Judgment Navin Sinha, J. 1. The Appellants stand convicted under Section 302 IPC to life imprisonment with fine of Rs. 1,000/- each, failing which they were required to undergo six months further rigorous imprisonment each, as ordered by the Additional Sessions Judge, Janjgir, in Sessions Trial No. 455 of 1999, dated 1.2.2000. The deceased Arjun Ram was the son of PW-5 Bahor. The latter lodged FIR on 6.8.1996 at 11:00 am naming Appellant No. 2 along with unknown as suspects. About 4:00 pm on 5.8.1996 the witness asked the deceased to take the cattle for grazing and left for Akaltara Bazar. While returning to his village Khisora at 6:00 pm, he saw his son and Appellant No. 2 going towards the market. The deceased did not return home at night. His daughter-in-law, PW-12, Kamal Kumari told him that the deceased had gone out with the boys from village - Birgahni, to which the Appellants belong, at 4.30 pm. Appellant No. 2 was a regular visitor to their house. The witness had his food and went to sleep. The body of the deceased was found the next morning at about 10:00 am. 2. The postmortem of the deceased, marked Exhibit P-2, was conducted on 6.8.1996 at about 4:00 pm by PW-1, Dr. H.K. Agrawal who found the following injuries on his person:-- "1. Big incised wound ant. part of neck size 10cm x 9cm depth upto cutting all the structures coming in between skin of clavicle spine including trachea, oesophagus major vessels like SVC, blood was present in the wound. 2. Three stab wound on the 4th ICS (Lt) size 2cm x 5cm incising inter costal muscle mediastinum & pericardium at apex two stab wound on abdomen at epigastrium. One (Lt) side of epigastrium size 6cm x 3cm from which omentum was coming, one stab would below that size 2cm x 1cm going inside peritoneal cavity. 3. Three other incised wound on the epigastrium only muscle deep size each 2cm x 1cm." Death was opined to have been caused due to the cut injury on the throat estimated approximately 24 hours earlier. 3. Learned Counsel for the Appellants submitted that there is no eye witness to the occurrence. The entire case of the prosecution is based on circumstantial evidence of the last seen theory. 3. Learned Counsel for the Appellants submitted that there is no eye witness to the occurrence. The entire case of the prosecution is based on circumstantial evidence of the last seen theory. Merely because the Appellants may have been last seen with the deceased they cannot be convicted on basis of suspicion. There has to be a complete link in all the chain of circumstances leading to the only inescapable conclusion for the guilt of the Appellants inconsistent with their innocence. If there is any reasonable doubt in the link and chain of circumstances, the last seen theory, which is but a weak link by itself, will not be sufficient to uphold conviction. Reliance was placed on State of Goa v. Sanjay Thakran and another, 2007(3) SCC 755 to submit that even a time gap of two and half hours in a case of last seen theory may be sufficient consistent with the innocence of the accused and inconsistent with the attribution of guilt. 4. It was next submitted that the two Appellants are brothers. PW-5, father of the deceased, has himself stated that Appellant No. 2 was a regular visitor to his house. The deceased and Appellant No. 2 were friends. There could have been and there existed no motive for them to kill the deceased. The extra-judicial confession stated to have been made by Appellant No. 2 to PW-3, Netram of having killed the deceased suspecting illicit relations of the latter with his wife is inadmissible in evidence having been made before the police. The recovery of two knives on the alleged confession was from a public place and therefore inadmissible in evidence relying on State of Himachal Pradesh v. Jeet Singh, AIR 1999 SC 1293 . The seizure of the clothes allegedly from the Appellants with blood stains is also not admissible because of no question having been put in this regard under Section 313 Cr.P.C. mentioning the Forensic report, relying on Paramjeet Singh @ Pamma v. State of Uttarakhand, (2010) 10 SCC 439 . Referring to Exhibit P-37 B, the money receipt granted by the Life Insurance Corporation of India found in the bag of the deceased, it was submitted that the bag was kept at the police station and was not recovered pursuant to the confession of the Appellants. Referring to Exhibit P-37 B, the money receipt granted by the Life Insurance Corporation of India found in the bag of the deceased, it was submitted that the bag was kept at the police station and was not recovered pursuant to the confession of the Appellants. Reliance was placed on the evidence of PW-3 during cross-examination that the Appellants were kept in the police station for three to four days. The forced extraction of a confession and implication by planting of evidence cannot be ruled out. 5. Even if the evidence of Bahor, PW-5, Agrautin Bai, PW-10 aunt of the Appellants, PW-11. Jamuna Bai daughter of PW-10, Kamal Kumari, PW-12 sister-in-law of the deceased and PW-15, Sunderlal husband of PW-10 are read together to invoke the last seen theory that the Appellants and the deceased went for a movie in the evening after having consumed liquor and chicken, that was at Akaltara which has a Cinema hall. The village of the deceased, Khisora, being small in size has no Cinema hall. The body has been recovered on the Akaltara and Khisora road. The Appellants were residing with their aunt PW-10; Agrautin Bai. The deceased may have been killed by someone else on the way back home after the movie. Evidently the Appellants and the deceased parted company after seeing the movie and went to their respective homes. PW-5, Bahor, has deposed that it takes only half an hour from Akaltara to Khisora. It cannot be said with absolute certainty without any possibility of any inconsistent view that the deceased never parted company with the Appellants at any time till his death. There is a gap of twelve hours between the Appellants having been last seen with the deceased at 10:00 pm and recovery of his body at 10:00 am the next morning. If they had eaten food around 10:00 pm the postmortem report would not have noticed that the stomach was empty. 6. Learned Counsel for the State submitted that the deceased was in the company of the Appellants since 4:30 pm. PW-5 and 6 saw the Appellants together in the market at 6:00 pm PW's 10, 11 and 15 are the relatives of the Appellants. There is no reason why they should state falsehood. If they had wished to save the Appellants the truth would not have been stated. PW-5 and 6 saw the Appellants together in the market at 6:00 pm PW's 10, 11 and 15 are the relatives of the Appellants. There is no reason why they should state falsehood. If they had wished to save the Appellants the truth would not have been stated. The Appellants cannot claim false implication by their own relatives and no such stand has been taken by them. The Appellants were with the deceased till late at night. There is no evidence when the deceased parted company with the Appellants. The time gap since the Appellants were last seen with the deceased and discovery of the dead body is very short, making the 'last seen theory' fully applicable. The intervening period was late at night. Much emphasis was placed on the evidence of PW-3 and PW-4 with regard to the confession of the Appellants, marked as Exhibits P-6 and P-18, leading to recovery of knife, Exhibits P-17 and P-21, the clothes of the Appellants. It was further submitted that the clothes of the Appellants had blood stains which were attempted to be washed. The Forensic report has confirmed presence of blood on both. The money receipt issued by LIC with regard to the Policy in the name of the deceased as deposed by PW-7, PW-14 and PW-16 from the Life Insurance Corporation were recovered in a bag from the custody of the Appellants. 7. We have considered the submissions on behalf of the parties and examined the evidence on record. 8. PW-5, Bahor, father of the deceased has stated in his evidence that the Appellants on the day of occurrence had come to his house about 4:00 pm to call the deceased. He told the latter to take the cattle for grazing and left for the Akaltara market. While returning to his village Khisora about 6:00 pm he saw his son with the Appellants at the Shastri Chowk, Akaltara and had mentioned this fact in his statement under section 161 Cr.P.C. but which had not been recorded by the police. As the Appellants where a regular visitor to his house he proceeded to his own house, had food and went to sleep. His house was about a mile from Akaltara and took half an hour to reach. In the morning at 9:00 am his other son Virendra told him that the deceased was lying dead near Bhata at Akaltara. As the Appellants where a regular visitor to his house he proceeded to his own house, had food and went to sleep. His house was about a mile from Akaltara and took half an hour to reach. In the morning at 9:00 am his other son Virendra told him that the deceased was lying dead near Bhata at Akaltara. The deceased had six to seven knife cut injuries on his chest, stomach and neck. The witness proved Exhibit P-32 and P-31, the Merg and FIR lodged by him. PW-6, Suman, another brother of the deceased worked at the cycle shop of Lalaram and stated having seen the deceased and the Appellants going towards the Akaltara Chowk about 5:00 pm. PW-12, Kamal Kumari, daughter-in-law of PW-5 staled that the Appellants had come to call the deceased for going to the movie after which he left with them around 4:00 pm. 9. PW-10, Agrautin Bai, aunt of the Appellants stated that on the day of occurrence, the Appellants and the deceased came to her house at about 7:00 pm with liquor and chicken. After consuming it all three left together saying that they were going to see a movie. The Appellants returned about 12:00 pm and went to sleep. PW-11, Jamuna Bai, daughter of PW-10 also stated that the three left home together at 10:00 pm. In cross examination she stated that subsequently there had been a compromise between PW-5 and the Appellants. PW-15, Sunderlal, husband of PW-10 stated that the Appellants and the deceased had come to his house about 7:00 pm with liquor and chicken and forced him also to have liquor. 10. The extra judicial confession made by Appellant No. 2 to PW-3 is inadmissible in evidence under Section 25 of the Evidence Act having been made before the police. PW-3 is also a witness to the crime spot map prepared by the police, Exhibit P-26. The witness along with PW-4, Bhagat Ram proved their signatures recorded on the confession of both the Appellants marked Exhibits P-17 and P-18 and consequent seizure memo Exhibits P-21 and 25 for recovery of two knives from a ditch by the side of the road near the house of Dharamlal. In cross examination the Appellants did not question the recovery but only sought to suggest that the knives were taken out from the ditch by the police. In cross examination the Appellants did not question the recovery but only sought to suggest that the knives were taken out from the ditch by the police. The witness also proved seizure of the shirt and jeans of Appellant No. 2 marked Exhibit P-24 stated to have blood stains visible even after it had been washed. 11. PW-7, PW-14 and PW-26 were personnel from the Life Insurance Corporation, who proved the money receipt Exhibit P-37B found in the bag recovered on the confession of the Appellants with regard to insurance policies taken by the deceased. 12. PW-18, Mohammad Israr, the investigating officer, proved Exhibit P-3, seizure of the blood stained earth from the place of occurrence and Exhibit P-42 sending the seized weapons of assault and clothes for a forensic test. PW-19, Ashok Pandey, Assistant Sub-Inspector proved having written the Merg and FIR and prepared the spot map, Exhibit-26. He also proved the signature of B.S. Banapur Sub-Inspector who had recorded the confessions of the Appellants and the seizure memos as the latter was indisposed. The Forensic report was marked Exhibit P-43. It confirmed presence of blood on the two knives and clothes. 13. There is no eye witness to the assault. The case of the prosecution rests on the last seen theory. The theory is a part of the jurisprudence of circumstantial evidence. If the deceased was last seen in the company of the accused it becomes obligatory for the accused to explain the circumstances in which the deceased died or that the accused was not with the deceased at the relevant time. An important circumstance is the time factor between when the deceased was last seen with the accused and the discovery of the dead body. A short time gap will make the theory applicable while a long gap with possibility of intervening circumstances will require the prosecution to prove something further. But even if the time gap be short ipso facto the last seen theory cannot be invoked simpliciter for conviction. There must be further incriminating circumstances. 14. PW-5, Bahor in the FIR itself stated that the deceased had left home with the Appellants naming Appellant no 2 as suspect. He further stated having seen them together in the market about 6:00 pm. There must be further incriminating circumstances. 14. PW-5, Bahor in the FIR itself stated that the deceased had left home with the Appellants naming Appellant no 2 as suspect. He further stated having seen them together in the market about 6:00 pm. PW-12, Kamal Kumari daughter-in-law of the witness also stated that the Appellants came to the house of the deceased and the latter left home with them about 4:00 pm the previous evening stating that they were going to a movie. In cross examination no question has been asked in this regard. PW-6, Suman, brother of the deceased also stated having seen three of them in the market place about 5:00 pm. No question has been asked in cross examination regarding the same. PW-10, Agrautin Bai, aunt of the Appellants stated that the Appellants came home with the deceased about 7:00 pm with liquor and chicken and after consuming it left together saying they were going for a movie. The Appellants came back home at 12:00 pm and stated that only the two of them had gone for the movie. PW-11, Jamuna Bai, daughter of PW-10 and niece of the Appellants deposed likewise stating that the three of them left together at 10:00 pm. She further stated having been informed by the Appellants that the matter had been compromised. In cross examination no questions in this regard were asked to her. PW-15, Sunderlal, husband of PW-10 also stated that the deceased had come home with the Appellants and he had consumed liquor with them. These incriminating factors were put to the Appellants under section 313 Cr.P.C. Except for a bald standard denial that they did not know anything, the Appellants offered no defence that they were not with the Appellant the previous evening or that they did not come with the deceased and consumed liquor and chicken and left ostensibly to see a movie. No explanation was furnished for having parted company with the deceased. Despite the fact that they led evidence of two defence witnesses no explanation was even put forth by them to rebut the last seen theory. In Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 it was observed:-- "34. Thus, the doctrine of "last seen together" shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. In Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 it was observed:-- "34. Thus, the doctrine of "last seen together" shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him." 15. The evidence therefore conclusively is that the Appellants were with the deceased from 4:00 pm to 10:00 pm the previous evening and came back home at 12:00 pm. No evidence has been led with regard to the name of any movie they went to see or of any other engagement together. Normally a movie lasts for three hours and 10:00 pm is not the standard time for commencement of a movie as per standard Indian cinema practice and that too in a small town. The dead body of the deceased was discovered barely nine hours later. In Sanjay Thakran, 2007(3) SCC 755 (supra) relied upon by the Appellants it was observed that there could be no straight jacket formula for application of the last seen theory and it would depend on the facts of each case. On the facts of a case, even long passage of time since last seen together and recovery of the dead body could be an incriminating factor. Once the prosecution proves that there was no intervening factor, the accused must explain the circumstances of death. In the facts of that case as noticed in paragraph 35 of the judgment, a gap of two and half hours was considered sufficient not to invoke the last seen theory. 16. The proximity of time being an important factor in the last seen theory obviating the possibility of intervening circumstances for other possibilities was noticed in Sahadevan v. State, (2003) 1 SCC 534 observing as follows:- "19. ......... Here we must notice that as discussed hereinabove, the prosecution has established the Tact that Vadivelu was seen in the company of the appellants from the morning of 5-3-1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6-3-1985. Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 CrPC they have not taken any specific stand whatsoever......." 17. The money receipts, Exhibit P-37-B, issued by the Life Insurance Corporation for the Policy taken by the deceased has been proved by official witnesses PW's 7, 14 and 16. The receipts were found in the bag recovered on the confession of Appellant No. 2. PW-3 and PW-4 are the seizure list witnesses and the seizure is also signed by Appellant No. 2. The contention that the bag was kept at the police station and was not recovered on the confession of Appellant No. 2 is not sustainable on the statement of PW-3, Netram Kotwar that the seizure memos were prepared on the spot on each seizure and the statement of PW-4, Bhagat Ram that the bag was recovered on the confession of Appellant No. 2. 18. The knives used for assault were recovered on the confession of the Appellants from a ditch by the side of the road. It cannot be said that the recovery was from a open public place accessible to all so as to vitiate the recovery. Had the knives been lying by the side of the road matters may have been different. If the knives were thrown in a ditch quite obviously the purpose was concealment as unless one specifically went to look into the ditch it would normally not be visible to a passer-by. It were the Appellants alone who were aware that the knives had been lying in the ditch having thrown it there and led the police to it. Considering the issue what would constitute recovery from a public place it was held in State of H.P. v. Jeet Singh, (1999) 4 SCC 370 , also relied upon by the Appellants, as follows:-- "6. Considering the issue what would constitute recovery from a public place it was held in State of H.P. v. Jeet Singh, (1999) 4 SCC 370 , also relied upon by the Appellants, as follows:-- "6. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others." Yet again in Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 it was observed:-- "10. ....Though recovery from an open space may not always render it vulnerable, it would depend upon the "factual situation in a given case and the truthfulness or otherwise of such claim........" 19. The Forensic report Exhibit P-43 with regard to the two knives and the clothes of the Appellants has confirmed presence of blood on them. The statement of PW-4, Bhagat Ram, a seizure list witness that the clothes had been washed but blood stains were still visible is considered crucial in view of the Forensic report that the blood stains had disintegrated. Evidently, the Appellants had also tried to destroy the evidence. 20. But, under Section 313 Cr.P.C. no question was put to the Appellants with regard to the Forensic report though under Section 313 Cr.P.C. they were asked about Exhibit P-42 sending of the seized items for forensic report. Evidently, the Appellants had also tried to destroy the evidence. 20. But, under Section 313 Cr.P.C. no question was put to the Appellants with regard to the Forensic report though under Section 313 Cr.P.C. they were asked about Exhibit P-42 sending of the seized items for forensic report. The Appellants in the facts and circumstances of the case cannot urge any prejudice thereby and no such contention has been urged or demonstrated before us. In Paramjeet Singh, (2010) 10 SCC 439 (supra) relied upon by the Appellants with regard to prejudice caused or not by absence of adequate question under Section 313 Cr.P.C. it was observed as follows:-- "30. Thus, it is evident from the above that the provisions of Section 313 CrPC make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to 'question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court." In Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 it was observed:- "61. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of the prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice." 21. Though a motive has been suggested in the evidence of PW-3, Netram Kotwar, but since it is based on an extra judicial confession by Appellant No. 2 before the police we shall eschew it. In a case of circumstantial evidence, motive can be an incriminating factor only and the presence or absence of it cannot be sufficient by itself for holding guilt or exoneration. Digestion being a varying factor from one individual to another and that it continues for some time even after death not much would turn on the stomach having been found empty. 22. In the entirety of the facts of the case and upon analysis of the evidence available we are of the considered opinion that the conviction of the Appellants calls for no interference. The appeal is dismissed. The bail bonds of the Appellants are cancelled. They are directed to surrender forthwith and/or be taken into custody for serving out the remaining period of their sentence.