JUDGMENT Per: Hon'ble Rajiv Sharma, J. Since common questions of law and facts are involved in the above-titled criminal appeal, hence the same are being taken up together and adjudicated by this common judgment. 2. These appeals are instituted against the judgment and order dated 29.10.2015/03.11.2015, rendered by learned Ist Additional Sessions Judge, Haldwani, District Nainital, in Sessions Trial No.40 of 2014, whereby the appellants were charged with and tried for the offences under Section 302/201/34 IPC. The appellants were convicted and sentenced to undergo life imprisonment under Section 302 read with Section 34 IPC and to pay a fine of Rs.5,000/- (each) and in default of payment of fine to under additional rigorous imprisonment for a period of three months. The appellants were also convicted and sentenced to undergo rigorous imprisonment for a period of seven years under Section 201 IPC and to pay a fine of Rs.2,000/- (each) and in default of payment of fine to undergo additional simple imprisonment for a period of one month. 3. The case of the prosecution, in a nutshell, is that PW1 Nanhe Lal lodged a report on 19.01.2014, to the effect that his brother-in-law was living with his family in Bazri Company. He was working on contractual basis in Century Paper Mill. 2-3 days earlier the wife of Amar Pal informed him on telephone that Amar Pal had gone to market on 15.01.2014 but he did not come back. His dead body was recovered on 19.01.2014. He went to the spot, where the dead body was lying. The panchanama was prepared. He inquired the cause of death of his brother-in-law. He was told that the appellants have illicit relations with the wife of Amar Pal. He was told this fact by Amar Pal few days back. He met Dharampal and Ramveer and told him that on Wednesday, they have seen Amar Pal in the company of Rajkumar and Phool Chand. They have seen them crossing the bridge and then going towards the left side of the forest in the evening. According to him the appellants have killed his brother-in-law. The dead body was sent for postmortem examination. The investigation was carried out and the challan was put up after completing all the codal formalities. The prosecution has examined as many as ten witnesses in its support. According to him the appellants have killed his brother-in-law. The dead body was sent for postmortem examination. The investigation was carried out and the challan was put up after completing all the codal formalities. The prosecution has examined as many as ten witnesses in its support. The statements of the appellants were also recorded under Section 313 of Cr.P.C. They havedenied the case of the prosecution. The appellants were convicted and sentenced, as noticed hereinabove. Hence, these appeals. 4. Learned Advocates for the appellants have vehemently argued that the prosecution has failed to proveits case against the appellants beyond reasonable doubt. Learned State counsel has supported the judgment and order dated 29.10.2015 and 03.11.2015. 5. We have heard learned counsel for both the parties and perused the judgment and record verycarefully. 6. PW1 Nanhe Lal testified that 2-3 days earlier, he received a telephonic call from the wife of his brother-in-law. She told him that Amar Pal has gone to the market on15.01.2014. He did not come back. On 19.01.2014, the dead body of Amar Pal was recovered from the forest. She asked him to come to her house. He went to Lalkuan. He reached the spot where the dead body was lying. The police has prepared the panchnama. The police has collected the pieces of glass. These were put in the plastic bottle. The seizure memo was prepared in his presence. The contents of the same were read over to him. The blood soaked soil was also taken into possession. Thereafter, he visited the house of the deceased. The people were telling in hushhush tones that the appellants had developed illicit relations with the wife of Amar Pal. Then, he remembered that Amar Pal told him two months back when he came to his house that the appellants had developed illicit relations with his wife. Amar Pal told him that he advised the appellants not to ruin his family life. In his cross-examination, he has admitted that he did not know whether Gayatri has lodged any report before 19.01.2014 or not. 7. PW2 Dharam Pal testified that on 15.01.2014 at about 05:30 PM, he has seen Amar Pal in the company of appellants near Lalkuan Bridge. He has seen them going towards the forest. In his cross-examination, he has admitted that he was illiterate. He has come to Lalkuan in the year 2009. 7. PW2 Dharam Pal testified that on 15.01.2014 at about 05:30 PM, he has seen Amar Pal in the company of appellants near Lalkuan Bridge. He has seen them going towards the forest. In his cross-examination, he has admitted that he was illiterate. He has come to Lalkuan in the year 2009. He did not know the month and day anddate when he came to Lalkuan. He was married. Hismarriage was solemnized in winter season. He was residing at a distance of 100 mts. from the house of the deceased. In his cross-examination, he has admitted that he has not disclosed the spot to SHO, where he has seen the appellants in the company of the deceased. He has also admitted that on Wednesday, Amar Pal's elder son has come to him and told him that his father was missing. He did not lodge any report presuming that Amar Pal might have gone to see his relative. He has categorically admitted that neither he nor any member of Amar Pal's family had lodged the missing report till the recovery of the dead body. 8. PW3 Head Constable Sandeep Singh Negi has deposed that he has registered the FIR on 19.01.2014. In his cross-examination, he has deposed that, as per the information, no report was lodged between 15.01.2014 to 19.01.2014 of the incident. 9. PW4 Ram Kumar has deposed that he knew Amar Pal. He belongs to District Bareilly. He was working as a labourer. He had gone to P.S. Lalkuan on 19.01.2014. They received the information that the dead body of person was lying in the forest. 10-15 people went to the spot. He further deposed that Amar Pal was not happy with the appellants visiting his house. In his cross-examination, he has admitted that the deceased was his nephew. 10. PW5 Devendra Singh Bisht has deposed that PW1 Nanhe Lal has identified the dead body of Amar Pal. The dead body was taken into possession. It was sent for postmortem examination. The panchnama was prepared. He collected the black colour jacket and one pair of plastic shoes. He has also collected the pieces of glass from the spot. 11. PW6 Roop Narayan Gautam has deposed that on 19.01.2014 in Dolly Range (Lalkuan), he was posted as Deputy Ranger. He informed the S.I. about the dead body lying in the forest. 12. PW7 Dr. He collected the black colour jacket and one pair of plastic shoes. He has also collected the pieces of glass from the spot. 11. PW6 Roop Narayan Gautam has deposed that on 19.01.2014 in Dolly Range (Lalkuan), he was posted as Deputy Ranger. He informed the S.I. about the dead body lying in the forest. 12. PW7 Dr. S. Anwar has conducted the postmortem examination. According to him, the cause of death of the deceased was shock and loss of excessive blood from the body. The cause of death was ante mortem injury. 13. PW8 Trilok Ram Bagretha has deposed that the appellants have made extrajudicial confession that they have hidden the shirt and weapon of offence. The memo to this effect was prepared. The appellants got the shirt andbroken bottle glasses from the spot. The blood stains were found on the broken bottle. In his cross-examination, he has admitted that the spot from where the recovery was effected was at a distance of 300-350 mts. The depot of Forest Corporation was at a distance of 3 Kms. He has also admitted that the area was thickly populated. He could not disclose the names of persons to whom he asked to become witness. 14. PW9 Chandra Mohan has deposed that at 10:55 PM, the S.I. has informed him about the presence of dead body in the Depot No.4, Bareilly Road, Lalkuan. They went to the spt. The relatives of the deceased also came on the spot. The appellants have made extrajudicial confession. The broken glass bottle and shirt was recovered at the instance of the appellants from the bushes. They have tried to associate independent witness. He has also admitted that Depot No.4 was abutting to Haldwani Road. There was regular traffic on the road. He has also categorically admitted that till 19.01.2014, no missing report was filed of Amar Pal. 15. PW10 Virendra Kumar Mishra has prepared the spot map. However, this was neither signed by the police officers nor the complainant. In his cross-examination, hehas admitted that there was forest barrier near the spot. He has also admitted that near the cremation ground, there was regular plying of vehicles but they have not stopped any vehicle to associate independent witness. 16. The present case is based on circumstantial evidence. In order to prove the case based on circumstantial evidence, the chain must be complete. He has also admitted that near the cremation ground, there was regular plying of vehicles but they have not stopped any vehicle to associate independent witness. 16. The present case is based on circumstantial evidence. In order to prove the case based on circumstantial evidence, the chain must be complete. All the circumstances must point out exclusively towards the guilty of the accused. 17. Amar Pal has gone missing on 15.01.2014. No FIR was registered till the recovery of the dead body on 19.01.2014. 18. In the case based on circumstantial evidence, the motive plays an important role. The motive attributed by the prosecution to the appellants is that they had illicit relations with the wife of the deceased. It has come in the statement of PW2 Dharam Pal that he had seen the deceased in the company of the appellants in the evening of 15.01.2014. In case, the appellants had illicit relations with the wife of the deceased, there was no occasion for deceased to go with them towards the forest. The prosecution has mainly relied upon the statement of PW2 Dharam Pal. According to him, he had seen the appellants in the company of deceased on 15.01.2014. The material witness PW2 Dharam Pal has stated that he has last seen the deceased in the company of appellants on 15.01.2014 at 05:30 PM going towards Lalkuan Bridge. The dead body of Amar Pal was recovered on 19.01.2014 by PW6 Roop Narayan Gautam. 19. In order to prove the case based on principles of last seen together, the dead body must be recovered in a close proximity. In the instant case, Amar Pal went missing on 15.01.2014 and the dead body was recovered on 19.01.2014. PW2 Dharam Pal has stated that the deceased's elder son had come to him on 15.01.2014. He should have told this fact to Amar Pal's son that he has seen his father in the company of the appellants. The explanation given by PW2 Dharam Pal is that he has gone to see his relatives cannot be believed. In case, Amar Pal has gone to see his relatives, this fact would have been within the knowledge of his son. 20. The cause of death, as per postmortem report of the deceased, was shock and hemorrhage as a result of ante mortem injury. There was one injury on the body of the deceased. In case, Amar Pal has gone to see his relatives, this fact would have been within the knowledge of his son. 20. The cause of death, as per postmortem report of the deceased, was shock and hemorrhage as a result of ante mortem injury. There was one injury on the body of the deceased. The weapon of offence was not shown to the doctor, who has conducted the postmortem examination. 21. The recoveries made from the spot are also suspected. Independent witnesses are not associated, though, available on the spot. The extrajudicial confession made in the custody of police is not admissible. The place from where the recoveries were made, there was regular plying of vehicles. It has come on record that no efforts were made to associate independent witness by stopping vehicles. PW9 Chandra Mohan Singh has also admitted in his cross-examination that at the time of preparing the panchnama, the members of family of the deceased have not raised any suspicion. PW2 Dharam Pal has also not shown the spot to S.I. where he has seen the appellants in the company of deceased. 22. According to the contents of FIR, Dharam Pal and Ramveer have seen the deceased in the company of appellants. However, Ramveer, being material witness, was not examined by the prosecution. 23. In the present case, there is no proximity of time and place and the dead body was recovered after four days. In 2005 (3) SCC 114 , in the case of “State of U.P. vs. Satish", their Lordships of the Hon'ble Supreme Court have held that last-seen theory comes into play where the time gap between the point of time where the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any persons other than the accused being the author of the crime becomes impossible. Their Lordships have held as under: - “21. One significant factor which seems to have been missed by the High Court is that there was no suggestion to either PW 3 or PW 5 that in fact they had not seen the accused and the deceased together. No question was even asked about that aspect in cross-examination. Their Lordships have held as under: - “21. One significant factor which seems to have been missed by the High Court is that there was no suggestion to either PW 3 or PW 5 that in fact they had not seen the accused and the deceased together. No question was even asked about that aspect in cross-examination. On the contrary, an irrelevant suggestion was given that though the witness had seen them together, the witness had not asked the accused as to why he was walking while carrying the deceased on the bicycle. That being so, the High Court could not have come to the conclusion that there was no credible evidence of the accused and the deceased being seen together by PWs 3 and 5. As noted above, the IO (PW 8) was never asked the reason for delayed examination of PWs 3 and 5. The cross-examination was only on the aspect of the recovery of the underwear and undergarment of the accused and the deceased respectively. 22. 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." 24. In 2007 (12) SCC 471 , in the case of “Hatti Singh vs. State of Haryana", their Lordships of the Hon'ble Supreme Court have held that evidence of last seen by itself is not of much significance. It may, however, provide for a link in the chain. Their Lordships have held as under: - “26. The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may, however, provide for a link in the chain. Their Lordships have held as under: - “26. The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis." 25. In 2016 (1) SCC 550 , in the case of “Nizam & another vs. State of Rajasthan", their Lordships of the Hon'ble Supreme Court have held that where time gap is long, it would be unsafe to base conviction on “last seen theory". It is safer to look for corroboration for other circumstances and evidence adduced by prosecution. Their Lordships have held 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. 15. Elaborating the principle of “last seen alive" in State of Rajasthan v. Kashi Ram15, 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. 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.16" The above judgment was relied upon and reiterated in Kiriti Pal v. State of W.B.17 16. In the light of the above, it is to be seen whether in the facts and circumstances of this case, the courts below were right in invoking the “last seen theory". From the evidence discussed above, deceased Manoj allegedly left in the truck DL 1 GA 5943 on 23-1-2001. The body of deceased Manoj was recovered on 26-1-2001. The prosecution has contended that the accused persons were last seen with the deceased but the accused have not offered any plausible, cogent explanation as to what has happened to Manoj. Be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act. 17. During their questioning under Section 313 CrPC, the appellant-accused denied Manoj having travelled in their Truck No. DL 1 GA 5943. 17. During their questioning under Section 313 CrPC, the appellant-accused denied Manoj having travelled in their Truck No. DL 1 GA 5943. As noticed earlier, the body of Manoj was recovered only on 26-1-2001 after three days. The gap between the time when Manoj is alleged to have left in Truck No. DL 1 GA 5943 and the recovery of the body is not so small, to draw an inference against the appellants. At this juncture, yet another aspect emerging from the evidence needs to be noted. From the statement made by Shahzad Khan (PW 4) the internal organ (penis) of the deceased was tied with rope and blood was oozing out from his nostrils. Maniya Village, the place where the body of Manoj was recovered is alleged to be a notable place for prostitution where people from different areas come for enjoyment. 18. In view of the time gap between Manoj being left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that the appellants and the deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where timegap is long it would be unsafe to base the conviction on the “last seen theory"; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory." 26. Learned Trial Court has misread the evidence. The prosecution has failed to prove its case against the appellants beyond reasonable doubt. Accordingly, the appeals are allowed. The judgment and order dated 29.10.2015/03.11.2015, rendered by learned Ist Additional Sessions Judge, Haldwani, District Nainital, in Sessions Trial No.40 of 2014 is set-aside. Appellants are acquitted for the charges framed against them. Appellants are in jail. Let they be released forthwith, if not required in connection with any other matter. 27. Let a copy of this judgment along with LCR be sent to the trial court.