JUDGMENT : 1. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 22nd March, 2004 passed by learned Additional Sessions Judge, Fast Track Court No. IV, Dhanbad in connection with Sessions Trial No.410 of 2001, arising out of Tundi P.S. Case No.06 of 2001, corresponding to G.R. No.248 of 2001, whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The case of the prosecution, in brief, is that on 24th January, 2001, at about 12:00 noon, the informant's brother-Keshar Tudu had gone to Sasural of his daughter, situated at village Mirzapur, Karamtola, who did not return to his house in night. In the morning, on 25th January, 2001, one Charan Mahto-co-villager of the informant, while going to place of his employment, saw the dead body of Keshar Tudu, lying on road near a bridge of Ojhadih River, village Kadiya. Said Charan Mahto returned to his village and informed the informant. Thereafter, the informant along with co-villagers went to the place of the occurrence, where the dead body was lying and they found that there were injuries on head, hand and leg. On the the basis of Fardbeyan of Kunwar Tudu, Tundi P.S. Case No.06 of 2001 dated 25th January, 2001 under Section 302 of the Indian Penal Code was registered against unknown. Police after investigation submitted charge sheet against accused-appellant-Hemlal Tudu under Sections 302 and 201 of the Indian Penal Code and, accordingly, cognizance was taken. The accused-appellant was put on trial and the case was committed to the court of sessions and registered as Sessions Trial No.410 of 2001. 3. Charges under Sections 302 and 201 IPC against the appellant were framed to which he pleaded not guilty and claimed to be tried. To substantiate the charges, the prosecution has examined as many as twelve witnesses, including the doctor and the Investigating Officer, and exhibited six documents, whereas the defence has examined none and the case of the defence is totally denial of the allegation. Learned Trial Court after hearing the parties and placing reliance on the evidences and documents available on record, held the appellant guilty for the offence punishable under Section 302 IPC and inflicted sentence as indicated above. 4. Learned Trial Court after hearing the parties and placing reliance on the evidences and documents available on record, held the appellant guilty for the offence punishable under Section 302 IPC and inflicted sentence as indicated above. 4. Counsel for the appellant vehemently contended that it is a case of no evidence and the present appellant is languishing in custody for near about 14 years. The prosecution has not proved even a single circumstance against the present appellant. The judgment of conviction and order of sentence passed by the learned Trial Court is illegal and liable to be set aside. None of the prosecution witnesses have whispered about involvement of the present appellant. Moreover, one bloodstained full-pant was seized, but was never sent for chemical examination. Learned counsel submitted that no question was put under Section 313 Cr.P.C. to the appellant. Thus, it is a fit case to interfere with the judgment of conviction and order of sentence. 5. Additional Public Prosecutor vehemently opposed and submitted that this case rests only upon last seen theory. P.W.2-Motilal Hembram, who is son-in-law of the deceased, has specifically stated in his examination-in-chief that the deceased along with present appellant came to his house and proceeded in evening and in the morning he heard about the death of his father-in-law. P.W.8-Sumitra, who is daughter of the deceased, has also supported the statement of P.W.2 to the aforesaid extent. The bloodstained full-pant was found in possession of the present appellant. Seized bloodstained full-pant has been proved by the seizure witness and marked as Ext.1. There is no infirmity and illegality committed by the learned Trial Court in convicting the present appellant under Section 302 of the Indian Penal Code. 6. Perused the Lower Court Record and gone through the evidences of prosecution witnesses. P.W.1-Shivlal Tudu is co-villager. In examination-in-chief, he has stated that the accused-appellant and the deceased, both, went together and, thereafter, the accused/appellant had committed murder of the deceased. He also proved the inquest report as Ext.1. P.W.2-Motilal Hembram is son-in-law of the deceased. He has specifically stated in his examination-in-chief that the deceased came to his house along with present appellant and proceeded in the evening. In the morning, he received information that his father-in-law (deceased) has been murdered by the appellant. He also proved the inquest report as Ext.1. P.W.2-Motilal Hembram is son-in-law of the deceased. He has specifically stated in his examination-in-chief that the deceased came to his house along with present appellant and proceeded in the evening. In the morning, he received information that his father-in-law (deceased) has been murdered by the appellant. P.W.3-Charan Mahto is co-villager, who saw the dead body while he was going to his duty and, thereafter, he returned to his village and disclosed the matter to the villagers. He has specifically stated that he could not say anything about assault on the deceased. P.W.4-Motilal Tudu is also a co-villager and he was declared hostile. He also proved his signature on the seizure list, which has been marked as Ext.1/2. P.W.5-Balram Tudu is nephew of the deceased. He also proved his signature on the seizure list, which has been marked as Ext.1/3. P.W.6-Jageshwar Singh is another co-villager. He heard about the incident and went to the spot and saw injury below the knee of the dead body. P.W.7-Khelu Mahto is witness to the inquest and he has proved his signature on inquest report, which has been marked as Ext.1/4. P.W.8-Sumitra is daughter of the deceased, who corroborated the version of P.W.2. She has specifically stated that the deceased and the present appellant went together and in the morning, she came to know about the incident. P.W.9-Kunwar Tudu is brother of the informant. In his deposition, he has stated that he is younger brother of the deceased. The deceased had gone to the house of his daughter along with accused-appellant and both took meal and wine at the house of his daughter and in the evening they returned. Thereafter, P.W.3-Charan Mahto informed about the dead body. He along with villagers went to the spot where the dead body was lying and, thereafter, Fardbeyan was recorded and first information report was lodged. But in cross-examination, P.W.9 has specifically stated that he had seen the present appellant and the deceased, both, went together. P.W.10-Manjita Tudu is widow of the deceased. In her cross-examination, she has specifically stated that her husband and the present appellant, both, had gone to the house of her daughter, but in the night the accusedappellant came back, whereas her husband did not return. In the next morning, she came to know from P.W.3-Charan Mahto that dead body of her husband was lying. P.W.11-Dr. In her cross-examination, she has specifically stated that her husband and the present appellant, both, had gone to the house of her daughter, but in the night the accusedappellant came back, whereas her husband did not return. In the next morning, she came to know from P.W.3-Charan Mahto that dead body of her husband was lying. P.W.11-Dr. Shailendra Kumar conducted autopsy and found following injuries:- (i) Swelling all over left side of forehead with abrasion ¼” X ¼” in the middle. (ii) Swelling 2” X 2” on left side temporal region of head. (iii) Swelling of arm, forearm and dorsam of hands on both side. (iv) Abrasion ¾” X ½” on back of left elbow. (v) Abrasion: (a) 2” X 1” on right side of face. (b) 1½” X 1” on back of right elbow. (c) 2½” X ¼” over right shoulder blade. (d) 3” X ¼” on back of right side of abdomen. (vi) Laceration: (a) ¾” X ¼” X full thickness of pinna of ear. (b) 3” X ½” X Muscle deep on the middle front of left leg. (c) 2½” X ¾” X Muscle deep on middle front of right leg. (d) 2½” X ¼” X Muscle deep on back of left ankle. (vii) Closed fracture of right wrist joint. On Discussion: Blood clots were found under neath the scalp all over the frontal parietal and temporal region of left side of head. Crenical bones were intact. Thick subdural hematoma found diffused all over surface of the brain on both side echimosis was found all over the above mentioned swollen sites. Heart, stomach and bladder were empty. Other internal organs were conjusted. Cause of Death: Death was due to aforementioned hard blunt force cranio cerebral injuries. Other injuries were also found caused by hard blunt object. The doctor, who had conducted autopsy and found the aforesaid injuries, had opined that death was due to hard blunt force cranio cerebral injuries. He has also proved his signature on the postmortem report, which has been marked as Ext.2. In cross-examination, he has stated that injuries found on the person of the deceased cannot be caused by fall. P.W.12-Sanjay Kumar Gupta is the Investigating Officer. He has stated that he took the investigation and sent the dead body for postmortem. He has also proved his signature on the postmortem report, which has been marked as Ext.2. In cross-examination, he has stated that injuries found on the person of the deceased cannot be caused by fall. P.W.12-Sanjay Kumar Gupta is the Investigating Officer. He has stated that he took the investigation and sent the dead body for postmortem. The Fardbeyan was proved under Ext.3, First information Report under Ext.4, inquest report under Ext.5 and also proved seizure list under Ext.6 with regard to seizure of full-pant. 7. To substantiate the evidence, there is no whisper that the death of the deceased was homicide in nature. P.W.2-sonin- law and P.W.8-daughter of the deceased, both of them, have stated that they took meal and wine in their house and left the place before evening. On the next day, the dead body was found lying on the road nearby river and next day a pant was seized, but the same was not sent for chemical examination and was also not produced before the Court. 8. Now the question which has been settled in catena of decisions that “last seen theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainly. In a case of circumstantial evidence, the Court has to examine entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is guilty of accused. In a recent judgment, the Apex Court, in the case of Nizam & Anr. Vs. State of Rajasthan, reported in (2016)1 SCC 550 , in Paras-14 & 15, has held as follows:- “14. The courts below convicted the appellants on the evidence of P.Ws.1 and 2 that the deceased was last seen alive with the appellants on 23.1.2001. Undoubtedly, the “last seen theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “last seen theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on “last seen theory”. The “last seen theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on “last seen theory”. “Last seen theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 15. Elaborating the principle of “last seen alive” in State of Rajasthan V. Kashi Ram, this Court held as under: (SCC p.265, para 23) “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed, In re.” 9. It has been held also that while considering the evidence with regard to “last seen theory”, the Court should consider the time gap along with other circumstantial evidence. The principle has been succinctly stated in Naina Mohamed, In re.” 9. It has been held also that while considering the evidence with regard to “last seen theory”, the Court should consider the time gap along with other circumstantial evidence. In the instant case, the appellant and the deceased, both, left the house of P.Ws.2 and 8 at about 5:30 p.m. and, thereafter, the dead body was found lying near a road and widow of the deceased also did not whisper even a single word regarding whereabouts of her husband at night. The seized full-pant was never produced before the Court and was also not sent for chemical examination to ascertain as to whether human blood was present or not. Basing upon their evidences, it is also clear that no question was put to the accused-appellant with regard to any circumstance and also seizure of full-pant. Therefore, it is not safe to convict the accused-appellant basing upon the evidences of P.Ws.2 and 8. There is no corroboration of circumstantial evidence. There was a time gap between the last seen and the recovery of the dead body. The prosecution has not able to prove the guilt of the accused, moreover the chain of evidence in the present case is in complete. 10. Therefore, this Court think it proper to set aside the judgment of conviction passed by the learned Trial Court and the appellant, who is in custody for near about 14 years, may be released forthwith. 11. In the result, the judgment of conviction and sentence recorded by learned Additional Sessions Judge, Fast Track Court No.IV, Dhanbad is set aside. The appellant, who is lodged in jail, in connection with Sessions Trial No.410 of 2001, arising out of Tundi P.S. Case No.06 of 2001, corresponding to G.R. No.248 of 2001, is directed to be released forthwith, if not wanted in any other case. 12. This criminal appeal is allowed. Appeal allowed.