-I of the Indian Penal Code, 1860, hereinafter referred as the ‘I.P.C.’ for brevity and sentence of imprisonment for life. 2. The case of the prosecution is that, on 8.10.2001, at about 4 P.M., while the appellant and his wife (deceased) were returning from the weekly hat near the village of the informant (P.W.6), both the deceased and the accused picked up quarrel. Both of them were drunk. At that time, the accused allegedly gave slap blows to the deceased, for which she fell down losing con¬sciousness. She was taken to the nearby house and was given ‘Pejapani’, but she could not drink and subsequently died. There¬after a punch was covened by the villagers where the accused allegedly admitted his guilt. The matter was reported to police. After investigation, charge-sheet was laid against the accused under Section 302 of the IPC. In order to prove its case, the prosecution examined nine witnesses and the defence examined none. Taking into considera¬tion the evidence led, the learned Addl.Sessions Judge has come to the conclusion that the prosecution has proved its case but held it to be a case of culpable homicide not amounting to murder and hence, he proceeded to convict the accused under Section 304 Part-I of the IPC and sentenced him to undergo imprisonment for life. Such judgment is assailed in this appeal. 3. In course of hearing, the learned counsel appointed on behalf of Legal Aid argued the case of the appellant and submit¬ted that there is absolutely no evidence against the appellant, and the conviction recorded by the Trial Court is totally ille¬gal. We have also heard the learned Addl. Government Advocate. 4. In case of murder or culpable homicide not amounting to murder, the foremost duty of the prosecution is to prove the homicide nature of the death of the deceased and then it should be prove complicity of the accused in commission of the crime. In order to prove the homicide nature of the death of the deceased, generally the prosecution examines the doctor, who conducted the post-mortem examination, unless the defence admits the document like post-mortem examination report under Sub-section (3) of Section 294 of the Code of Criminal Procedure, 1973, hereinafter referred to as the ‘Code’ for brevity. In order to prove the homicide nature of the death of the deceased, generally the prosecution examines the doctor, who conducted the post-mortem examination, unless the defence admits the document like post-mortem examination report under Sub-section (3) of Section 294 of the Code of Criminal Procedure, 1973, hereinafter referred to as the ‘Code’ for brevity. In this case, the defence has not admitted the document under Section 294 of the Code. The doctor, who conducted post-mortem examination, has not been tendered as a witness in course of trial. Strangely, the post-mortem report has been proved and marked as Ext.7 by the Investi¬gating Officer, which is improper. However, for the sake of the consideration, if the post-mortem examination is looked into, it is seen that the doctor, who conducted post-mortem examination has not given a clear-cut finding that the death of the deceased was homicidal in nature. In Ext.7, the doctor opined that upon post-mortem examination he opened the skull and found that there was a tear of meaninges on the frontal with a clot of subdural type, one external injury on cervical area of size 1"x1"x ½” and one swelling of 3" x 1" x 1" on fore-head hairline. The doctor has mentioned in the post-mortem report that the death was due to shock of neurogenic type due to intracranial bleeding. Regarding the nature of the death, the doctor has opined that the same has to be ascertained taking circumstantial evi¬dences into account. In other words, he has not given a definite finding that the death of the deceased was homicidal. On this score itself, the case of the prosecution fails. However, the learned Addl.Sessions Judge has held that the death of the de¬ceased was homicidal, which is incorrect. 5. As far as the oral testimony is concerned, none of the witnesses except the official witnesses has supported the case of the prosecution. They have been cross-examined by the prosecution after seeking permission of the Court under Section 154 of the Indian Evidence Act, 1872. The learned Addl.Sessions Judge has come to the conclusion that P.W.1 is an eye-witness and he has proved assault on the deceased by the accused. So, it is appro¬priate to examine the evidence of P.W.1. P.W.1, Deba Majhi has stated on oath that he knows accused Jaga Madhi and his deceased wife, Adme Madkami. The learned Addl.Sessions Judge has come to the conclusion that P.W.1 is an eye-witness and he has proved assault on the deceased by the accused. So, it is appro¬priate to examine the evidence of P.W.1. P.W.1, Deba Majhi has stated on oath that he knows accused Jaga Madhi and his deceased wife, Adme Madkami. About one and half years prior to his evidence in Court, the said deceased Adme Madkami died near his house on the road in village Rangani¬guda. Occurrence took place on a weekly market day at about 4 P.M. when the accused was returning with his wife from the weekly market. He found the deceased lying unconscious on road. He brought her to his house. Thereafter, the public prosecutor cross-examined him after seeking permission of the Court. In the cross-examination by the prosecution, the witness has admitted the suggestion that he stated before the Investigating Officer that the accused told him that while returning to the house, there was some quarrel between him and his wife, and he dealt some slaps and fist blows on her and that she was lying uncon¬scious and that he should give her some water. He, further, admitted before the Investigating Officer that he took her to his house and tried to administer was water to her, but she was already dead. In the cross-examination by the defence, this witness has stated that he has not seen the assault on the date of occurrence. He, further, stated that accused has not told him that he assaulted his wife, i.e. deceased. Such being the evi¬dence of the witness on whom the learned Addl.Sessions Judge, mainly, relied, the said conviction cannot be sustained. 6. It is worthwhile to quote the conclusions arrived at by the learned Addl.Sessions Judge regarding this witness. “Coming to the testimony of P.W.1 Deba Majhi is it is found that the accused stated before him that while returning to house, there was some quarrel between him and his wife for which he dealt some slaps and blows. Further, this witness who an Adivasi has admitted that while accused’s wife was lying unconscious he was asked not to give any water but even though he administered water she was already dead. During cross-examination he has admitted that he saw the accused and the deceased near his house. Further, this witness who an Adivasi has admitted that while accused’s wife was lying unconscious he was asked not to give any water but even though he administered water she was already dead. During cross-examination he has admitted that he saw the accused and the deceased near his house. This shows that the accused giving slaps and fist blows on his wife who first lying unconscious and then dying, is quite estab¬lished through the testimony of this P.W.1, who is an eye wit¬ness. The minor discrepancy regarding admission of this witness who is admittedly an Adivasi that he has not seen accused quar¬reling with his wife or assaulting his wife or that accused had not stated to him that he assaulted his wife can be safely brushed aside by relying upon the reported decision of our Hon’¬ble Court reported in AIR 1981 Supreme Court 1163, Beti Padia v. State of Orissa which states in our opinion the discrepancies pointed out are minor and nominal. It may be remembered that P.W.1 was an unsophisticated Adivasi Women. The High Court was justified in accepting her evidence.” It is clearly seen that the learned Addl. Sessions Judge was in error in accepting P.W.1 as an eye witness. He has admitted that the accused told him that he assaulted the deceased. He never admitted that he saw the accused assaulting the deceased. The statement of P.W.1 cannot be used for any purpose, as he has completely resiled from the statement recorded under Section 161 of the Code by the Investigating Officer. Even if this witness admitted about the narration of the accused before him regarding the assault made by him to his wife, then also such statement cannot be treated as substantive evidence. It is trite law that the statement recorded by the Investigating Officer under Section 161 of the Code is only a previous statement which can only be used for the purpose of contradicting the prosecution witness. Even if P.W.1 admits to have stated about the occurrence before the Investigating Officer, then also in absence of other materi¬als, a conviction cannot be recorded. Thus, the finding recorded by the Trial Court is totally erroneous and uncalled for. P.W.2 has also not supported the prosecution case and he has been cross-examined under Section 154 of the Indian Evidence Act by the prosecution. Thus, the finding recorded by the Trial Court is totally erroneous and uncalled for. P.W.2 has also not supported the prosecution case and he has been cross-examined under Section 154 of the Indian Evidence Act by the prosecution. He has denied to have made any statement before the Investigating Officer to have seen the assault. Similarly, P.W.3, Deba Sodi has also turned hostile to the prosecution and has not supported the case of the prosecution. P.Ws.4 and 6, the informants, have not supported the case of the prosecution and therefore, they have been cross examined by the prosecution under Section 154 of the Indian Evidence Act. 7. This being the materials on record, the conviction recorded by the Trial Courts is erroneous and unsustainable. Hence, the conviction of the appellant under Section 304 Part-I, IPC and the sentence of imprisonment for life are hereby st aside. The accused be set at liberty forthwith unless his deten¬tion is required otherwise. The bail bond executed by him be cancelled. The Jail Criminal appeal is allowed. Appeal allowed.