JUDGMENT : Rajiv Sharma, J. This criminal appeal is instituted against the judgment and order dated 08.08.2012 passed by learned Additional District & Sessions Judge, Khatima, District Udham Singh Nagar in Sessions Trial No. 265 of 2005, whereby the accused/appellants-Puskar Singh, Kulwant Singh @ Kali and Surjeet Singh @ Billu were charged with and tried for the offences punishable under Sections 302 & 201 of IPC. Kulwant Singh @ Kali and Surejeet Singh @ Billu were acquitted. Appellant-Puskar Singh was convicted under Sections 302 & 201 of IPC. The trial court has sentenced the accused/appellant to undergo rigorous imprisonment for life with fine of Rs.5000/- under Section 302 IPC and in case of default of payment of fine, to undergo simple imprisonment for a further period of six months and also to undergo for two years rigorous imprisonment with fine of Rs.1,000/- under Section 201 IPC and in case of default of payment of fine, to undergo simple imprisonment for a further period of one month with the stipulation that all the sentences shall run concurrently. 2. The case of the prosecution, in a nutshell, is that complainant’s father - Jaman Singh (deceased) left his house on 17.08.2005 for searching labourers for sowing paddy when his father reached in front of the house of Ramvilas, accused Pushkar Singh, Kulwant Singh @ Kali and Surjeet Singh @ Billu started abusing his father. His father asked them not to do so. Thereafter, accused persons took away his father on motorcycle. This incident was witnessed by his uncle Bhagwan Singh, Pushkar Singh, Diwan Singh Jyala and Madho Singh. Thereafter, dead body was recovered. 3. The body was sent for conducting the post mortem examination. Investigation was completed and the Challan was put up after completing all the codal formalities. 4. The Prosecution, in order to prove its case examined as many as nine witnesses. 5. Thereafter, the statement of the accused/ appellant was recorded under Section 313 Cr.P.C. He had denied the case of the prosecution and claimed to be tried. Accused/appellant was convicted and sentenced as noted hereinabove. Hence the present criminal appeal. 6. Learned Advocate appearing for the accused/ appellant, has vehemently argued that the prosecution has failed to prove its case against the accused/appellant. 7. Learned Senior Addl. Advocate General appearing for the State, has supported the impugned judgment dated 08.08.2012. 8. Accused/appellant was convicted and sentenced as noted hereinabove. Hence the present criminal appeal. 6. Learned Advocate appearing for the accused/ appellant, has vehemently argued that the prosecution has failed to prove its case against the accused/appellant. 7. Learned Senior Addl. Advocate General appearing for the State, has supported the impugned judgment dated 08.08.2012. 8. We have heard learned counsel for the parties and gone through the judgment and record carefully. 9. The case of the prosecution precisely is that deceased left his house on 17.08.2005. First Information Report was lodged on 20.08.2005. The dead body was recovered on 21.08.2005. According to the averments made in the first information report, when deceased reached in front of the house of Ram Vilas, accused persons started abusing him. Deceased requested them not to do so. Deceased was taken away by the accused persons on motorcycle. This incident was witnessed by his uncle Bhagwan Singh, Puskar Singh, Diwan Singh Jyala and Madho Singh. According to PW-1, his father was killed by accused persons and dead body of his father was thrown in a canal. Prosecution has placed reliance upon the statement of PW-1 Ramesh Singh, PW-4 Ramvilas, PW-5 Jagdish Singh and PW-6 Bhagwan Singh. 10. PW-1-Ramesh Singh is the son of deceased. He testified that his father left his house on 17.08.2005 when he reached in front of the house of Ramvilas. Accused persons started abusing him. His father requested them not to do so. Accused persons took away his father on the motorcycle towards Pahenia canal. This incident was witnessed by his uncle Bhagwan Singh, Puskar Singh, Diwan Singh Jyala and Madho Singh. According to them, his father was killed and his dead body was thrown in the canal. It has come on record that dead body was recovered on 21.08.2005. 11. PW-2 Dr. D.S. Negi has conducted the post mortem. According to him, the death of the deceased was due to suffocation and strangulation. 12. PW-3 Smt. Ramphool deposed that deceased came in her house at about 08.30 p.m. Thereafter, accused Puskar Singh along with two persons also came to her house. Accused persons were abusing her family members. Deceased requested them not to do so. Thereafter, the accused persons took away deceased and later on, they came to know that Jaman Singh has died. 13. Accused persons were abusing her family members. Deceased requested them not to do so. Thereafter, the accused persons took away deceased and later on, they came to know that Jaman Singh has died. 13. PW-4 Ramvilas has also deposed that deceased came in his house before the arrival of the accused Puskar Singh with two persons. According to him, accused persons came to his house at about 09.30 p.m. 14. PW-5 Jagdish Singh’s statement is based on hearsay. According to him, he heard that accused came to the house of Ramvilas and some altercation took place between deceased and accused persons. Thereafter, accused persons took away the deceased on the motorcycle. He had not seen the incident. 15. PW-6 Bhagwan Singh is the material witness. Deceased was his elder brother. He left his house in search of his brother. He noticed that one motorcycle, on which four persons were travelling, was driven by Puskar Singh. His brother on motorcycle was grabbed by Kalu and Billu. They were coming from Khatima. He crossed them. He saw them in the light. Thereafter, he did not know where they went. The report was lodged. He searched for Jaman Singh (deceased) in other villages and jungle. In his cross examination, he deposed that he had last seen his elder brother in the company of accused. 16. PW-7 Deewan Singh, PW-8 Girdhar Singh and PW-9 B.L. Verma are official witnesses. 17. PW-1 Ramesh Singh in his statement categorically deposed that accused persons were last seen by his uncle Bhagwan Singh, Puskar Singh, Diwan Singh Jyala and Madho Singh but prosecution has not examined Puskar Singh, Diwan Singh Jyala and Madho Singh. There is no explanation why these independent witnesses were not examined. The conduct of PW-6 Bhagwan Singh was very strange and unusual. In case, he had seen accused persons going on motorcycle by holding his brother, he should have raised alarm or he should have chased them. Since he claimed that his brother was last seen by him in the company of accused persons. First information report should have been lodged by him immediately stating therein that the father of the PW-1 was last seen by him going on the motorcycle in the company of the accused persons. FIR was lodged on 20.08.2005. Statement of PW-6 Bhagwan Singh does not inspire confidence. First information report should have been lodged by him immediately stating therein that the father of the PW-1 was last seen by him going on the motorcycle in the company of the accused persons. FIR was lodged on 20.08.2005. Statement of PW-6 Bhagwan Singh does not inspire confidence. According to PW-3 Smt. Ramphool and PW-4 Ramvilas, the deceased came to their house at about 08.30 and accused persons came on 09.30 p.m. They started abusing family members of Ramvilas. Deceased objected to it. Thereafter, accused persons took away the deceased. As per the version of PW-1, when his father reached in front of house of Ramvilas, accused persons started abusing. Thus, there are major contradictions in the statements of PW-1 Ramesh Singh and PW-3 Smt. Ramphool & PW-4 Ramvilas whether altercation had been taken place inside the house or outside the house. The case of the prosecution is entirely based on circumstantial evidence and the prosecution has failed to complete the entire chain. No motive has been attributed to the accused. In the present case, deceased went missing on 17.08.2005. The dead body of the deceased was recovered on 21.08.2005. The case of the prosecution, based on last seen theory, is not proved. There are contradiction in the statements of PW-1 Ramesh Singh, PW3 Smt. Ramphool and PW-4 Ramvilas. 18. This Court has also noticed that as to how PW-1 Ramesh Singh presumed that his father was killed by the accused persons and his dead body was thrown in the canal, as per contents of the FIR dated 20.08.2005 when in fact dead body was recovered only on 21.08.2005 from the Canal. 19. Their Lordships of the Hon’ble Supreme Court in 1984 (4) S.C.C. 116 in the case of Sharad Birdichand Sarda Vs. State of Maharashtra have laid down the following conditions, the prosecution must satisfy in a case based on circumstantial evidence. “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 20. Their Lordships of the Hon’ble Supreme Court in (2014) 4 SCC 715 , in the case of Kanhaiya Lal Vs. State of Rajasthan have held that circumstance of last seen together does not by itself necessarily lead to inference that it was accused who committed crime. There must be something more establishing connection between accused and crime. that if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the court to be probable and satisfactory. Their Lordships have held as under:- “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.” 21. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.” 21. Their Lordships of the Hon’ble Supreme Court in (2015) 4 SCC 393 , in the case of Ashok Vs. State of Maharashtra have held that last seen together itself is not conclusive proof but along with other circumstances surrounding the incident, like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from accused, etc. non-explanation of death of deceased, etc. may lead to presumption of guild of accused. Their Lordships have held as under:- “8. The “last seen together” theory has been elucidated by this Court in Trimukh Maroti Kirkan v. State of Maharashtra, in the following words: (SCC p. 694, para 22) “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the 397 offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof onto 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.**” 9. In Ram Gulam Chaudhary v. State of Bihar, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor was his body found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. 10. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. 10. In Nika Ram v. State of H.P., it was observed that the fact that the accused alone was with his wife in the house when she was murdered with a “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. 11. The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan. In this case this Court has held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. Mere non-explanation on the part of the accused by itself cannot lead to the proof of guilt against the accused. 12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt. 20. From the above discussion, we conclude that the prosecution has not brought any clinching evidence in support of the last seen together theory so as to shift the burden of proof on the appellant-accused. In light of this, the prosecution has evidently failed to prove the guilt of the appellant-accused beyond doubt. 20. From the above discussion, we conclude that the prosecution has not brought any clinching evidence in support of the last seen together theory so as to shift the burden of proof on the appellant-accused. In light of this, the prosecution has evidently failed to prove the guilt of the appellant-accused beyond doubt. Therefore, the appeal is allowed and the judgment and order1 passed by the High Court as also by the trial court are set aside. The appellant is directed to be released forthwith if not required in connection with any other case. 22. Their Lordships of the Hon’ble Supreme Court in (2015) 11 SCC 178 in the case of Kirti Pal Vs. State of West Bengal and two connected appeals have held that in a case based on circumstantial evidence, court must adopt a very cautious approach. It should record conviction only if such circumstances are fully established beyond any reasonable doubt, must be consistent, forming a complete chain, where all links in chain unerringly point to guilt of accused. Their Lordships have held as under:- “33. In a case based on circumstantial evidence, the court must adopt a very cautious approach and should record conviction only if all the links in the chain are complete pointing to the guilt of the accused. All the links forming complete chain must be firmly established by the prosecution. Each link taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient to convict the accused. All the circumstances must be firmly established and must be consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must meet each and every hypothesis put forward by the accused however farfetched it may be. As discussed earlier, the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. In our view, evidence adduced by the prosecution against Appellants 2 and 3 (Siddique Mia and Mustaque Mia) does not form a complete chain connecting the accused with the crime and the conviction of the appellants under Section 302 IPC read with Section 120-B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant Durga Sutradhar under Section 120-B cannot be sustained and is liable to be set aside.” 23. Likewise, conviction of fourth appellant Durga Sutradhar under Section 120-B cannot be sustained and is liable to be set aside.” 23. Their Lordships of the Hon’ble Supreme Court in (2016) 1 SCC 550 , in the case of Nizam and another Vs. State of Rajasthan have explained the principle of “last seen theory”, as under:- “14. The courts below convicted the appellants on the evidence of PWs 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”. “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.” 24. Consequently, in view of the discussion made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt. 25. Accordingly, the criminal appeal is allowed. Judgment and order dated 08.08.2012 passed by learned Additional District & Sessions Judge, Khatima, District Udham Singh Nagar in Sessions Trial No. 265 of 2005 is set aside. Accused Puskar Singh is acquitted of the charges framed against him by giving him benefit of doubt. Accused/appellant is already on bail. He need not surrender. His bail bonds and sureties are discharged. 26. Let a copy of this judgment along with lower court record be transmitted to the court below for compliance of the judgment forthwith.