JUDGMENT : V.M. Deshpande, J. The appellant has been charged that she has committed homicidal death of one Smt. Jaitula Pralhad Dongre on account of vacating the rented room. The learned Additional Sessions Judge-5, Nagpur in Sessions Trial No. 494/2012 found that the charge is established by the prosecution and, therefore, convicted her for the offence punishable under Section 302 of the IPC and directed that she should suffer imprisonment for life and to pay a fine of Rs. 500/- and in default to suffer simple imprisonment for one month. Hence this appeal. 2. Such of the facts, which are necessary for the appeal are stated hereunder. Shantaram Jadhav (PW11) was discharging his duties as Police Sub Inspector at Police Station, Jaripatka. On 14.07.2012 at around 11.30 pm. On 15.07.2015, Manoj Dongre (PW1) came to Police Station and lodged a complaint. The said complaint is at Exh.20. On the basis of the said, Shantaram Jadhav registered accidental death report No. 64/2012. As per the complaint Exh.20, the deceased Jaitula was his mother. He along with his wife Pradhnya (PW2) and son Diwakar used to reside in quarter situated at HUDCO Colony, B12/ 228, which is owned by the deceased. In the said quarter, there are three rooms. Manoj used to reside in hall and one room along with his wife and deceased mother in the last room. The appellant used to reside as tenant. She was residing there as a tenant since last one year and she used to pay Rs. 700/- towards rent. The deceased orally asked the appellant for vacation of the room. However, the appellant refused to vacate the room immediately and, therefore, there was altercation in between the deceased and the appellant, prior to one month of incident. According to the report Exh.20 on 14.07.2012, the dispute arose in between the deceased and the appellant in between 11.30 to 12.00 pm. The noise of the quarrel was heard by Manoj and, therefore, he reached there. That time he noticed that the appellant was pressing her neck and was assaulting her by the fist blows. In that behalf, Ratna Malode (PW8), made a phone call to the police. According to the report itself, no injuries were there on the person of the deceased. 3. After the accident death report was registered, Shantaram Jadhav (PW11) visited the spot of occurrence. In that behalf, Ratna Malode (PW8), made a phone call to the police. According to the report itself, no injuries were there on the person of the deceased. 3. After the accident death report was registered, Shantaram Jadhav (PW11) visited the spot of occurrence. The spot panchanama was drawn in presence of panchas which is at Exh.31. He recorded statement of Manoj and his wife Pradhnya. 4. Jagannath Jankar (PW10) registered the offence on the basis of the report lodged by Jaipal Singh Ahirirao (PW3) who was attached to Police Station, Jaripatka and he received the case diary of ADR No. 64/2012 for investigation. In that, he noticed that it is not an accidental death case but it is the one punishable under Section 302 of the IPC. Jagannath (PW10) registered the FIR as stated herein above. The printed FIR is at Exh.29 whereas the complaint of Jaipal Singh Ahirrao (PW3) is at Exh.28. The investigation was ultimately entrusted to PSI Jayant Shirasao. He recorded the statement of various witnesses including Ratna Malode (PW8), Dinesh Dongre (PW5), Shital Meshram (PW7), etc. and filed the charge sheet. 5. We have heard Ms F.N. Haideri, learned counsel for the appellant and Mr. T.A. Mirza, learned A.P.P. for the respondent State. With their able assistance, we have gone through the notes of evidence. 6. In view of the post mortem report Exh.58 and the evidence of Dr. Mulchand Gedam (PW12), the death of Jaitula was homicidal one. 7. In order to bring home the guilt of the appellant, the prosecution has examined Manoj Dongre (PW1), Shital Meshram (PW7) and Ratna Malode (PW8) as eye witness. Whereas, Dinesh Dongre (PW5) and Ajay Ramteke (PW6) were examined as the persons before whom extra judicial confession was made by the appellant. Narendra Gajbhiye (PW9) and Pawan Kumar Arora (PW13) were examined as panch witness for recovery of certain articles whereas Anil Ramteke (PW4) was examined as pancha witness on spot panchanama. Eye witness Shital Meshram (PW7) has turned hostile. Similarly, Ajay Ramteke (PW6) the witness in whose presence extra judicial confession was made by the appellant has also not supported the prosecution. The panch witnesses Narendra (PW9) and Pawan Kumar (PW13) on recovery also did not support the prosecution. 8. Eye witness Shital Meshram (PW7) has turned hostile. Similarly, Ajay Ramteke (PW6) the witness in whose presence extra judicial confession was made by the appellant has also not supported the prosecution. The panch witnesses Narendra (PW9) and Pawan Kumar (PW13) on recovery also did not support the prosecution. 8. Insofar as the extra judicial confession to Dinesh (PW5) is concerned, from his evidence, it is clear that Dinesh, who is son of the deceased was residing separately at Sarasvati Nagar, Nagpur. He received telephone call from Ratna Malode. Therefore, he reached to the house of his mother. According to the evidence of this witness, police were already there and the appellant was in the police vehicle and that time the appellant told him that since his mother has quarrelled with her, she has committed murder of his mother. From the aforesaid evidence, it is clear that the extra judicial confession was made when the appellant had been in police custody in the police van. Though immediately after the incident the extra judicial confession was made, the statement of this witness Dinesh (PW5) is recorded on 11.08.2012 by Jayant Shirsat (PW14) and there is no explanation for such an inordinate delay in view of the fact that the incident in question occurred on 14.07.2012. In view of the aforesaid discussion, we are discarding the extra judicial confession. 9. Manoj Dongre (PW1) is the son of the deceased who has lodged the complaint Exh.20. According to his evidence, on the date and time of the incident, the appellant came from outside and went towards the room wherein his mother was residing and asked his mother to open the door. His mother refused to open the door. Therefore, she extended shouts to his mother that if the door is not opened then she will break the door. From the evidence of this witness, it is clear that the mother was residing in one room whereas this witness was residing in another room adjacent to her. His evidence is completely silent in respect of the steps which he has taken on receiving the threats from the appellant. From his evidence, it is brought on record that on the date of the incident, it was raining and the lights were off. His evidence is completely silent in respect of the steps which he has taken on receiving the threats from the appellant. From his evidence, it is brought on record that on the date of the incident, it was raining and the lights were off. Following statements made by this witness in his cross-examination, in our view, make his evidence as susceptible and does not inspire confidence; “(i) It is true that due to dark, I do not know the place where the accused was present at the time of incident. (ii) It is true that at the time of incident, due to darkness I could not identify the assailant who had beaten my mother.” In our view, as observed above, therefore his evidence does not inspire confidence that he has actually seen the assault as claimed by him in Exh.20. 10. Pradhnya (PW2) wife of Manoj (PW1) is completely silent on the aspect of assault. She only throws light that her mother in law was lying and accused was standing near her. We cannot forget that the appellant was also resident of the same house, therefore, mere presence itself is not sufficient to hold her guilty. 11. Insofar as Ratna (PW8) is concerned, though she claims that she has seen the actual incident, her statement is recorded on 30.07.2012, which is at belated stage and no explanation is coming for recording of her belated statement. According to this witness, she resides in the neighbourhood. She claims that she has seen the incident in the light and through the window. She further states that she made a phone call to police and police came to the spot. Though, this witness claims that she has seen the incident through the window of the room of Jaitula, the deceased, the spot panchanama Exh.31 is completely silent about the same. It does not show that there was any window to the said room. Further, both the prosecution witnesses Manoj (PW1) and Pradhnya (PW2) son and daughter-in-law of the deceased are also completely silent in respect of the existence of window. Though, Ratna (PW8) claims that she has seen the incident through light, she is belied by Manoj (PW3) whose statements are already reproduced in the present judgment in the preceding paragraphs. Further, both the prosecution witnesses Manoj (PW1) and Pradhnya (PW2) son and daughter-in-law of the deceased are also completely silent in respect of the existence of window. Though, Ratna (PW8) claims that she has seen the incident through light, she is belied by Manoj (PW3) whose statements are already reproduced in the present judgment in the preceding paragraphs. Further, though she claims that she has made a phone call to police, that is also not corroborated by Manoj since as per his evidence one Ratnakar Sakhare made phone call to the police. 12. The incident has occurred in the intervening night of 14.07.2015 and 15.07.2015. The Police immediately reached to the spot. According to Dinesh (PW5), the appellant was shouting that she has committed murder of the deceased. The complaint, Exh.20 also shows that it is the appellant who is responsible for the death of Jaitula in spite of that the crime was registered on 15.07.2012 at 16.30 hrs. and no explanation whatsoever is coming on record for such a belated recording of the said FIR. 13. The aforesaid discussion leads us to reach to the conclusion that the prosecution has not proved the case against the appellant beyond reasonable doubt warranting passing of the following order. The appeal is allowed. The order of conviction for the offence punishable under Section 302 of the Indian Penal Code is set aside. The appellant is acquitted of the charges charged with. The appellant is directed to be set at liberty forthwith, if not required in any other crime. Appeal allowed.