JUDGMENT : Rajiv Sharma, J. 1. This appeal is preferred by the appellant from jail against the judgment and order dated 13.06.2014 rendered by learned Additional Sessions Judge, Kashipur (Udham Singh Nagar) in S.T. No.240/2009, whereby the appellant Charan Singh, was charged with and tried for the offences punishable under Sections 302/34, 201, 394 and 411 IPC. Appellant Charan Singh was further charged for the offence punishable u/s 4/25 of the Arms Act in S.T. No.241 of 2009. The Trial Court convicted the accused u/s 302/34 IPC and sentenced him to life imprisonment with fine of Rs.5,000/- and in default of payment of fine, to undergo additional rigorous imprisonment for a period of two years. He was further convicted u/s 201 IPC and sentenced to undergo seven years’ R.I. with fine of Rs.1,000/-, and in default of payment of fine, to undergo one year additional rigorous imprisonment. He was further convicted u/s 394 IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/- and in default of payment of fine, to undergo two years’ additional rigorous imprisonment. The accused was further convicted u/s 411 IPC and sentenced to undergo three years’ R.I. with fine of Rs.1,000/- and in default of payment of fine, to undergo six months’ additional rigorous imprisonment. He was further convicted u/s 4/25 of the Arms Act and sentenced to undergo two years’ imprisonment with fine of Rs.1,000/- and in default of payment of fine, to undergo six months’ additional imprisonment. All the aforesaid sentences were ordered to run concurrently. However, the appellant has preferred only one appeal against the judgment rendered in S.T. No.240/2009 and S.T. No.241/2009. 2. Since the co-accused Pintu was minor on the date of incident, his case was referred to the Juvenile Justice Board vide order dated 24.2.2010. 3. Case of the prosecution in a nutshell is that the FIR was lodged by PW1 Puran Singh, to the effect, that his father Ram Niwas and elder brother Raj Kumar were residing in the field of Gurnam Singh by constructing a hut. On 28.6.2009, when he went to meet his father and brother in the hut, they were not found. When he searched for them nearby, he came to know that his father and brother had returned on 24.6.2009 by selling the mangoes for Rs.40,000/-. Thereafter, in the evening, they had gone to stay in the hut of Charan Singh. On 28.6.2009, when he went to meet his father and brother in the hut, they were not found. When he searched for them nearby, he came to know that his father and brother had returned on 24.6.2009 by selling the mangoes for Rs.40,000/-. Thereafter, in the evening, they had gone to stay in the hut of Charan Singh. They were seen by many people going towards the hut of Charan Singh. Then the complainant went to the hut of Charan Singh but nobody was found. It was revealed that Charan Singh along with his family had left for his village at Badayun. The missing report was, accordingly, lodged on 2.7.2009. On 3.7.2009, the complainant came to know that from the bushes in the plot of Nirmal Singh, a foul smell was emanating. He went to the spot and noticed two skeletons lying in the field. Their clothes and bicycle was also lying nearby. After seeing the clothes and bicycle, he recognized that those skeletons were of his father and brother. A sum of Rs.40,000/- was robbed from the deceased. 4. The matter was investigated and Challan was put up after completing all the codal formalities. 5. Prosecution has examined as many as twelve witnesses in support of its case. 6. Appellant was also examined u/s 313 Cr.P.C. He denied the case of prosecution. 7. Appellant/accused was convicted and sentenced by the Trial Court, as noticed hereinabove. Hence this appeal. 8. Learned Advocate, appearing on behalf of the appellant, has vehemently argued that the prosecution has failed to prove its case against the accused beyond reasonable doubt. 9. Learned Sr. Additional Advocate General, appearing for the State, has supported the judgment dated 13.6.2014. 10. We have heard learned counsel for the parties and perused the entire material available on record carefully. 11. The case is based on circumstantial evidence. There is no eyewitness of the occurrence. In order to prove the case based on circumstantial evidence, the chain must be complete. All the circumstances must point out exclusively towards the guilt of the accused. The case of the prosecution is that the deceased were last seen in the company of appellant Charan Singh and his son Pintu (whose trial was separated) by many people, as per the statement of PW1 Puran Singh. 12. PW1 Puran Singh has testified that on 2.7.2009, he has lodged a missing report at P.S. Bazpur. The case of the prosecution is that the deceased were last seen in the company of appellant Charan Singh and his son Pintu (whose trial was separated) by many people, as per the statement of PW1 Puran Singh. 12. PW1 Puran Singh has testified that on 2.7.2009, he has lodged a missing report at P.S. Bazpur. Thereafter, he went to register the FIR on 4.7.2009. His father and elder brother were staying in a hut in the field of Gurnam Singh. On 28.6.2009, he had gone to see his father as well as brother. They were not present. On 24.6.2009, his father and brother had sold the mangoes worth Rs.40,000/-. In the evening, they had gone to Charan Singh’s hut. They were seen by a lot of people. They were telling the people that they would stay in the hut of Charan Singh. Even many people had seen his brother and father in the hut along with Charan Singh. He went to the hut of Charan Singh but nobody was present. He came to know that Charan Singh and his son had left for his village. He got the information that in the plot of Nirmal Singh, a foul smell was emanating. He went on the spot and found two skeletons. He recognized those skeletons to be of his father and brother. According to him, his father and brother were killed by Charan Singh and Pintu and they have robbed Rs.40,000/- and after murdering them, they have thrown the bodies in the bushes. They have also escaped with a mobile. 13. PW2 Urmila Kaur deposed that Puran Singh was her brother. Her father and brother had died in suspicious circumstances. She and her brother suspected that Charan Singh and Pintu were involved in the commission of crime. 14. PW3 Dr. S.S. Nabiyal has conducted the post-mortem examination. According to him, the bodies were reduced to skeletons. Maggots were noticeable. There were few hair. He has proved the post-mortem reports. According to him, the death was caused between a period of 7 days to one month from the date of post-mortem examination. According to him, the exact cause of death could not be ascertained. 15. PW4 Constable Rajendra Goswami deposed that he was posted at P.S. Bazpur on 5.7.2009. The accused were interrogated. They were taken out of the lock up. They went to Plot No.30. According to him, the exact cause of death could not be ascertained. 15. PW4 Constable Rajendra Goswami deposed that he was posted at P.S. Bazpur on 5.7.2009. The accused were interrogated. They were taken out of the lock up. They went to Plot No.30. He also stated that they requested the independent witnesses to accompany them but nobody was ready. Accused reached at Plot No.30 and pointed towards a Machaan. They informed that the deceased Ram Niwas and Raj Kumar were drunk. They slept on this Machhan. He and Pintu killed them with a Patal and a sword and de-camped with Rs.40,000/-. The shirt worn by Raj Kumar was burnt. The accused have also got recovered a sum of Rs.19,000/-, a Patal and a sword from a thatched house. The accused confessed that he and his son have killed Ram Niwas and Raj Kumar with the recovered sword and Patal. 16. PW5 Salvinder Singh has signed the recovery memo. According to him, the accused have got the weapon of offence recovered including mobile. 17. PW6 Girish Chandra has registered the F.I.R. 18. PW7 Jeet Singh has deposed that Charan Singh was staying in his hit at Plot No.30. Charan Singh left the job without information. He (PW7) became suspicious. On 4.7.2009, when he went to plough his field, he noticed two skeletons in the bushes. These skeletons were identified to be of Raj Kumar and Ram Niwas. 19. PW8 Constable Govind Singh has along with other police personnel had arrested the accused. 20. PW9 Parikshit Kumar deposed that he visited the crime scene. Recovery of Patal and a sword was made at the instance of appellant. 21. PW10 S.I. Rajendra Singh Negi and PW11 Constable Ravi Kant are the formal witnesses. 22. PW12 Inspector Ravi Kumar deposed that he visited the spot and prepared the spot map. 23. According to the prosecution story, the deceased had gone missing on 28.6.2009. The F.I.R. was lodged on 4.7.2009. According to PW1 Puran Singh, his father and brother had gone to Charan Singh’s hut to stay overnight. They were seen by many people going towards the hut as well as in the hut. The prosecution has not examined any person who has last seen the accused in the company of deceased. Dead body was recovered on 4.7.2009. According to the prosecution case, the deceased were seen alive on 28.6.2009. They were seen by many people going towards the hut as well as in the hut. The prosecution has not examined any person who has last seen the accused in the company of deceased. Dead body was recovered on 4.7.2009. According to the prosecution case, the deceased were seen alive on 28.6.2009. The theory of “last seen alive” comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead was so small, the possibility of any other person committing the murder becomes impossible. 24. In (2012) 6 SCC page 403 in the case of ‘Sahadevan & another v. State of Tamil Nadu’, their Lordships have held that the last seen theory although is an important event in chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty, but this theory should be applied while 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. Where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. In paragraph nos.28, 29, 30 and 32, their Lordships have held as under: - “28. With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. 29. In Arjun Marik v. State of Bihar 1994 Supp. (2) SCC 372, this Court took the view that the where the Appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. 29. In Arjun Marik v. State of Bihar 1994 Supp. (2) SCC 372, this Court took the view that the where the Appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the Appellants having been last seen together with the deceased. The Court further observed that: 31. …….it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and therefore, no conviction, on that basis alone, can be founded. 30. Even in the case of State of Karnataka v. M. V. Mahesh (2003) 3 SCC 353 , this Court held that “3. …………merely being last seen together is not enough. What has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the Respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the Court.” 32. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while 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.” 25. 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 the circumstance of last seen together, does not by itself, necessarily lead to the inference that it was accused who committed crime. There must be something more establishing connection between accused and crime that points to the guilt of accused and none else. There must be something more establishing connection between accused and crime that points to the guilt of accused and none else. More non-explanation of being last seen together with deceased person on part of accused, by itself, cannot lead to proof of guilt against him. In paragraph no.12, 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.” 26. In (2015) 4 SCC Page 393 in the case of ‘Ashok v. State of Maharashtra’ their Lordships of Hon. Supreme Court have held that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Their Lordships have held as under: - “12. From the study of above-stated 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.” 27. 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.” 27. 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 analogous matter, have held that the theory of “last seen alive” comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead, was so small, the possibility of any other person committing the murder becomes impossible. Their Lordships have held as under: - “16. From the evidence of PWs 6, 7 and 10, the prosecution has thus established that Anjali was last seen alive in the company of first appellant Kiriti Pal on the evening of 11-11-2008 and that at about 10.00-10.30 p.m., first appellant Kiriti Pal came alone. The theory of “last seen alive” comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead was so small, the possibility of any other person committing the murder becomes impossible. On the next day morning at about 9.30 a.m., the body of deceased Anjali was found in Babuibona Jungle, an isolated place which is 25 km away from her residence. The place where the dead body was found was connected with Rajnagar-Suri Road. The time when Anjali left with first appellant Kiriti Pal and the time she was found dead is so proximate which, in our view, points to the guilt of the first appellant. 17. Having regard to the time gap being small, it is for the first appellant to explain the circumstances how and where and in what manner he parted company with Anjali. Thus, on the principle that the person who is last found in the company of another is dead or missing, the person with whom he was last found alive has to explain the circumstances in which he parted company. Thus, on the principle that the person who is last found in the company of another is dead or missing, the person with whom he was last found alive has to explain the circumstances in which he parted company. As pointed out by the trial court and the High Court, the first appellant has failed to discharge the onus and failed to offer any explanation as to how, as to when and how and in what manner he parted the company of Anjali, is a strong militating circumstance against the first appellant Kiriti Pal. There is force in the submission of the learned counsel for the State that the first appellant Kiriti Pal failed to offer any explanation, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. 18. In State of U.P. v. Satish, this Court had stated that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. In State of Rajasthan v. Kashi Ram, in para 23, this Court has held as under: (SCC p. 265) “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. 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.” 19. Taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances preceding and following the point of having so last seen, “the last seen theory”, in our view, is a strong incriminating circumstance in the chain of circumstances that would point to the guilt of the first appellant with some certainty.” 28. In the present case, the recoveries were effected from the accused u/s 27 of the Evidence Act. PW5 Salvinder Singh is the witness of recovery. According to him, the appellant had got recovered the piece of shirt, a mobile phone, Rs.19,000/- including a Patal and sword used in the crime. However, in his cross-examination, PW5 Salvinder Singh has deposed that he at his own had gone to the police station from his home and was never called by the police. How he went to the police station, without being summoned, has not been explained by the prosecution. Thus, the recovery of case property is suspected. PW4 Constable Rajendra Goswami has deposed that he along with other police persons had gone to effect the recoveries but no independent witness was available. However, PW4 Rajendra Goswami has not named any person who refused to become a witness. PW3 Dr. N.S. Nabiyal who conducted the post-mortem examination could not ascertain the cause of death. The bodies were reduced to skeleton and maggots were also present. PW1 Puran Singh has categorically admitted in his cross-examination that he has not met any person who had seen his father and brother in the hut along with Charan Singh and Pintu. PW3 Dr. N.S. Nabiyal who conducted the post-mortem examination could not ascertain the cause of death. The bodies were reduced to skeleton and maggots were also present. PW1 Puran Singh has categorically admitted in his cross-examination that he has not met any person who had seen his father and brother in the hut along with Charan Singh and Pintu. It is also the case of prosecution that the accused had made a confession before the police personnel and in custody of police. However, the statement made before the police personnel and in police custody is not admissible in view of Sections 25 and 26 of the Evidence Act. 29. There is inordinate delay too in lodging the F.I.R. which has not been explained by the prosecution. 30. Thus, we are of the considered view that the Trial Court has committed an error of law in holding the appellant guilty. Hence, we allow the appeal and set aside the judgment and order under challenge. The appellant is acquitted of the charges framed against him. He is in jail. Let he be released forthwith if not wanted in connection with any other case. 31. A copy of this judgment and order along with the LCR be sent to the Court concerned for forthwith compliance of the order.