JUDGMENT 1. - Challenge in these appeals is to the judgment dated 2.6.2003 of the learned Additional Session Judge, Fast Track, No. 1, Dholpur, Whereby the appellants, there is number, were convicted and sentenced as under:- Hargyan @ Gyan @ Arjun under section 302 and jugdish and ramu: under section 302/34 Indian Penal Code Each to suffer imprisonment for life and fine of Rs. 500/- in default of payment of fine further suffer rigorous imprisonment for one month. 2. It is the prosecution case that on February 18, 2002 informant Ram Sewak (Pw.1) submitted a written report (Ex. P-1) at Police Station Nihalganj (Dholpur) stating therein that on the said day around 7.00 AM his nephew Bharat Sharma, who as usual went to Adarsh Navodaya School Sunder Colony GT Road Dholpur, was found dead on the (boundary) of mustard field. On that report a case under section 302 IPC was registered and investigation commenced. Autopsy on dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Dholpur. Charges under sections 302 and 302/34 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Sec.313 Cr.PC, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. We have heard learned counsel for the appellants and learned Public Prosecutor and scanned the material on record. 4. Since the prosecution case is founded on circumstantial evidence, we proceed to consider as to whether:- (i) The circumstance from which an inference of guilt is sought to be drawn, have been cogently and firmly established; (ii) those circumstances are of a definite tendency unerringly pointing towards the guilt of the appellants; (iii) the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellants and none else. 5. The circumstances that have been found established against the appellants are these:- (i) Death of Bharat Sharma was homicidal in nature. (ii) Appellants Hargyan had threatened Manju (Pw. 5. The circumstances that have been found established against the appellants are these:- (i) Death of Bharat Sharma was homicidal in nature. (ii) Appellants Hargyan had threatened Manju (Pw. 2) to kill her son Bharat Sharma. (iii) Bharat Sharma was last seen alive in the company of appellant Hargyan by Ram Vakil (Pw.7) and Rajesh (Pw.9). Two persons were also with Hargyan. (iv) Appellants Ramu and Jagdish were identified as the persons who accompanied Hargyan. (v) The plea of alibi raised by appellant Hargyan was found false. Homicidal Death : 6. Death of Bharat Sharma was undeniably homicidal in nature, Vide postmortem report (Ex.P- 21) following injuries were found on the dead body:- 1. Bruise of size 12cm x 4cm transversly directly located in the anterior aspect of mid of neck multiple verticle abrasions seen overying the above mentioned bruise. Abrasions are 7 in number and their size varies between 1 1/2cm x 1/2cm to 1cm x 1/2cm The bruise & abrasions of neck are antemortem in nature. According to Dr. VM Singh Tomar (Pw.17), who performed the autopsy the cause of death was asphyxia shock due to strangulation. Motive : 7. As per the testimony of Manju (Pw.2) Hargyan had threatened her to kill her son Bharat. A plot purchased by her and the wife of Hargyan jointly was the cause of threatening. Hargyan wanted the whole plot whereas Manju expressed that he was entitled to one half share of plot. Hargyan then threatened her:- " rw vius bl IykWV dks lEHkky vkSj vius cPpksa dks Hkh laHkkyA eSa rsjs cPps dks ekj dj pEcy esa QSad nwaxkA " 8. Testimony of Manju gets corroboration from the evidence of Ram Lakhan (Pw.8), who is the husband of Manju. In his deposition Ram Lakhan stated:- " gjKku gedks /kedh nsdj pyk x;k fd rsjs yM+ds dks pEcy esa QSad nwaxkA " 9. Despite searching cross examination testimony of Manju and Ram Lakhan could not be shattered. 10. Under Section 8 of the Evidence Act any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Evidence of motive in the instant case is strictest kind and we see no reason to disbelieve it.Last Seen: 11. Ram Vakil (Pw.7) and Rajesh (Pw.9) had seen Bharat in the company of Hargyan and two others at 10 AM near Sunder colony. Evidence of motive in the instant case is strictest kind and we see no reason to disbelieve it.Last Seen: 11. Ram Vakil (Pw.7) and Rajesh (Pw.9) had seen Bharat in the company of Hargyan and two others at 10 AM near Sunder colony. Ram Vakil deposed as under:- " Hkjr 'kekZ mlds ekek gjKku ds lkFk ukjk;.k gksVy dh rjQ tk jgk FkkA mlds lkFk nks vkneh vkSj FksA " In his cross examination he explained:- " lcls vkxs gjKku Fkk mlds ihNs nks vkneh FksA Hkjr gjKku ds cxy esa FkkA " 12. Rajesh (Pw.9) in his deposition stated that: " e`rd dk uke Hkjr Fkk ejus ls igys gjKku mls cqykdj ys x;k FkkA " 13. Conjoint reading of the statements of Ram Vakil and Rajesh goes to show that it was Hargyan who called Bharat and took with him. Two other persons, who were identified as Jagdish and Ramu in test identification parade, were following Hargyan. The prosecution could not establish as to what role was played by Jagdish and Ramu. Death of Bharat was caused by strangulation that could be caused only by one person. By showing that Jagdish and Ramu were walking behind Hargyan, the prosecution could not establish that they were together with Hargyan and Bharat. 14. "Last seen theory" has been the subject matter of various judicial decisions. In State of U.P. v. Satish, (2005) 3 SCC 114 , their Lordships of Supreme Court had occasion to consider "last seen theory" and it was indicated as under:- "The last-seen theory comes into play where the time-gap between the point of time when the accused and the 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 would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." 15. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." 15. In Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 , the Apex Court held that last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and 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. 16. In the instant case last seen theory comes into play since the time gap between the point of time when Hargyan and Bharat were last seen alive and Bharat is found dead is so narrow that possibility of any person other than Hargyan being the author of the crime becomes impossible.False Plea of Alibi : 17. In the explanation under Section 313 Cr.PC the appellant raised false plea of alibi which was found false. As per the testimony of Ram Vakil and Rajesh, appellant Hargyan was very much in the village on the date of incident. In Mohan Singh v. Prem Singh, 2003 Cr LJ 11 the Apex Court held as under:- "The statement made in defence by accused under section 313 Cr.PC can certainly be taken aid of the lend credence to the evidence led by the prosecution ..." 18. From the facts established we find that the circumstantial evidence in the instant case does not fall short of the required standard of proof. The circumstances so established are consistent only with the guilt of appellant Hargyan and inconsistent with his innocence. All the circumstances exclude with certainty the possibility of guilt of any person other than the appellant Hargyan and the false statement of appellant Hargyan provides an additional link to the chain of circumstantial evidence. Learned trial Judge in our opinion committed no illegality in convicting the appellant Hargyan. 19. In the ultimate analysis, we find a combination of facts creating network through them there is no escape for the accused Hargyan. The material collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant Hargyan is guilty. Learned trial Judge in our opinion committed no illegality in convicting the appellant Hargyan. 19. In the ultimate analysis, we find a combination of facts creating network through them there is no escape for the accused Hargyan. The material collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that appellant Hargyan is guilty. We find that the chain of circumstantial evidence against the appellant Hargyan is complete and incapable of any explanation or any other hypothesis than of the guilt of the appellant Hargyan. However the prosecution failed to prove beyond reasonable doubt that appellants Ramu and Jagdish were involved with appellant Hargyan in committing murder of Bharat 20. For these reasons, we dispose of these appeals in the following terms:- (i) We find no merit in the appeal of Hargyan and accordingly, it stands dismissed. The conviction and sentence of appellant Hargyan under section 302 IPC are maintained. (ii) We allow the appeals of Jagdish and Ramu and acquit them of the charge under sections 302 read with 34 IPC. The appellants, who are in jail shall be set at liberty forthwith, if they are not required to be detained in any other case. (iii) The impugned judgment of learned trial court stands modified as indicated above. Appeal Partly Allowed *******