JUDGMENT Tapash Mookherjee, J: The judgment of conviction and order of sentence dated 24.02.2009 and 25.02.2009 passed by the learned Additional Sessions Judge, Fast Track Court, Mathabhanga, Cooch Behar, in Sessions trial No. 5 (6) 08 (SC No. 49/2005), is under challenge in this appeal. By the aforesaid judgment and order learned Trial Court found all the Appellants guilty of the offence under Section 302/34 I. P. C. and sentenced all the Appellants to suffer imprisonment for life each and to pay fine of Rs. 5,000.00 (rupees five thousand only) each I. D. to suffer R. I. for one year and being aggrieved by and dissatisfied with such judgment of conviction and order of sentence the Accuseds/Convicts filed the present appeal. 1. The prosecution’s case in short, is as follows:- 2. On 20.09.2000 in the evening Ajamit Barman, his family, and some of his close relations went to a Video Hall at Haribala Hat to enjoy a film show. The Appellants called Ajamit out of the Hall during the running of the show and in response to such call Ajamit had gone outside the Hall and went away somewhere with the Appellants. After the show was over Ajamit’s family returned to their house but Ajamit did not return in that night or thereafter. On query by Ajamit’s wife the Appellants failed to offer any satisfactory reply regarding the whereabouts of Ajamit. Subsequently, on 23.09.2000 the dead body of Ajamit was found with marks of injuries floating in a narrow canal near the village. After such recovery of the dead body of Ajamit, Ajamit’s wife Smt. Gayatri Barman submitted a written complaint at Sitalcuchi Police Station on the basis of which Sitalcuchi P. S. case No. 55/2000, dated 23.09.2000 had been initiated against the Appellants. 3. After completion of investigation charge-sheet under Section 302/34 I. P. C. had been submitted in the case against all the Appellants. 4. After commitment the case had been transferred to the Court of learned Additional Sessions Judge, Fast Track Court, Mathabhanga, Cooch Behar, for trial. 5. Considering the materials collected during investigation charge under Section 302/34 I. P. C. had been framed against all the Appellants. The Appellants denied the charge and pleaded their innocence. 6. 4. After commitment the case had been transferred to the Court of learned Additional Sessions Judge, Fast Track Court, Mathabhanga, Cooch Behar, for trial. 5. Considering the materials collected during investigation charge under Section 302/34 I. P. C. had been framed against all the Appellants. The Appellants denied the charge and pleaded their innocence. 6. Considering the evidence produced in the case learned Trial Court found all the Appellants guilty of the offence punishable under Section 302/34 I. P. C. and sentenced all the Appellants to suffer imprisonment for life each, and to pay fine of Rs. 5,000.00 (rupees five thousand only) each I. D. to suffer R. I. for one year. 7. Prosecution examined 13 witnesses in total and proved some documents also. Defence tendered no evidence whatsoever. 8. Smt. Gayatri Barman (P. W.- 1) is the widow of the deceased Ajamit Barman and she is the defacto complaint of the case also. Sanjib Barman (P. W.- 2) is a son of the deceased, Nirmal Kumar Das (P. W.- 3) and Smt. Bhairabi Barman (P. W.- 8) are close relations of the deceased. Prafulla Das (P. W.- 4), Nurbakkar Mia (P. W.- 5), Bablu Mia (P. W.- 6), Smt. Basanti Barman (P. W.- 7), Ishan Chandra Das (P. W.- 9) and Ukil Chand Das (P. W.- 10) are the co-villagers of the deceased. Bishwanath Roy (P. W.- 11) is a police Constable and he is a witness of a seizure. Dr. Sonatan Ghosh (P. W.- 12) has performed P. M. Examination over the dead body and S. I., P. N. Sarkar (P. W.- 13) is the I. O. of the case. 9. Admittedly there is no direct evidence of the alleged murder in the case and the prosecution case stands upon circumstantial evidence only and the main such circumstances is the alleged ‘last seen together’. 10. P. W.- 1 in her evidence stated that about eight years back on a Wednesday she along with her husband, i. e., the deceased, son Sanjib, sister-in-law Bhairabi and nephew Nirmal had gone to a Video Hall at Haribala Hat to watch a film show and during the interval of the show all the Appellants entered the Hall and called Ajamit to accompany them for attending an invitation of a dinner and in response to such call her husband went outside the Hall and they also followed her husband. P. W. 1 stated further that her husband never returned alive after thus going away with the Appellants and subsequently the dead body of her husband had been recovered from a narrow canal near the village. P. W.- 2, 3 and 8 claimed that they were with P. W.- 1 when the deceased Ajamit was called by the Appellants from inside the Video Hall and the version of those three witnesses were in tune with P. W.- 1. P. W.- 9 a co-villager of the deceased corroborated P. W.- 1, 2, 3 and 8 regarding Ajamit’s going outside the Hall on call by the Appellants. P. W.- 9 is the scribe of the F. I. R. and he was a witness to the inquest also. 11. P. W.- 4 and 10 had seen the dead body only and they had not stated anything else. 12. P. W.- 5 stated that about eight years back in the early hours of a morning when he had gone to catch fish at Garerdola he found some Jackals barking there and after those Jackals had been driven away by him he found the dead body of the deceased after which he called the local villagers to the spot. 13. P. W.- 6 was the owner of the Video Hall where the deceased had been to watch a film show prior to the victim’s disappearance as alleged. He could not say anything regarding the incident of murder. P. W.- 8 was the wife of the Appellant Fanil Das. She also declined to have any direct knowledge about the incident of murder 14. Dr. Sonatan Ghosh (P. W.- 12) performed P. M. Examination over the dead body of the deceased. According to him the dead body was completely decomposed and no external injury could be detected. He added further that some quantum of blood was found present in the thoracic cavity possibly due to trauma. Dr. Ghosh reserved his opinion regarding the cause of death pending the receipt of the chemical examination report of viscera. 15. During hearing learned Counsel for the Appellants raised the following points to assail the prosecution case. 16. He added further that some quantum of blood was found present in the thoracic cavity possibly due to trauma. Dr. Ghosh reserved his opinion regarding the cause of death pending the receipt of the chemical examination report of viscera. 15. During hearing learned Counsel for the Appellants raised the following points to assail the prosecution case. 16. According to the prosecution case, the victim along with his family and other went to a Video Hall to watch a film show on 20.09.2000 and during the show the victim went outside the Hall in response to a call by the Appellants and the victim did not return thereafter. The F. I. R. in the case had been lodged on 23.09.2000 after recovery of the dead body of the victim. During such period of missing of the victim no information was given to the local police station and no missing diary was even lodged by any member of the victim’s family. It remains a mystery as to why the victim’s family had not reported the fact of missing of the victim to the local police station prior to the recovery of the dead body of the victim. 17. The F. I. R. was lodged on 23.09.2000 at about 2.15 p. m. and in the F. I. R. some of the Appellants had been, named, as the culprits. The inquest was performed on the dead body after the submission of the F. I. R. But none of the Appellants are named, as a culprit in the inquest report, although, the widow of the victim was a witness in the inquest and she named, the Appellants as the culprits in her F. I. R. Such omission has a serious consequence against the prosecution case in view of the decision reported in (2011) 1 C. Cr. LR. (Cal) 687, Mobarak Sk. alias Mobarak Hossain Versus The State of West Bengal, and cited by the learned Counsel for the Appellant. 18. In the F. I. R. it is stated that the victim was called by the Appellants from outside the Video Hall. But during evidence the P. W.- 1 stated that during the interval of the show the Appellants entered the Hall and took away the victim out of the Hall with them. 18. In the F. I. R. it is stated that the victim was called by the Appellants from outside the Video Hall. But during evidence the P. W.- 1 stated that during the interval of the show the Appellants entered the Hall and took away the victim out of the Hall with them. It is interesting to note that the owner of the Video Hall, i. e., P. W.- 6 during his evidence stated that there was no interval break in the show in the night of the occurrence. This is definitely a serious contradiction. 19. In the F. I. R. the Appellant Ananda is not named as an associate of the other Appellants when the Appellants allegedly called and took the victim out of the Hall. But during evidence the F. I. R. maker, i. e., P. W.- 1 stated that the Appellant Ananda was also with the other Appellants at the relevant time. 20. There are some contradictions and omissions in the statements of the witnesses during investigation and their statements on Dock, also. 21. All the aforesaid points raised by the Appellants are definitely serious points going against the prosecution case and the prosecution has no reply to them. 22. In any case of murder, the cause of death of the victim is a very vital point required to be proved by the prosecution. But in the present case there is no evidence on record to ascertain the exact cause of death of the victim. The doctor (P. W. -12) performing P. M. Examination, in his evidence, stated that the dead body was in decomposed condition and no external injury had been detected. P. W.- 12 reserved his opinion regarding the cause of the death of the victim pending the availability of the chemical report of the viscera, but such chemical report has not been produced and no final opinion of the doctor performing P. M. Examination regarding the cause of death is available on record. In absence of any expert’s opinion the exact cause of death of the victim cannot be determined in the case. 23. Admittedly the entire prosecution case stands on the ‘last seen together’ theory. 24. Learned Counsel for the Appellants argued that it has not been firmly proved that the victim was seen with Appellants for the last time before the death of the victim. 23. Admittedly the entire prosecution case stands on the ‘last seen together’ theory. 24. Learned Counsel for the Appellants argued that it has not been firmly proved that the victim was seen with Appellants for the last time before the death of the victim. He further argued that the last seen circumstances is a very weak circumstances and an accused cannot be convicted just on the basis of such a ‘last seen theory’. His further argument was that there was no proximity of time between the alleged last seen of the victim with the Appellants and the recovery of the dead body of the victim. 25. P. W.- 1, 2, 3 and 8 were close relations and all of them stated that during the interval of the show all the Appellants entered the Video Hall met the victim in their presence and took the victim out of the Hall with them. But as mentioned earlier, according to the contents of the F. I. R. it was the victim himself who went out of the Hall at the call of the Appellants. Be that as it may, no independent witness stated in evidence that he had seen the victim in the company of any of the Appellants on 20.09.2000 or thereafter. According to the prosecution case the victim was taken away by the Appellants in the night of 20.09.2000 and the dead body of the victim was found on 23.09.2000, so there is a considerable time gap between the two events, during which anything may happen. It has been laid in the case reported in citation and cited by the learned Counsel for the Respondent/State (2009) 1 SCC (Cri) 184 Keshav Versus State of Maharashtra that ‘last seen together’ circumstances attracts importance in a case of murder only when the death takes place within a short period after the deceased is found in the company of the accused for the last time. Similar, view has been expressed by the Hon’ble Apex Court in another case reported in (2007) 2 SCC (Cri) 162 State of Goa versus Sanjay Thakran and Another, cited by the learned Counsel for the Appellant. So, the relevant time gap between the discovery of the dead body of the deceased and when the deceased was last seen with the Appellants as alleged, makes the theory of ‘last seen together’ in this case, diluted. 26. So, the relevant time gap between the discovery of the dead body of the deceased and when the deceased was last seen with the Appellants as alleged, makes the theory of ‘last seen together’ in this case, diluted. 26. In an almost identical case reported in (2014) 2 SCC (Cri) 413, Kanhaiya Lal Versus State of Rajasthan, cited by the learned Counsel for the Appellants it has been held by the Hon’ble Apex Court that the ‘last seen together’ circumstance itself is not sufficient to prove the guilt of the accused unless some other corroborating circumstances are proved. In the present case no such corroborating circumstances have been proved by the prosecution. 27. In a case based on circumstantial evidence like the present one, motive plays an important role. But in the present case no motive behind the alleged murder does transpire from the evidence on record. 28. Having thus, considered the facts and circumstances of the case as well as the evidence on record we have no hesitation to hold that the prosecution has failed totally to prove that the Appellants are responsible for the death of the victim Ajamit. Learned Trial Court, therefore, committed error in law to find the Appellants guilty of the offence under Section 302/34 I. P. C. 29. Appellants Ananda Barman alias Jantu and Arjun Das were juvenile due to which they were granted bail by the committing Court. Inquiry was held during the pendency of this appeal in which it has been determined that the Appellants Ananda Barman alias Jantu and Arjun Das were juveniles on the day of the incident. But the provision of the juvenile justice (Care and Protection for Children Act 2000) had not been followed for them. They had been tried together with the adult Appellants, convicted and sentenced like the adult Appellants which is not permissible in law. However, as held above the prosecution have failed to prove their case against any of the Appellants in the circumstances, the consequence of the juvenile Appellants having been tried jointly with the adult Appellants is of no significance, especially when both those juvenile Appellants have already become adults and have suffered detention for a considerable period. 30. To conclude, the judgment of conviction and order of sentence passed in the case by the learned Trial Court are wrong in law. Hence, the appeal is allowed. 30. To conclude, the judgment of conviction and order of sentence passed in the case by the learned Trial Court are wrong in law. Hence, the appeal is allowed. The judgment and order passed by the learned Trial Court and challenged in this appeal are hereby set aside. All the Appellants are found not guilty of the charge under Section 302/34 I. P. C. The Appellants namely, Fanil Das, Bikash Das, Dulal Das, Rustam Ali Mia, Kanteswar Barman alias Biswajit Barman and Aswini Das alias Barman be set at liberty at once if their detention is not required in any other case. The bail bond furnished, by the juvenile Appellants Ananda Barman alias Jantu and Arjun Das stand discharged. 31. Department to take steps under Section 388, Cr. P. C.