JUDGMENT : RAJANI DUBEY, J. 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 25.06.2019 passed by the learned Additional Sessions Judge, Gariyaband (C.G.) in Sessions Trial No. 23/2017, wherein the said Court convicted the appellant and sentenced him as under:- Conviction Sentence U/S 302 of IPC For life imprisonment and fine of Rs. 500/- in default of payment of fine to undergo additional R.I. for 02 months. 2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case, is that on 02.03.2017, on receiving information about a murder in village Onwa Ghanghtinala in the Police Station- Ghura, the station incharge went to the spot for verification and registered a dehati morgue intimation of the death of Narhar Dhruv and Kuntal Dhruv as told by Santosh Kumar, according to which the informant Santosh was asked by Kantilal Dhruv through mobile phone to come home early in the morning at about 8 am, he went to the brick kiln of Narhar Dhruv along with village’s sarpanch Pahad Singh, where the bodies of his younger brother Kuntal Dhruv and Narhar Dhruv of the village were lying dead on the brick kiln. During the inquest, the statement of the witnesses were recorded and after giving notice to the witnesses for preparing dead body map of the deceased persons, Naksha Panchayatnama was prepared. From the spot, a ladder made of bamboo pole which had blood stains on it, one white colour jersey, one black colour Micromax mobile, 5 pieces of country made liquor, 4 pieces of disposable glasses, 1 grey colour Micromax mobile were seized in presence of the witnesses. For Panchnama proceedings of the dead bodies, a doctor from FSL Raipur came and conducted the Panchnama proceedings. A spot map was prepared. The bodies of deceased Narhar Dhruv and Kuntal Dhruv were sent to CHC Chura for post-mortem, where a team of two doctors conducted the post- mortem of both the bodies and gave a report in which, according to their opinion the nature of death of both the deceased was mentioned as homicidal, to which on 03.03.2017 for offence punishable under Section 302 of IPC has been registered against the unknown person. During the course of investigation, a ladder made of bamboo pole was seized from the spot. During the course of investigation, a ladder made of bamboo pole was seized from the spot. Memorandum statement of the appellant was recorded and on the basis of his memorandum statement, a half green- black coloured T-shirt with blood-like stains produced by the appellant and a Semhar wood with blood-like stains were seized. On finding evidence of crime against the accused, he was arrested and his family members were informed about his arrest. The aforesaid articles were sent to FSL for its medical examination. 3. After completion of due and necessary investigation, charge-sheet was led before the jurisdictional Magistrate who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Sections 302 (two times) of IPC. The appellant having abjured guilt was subjected to trial. 4. In order to prove its case, the prosecution has examined as many as 14 witnesses and exhibited several documents. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. Learned trial Court after appreciating the oral and documentary on record, convicted the appellant under Sections 302, 201/34 of IPC and sentenced him as mentioned in the opening paragraph of this judgment. 6. Assailing the correctness and validity of the impugned judgment of conviction and order of sentence, the learned Senior counsel for the appellant submits that the impugned judgment and sentence passed by the learned trial Court is bad both on facts and in law. The learned trial Court failed to appreciate the evidence and the documents on the record and erred in not holding that the prosecution has not established the case beyond reasonable doubt. The prosecution case is not based upon the motive and the prosecution story is improbable, unnatural and contrary to the natural human conduct. The learned trial Court failed to appreciate the evidence and the documents on the record and erred in not holding that the prosecution has not established the case beyond reasonable doubt. The prosecution case is not based upon the motive and the prosecution story is improbable, unnatural and contrary to the natural human conduct. The learned trial Court failed to consider that the dead body of deceased Narhar and Kuntal were found on the top of the brick kiln and the prosecution has failed to prove that the appellant has thrown the dead body on the top of the brick kiln without the help of any other person though the prosecution witnesses have said that it is not possible alone for a man to climb over the top of brick kiln with the help of ladder. The learned trial Court wrongly relied upon the statement of (PW/01) Pahad Singh, (PW/07) Mani Ram, (PW/03) Kausal despite there being material discrepancies in their statements. All these witnesses have also participated in the celebration with the deceased and appellant, therefore, their statements cannot be relied completely in absence of any other corroborative evidence. The learned trial Court wrongly held that the appellant has caused injury to the deceased Narhar and Kuntal with an intention to harm their limb and life. The appellant has made statement under Section 313 of Cr.P.C. where he has clearly stated that the police has tortured him, therefore, he has made memorandum. The learned trial Court wrongly convicted and sentenced the accused/appellant and imposed the sentence without any legal proof of the ingredients of the aforesaid offences, therefore, the conviction and sentence imposed on the appellant is liable to be set aside. The prosecution case is based on improbable and unnatural story, therefore, the judgment of conviction and sentence imposed upon on the accused/appellant is liable to be set aside. 7. Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of State of Rajasthan v. Hanuman , CRA No. 631 of 2017 vide judgment dated 19.06.2025, in the matter of Padman Bibhar v. State of Odisha reported in SLP (Crl.) No. 17440 of 2024 and by this Court’s judgment dated 29.04.2024 in CRA No. 2172 of 2023 in the matter of Krishna Jhali v. State of Chhattisgarh. 8. 8. Ex adverso, learned counsel appearing for the State supported the impugned judgment and submits that the prosecution witnesses have categorically stated against the appellant and the learned trial Court minutely appreciated the oral and documentary evidence. The prosecution has rendered sufficient and credible evidence for proving the commission of offence by the accused/appellant and the learned trial Court has appreciated the evidence in correct perspective and has recorded the finding of the guilt of the accused, so the impugned judgment is well merited and no interference is called for. 9. We have heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection. 10. It is clear from the record of the learned trial Court that the learned trial Court has framed charges under Section 302 (two times) against the appellant and after appreciation of oral and documentary evidence, convicted the appellant under Section 302 (two times) and sentenced as described in para 01 of this judgment. 11. The first question for consideration would be whether the death of deceased Narhar Dhruv and Kuntal Dhruv were homicidal in nature? 12. (PW-08) Amit Tiwari A.S.I. stated that on 02.03.2017 he received information on telephone about the death of two persons on top of brick kiln, and on this information he reached on the spot and recorded Dehati morgue regarding the deceased Narhar Dhruv as Ex. P/17 and regarding the deceased Kuntal Dhruv he recorded Dehati morgue as Ex. P/18. He issued notice for inquest memo under Section 175 of Cr.P.C. for deceased Narhar Dhruv and Kuntal Dhruv vide Ex. P/01 and Ex. P/02 and prepared inquest memo of deceased Narhar Dhruv and Kuntal Dhruv vide Ex. P/03 and Ex. P/04. Thereafter, he gave application for postmortem of the deceased persons vide Ex. P/20 and Ex. P/21 and also recorded numbered morgue 09/2017 and 10/2017 regarding death of deceased Narhar Dhruv and Kuntal Dhruv vide Ex.P/23 and Ex. P/24 respectively. 13. (PW/12) Dr. P/02 and prepared inquest memo of deceased Narhar Dhruv and Kuntal Dhruv vide Ex. P/03 and Ex. P/04. Thereafter, he gave application for postmortem of the deceased persons vide Ex. P/20 and Ex. P/21 and also recorded numbered morgue 09/2017 and 10/2017 regarding death of deceased Narhar Dhruv and Kuntal Dhruv vide Ex.P/23 and Ex. P/24 respectively. 13. (PW/12) Dr. Nemesh Kumar Sahu conducted postmortem of both the deceased persons and he found the following injuries on the dead body of Narhar Dhruv:- External examination:- On external examination of the dead body, we found that stiffness had started in the hands and legs of the dead body, which was not fully developed, which can be due to denaturation of protein particles, which can be caused by moist heat (brick kiln). The body of the dead body was wearing a blue shirt with white lining, blue vest, blue monkey wash jeans, dark blue underwear of Teen Ace Demo Company. Husk (para) and mud were smeared on the right side of the face of the dead body. The pointed front part of the nose had turned white and red stripes had appeared around the white part, there was a red mark all around, which showed that the bone of the nose was broken, due to which the blood flowing from the nose was appearing as dry, which had dried up while flowing from the right side of the mouth. Lacerated injuries were found on the upper and lower lips, which were attached to the nose. The fluid that came out from nose was sticky. The fluid that came out of the nose was also stuck to the moustache of the dead body. The right side of the face was pressed, which appeared to be pressed by some object, due to which there were many abrasions on that part, which had reached up to the nose. The scratch marks were towards the right side of the forehead, which indicates that the navel was pressed from the left side to the right. No marks of any kind were found on the neck. Externally, the neck bone was not found broken. The eyebrow on the left side appeared burnt. Many boils (blisters - blisters that appear after burning) were visible at different places on the back of the dead body. Which were also on the back of both the legs. No marks of any kind were found on the neck. Externally, the neck bone was not found broken. The eyebrow on the left side appeared burnt. Many boils (blisters - blisters that appear after burning) were visible at different places on the back of the dead body. Which were also on the back of both the legs. The said blisters were of light yellow color. There was thin fluid inside the blisters. The lower surface of the blisters was white and their edges were hard, which indicates that the said blisters formed due to burning after death. Mud was found in the nails of both hands and toenails, and mud and abrasions were found on the knees and feet as well, which indicates that the deceased tried to protect himself and that is why mud and abrasions were found on his nails and feet. Internal Examination:- There was no fracture or injury in the skull of the deceased. There was contraction in the chest. There was no fracture in the larynx and trachea and they were dry. There was blood and contraction in the right and left lungs. The right side of the heart was filled with blood and the right side was empty. The intestinal membrane was congested. The esophagus was dry and mud particles were found in it. The presence of mud in the esophagus indicates that the deceased had resorted to self-defense. The small intestine contained half- digested food and alcohol smell was coming from it. The large intestine contained faecal matter. The liver, spleen and kidney were congested. There was no injury in the external and internal genitals. The nasal bone was fractured. Lacarated wounds were found in both the lips. There were abrasions on the forehead, face and nose. There was no dislocation of bone at the above mentioned place. Small intestine was congested. Small intestine and large intestine, a part of stomach in a jar, lungs, heart, kidney, liver, part of spleen in a jar, salt solution in a jar, blood of the deceased in a jar were sealed and sent for its chemical examination through the concerned Constable and also the cloths of the deceased were also sealed and handed over to him. Thereby he opined that cause of death is due to mechanical asphyxia (smothering) causing blocking of external respiratory organs and regarding nature of death he opined that it may be homicidal and gave his report vide Ex. P/37. 14. He found following injuries on the dead body of Kuntal Dhruv after conducting postmortem:- Cadaveric Spasm developed on B/L Lower & Upper Limbs indicating sudden death. Clothing: Light Blue shirt, Black Pant, No Baniyan, Brown Small black ships underwear. Head & Neck: Lacerated wound present over vertex region & Occipital region caused by blunt hard object making heavy impact causing coup-countrecoup injury resulting into B/L nasal bleed & blood from right ear, indicating anterior and middle cranial fossa brain injury. Mouth open & B/L eyes semi open. Back: Multiple Blister present over right leg (backsides & left side of back with thin covering scary & clear fluid. Base of blister was pale, hard & yellowish. Not having erythema-red lines on margin of blister. Genital: No any defect seen. No any struggle sign present all over body. Thereby he opined that cause of death is due to cardio respiratory arrest due to internal brain injury causing compression of cardio respiratory centre and regarding nature of death he opined that it may be homicidal and gave his report vide Ex. P/38. In cross-examination he admitted the suggestion of defence by saying that it is true here that when a brick is baked in a brick kiln, carbon monoxide {CO} gas is released and the {CO} gas is odorless and colorless in nature. In para 6 of his cross-examination he admits that when person inhales carbon monoxide gas, he does not feel uneasy immediately and it is also true that if a person inhales 30% of carbon monoxide gas, then the decision making ability of his brain reduces and the person becomes unable to escape from that place. In para 11 of his cross-examination he admits that the above symptoms can be found in death that occurs due to the effect of carbon monoxide gas. In para 15 of his cross-examination he also admits the suggestion of the defence that coup-contrecoup injury can usually occur due to falling or due to road accident. 15. (PW/13) Dr. R.K. Verma along with (PW/12) Dr. In para 15 of his cross-examination he also admits the suggestion of the defence that coup-contrecoup injury can usually occur due to falling or due to road accident. 15. (PW/13) Dr. R.K. Verma along with (PW/12) Dr. Nemesh Kumar Sahu who conducted the post mortem of both the deceased persons admitted the suggestion of the defence that the X-Ray of deceased Narhar was not done and by only touching they came to the conclusion that his bone was fractured. They have also admitted the suggestion of defence that on the instruction of Block Medical Officer, he along with Dr. R.K. Verma (PW/13) conducted the post mortem of the dead bodies and opined that their death may be homicidal in nature. 16. It is clear from Ex. P/37 and Ex. P/38 i.e., post mortem report of the deceased Narhar Dhruv and Kuntal Dhruv that after post mortem both doctors have opined that the death may be homicidal in nature. So, we have to examine other evidence for deciding this question as to know whether the death of deceased persons is homicidal in nature or not and whether the learned trial Court has rightly found that the nature of death of the deceased persons is homicidal. 17. Learned trial Court has convicted the appellant on following circumstances:- (i) Last seen together. (ii) Memorandum and Seizure. 18. (PW/02) Raghubar stated that on the night of the incident, he was sitting with two-three persons, at that time Narhar, Kuntal and Kaushal came there and they went to nearby ration shop and from there Kuntal came with Gutkha and told him and Nirmal that in the kiln there’s a lot of rice and vegetables go eat and come, to which Raghubar told him that he can’t see properly let it be, Kuntal then told him that not to worry as he is having torch and Nirmal also held torch and then with Kuntal and Narhar, Nirmal and Raghubar went to kiln. After reaching the kiln, the food prepared by Narhar was served to Raghubar and Nirmal and they after having the food cleaned the utensils and put them back in the same place and left from the place. The prosecution declared him hostile and cross-examined him and then he admitted the suggestion of prosecution that Omkar and Maniram were under the influence of liquor and Kaushal and Narhar were arguing. The prosecution declared him hostile and cross-examined him and then he admitted the suggestion of prosecution that Omkar and Maniram were under the influence of liquor and Kaushal and Narhar were arguing. He denied the suggestion on B to B part of his statement vide Ex. P/10. In cross-examination, he admitted the suggestion of defence that it is true that the police told that Omkar accepted that he killed the deceased persons Narhar Dhruv and Kuntal Dhruv. He also admitted the suggestion that at the time of having food there was no quarrel between them. 19. (PW/03) Kaushal Singh also stated the same story that Omkar, Kuntal and Narhar had set fire to the kiln at 3-4 o'clock. Narhar had arranged food for Kuntal, Maniram, Omkar and him. At around 06 to 07 pm everyone had dinner in the kiln. Narhar had invited Nirmal and Raghubar for having dinner. After completing my dinner, I came back to home by 08:30 pm and slept. Kaushal further stated that he woke up at 05:30 am on the next day morning as he has to put husk (bhusa) in the kiln and thereby he reached the kiln. On reaching the kiln, he called Narhar, but when he did not hear him, he went to Narhar’s house at Onwa. Narhar’s mother told him that her son did not come to home yet from the kiln. Then Kaushal came to his house in village Koraasi. Then, he went to Omkar’s house where he was apprised by Omkar’s wife that he is still asleep, Kaushal then went back to his home at village Koraasi and he was wandering nearby (Bajrangbali) Lord Hanuman’s temple and at that time, Omkar came and Kaushal told him that to come let’s go to the kiln to put husk (bhusa) in it and they both went to the kiln. After reaching the kiln, he asked Omkar as to where is Narhar, to which he told him that he is sleeping on top of the kiln, then Kaushal told Omkar to wake up Narhar, though Omkar called Narhar but Narhar did not wake up. As such, Omkar went to the top of the kiln and told Kaushal that both Narhar and Kuntal have died. The prosecution declared him hostile and cross-examined him then he admitted his police statement vide Ex. P/11. As such, Omkar went to the top of the kiln and told Kaushal that both Narhar and Kuntal have died. The prosecution declared him hostile and cross-examined him then he admitted his police statement vide Ex. P/11. In para 6 of his cross-examination he admitted the suggestion of the defence that:- He also admitted the suggestion of defence that para 8 that:- 20. (PW/05) Nirmal Dhruv stated that on the night of the incident, Omkar was there at the kiln, he served food to Raghubar and curry to me and I only ate curry. After finishing our food, Raghubar and I came back home. At that time, Narhar, Kuntal, Omkar, Kaushal and Maniram were there at the brick kiln. The prosecution declared him hostile and cross- examined him then he admitted his police statement Ex. P/13. He also admitted the suggestion of the defence that the accused had no quarrel with Kuntal and Narhar and there was no atmosphere of fighting at the time of incident. 21. (PW/07) Maniram Dhruv also supported the story of other witnesses that all five persons viz. Kuntal, Omkar, Kaushal, Narhar and Maniram lit up the kiln and had dinner and after completion of their dinner, Nirmal and Bablu of village Koraasi came there and they left the place after having dinner. He further submits that he was taking rest as he had preferred liquor over food and he too left the place around 9 pm soon after Nirmal and Bablu left. When I came back home, Narhar, Kuntal and Omkar were working in the kiln, Kaushal was not there, after reaching to his house, Maniram slept. In para 4 of his cross-examination he stated that:- 22. It is clear from the F.I.R. vide Ex. P/27 that the F.I.R. was recorded against the unknown persons and memorandum of accused was recorded on 03.03.2017. As per F.I.R. the date of incident is 02.03.2017 and as per memorandum, police seized t-shirt and wood vide seizure memo Ex. P/06 & Ex. P/07. Ex. P/05 is related to recovery of wood and clothes of the accused/appellant and it was disclosed by the accused/appellant which is reproduced hereinunder for ready reference:- 23. (PW/09) Amit Tiwari A.S.I. has stated that as per memorandum, wood of Semhar was seized from the place of the incident and he prepared seizure memo vide Ex. P/07. As per F.S.L. report Ex. (PW/09) Amit Tiwari A.S.I. has stated that as per memorandum, wood of Semhar was seized from the place of the incident and he prepared seizure memo vide Ex. P/07. As per F.S.L. report Ex. P/34, human blood was found on Articles A, B & E i.e., blood sample of deceased Narhar Dhruv, t-shirt of the accused/appellant and blood sample of deceased Kuntal Dhruv respectively. However, though blood was confirmed on Article D i.e., on the Semhar wood which was seized on the memorandum of the accused/appellant, but its origin could not be traced out due to disintegration. 24. The appellant in his statement recorded under Section 313 of Cr.PC answered in question no. 116 which reads as thus:- 25. (PW/01) Pahad Singh in his examination-in-chief has supported the prosecution case and stated that the accused/appellant gave memorandum Ex. P/05 and as per this memorandum, t-shirt was seized, vide Ex. P/06 and as per Ex. P/07 seizure memo wooden stick (danda) was seized and also seized one ladder vide Ex. P/08, but in cross-examination, he admitted the suggestion of the defence that the police had seen the ladder before the accused/appellant told them and the appellant climbed to the brick kiln using the ladder. In para 14 of his cross-examination, he admitted that the wooden stick was seized by the police and the place was not at all hidden as the police had already seen that the place before. This witness supported the seizure of shirt of the accused/appellant on which human blood was found, but as per witness (PW/03) Kaushal Singh, the accused/appellant wore the same shirt on the next day. 26. Close scrutiny of all statements of witnesses clearly shows that there is no direct evidence in the present case and the learned trial Court convicted the appellant on last seen together theory and on the basis of memorandum and recovery. Section 27 of the Indian Evidence Act, 1872 provides as under for ready reference: Section 27 in the Indian Evidence Act, 1872. 27. How much of information received from accused may be proved: Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 27. 27. In the matter of Krishna Jhali (supra) this Court held in paras 21 and 22 which reads as under:- “21. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P. reported in AIR 2018 SC 5264 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor reported in AIR 1947 PC67 observed as under:- “13. It is a settled legal position that the facts need not be self- probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra reported in (2015) 1 SCC 253 , in particular, paragraph 23 thereof. The same read thus: “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) had held thus: (IA p. 77) “… it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx 22. Revering to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in Asar Mohammad (supra), only discovery of an object, the place from which it is produced and knowledge of the accused as to this extent would be admissible and incriminating part of the accused statement that he has inflicted injuries to deceased Kavita Netam (Jhali) would not be admissible under Section 27 of the Evidence Act. In the present case, no incriminating article has been seized pursuant to the memorandum statement of the appellant (Ex. P-3). As such, that part of evidence would not be admissible.” 28. Hon’ble Apex Court in the matter of State of Rajasthan (supra) held in paras 6 & 7 which reads as thus:- “6. We find that the incriminating circumstances relied upon by the prosecution i.e., the motive and the recovery of the blood stained weapon, even taken in conjunction cannot constitute the complete chain of incriminating circumstances required to bring home the charges against the accused. The High Court seems to have overlooked the FSL report which fact was stressed upon by learned counsel for the appellant. However, in our view, even if the FSL report is taken into account, then also, other than the fact that the weapon recovered at the instance of the accused tested positive for the same blood group as that of the deceased (B +ve), nothing much turns on the said report. 7. However, in our view, even if the FSL report is taken into account, then also, other than the fact that the weapon recovered at the instance of the accused tested positive for the same blood group as that of the deceased (B +ve), nothing much turns on the said report. 7. This Court in the case of Raja Naykar v. State of Chhattisgarh (2024) 3 SCC 481 held that mere recovery of a blood-stained weapon even bearing the same blood group of the victim would not be sufficient to prove the charge of murder. 29. Hon’ble Apex Court in the matter of Padman Bibhar (supra) held in paras 20, 21 & 22 which reads as thus:- “20. This Court in Kanhaiya Lal vs. State of Rajasthan reported in (2014) 4 SCC 715 has held that evidence on ‘last seen together’ is a weak piece of evidence and conviction only on the basis of ‘last seen together’ without there being any other corroborative evidence against the accused, is not sufficient to convict the accused for an offence under Section 302 IPC. The following passage from the judgment in paras 12 and 15 can be profitably referred: “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. 15. The theory of last seen--- the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan (2010) 15 SCC 588” 21. Similarly, this Court in Rambraksh @ Jalim vs. State of Chhattisgarh reported in (2016) 12 SCC 251 has reiterated above legal position in the following words in paras 12 and 13: “12. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan (2010) 15 SCC 588” 21. Similarly, this Court in Rambraksh @ Jalim vs. State of Chhattisgarh reported in (2016) 12 SCC 251 has reiterated above legal position in the following words in paras 12 and 13: “12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. 13. In a similar fact situation this Court in Krishnan v. State of T.N. (2014) 12 SCC 279 held as follows: (SCC pp. 284-85, paras 21-24) “21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp (2) SCC 372 this Court held as follows: (SCC p. 385, para 31) ‘31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7- 1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.’ 22. This Court in Bodhraj v. State of J&K, (2002) 8 SCC 45 held that: (SCC p. 63, para 31) ‘31. This Court in Bodhraj v. State of J&K, (2002) 8 SCC 45 held that: (SCC p. 63, para 31) ‘31. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.’ It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together. 23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkamelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in intervening period of seven days there was nobody in contact with the deceased. 24. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438 , this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of “last seen together” even if version of the prosecution witness in this regard is believed.” 22. In the case at hand also the only evidence against the appellant is of ‘last seen together’. The evidence of motive does not satisfy us to be an adverse circumstance against the appellant inasmuch as if the appellant has any doubt about his wife’s chastity, he would have caused injury or harm to his wife rather than to wife’s cousin with whom he had no animosity. Moreover, the so-called weapon of the offence i.e. the stone has not been recovered at his instance nor there is any memorandum statement of the appellant.” 30. In the light of above cited judgments, in the present case also it is clear that last seen evidence is also not proved against the appellant as (PW/05) Nirmal Dhruv stated that when he came back to his home, at that time Narhar, Kuntal, Omkar, Kaushal and Maniram were there at the brick kiln. In the light of above cited judgments, in the present case also it is clear that last seen evidence is also not proved against the appellant as (PW/05) Nirmal Dhruv stated that when he came back to his home, at that time Narhar, Kuntal, Omkar, Kaushal and Maniram were there at the brick kiln. (PW/07) Maniram Dhruv stated that when he came back to his home, at that time Narhar, Kuntal, Omkar were there at the brick kiln and Kaushal was not there. All witnesses have also admitted that the police tortured them for confessional statement. The prosecution only examined one witness of memorandum and other witness was not examined and as per memorandum Semhar stick was seized from open place and t-shirt was seized from the accused, but PW/03 admitted that the accused Omkar returned from the kiln to the house at night and he was wearing the same clothes that he wore again in the next morning at 06.00 am when he arrived at the kiln. Both doctors have admitted that death may be caused due to excessive inhalation of Carbon Monoxide (CO) and it is also admitted by the witnesses that prosecution story as per memorandum is not possible. (PW/07) Maniram Dhruv admitted that unless and until someone holds the ladder, it is impossible for anyone to climb on it. 31. As such looking to the statements of all witnesses and above guidelines of Hon’ble Apex Court it is clear that in the present case, the nature of circumstantial evidence available against the appellant is not so conclusive that he can be convicted only on the basis of evidence of last seen together or recovery of his t-shirt. 32. Hon’ble Apex Court held in the matter of Padman Bibhar (supra) in para 24 which reads as thus:- “ 24 . It is held by this Court in Sujit Biswas vs. State of Assam reported in AIR 2013 SC 3817 suspicion, howsoever strong, cannot substitute the proof and conviction is not permissible only on the basis of the suspicion. It is held thus in para 6: “6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. It is held thus in para 6: “6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71, State v. Mahender Singh Dahiya (2011) 3 SCC 109 and Ramesh Harijan v. State of U.P. (2012) 5 SCC 777 .” 33. In the view of above discussion, we find that the prosecution has utterly failed to prove its case against the appellant, so we set aside the impugned judgment of conviction and order of sentence of the learned trial Court and acquit the appellant of the charge levelled against him under Section 302 of IPC. 34. Ex consequenti, the appeal is allowed and the impugned judgment dated 25.06.2019 is set aside. The appellant is acquitted of the charge levelled against him under Section 302 of IPC. 35. 34. Ex consequenti, the appeal is allowed and the impugned judgment dated 25.06.2019 is set aside. The appellant is acquitted of the charge levelled against him under Section 302 of IPC. 35. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- in the like amount before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 36. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. The copy of this judgment be also forwarded to the concerned Jail Superintendent for information and necessary action.