Judgment ( 1. ) APPELLANT has filed this appeal against the judgment dated 7-3-1992 passed in Sessions Trial No. 130 of 1987 by Second Additional Sessions Judge, Chhindwara, convicting him under Sections 302 and 201 of the Indian Penal Code and sentencing him to life imprisonment and rigorous imprisonment for seven years respectively. ( 2. ) PROSECUTION case in short is that Gyanwati (deceased) was the wife of appellant. She was living with her husband (appellant) in Village Mandla of District Chhindwara. Her parents lived in Village Bag-bardiya of the same district. On 17-8-87 she along with her husband went to her parents house where she met her father Gangaram (P. W. 8), mother Kashni Bai (P. W. 4) and brother Dhannalal (P. W. 9 ). Gyanwati told her parents that her husband used to mal-treat her, accusing her to be a profligate woman. Her parents remonstrated them both. Appellant alongwith Gyanwati thereafter journeyed back to their Village Mandla. In view of the acrimonious relations between them, Gangaram thought it wise to send his mother and nephew Munshiram (P. W. 10) next day to Mandla to see them. On reaching Mandla, they did not find Gyanwati there. They went back. On their return journey appellant met them in the way and told them that Gyanwati had gone to Bag-bardiya. Getting suspicious Gangaram, his mother and Munshiram made search for Gyanwati at the places of their relatives on 18- 8-87 and on not finding her, Gangaram at longlast lodged a missing report (Ex. P-21) at Police Chouki Ravanwada on 19-8-87. ( 3. ) ON 20-8-87 appellants brother Ramdayal (P. W. 7) informed the police that yesterday at about 4. 00 PM Chhabilal Gond (P. W. 6) had told him that the dead body of Gyanwati was hanging from a tree in Thawri forest. When he alongwith Kotwar and other people of village went there, he found her dead body hanging from the tree. He informed the police that appellant and his wife Gyanwati were living separate from him and that on 17-8-87 they had gone to Bag-bardiya, and on the same evening at about 5-6 PM his brother Tulsi (appellant) had come back home and had informed him that Gyanwati was at Bag-bardiya. On the report made by Ramdayal a Merg (Ex. P-13) was registered and on 24-8-87 an offence under Section 302 of IPC was registered against the appellant/accused. On the report made by Ramdayal a Merg (Ex. P-13) was registered and on 24-8-87 an offence under Section 302 of IPC was registered against the appellant/accused. ( 4. ) THE dead body of Gyanwati was sent for post-mortem examination to Primary Health Centre, Pagara where Dr. R. K. Bansor (P. W. 1) found following injuries: (1) Haematoma on left occipito parietal area 4" x 3-1/2". Fracture of occipito parietal bone of left side 3" x 4". (2) Multiple abrasion on frontal and lateral aspect of neck 1 x 1/2", 1-1/2 x 1/2", 1/2 x 1/4. On internal examination, he found ecchymosis of subcutaneous tissues and muscles of the neck and carotid artery lacerated. Larynx, trachea, bronchial tubes were fractured. All the injuries were antemortem in nature and were received within three days duration from post-mortem examination. In his opinion, cause of death was throttling with injury to bony and vital organs. ( 5. ) ON 29-8-87 Investigating Officer K. B. Singh (P. W. 17) arrested the appellant and on his information recovered and seized a stone from the place where from the dead body was found. After the investigation, the charge-sheet was filed, and thereafter the case was sent for trial. On charges being framed, the appellant abjured the guilt and pleaded false implication, ( 6. ) FOR want of direct evidence, prosecution rested its case on circumstantial evidence of last seen together, motive and homicidal nature of death of the deceased. Prosecution examined 20 witnesses to prove the aforesaid circumstances. Learned Trial Court relying upon the evidence adduced by the prosecution, held the appellant guilty and convicted and sentenced him as mentioned earlier. ( 7. ) LEARNED Counsel for the appellant has submitted that the prosecution has failed to prove that the appellant was last seen with the deceased near about the time of her death, as the prosecution had not adduced clear and cogent evidence about the time of death of the deceased. He also submitted that the evidence adduced with respect to the identity of the dead body was also doubtful and, in fact, it was not proved that the dead body found in the case was that of Gyanwati. Per contra, learned Counsel for the respondent/state submitted that the evidence adduced by the prosecution was sufficient to bring the charges home to the appellant. ( 8. Per contra, learned Counsel for the respondent/state submitted that the evidence adduced by the prosecution was sufficient to bring the charges home to the appellant. ( 8. ) WE have heard the Counsel of both the sides and perused the evidence and material on record cautiously and minutely. ( 9. ) IN order to prove that the deceased was last seen with the appellant before her death, the prosecution has examined Pooranlal (P. W. 2), Ramdayal (P. W. 7), Gangaram (P. W. 8), Dhannalal (P. W. 9), Kishanlal (P. W. 11), Chaina (P. W. 12), Kashni Bai (P. W. 13) and Anna (P. W. 15. Out of the aforesaid witnesses, Pooranlal (P. W. 2) and Ramdayal (P. W. 7) have not supported the prosecution case. Ramdayal (P. W. 7), who happened to be the brother of the appellant, has denied that the appellant had gone to his in-laws house alongwith the deceased on 17-8-87. he also denied that appellant had come back home alone. Ramdayal has even disowned the merg intimation report, denying that it had been lodged by him. Gangaram (P. W. 8), Dhannalal (P. W. 9) and Kashni Bai (P. W. 13), who are respectively the father, brother and mother of the deceased, have deposed that the appellant had come to their house with Gyanwati and that Gyanwati had told them that appellant had used to defame her, alleging that she had illicit relations with a Gond of Village Mandla. After taking meals both of them had gone towards Mandla. At about 7 Oclock in the evening Krishna had informed them that on the way he had seen the appellant abusing and intimidating Gyanwati that he would kill and throw her. Next day Gangaram sent his mother and nephew to Mandla who on coming back informed him that appellant had met them in the forest and had told that he had left Gyanwati in Village Bag-bardiya. Gangaram deposed that he made a search for Gyanwati and not finding her any where, he lodged a report about her missing at Police Chouki, Ravanwada. On Thursday police people informed him that the dead body of Gyanwati was found hanging in the forest. He went there and saw her dead-body. Similar story has been narrated by Dhannalal and Kashni Bai. On Thursday police people informed him that the dead body of Gyanwati was found hanging in the forest. He went there and saw her dead-body. Similar story has been narrated by Dhannalal and Kashni Bai. In cross-examination, Gangaram deposed that he had disclosed to Police that Krishna had informed him that appellant was abusing and intimidating the deceased, but this part of his evidence was missing in his police statement (Ex. D-1 ). Witnesses Kishanlal (P. W. 11) and Chaina (P. W. 12) deposed that they had seen appellant going with his wife on the way adjoining their fields. Kishanlal stated that Tulsiram was abusing and intimidating his wife that he would kill her. From the evidence of aforesaid witnesses it is established that the appellant had gone to his in-laws house with Gyanwati and on the same day had gone back towards Mandla and thereafter she was not seen and allegedly her dead body was later seen hanging on the tree in the forest by Chhabilal (P. W. 6 ). ( 10. ) APPELLANTs learned Counsel has contended that the appellant and his wife who allegedly died later, had together gone to her parents house on 17-8-87, whereas her death, according to Dr. R. K. Bansore (P. W. 1), who performed the post- mortem examination on 21-8-87 at 9. 00 A. M. , had occurred within a span of 3 days counted from the time of autopsy, meaning thereby that she had died at the most as late as 18-8-87 by 9. 00 A. M. In view of this discrepancy the learned Counsel has contended that it cannot be concluded with certainty that the deceased was done to death on 17-8-87 when the evidence has sought to put her in the appellants company. In our opinion, there appears force in his contention, as it is not made out beyond a reasonable doubt that the appellant was with his wife when she was allegedly done to death. ( 11. In our opinion, there appears force in his contention, as it is not made out beyond a reasonable doubt that the appellant was with his wife when she was allegedly done to death. ( 11. ) IN order to establish the offence of murder against the accused based on circumstance of last seen, the prosecution is obliged to prove that the time gap between the last seen and the murder is so proximate and so close that there should not be any possibility of drawing any inference of the innocence of the accused and there should be no possibility of meeting of anyone else to the deceased in between. The last seen circumstance is a week type of evidence, requires corroboration from some other independent evidence about the guilt of the accused. There is difference between "seen together" and "last seen together", therefore, the prosecution is required to prove by a cogent and firm evidence that the gap between the death of deceased and the fact of last seen had proximate and close nexus. The Apex Court in the case of Bodhraj @ Bodha and Ors. v. State of Jammu and Kashmir AIR2002 SC 3164 , 2002 Crilj4664 , 2002 (4 )Crimes182 (SC ), 2003 (3 )JKJ88 [sc ], 2002 (6 ) SCALE266 , (2002 )8 SCC45 , [2002 ]supp2 SCR67 held that the 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 together and when the deceased is found dead is so small, that possibility of any person other than the accused being the author of crime becomes impossible. The Apex Court further held that it would be hazardous to come to a conclusion of guilt in cases where there is not other positive evidence to conclude that the accused and the deceased were last seen together. Similarly, the Supreme Court in Subhash Chand v. State of Rajasthan 2001 IX AD (SC )17 , JT2001 (8 )SC 505 , 2001 (7 )SCALE246 , (2002 )1 SCC702 , 2002 (1 )UJ150 (SC ), observed that last seen together must be near about the date and time of the incident. Merely on the basis of last seen, the accused cannot be held guilty. Merely on the basis of last seen, the accused cannot be held guilty. Applying the aforesaid principle in the present scenario we find that the prosecution has failed to establish that the deceased and the appellant were last seen together at or about the date and time of the incident as alleged by the prosecution. ( 12. ) THE evidence of recovery of stone from the place where the dead-body was found does not form any incriminating piece of evidence as the seized stone was not sent for chemical examination to Forensic Science Laboratory for establishing that it was stained with human blood. ( 13. ) WITH respect to argument advanced by the learned Counsel for the appellant that the prosecution has failed to prove that the recovered dead body was that of Gyanwati, it is seen that Pooranlal (P. W. 2) has stated that when he had seen the dead body of the woman, he could not identify as to who was she. He had merely accepted it to be that of Gyanwati as it was told by the village people. Chhabilal (P. W. 6), who had first seen the dead body, deposed that the dead body had become bad and it was not identifiable, however, the village people had said that it was that of the wife of the appellant. Ramdayal (P. W. 7) also said that the dead body was not identifiable. Similarly, Gangaram, father of deceased (P. W. 8) himself admitted that the dead body had got spoiled and it was not possible to identify it as its face was scratched. Though Dr. R. K. Bansore (P. W. 1) stated that it was wrong to say that the dead body was so much putrefacted that it was beyond identification, yet in view of the evidence of aforesaid witnesses who knew the deceased, as also her father, it is not possible to hold with certainty that the dead body was that of Gyanwati. In our opinion, the prosecution has thus failed to establish that the dead body was that of Gyanwati. This consequently fails the allegation of her death. Her murder, hence, cannot be held to have been proved. This further renders the question of "last seen together" wholly irrelevant. ( 14. In our opinion, the prosecution has thus failed to establish that the dead body was that of Gyanwati. This consequently fails the allegation of her death. Her murder, hence, cannot be held to have been proved. This further renders the question of "last seen together" wholly irrelevant. ( 14. ) SO far as the point of false explanation offered by the appellant about leaving the deceased in Village Bag-bardiya, is concerned, learned Counsel for the appellant has submitted that in case of circumstantial evidence the fact of false explanation can be used merely as an additional link against the accused in the chain of evidence led by prosecution. He placed reliance on the case of Harendra Narain Singh etc. v. State of Bihar AIR1991 SC 1842 , 1991 (2 ) BLJR1193 , 1991 Crilj2666 , 1991 (3 )Crimes297 (SC ), JT1991 (3 )SC 167 , 1991 (2 )SCALE76 , (1991 )3 SCC609 , [1991 ]3 SCR54 where the Supreme Court observed that while considering the absence of explanation or a false explanation of the accused for the circumstances and the facts proved against him, false explanation can be used as additional link in order to satisfy that (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved; (2) the circumstances point to the guilt of the accused with reasonable definiteness; and (3) the circumstances are in proximity to the time and situation where all these conditions fulfilled only then a Court can use a false explanation or a false defence of an accused as an additional link to lend an assurance and not otherwise. In view of these observations of the Apex Court the explanation of the accused (now appellant) in the present case assumes no relevance due to the failure of the prosecution to prove even the death of Gyanwati, much less her murder, beyond a reasonable doubt. ( 15. ) ACCORDINGLY, the appeal is allowed. Judgment of conviction and sentence passed by the Court below is set aside and the appellant is acquitted of both the charges. Appellant is on bail, his bail bonds are discharged.