Order D.N. Patel, J. 1. This appeal has been preferred by the original accused no.1 of Sessions Trial Case No. 625 of 1994, namely, Amarnath Mahli, against the judgment and order of conviction and sentence dated 23rd January, 2004 and 24th January, 2004 respectively, passed by learned Additional District & Sessions Judge (F.T.C.), Lohardaga, in Sessions Trial Case No. 625 of 1994, arising out of Senha P.S. Case No. 14 of 1994, whereby, the sole appellant, namely, Amarnath Mahli, has been convicted mainly for the offence under Sections 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for causing murder of one Sukra Oraon and has also been punished for the offence under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. However, both the sentences have been directed to run concurrently. Facts of the case:- 2. If the case of the prosecution is unfolded, the facts are as under: On 25.04.1994 at 11.55 a.m., the informant Bishwa Oraon (P.W-13) gave his statement before the police that in the evening of 24.04.1994 (Sunday) informant brother Sukra Oraon (deceased) had returned to his house from Arru Bazar. After some time Amarnath Mahali (accused) of village – Parhi came to informant brother Sukra Oraon and told him to left him up to the river side, thereafter, informant brother did not returned to his house, So informant thought that his brother may stay somewhere as a guest, as earlier also several time, his brother left Amarnath Mahali to the river side. Today in the morning informant get information from cattle grazing boys of his village that dead body of Sukra Oraon is laying in the western side of village and then informant went to the place of the occurrence and found that his brother was killed by some unknown person with some weapon. Summary of Prosecution Witnesses: Altogether fourteen witnesses were examined by the prosecution: PW-1 Sanjho Devi She is the wife of deceased Sukra Oraon and she deposed that on the date of occurrence at 7 P.M. her husband had gone with Amarnath Mahli and in the morning her husband dead body was found in the tank of Soma Pahan. Summary of Prosecution Witnesses: Altogether fourteen witnesses were examined by the prosecution: PW-1 Sanjho Devi She is the wife of deceased Sukra Oraon and she deposed that on the date of occurrence at 7 P.M. her husband had gone with Amarnath Mahli and in the morning her husband dead body was found in the tank of Soma Pahan. PW-2 Sukhram Oraon He deposed that on the date of occurrence he had seen the deceased Sukra Oraon with Amarnath Mahli at 7 P.M. and they both were singing and after some time he heard the cry of Sukra Oraon. PW-3 Bishu Oraon Tendered witness. PW-4 Jagarnath Oraon He deposed that on the date of occurrence at 7 P.M. Sukhram Oraon came his house and informed him that he heard the cry of deceased Sukra Oraon and thereafter they went for search of Sukra Oraon but they cannot found him and in the morning he found the dead body of Sukra Oraon in the tank of Soma Pahan. PW-5 Dr. Sunil Minz He is the Doctor who has conducted the Post-mortem of the dead body of Sukra Oraon and has proved the Post-mortem report i.e. marked as Ext.1 PW-6 Shiv Charan Oraon He has proved his signature in the seizure list of blood stained soil i.e. marked as Ext.2 and has also proved his signature in the seizure list of Tangi (Axe) i.e. marked as Ext.2/1. PW-7 Biria Mahto He has deposed that police had not seized any thing before him but his signature was taken in three pages. He has proved his signature in the two seizure list i.e. marked as Ext. 2/2 and 2/3 respectively. PW-8 Gullu Oraon He has deposed in Para -2 that Amarnath Mahali told him that deceased Sukra Oraon had beaten him and he has taken revenge of same. PW-9 Biri Oraon He has proved his signature in the seizure list of blood stained Tangi (Axe) i.e. marked as Ext. 2/4 PW-10 Jogia Oraon He has proved his signature in the seizure list of Tangi (Axe) i.e. marked as Ext. 2/5 PW-11 Jitbahan Oraon He is the witness of Inquest report. PW-12 Somra Bhagat He is the witness of Inquest report. PW-13 Bishwa Oraon He is the informant of this case and is brother of deceased Sukra Oraon. 2/4 PW-10 Jogia Oraon He has proved his signature in the seizure list of Tangi (Axe) i.e. marked as Ext. 2/5 PW-11 Jitbahan Oraon He is the witness of Inquest report. PW-12 Somra Bhagat He is the witness of Inquest report. PW-13 Bishwa Oraon He is the informant of this case and is brother of deceased Sukra Oraon. He deposed that deceased Sukra Oraon went with Amarnath Mahali and in the morning dead body of Sukra Oraon was found. PW-14 Jitendra Dubey (S.I) He is the Investigating officer of this case. He has proved the statement of informant before the police i.e. marked as Ext.3 and has also proved the seizure list of blood stained soil dated 25.04.1994 i.e. marked as Ext.4. He has proved the seizure list of cycle dated 7.05.1994 i.e. marked as Ext.5. Arguments on behalf of the appellant:- 3. It is submitted by the learned counsel for the appellant that there are major omissions, contradictions and improvements in the deposition of the prosecution witnesses and this aspect of the matter has not been properly appreciated by the learned trial court and hence, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside. It is further submitted by the learned counsel for the appellant that there is no eye witness of the incident and the case of the prosecution is based upon “last seen together” theory. It is stated by the learned counsel for the appellant that PW 1 in paragraph no.3 of her deposition has stated that when she had gone in search of her husband-Sukra Oraon, during night hours of 24th April, 1994, this appellant was found at his residence. Similarly other prosecution witnesses have also stated that this appellant was at his house, during the night hours of 24th April, 1994. Learned counsel for the appellant further submitted that it is the case of the prosecution that during night hours murder has taken place whereas, as per paragraph no.3 of the deposition, given by PW 1, this appellant as well as the deceased were lastly seen separately instead of together. Similarly, it is submitted by the learned counsel for the appellant that as per paragraph no. 7 of the deposition of PW 13, who is informant of this case and brother of the deceased, he has also not seen this appellant in the company of the deceased. Similarly, it is submitted by the learned counsel for the appellant that as per paragraph no. 7 of the deposition of PW 13, who is informant of this case and brother of the deceased, he has also not seen this appellant in the company of the deceased. Thus, several witnesses have stated that this appellant and the deceased were not together during night hours. Moreover, it is the case of the prosecution through the informant-PW 13, PW 1 and PW 8 that the murder has taken place during night hours of 24th April, 1994 and during the evening hours of 24th April, 1994 this appellant and the deceased-Sukra Oraon were together, but, looking to the medical evidence, given by PW 5-Dr. Sunil Minz, who has carried out post-mortem of the body of the deceased on 25th April, 1994 at 4.30 pm, as also the post-mortem report (Ext. 1), the time of murder is stated to be 30-34 hours prior to post-mortem examination. Thus, if this time is matched with the incident, then the murder must have taken place on 24th April, 1994 at about 10.30 a.m. All the prosecution witnesses have narrated the story that during evening hours of 24th April, 1994 this appellant and the deceased were lastly seen together whereas as per medical evidence the murder had already taken place much before the evening of 24th April, 1994 i.e. at about 10.30 a.m. of 24th April, 1994. Thus, it is submitted by the learned counsel for the appellant that there is a great contradiction in the medical evidence and the depositions of other prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial court and, hence, also the impugned judgment and order of conviction and sentence passed by learned Additional District & Sessions Judge (F.T.C.), Lohardaga, in Sessions Trial Case No. 625 of 1994 deserves to be quashed and set aside. 4. It is further submitted by the learned counsel for the appellant that looking to the nature of injuries, it appears that more than one weapon have been used and there were two more co-accused, namely, Bhukhla Oraon and Sukhdeo Oraon, who have been acquitted by the learned trial court in Sessions Trial Case No. 625 of 1994. 4. It is further submitted by the learned counsel for the appellant that looking to the nature of injuries, it appears that more than one weapon have been used and there were two more co-accused, namely, Bhukhla Oraon and Sukhdeo Oraon, who have been acquitted by the learned trial court in Sessions Trial Case No. 625 of 1994. It is thus submitted by the learned counsel for the appellant that in fact the case of the present appellant is on better footing than those two acquitted co-accused, looking to paragraph no. 3 of the deposition of P.W.1, paragraph no. 7 of the deposition given by P.W.13 and also looking to the depositions given by other prosecution witnesses that during evening hours they were together, whereas, wife of the deceased says that during night hours they were separate and they were never seen together as per the wife of the deceased. As per the prosecution story, the murder has taken place in between the night hours of 24th and 25th April, 1994 whereas, as per medical evidence given by P.W.5 the murder had already taken place approximately at 10:30 a.m. of 24th April, 1994. This aspect of the matter has also not been properly appreciated by the learned trial court and, hence, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside. 5. It is further submitted by the learned counsel for the appellant that this appellant has remained in judicial custody since last approximately 12 years. Arguments on behalf of the State:- 6. It is submitted by the learned counsel appearing for the State-A.P.P. that no error has been committed by the learned trial court in appreciating the evidence on record. The prosecution has proved the offence of murder of Sukra Oraon, beyond all reasonable doubts and the chain of circumstances have been completed and every circumstance of the same chain has been proved separately, beyond reasonable doubts. 7. It is submitted by the learned A.P.P. that the incident has taken place on 24th April, 1994; First Information Report has been lodged on 25th April, 1994 at Senha Police Station within the district of Lohardaga and this appellant is named in the First Information Report. 7. It is submitted by the learned A.P.P. that the incident has taken place on 24th April, 1994; First Information Report has been lodged on 25th April, 1994 at Senha Police Station within the district of Lohardaga and this appellant is named in the First Information Report. P.W.1- Sanjho Devi, who is wife of deceased Sukra Oraon, has clearly stated in her deposition before the trail court that this appellant came at the house of the deceased and both of them had gone together. There was bicycle also in the hand of the deceased and thereafter the deceased was not found and not traceable and the murder has taken place after evening hours. It is submitted by the learned A.P.P. that nothing is coming in favour of this appellant during her cross-examination and thus the prosecution has proved “last seen together” theory, beyond reasonable doubt. Similar is the deposition given by P.W.2, P.W.8 and P.W.13 who are the witnesses on the fact that this appellant was lastly seen together in the company of the deceased during evening hours of 24th April, 1994. He has placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the cases of Rameshbhai Chandubhai Rathod v. State of Gujarat, as reported in (2009)5 SCC 740 ; Shyamal Ghosh v. State of West Bengal, as reported in (2012)7 SCC 646 ; and Ravirala Laxmaiah v. State of Andhra Pradesh, as reported in (2013)9 SCC 283 , and on the basis of the aforesaid decisions submitted that “last seen together” is the most important circumstances when immediately thereafter the occurrence has taken place and the prosecution has proved the fact of last seen together of this appellant and the deceased on 24th April, 1994 beyond reasonable doubts and the occurrence has taken place thereafter. There is also corroborative piece of evidence on record of seized article, which is proved by P.W.6 who has proved the seizure list as Ext.-2, the weapon (Axe) with the help of which the offence was committed. Similarly, P.W.7 and P.W.9 are also proving the seizure list. It is further submitted by the learned A.P.P. that the Investigating Officer-P.W.14 has proved the place of occurrence, fardbeyan and seizure list. It is submitted that looking to the medical evidence there are more than half a dozen incised wounds and also fracture on occipital region. Similarly, P.W.7 and P.W.9 are also proving the seizure list. It is further submitted by the learned A.P.P. that the Investigating Officer-P.W.14 has proved the place of occurrence, fardbeyan and seizure list. It is submitted that looking to the medical evidence there are more than half a dozen incised wounds and also fracture on occipital region. Thus, brutal murder has been committed by this appellant and, hence, on the basis of the evidences laid before the learned trial court he has been rightly convicted for the offence of committing murder of the deceased and has been adequately punished for the same and, therefore, this appeal may not be entertained by this Court. Reasons:- 8. Looking to the evidence on record, it appears that the incident has taken place on 24th April, 1994. P.W.13-Bishwa Oraon, who is brother of the deceased, has given information on 25th April, 1994 to the police that on previous day i.e. on 24th April, 1994 during evening hours this appellant came at the house of the deceased. This appellant and the deceased were good friends. Normally, they were also taking noble drinks (liquor) together and normally both the friends used to go together up to a particular river. On 24th April, 1994 the same thing had happened; they were going together during evening hours up to a river and, thereafter, the murder has taken place. Thus, on the basis of this information given by the informant-P.W.13 to the police of Senha Police Station within the district of Lohardaga on 25th April, 1994 the First Information Report was lodged; investigation was carried out; statements of several witnesses were recorded; chargesheet was submitted and the case was committed to the Court of Sessions, where, it was numbered as Sessions Trial Case No. 625 of 1994 and, thereafter, on the basis of the evidences given by P.W. 1 to P.W. 14 the learned trial court has arrived at a conclusion that the prosecution has proved the offence of murder of Sukra Oraon, committed by this appellant beyond reasonable doubt and, therefore, this appellant was punished for life imprisonment. This appellant has also tried to destroy the evidence and, therefore, there is also a charge under Section 201 of the Indian Penal Code and he has been punished to undergo rigorous imprisonment for five years. However, both the sentences have been ordered to run concurrently. This appellant has also tried to destroy the evidence and, therefore, there is also a charge under Section 201 of the Indian Penal Code and he has been punished to undergo rigorous imprisonment for five years. However, both the sentences have been ordered to run concurrently. Against this judgment of conviction and order of sentence passed by learned Additional District and Sessions Judge, Fast Track Court, Lohardaga in Sessions Trial Case No. 625 of 1994, the present appeal has been preferred. 9. Thus looking to the evidence on record, it appears that P.W.1, P.W.2, P.W.4, P.W.8 and P.W. 13 are the witnesses of “last seen together”. The case of the prosecution is based upon this “last seen together” theory. There is no eye witness of the incident at all. 10. Looking to the deposition given by P.W.1-Sanjho Devi, who is wife of the deceased Sukra Oraon, she is a close relative of the deceased and, therefore, we shall examine her deposition with all circumspection. Looking to paragraph no. 3 of the deposition given by P.W.1, she has clearly stated that when her husband had not returned after evening hours, she had gone in search of her husband at the residence of this appellant during night hours and this appellant was found at his residence. Thus, this witness says that during night hours this appellant and the deceased were not found together. 11. Looking to the deposition of P.W.2-Sukhram Oraon, it has been stated in paragraph no. 1 of his deposition that he heard the alarm of the deceased Sukra Oraon and he had gone there along with ten to twelve persons after one hour. This story narrated by this witness is improbable. When anybody is raising alarm of “Bachao-Bachao” (save my life), normally a villager will rush immediately. P.W.2 is not such a busy man that he will go after one hour at the place of occurrence. Moreover, this witness has also stated that when he reached at the house of this appellant, this appellant was found at his residence. Thus, it appears that this appellant was at his residence and other persons have also seen him at his residence, as per paragraph no. 1 of the deposition of P.W.2. 12. Moreover, this witness has also stated that when he reached at the house of this appellant, this appellant was found at his residence. Thus, it appears that this appellant was at his residence and other persons have also seen him at his residence, as per paragraph no. 1 of the deposition of P.W.2. 12. Similarly, looking to the deposition given by P.W.13, who is a star prosecution witness, in his cross-examination this witness has stated that his statement was never recorded by the police especially in paragraph nos. 6 and 10. Thus, this witness has never said before the police when his statement was recorded under Section 161 of the Code of Criminal Procedure about the fact which he has stated before the Court for the first time when this witness has not stated the fact before the Court during the course of investigation and if the said fact which has been stated for the first time and which affects the very root of the case, then as per proviso of Section 162 of the Code of Criminal Procedure under the criminal jurisprudence, it is known as material improvement. This aspect of the matter has not been properly appreciated by the trial court. 13. Looking to paragraph no. 1 of the deposition given by P.W.4 also, it appears that this appellant was found at his own residence, when the deceased was raising alarm “Bachao-Bachao”. Thus, the prosecution has failed to prove the most important circumstance and the only circumstance “last seen together” theory. The “last seen together” alone is not sufficient under the criminal jurisprudence. There must be a murder committed within the proximity of time of “last seen together”. The time of death, as per medical evidence given by P.W.5-Dr. Sunil Minz, is 30-34 hours from the postmortem examination of the body of the deceased. The postmortem report is marked as Ext.-1. Postmortem examination of the body of the deceased was carried out at 04:30 p.m. on 25th April, 1994. The time of death, as per medical evidence given by P.W.5-Dr. Sunil Minz, is 30-34 hours from the postmortem examination of the body of the deceased. The postmortem report is marked as Ext.-1. Postmortem examination of the body of the deceased was carried out at 04:30 p.m. on 25th April, 1994. The following were the external injuries found on the body of the deceased:- External Injuries: (1) Incised wound about 3” x 1” x 2” on left side of neck just below mastoid process; (2) Incised wound about 2” x 1” x 3” on left side of neck about 3” below Injury No. (1) all important blood vessels incised completely on left side of neck; (3) Incised wound about 2” x 1” x bone deep on right mandible. Fracture of right mandible was found; (4) Incised would about 3” x 1” x bone deep on right wound extending to tragics of right ear Tracie of right axillary bone found; (4) Incised would about 3” x 1” x bone deep on right shoulder-joint fracture of upper part of humerus between head of brain was found fracture of right clavicle lateral end and scapula upper part was seen; (5) Incised wound about 3” x 1” x bone deep on middle of occipital bone area fracture of occipital bone was seen in relation to the wound; (6) Incised would about 3” x 1” x bone deep on left side of occipital bone once about 2” lateral to Injury No. (5). All the above injuries were anti-mortem in nature and were caused by hard and sharp substance. Time elapsed since death within 30 to 34 hours. In the opinion of the doctor, the death was due to shock & hemorrhage. Thus, the time of death, as per this medical evidence, is 30-34 hours and the death was due to shock and hemorrhage and if the time is tallied with the time of murder, it will be approximately 10:30 a.m. of 24th April, 1994, whereas, according to the informant-P.W.13, who is brother of the deceased and as per the deposition of P.W. 1, who is wife of the deceased, this appellant had come at the house of the deceased during evening hours of 24th April, 1994 and, thereafter, they had gone together and, thereafter, the murder has taken place. Thus, as per the medical evidence, the murder must have taken place on 24th April, 1994 at 10:30 a.m., whereas, the witnesses are saying that during evening hours of 24th April, 1994, they (the appellant and the deceased) were found together. Thus, looking to the evidences on record by the prosecution witnesses and the medical evidence given by P.W.5, there is a gross inconsistency so far as time of death is concerned because the witnesses are narrating the whole incident which has taken place after evening hours of 24th April, 1994 whereas as per the medical evidence, the murder has already taken place on 24th April, 1994 at 10:30 a.m. This aspect of the matter has not been properly appreciated by the learned trial court. 14. Thus, the prosecution has failed to prove its case on the basis of “last seen together” theory as well as the proximity of death. This appellant has remained in judicial custody since last approximately 12 years. As the prosecution has failed to prove the offence of murder by this appellant, beyond reasonable doubts, we hereby quash and set aside the impugned judgment and order of conviction and sentence dated 23rd January, 2004 and 24th January, 2004 respectively, passed by learned Additional District & Sessions Judge (F.T.C.), Lohardaga, in Sessions Trial Case No. 625 of 1994, arising out of Senha P.S. Case No. 14 of 1994. The appellant, namely, Amarnath Mahli, is acquitted of the charges, levelled against him, and is hereby directed to be released forthwith from the judicial custody, if his presence is not required in any other offence. This appeal being Cr. Appeal (DB) No. 375 of 2004 is, accordingly, allowed and disposed of.