JUDGMENT By the Court.—We have heard Sri D.K. Srivastava, as Amicus Curiae, for the appellant; Km. Meena, learned AGA, for the State and perused the record. 2. This appeal has been presented through Superintendent, District Jail, Fatehpur, on behalf of Appellant-Mahendra Singh @ Dhoni, who is in jail, against the judgement and order dated 5.8.2013 passed by the Additional Sessions Judge, Court No. 1 Fatehpur in S.T. No. 278 of 2012 (State v. Mahendra Singh @ Dhoni), by which the appellant has been convicted for: (a) offence punishable under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 3,000/- and in case of default in payment of fine to undergo further one year rigorous imprisonment; and (b) offence punishable under Section 201 IPC and sentenced to 3 years rigorous imprisonment with fine of Rs. 1,500/- and in case of default in payment of fine to further undergo 6 months rigorous imprisonment. 3. The prosecution case as per the First Information Report (Exhibit-1-FIR), which was lodged on 8.6.2012, at about 8.55 hrs, at P.S. Kalyanpur, district Fatehpur, as case crime No. 111 of 2012, under Sections 302/201/377 IPC, by Dilshad (PW1), brother of the deceased, is that the deceased (Rahul @ Chand), aged about 17 years, was employed as a helper at a Dhaba of Amit Shukla (PW3). On 4.6.2012, the informant, who is a resident of district Barabanki, had come to meet his brother. On 6.6.2012, at about 5 p.m., the deceased left the Dhaba with the accused-appellant, a fellow worker at the Dhaba, for taking a bath at a nearby canal (Nahar) but when they did not return, despite passage of considerable time, PW3 was informed. Whereupon, with the help of others, search was made but to no avail. Thereafter, on 8.6.2012, upon sensing foul smell emanating from bushes near the Dhaba, at about 7:30 a.m., the informant discovered body of the deceased in a decomposed condition with just an underwear on it. Soon thereafter, the informant informed the owner of the Dhaba. Thereafter FIR was lodged. In the FIR it was suspected that the appellant, after indulging in unnatural offence with the deceased, strangulated him to death and hid his body in the bushes. 4. Upon lodging of FIR, inquest proceedings started at about 9:50 a.m. and was completed by about 11:00 a.m. An inquest report (Ex-2) was prepared. Thereafter FIR was lodged. In the FIR it was suspected that the appellant, after indulging in unnatural offence with the deceased, strangulated him to death and hid his body in the bushes. 4. Upon lodging of FIR, inquest proceedings started at about 9:50 a.m. and was completed by about 11:00 a.m. An inquest report (Ex-2) was prepared. The inquest witnesses were Dilshad (informant - P.W.1); Mohammad Amir (PW-2); Sanjay Singh; Sonu Pandey and Indra Pal Singh Gautam. Thereafter, on 8.6.2012 itself, post-mortem was conducted. It started at about 4:35 p.m. and got over by 5:15 p.m.. According to the post-mortem report (Ex-3), continuous ligature mark of 33x3 cm horizontally placed below Thyroid Cartilage, around the neck, with no gap, 6 cm below from right ear; 5 cm below from left ear; and 4 cm below from chin, was found. Around anus, laceration 3x3 cm with blood clot was found. The cause of death, according to the opinion of the doctor, was as a result of anti-mortem strangulation. The approximate time of death was estimated about two days before. 5. Two anal smear slides were drawn and sent for forensic examination. As per pathological report (Ex-4) neither dead nor alive spermatozoa was seen. Consequently, after investigation, charge-sheet (Ex-12) was submitted against the appellant for offences punishable under Section 302 /201 IPC only. 6. The prosecution examined the following witnesses : (A)- Dilshad - (PW1) (the informant of the case). He deposed that he is a resident of district Barabanki. His brother (deceased) had been working as a helper at the Dhaba of Amit Shukla for last one year. He had come to meet his brother (deceased) on 4.6.2012 with his friend Mohd. Amir (PW2). On 6.6.2012, at about 5 p.m., his brother (deceased) left with the accused (appellant), who was a fellow worker at the Dhaba, to have a bath at a nearby canal. On the same day in the evening, at about 6:00-6:30 p.m., the appellant returned back but without his brother. When whereabouts of his brother (the deceased) was asked from him, the accused (appellant) stated that the deceased would be coming shortly. However, when his brother did not return he made an attempt to search for his brother but in vain. On the same day in the evening, at about 6:00-6:30 p.m., the appellant returned back but without his brother. When whereabouts of his brother (the deceased) was asked from him, the accused (appellant) stated that the deceased would be coming shortly. However, when his brother did not return he made an attempt to search for his brother but in vain. Thereafter, on 8.6.2012, at about 7:30-7:45 a.m., in the morning, when foul odour was sensed, emanating from the bushes just behind the hotel/Dhaba, upon inspection, the informant found the dead body of his brother in just an underwear. Immediately thereafter, the Dhaba owner (Shukla-PW3) and his friend Moh. Amir (PW2) were informed and they all went to the place where the dead body was found. Thereafter, the first information Report (Ext.Ka-1) was prepared at the Dhaba of Amit Shukla (PW3) and was scribed by PW2, upon which, the informant put his signature. The informant stated that thereafter inquest proceedings were held. During which he as well as his friend Mohd. Amir, amongst others, were present. He proved his signature on the inquest report whereupon the inquest report was marked Ext. Ka-2. In his cross-examination, PW1 stated that his brother had come to the Dhaba in search of work about a year ago; he had visited his brother two or three times before; that Dhaba was owned by Amit Shukla; that his deceased brother was getting rupees 2-3 thousands per month; that he saw the accused Mahendra Singh (appellant) for the first time on 4.6.2012; that on 8.6.2012 he got an information about the death of his brother; that where the deceased was murdered he was not present; that he himself came to know about the death of his brother; that just behind the Dhaba there was a grove with Mango trees, which he did not count; that on 6.6.2012 when his brother had not returned back, he, at about 7 p.m., had went to look out for him at the canal, but, after one hour gave up the search and returned back; that, thereafter, he did not go to search for his brother; that on 8.6.2012, while he was sitting alongwith other persons at the Dhaba, from just behind the Dhaba, foul odour was coming, upon which, he alongwith his friend Mohd. Amir (PW2) went there and saw his brother’s body lying in the bushes; and that after the incident the accused had absconded and was apprehended by the police on 8.6.2012. Upon suggestion, he denied that Dhaba owner got the deceased murdered and, thereafter to save himself got the appellant falsely implicated, as he had been pressing for his wages. He also refuted the suggestion that Amit Shukla (Dhaba owner) had informed him about the death of informant’s brother. (B) PW2 - Mohammad Amir, a resident of district Barabanki. He stated that he had come on 4.6.2008, with PW1 to Fatehpur, at the Dhaba of PW3 where the deceased worked as a helper; that on 6.6.2012, at about 5 p.m., Rahul @ Chand (deceased) left with the accused, a fellow worker at the Dhaba, to have a bath at the canal; that the accused retuned back alone at about 7 p.m.; that on 8.6.2012 the body of the deceased was found lying in the bushes behind the Dhaba; that the First Information Report was prepared by him on PW1’s dictation; and thereafter, he, alongwith PW1 and Amit Shukla (PW3)-owner of the Dhaba, went to the Police Station to lodge the FIR. He proved the inquest proceedings, of which he was one of the witnesses. In his cross-examination, he stated that the canal (Nahar) was at a distance of about 1.5 Km. from the Dhaba. (C) PW3 - Amit Shukla (the Dhaba owner). He stated that Rahul @ Chand (deceased) as well as accused were both employed at his Dhaba; that the accused was employed at his Dhaba since last one month, whereas, the deceased had been in his employment for the last one and half year; that on 4.6.2012 PW1 and PW2 had come to meet the deceased; in the past also, PW1 had come to meet the deceased 3-4 times; that on 6.6.2012 the deceased, at about 5 p.m., had gone with the accused to have bath at the canal; thereafter, the accused returned alone between 6:00-6:30 p.m, upon being queried as to where the deceased was, he replied that he would be coming shortly; and that an attempt was made to search for the deceased but the deceased was not found. He proved the presence of Dilshad (PW1) and Amir (PW2) at the Dhaba on 6.6.2015, at the time, when the deceased allegedly left with the accused to have a bath at the canal. He also stated that on 8.6.2012 when Dilshad (PW1) & Amir (PW2) had discovered the body of the deceased, he, alongwith them, went to the police station to lodge the FIR. In his cross-examination he stated that on the date of incident there were about 46 employees working at his Dhaba; that accused had been under his employment for about a month and was being paid Rs. 6,000/- per month by way of wages; that Rahul @ Chand (deceased) had been under his employment for about two and half years as a helper; that the Dhaba starts at 9 a.m. in the morning and continues up to 2:00 a.m., post midnight, during which, he remains at the Dhaba; that the place of occurrence is at a distance of about 300 meters from the canal (Nahar) and is about 200-300 meters behind the Dhaba; that neither FIR nor missing report was lodged by him either on 6.6.2012 or on 7.6.2012, although they were all searching for the deceased; that he came to know about the death of the deceased only upon information received from the brother of the deceased; that he had put his signatures on certain documents relating to the inquest proceedings, which lasted for about an hour; and that on the date of incident there were about twenty workers working in the night shift, but he is not in a position to disclose their names. (D) PW4- Dr. Krishnakant Singh, the doctor who conducted the post-mortem on the dead body of the deceased. He proved the post-mortem report. He stated that an anal smear slide was taken and sent for forensic examination to pathology laboratory of district hospital, Fatehpur. He stated that injuries found on the anal region could be possible on account of forceful penile penetration. In his cross-examination, he stated that the estimated time of death disclosed in the post-mortem report could vary by six hours on either side. (E) PW5- Dr. B.C. Budhani, the then Pathologist posted at District Hospital, Fatehpur. He stated that on examination of anal smear slide, no dead or alive spermatozoa was seen although blood constituents were found. In his cross-examination, he stated that the estimated time of death disclosed in the post-mortem report could vary by six hours on either side. (E) PW5- Dr. B.C. Budhani, the then Pathologist posted at District Hospital, Fatehpur. He stated that on examination of anal smear slide, no dead or alive spermatozoa was seen although blood constituents were found. He stated that no opinion could be formed as regards anal intercourse. (F) PW6- Ram Chandra, Head Moharrir at the police station where FIR was lodged. He proved the lodging of the FIR at the police station and stated that PW1; PW2; and one Rizwan had come to lodge F.I.R. (G) PW7- S.I., Jitendra Singh. He proved holding of inquest proceedings and preparation of other related documents. (H) PW8- J. P. Yadav, S.O., Police Station- Kalyanpur, District- Fatehpur - the investigating officer. He proved investigation related documents. He stated that he arrested the accused on 8.6.2012 at Chaudagra, at about 11 p.m. He stated that he prepared the site plan of the place where the dead body was found. 7. In his cross-examination, he stated that in the site plan he did not mention the distance between the Canal (Nahar) and the place of occurrence i.e. where the body was found as well as of the Dhaba, because he did not consider it necessary; that the canal must be at a distance of about 110-125 meters towards north from the place of occurrence; that the place of occurrence was a grove, which was at a distance of about 40-50 meters from the Dhaba (Shukla Hotel); that at the place of occurrence there were mango trees all around but they were not so dense as to make it dark during day hours; that between the place of occurrence and the Shukla Hotel /Dhaba, there is open area/field lying vacant. 8. The gist of prosecution evidence was explained to the accused-appellant to record his statement under Section 313 CrPC. The accused-appellant denied the allegations and claimed that he was falsely implicated by the Dhaba owner in collusion with the brother of the deceased. 9. 8. The gist of prosecution evidence was explained to the accused-appellant to record his statement under Section 313 CrPC. The accused-appellant denied the allegations and claimed that he was falsely implicated by the Dhaba owner in collusion with the brother of the deceased. 9. The trial Court on the basis of evidence that the deceased was last seen alive with the accused and there was no cogent explanation from the accused to discharge the burden placed upon him (by Section 106 of the Evidence Act) to explain the circumstances within his knowledge, convicted the accused-appellant for offences under Section 302/201 IPC, by observing that the accused took the deceased, under the pretext of having a bath at the canal, to the grove where he indulged in unnatural sex with the deceased and, thereafter, strangulated him and hid his body in the bushes. While holding as above, the trial Court also observed that the accused had absconded as he had to be arrested by the police. 10. Assailing the judgement and order of conviction passed by the trial Court, the learned counsel for the appellant submitted that this is a case where there was no eye-witness account of the incident; there was no convincing evidence of unnatural offence therefore neither charge-sheet was filed under Section 377 IPC nor a charge to that effect was framed, hence the finding of the trial Court that the motive for the crime was unnatural sex is purely conjectural; that there was no evidence to disclose that the accused was seen with the deceased going towards the place i.e. grove from where the body was recovered or was seen coming out from that place at the relevant time; and that the observation that the accused had absconded is completely perverse inasmuch as the prosecution evidence itself was to the effect that the accused had returned back between 6 p.m. and 6.30 p.m. on the same day. Otherwise also, FIR was lodged on 8.6.2012 at 8.55 p.m. whereas arrest was effected at about 11 p.m. on 8.6.2012 therefore there was no occasion to come to a conclusion that the accused had absconded. Otherwise also, FIR was lodged on 8.6.2012 at 8.55 p.m. whereas arrest was effected at about 11 p.m. on 8.6.2012 therefore there was no occasion to come to a conclusion that the accused had absconded. It was contended that there was no recovery of any incriminating material from or on the pointing out of the accused and, as the body was found from a grove not belonging to the accused, the chain of circumstances were not complete so as to rule out all other hypothesis than the guilt of the accused. It was submitted, under the circumstances, shifting of onus/burden on the accused to explain as to how the deceased was murdered was uncalled for. Apart from above, it was contended that the evidence that the deceased left with the accused at about 5:00 p.m. on 6.6.2012 is also not convincing and reliable, inasmuch as PW1 and PW2 were admittedly not residents of the place where the Dhaba was; and the Dhaba owner (PW3) had not disclosed the identity of other workers at the Dhaba and they were also not produced to disclose the true story. It was pointed out that the place of occurrence, as per the statement of Investigating Officer, was just behind the Dhaba which, admittedly, runs till well past midnight and had 46 workers working there on regular basis, out of them, as per statement of PW3, at least, 20 were working in the night shift, therefore it is highly improbable that incident could have occurred at such a place, which was at close proximity to the Dhaba, between 5:00 p.m. and 7:00 p.m., on a peak summer day. It was submitted that there is no evidence to suggest that the murder was committed at another place, and the dead body was dragged and thrown at that place. It was submitted that the witnesses, who, allegedly, saw the deceased being taken away by the accused for a bath, are not reliable, firstly, because PW1 and PW2 are not residents of the place though they claim that they had arrived on 4.6.2012 i.e. two days before the date when deceased went missing; and, secondly, because they made no effort to lodge either FIR or missing report on 6.6.2012 or on the following day. In fact, they did not even disclose the efforts they made to search out the deceased on 7.6.2012. In fact, they did not even disclose the efforts they made to search out the deceased on 7.6.2012. Further, discovery of dead body by the brother of the deceased (PW1), upon sensing foul odour, while sitting at the Dhaba, appears to be a concocted story, inasmuch as, what was the justification for (PW1) to remain at the Dhaba for two days, particularly, when his own brother was not there and he himself was not a resident of that place. It was submitted that the circumstances suggest that after discovery of the body of the deceased, PW1 was informed and, thereafter, story was developed. It was submitted that the prosecution has not come out with best evidence, inasmuch as, all those workers, who were engaged at the Dhaba, which, according to PW3, were 46 in number during day time and about 20 in the night shift, have not been produced as witnesses, which warrants drawing of adverse inference against the prosecution. It was thus submitted that the appeal be allowed and the appellant be acquitted. 11. In reply to the submissions of learned counsel for the appellant, the learned A.G.A. submitted that the evidence led by the prosecution fully established that the deceased was last seen alive in the company of the accused on or about the probable time of his death; that all the three prosecution witnesses are consistent in their stand that the deceased had left with the appellant at about 5 p.m. on 6.6.2012 for taking a bath at the canal and, thereafter, the accused-appellant returned back alone between 6:00 and 6:30 p.m. on 6.6.2012 and, he, despite query, gave no satisfactory answer regarding whereabouts of the deceased, and, two days later, the body of the deceased was recovered. It was submitted that as post-mortem report dated 8.6.2012 estimated the probable time of death to be two days earlier, the burden was on the appellant to explain as to when and where the deceased parted his company. But since no evidence was led by the appellant to discharge that burden, and it was found that the deceased was murdered, presumption about appellant’s guilt was rightly drawn by taking the aid of illustrations (g) and (h) of Section 114 read with Section 106 of the Evidence Act. It was thus submitted that the order of conviction does not call for any interference. 12. It was thus submitted that the order of conviction does not call for any interference. 12. We have considered the rival submissions and have perused the record carefully. 13. As this case is based on circumstantial evidence and there is no ocular evidence of the incident, before we proceed to test the evidence led by the prosecution, it would be apposite to first notice the law relating to proof of guilt of an accused on the basis of circumstantial evidence. The Apex Court, after considering various precedents, in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , laid down the principles on which a case based on circumstantial evidence is to be appreciated with a view to find out whether an accused could be held guilty or not of the offence for which he is charged for. The principles are discernible from paragraphs 152 and 153 of the report, which are extracted below : 152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 153. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 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. 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: “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. 14. In the light of law noticed above, which has been consistently followed, we shall appreciate the prosecution evidence to find out whether the accused could be held guilty of the offences punishable under Sections 302/201 IPC on the basis of evidence led during the course of trial. 14. In the light of law noticed above, which has been consistently followed, we shall appreciate the prosecution evidence to find out whether the accused could be held guilty of the offences punishable under Sections 302/201 IPC on the basis of evidence led during the course of trial. The evidence that has come from the side of the prosecution in this case is that the deceased was last seen alive with the accused on 6.6.2012, at about 5 pm, at the Dhabha, leaving with the accused for bath at the canal, and, thereafter, the accused returned back alone between 6 pm and 6.30 pm on 6.6.2012, but the deceased was thereafter never seen alive. The evidence is also to the effect that the accused on his return, upon query, told that the deceased would be coming back shortly. However, the deceased did not return, though, later on 8.6.2012, between 7.30 am and 8 am, body of the deceased was discovered lying in a grove in just an underwear. The post-mortem, which was held on 8.6.2018, at about 5.15 pm, estimated time of death about two days before. In his oral testimony, the doctor (PW4) stated that the actual time of death could vary by plus or minus six hours. Which means that death could have occurred any time between 12 noon and 12 midnight on 6.6.2012. 15. The evidence of the deceased being last seen alive with the accused is a piece of circumstantial evidence, the value of which is to be assessed on the facts of each case keeping in mind the entire evidence on record. It should not be forgotten that ultimate burden to prove the guilt is on the prosecution. It is only when the circumstances are such that they tend to exclude all other hypothesis than the guilt of accused that the burden shifts, under Section 106 of the Evidence Act, on the accused to disclose those facts, of which he has special knowledge, which would serve as an explanation to hold him not guilty. In State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , the Apex Court, on the value of the evidence of the deceased being last seen with the accused, in the context of Section 106 of the Evidence Act, had observed as follows: “The principle is well-settled. In State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , the Apex Court, on the value of the evidence of the deceased being last seen with the accused, in the context of Section 106 of the Evidence Act, had observed as follows: “The principle is well-settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric 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.” (Emphasis supplied) 16. In State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 , the Apex Court had, in paragraph 34 of the report, observed: “34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. (Emphasis supplied) 17. In Nizam v. State of Rajasthan, (2016) 1 SCC 550 , the Apex Court, in the context of the evidence of the deceased being last seen with the accused, observed as follows: “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. In Nizam v. State of Rajasthan, (2016) 1 SCC 550 , the Apex Court, in the context of the evidence of the deceased being last seen with the accused, observed as follows: “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.” (Emphasis supplied) 18. In Nizam’s case (supra), the deceased was last seen with the accused leaving in a truck on 23.1.2001 and, thereafter, his body was found on 26.1.2001. The Apex Court, after analyzing the evidence of that case, observed, in paragraph 18 of the report, as follows: “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 time gap 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.” (Emphasis supplied) 19. Seen in the light of the law noticed above, when we go through the prosecution evidence, we find that the prosecution evidence does not disclose that the accused and the deceased were seen entering the grove, from where the body was recovered, at any point of time, on 6.6.2012. Seen in the light of the law noticed above, when we go through the prosecution evidence, we find that the prosecution evidence does not disclose that the accused and the deceased were seen entering the grove, from where the body was recovered, at any point of time, on 6.6.2012. There is also no evidence that the accused was seen coming out of the grove from where the body was recovered. Further, there is no evidence that any incriminating article, which could be linked with the accused, was recovered from the spot, where the body was found. Above apart, it is not the case that the grove belonged to the accused to which he alone had access. Further, there is no forensic evidence that by DNA profiling the blood constituents found in the anal smear could be linked to the appellant. Under the circumstances, there are many missing links, in the chain of circumstances, to rule out intervention of any other person in the crime so as to exclude all other hypothesis than the guilt of the appellant. 20. More over, as per the testimony of the doctor, the death could have occurred any time between 12 noon and 12 midnight on 6.6.2012. The deceased was seen with the accused at the Dhaba, leaving for bath at the canal, on or about 5 pm, on 6.6.2018, thereafter, as per the prosecution evidence, the appellant was seen back at the Dhaba, on or about 6.30 pm. Considering that there was considerable time gap between the deceased being last seen alive with the appellant and the discovery of his dead body, keeping in mind that death could have occurred any time between 12 noon and 12 midnight of 6.6.2012, the possibility of the deceased being murdered in the late hours of the night by some other person cannot be ruled out. In such circumstances, even if no evidence has been led by the accused, since the chain of circumstances itself is not complete to rule out all possible hypothesis other than the guilt of the accused, it would be unsafe to record conviction of the accused by taking the aid of Section 106 of the Evidence Act, particularly, in absence of any corroboratory evidence such as recovery of incriminatory material, etc. 21. Apart from above, there are other noticeable features in the prosecution evidence, which make it unsafe to record conviction. 21. Apart from above, there are other noticeable features in the prosecution evidence, which make it unsafe to record conviction. In that regard it may be observed that, according to PW2, the distance of canal from the Dhaba is about 1 and ½ km, whereas, according to PW3, the distance of canal from the Dhaba is 300 meters. PW3, the Dhaba owner, in his statement disclosed that the place of occurrence is about 200-300 meters away from his Dhaba, whereas the Investigating Officer disclosed that the distance of Canal (Nahar) from the Dhaba is 100-125 meters and the place of occurrence is just 40-50 meters from the Dhaba. From the oral testimony of the witnesses, it appears, the dead body was discovered by PW1 when he sensed foul odour, while he was at the Dhaba. Thus, it appears, the distance of the place, where the dead body was found, is not that far, say 200-300 meters from the Dhaba, as suggested by PW3, but appears to be 40-50 meters or even less, as stated by the Investigating Officer. As per prosecution case, the appellant left with the deceased at about 5 pm and returned back same day at about 6:00-6:30 p.m. Therefore, if the appellant had committed murder of the deceased, the murder must have been committed between 5:00pm and 6:30 p.m. Admittedly, the incident is of 6.6.2012 when summer is at its peak and there is sufficient light in the northern region of India up to at least 7 pm. If the incident had really taken place at that point of time, at the place from where the body was recovered, when, admittedly, a large number of workers were present at the Dhaba, any alarm could have invited attention of other workers. Therefore, it does not appear probable that the appellant would commit murder at that point of time and calmly walk back to the Dhaba immediately thereafter. Rather, he would abscond. But that does not appear to be the case here. The observation of the trial Court that the appellant had absconded because he had to be arrested by the police is completely misplaced inasmuch as it is the own case of the prosecution that the appellant had returned back and had met the witnesses on the same day (6.6.2012), at or about 6.00-6.30 pm. The observation of the trial Court that the appellant had absconded because he had to be arrested by the police is completely misplaced inasmuch as it is the own case of the prosecution that the appellant had returned back and had met the witnesses on the same day (6.6.2012), at or about 6.00-6.30 pm. In this case, a named FIR was lodged at about 8.55 am on 8.6.2012 and thereafter, arrest was effected, at or about 11 pm, on 8.6.2018. Hence, there was no basis to infer that the appellant had absconded. Therefore drawing adverse inference against the appellant on that count was completely misplaced. Like wise, there was no evidence worth the name for the trial Court to conclude that motive for the crime was unnatural sex. It is noteworthy, that there is no evidence to suggest about proclivity of the appellant to such sex. Hence, the observation of the trial Court about the motive is purely conjectural. 22. That apart, according to the post morterm report, the deceased was aged about 17 years and of average built, weighing about 60 kg. It is expected that a person of that age and built would offer resistance and it may not be easy to secretly kill him in close vicinity of a busy place, like a Dhaba, during the course of a summer day, without letting others know about it. In that context, it would be appropriate to observe that there had been an effort to hide the identity of other workers who were engaged at the Dhaba. As per statement of PW3, the Dhaba owner, there were about 46 workers engaged, on a regular basis, at his Dhaba, and at least 20 workers were engaged in the night shift. Identity of those persons have not been disclosed and they have not been examined as witnesses of fact. All this shows that there had been an attempt to suppress what could have been the best evidence. 23. Further, if PW1 and his friend PW2 had come all the way to meet his brother (the deceased) why would they not lodge a missing report either in the night of 6.6.2012 or on the next day. All this shows that there had been an attempt to suppress what could have been the best evidence. 23. Further, if PW1 and his friend PW2 had come all the way to meet his brother (the deceased) why would they not lodge a missing report either in the night of 6.6.2012 or on the next day. This also throws some doubt as to whether they were there as witnesses of the deceased being last seen with the accused on 6.6.2012 or had arrived on information when body of the deceased was recovered as is the suggestion of the defence. 24. For all the reasons mentioned above and upon taking a conspectus of the entire evidence led by the prosecution, we are of the firm view that on the basis of evidence brought on record, it would not be safe to sustain the conviction of the appellant. The benefit of doubt must therefore be extended to the accused-appellant. 25. We, accordingly, allow the appeal. The judgement and order dated 5.8.2013 passed by the Additional Sessions Judge, Court No. 1 Fatehpur in S.T. No. 278 of 2012 (State v. Mahendra Singh @ Dhoni) is hereby set aside. The appellant is held not guilty for offences punishable under Sections 302 & 201 IPC and is, consequently, acquitted of the charges. The appellant, Mahendra Singh @ Dhoni, who is reported to be in jail, shall be released forthwith, unless he is wanted in any other case. 26. We record our appreciation for the effort put in by Sri Dilip Kumar Srivastava, learned Amicus Curiae in assisting us. We, accordingly, provide that he shall be paid Rs. 15000/-, as remuneration for his effort, from the concerned fund. There is no order as to costs. JUDGMENT By the Court.—We have heard Sri D.K. Srivastava, as Amicus Curiae, for the appellant; Km. Meena, learned AGA, for the State and perused the record. 2. This appeal has been presented through Superintendent, District Jail, Fatehpur, on behalf of Appellant-Mahendra Singh @ Dhoni, who is in jail, against the judgement and order dated 5.8.2013 passed by the Additional Sessions Judge, Court No. 1 Fatehpur in S.T. No. 278 of 2012 (State v. Mahendra Singh @ Dhoni), by which the appellant has been convicted for: (a) offence punishable under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 3,000/- and in case of default in payment of fine to undergo further one year rigorous imprisonment; and (b) offence punishable under Section 201 IPC and sentenced to 3 years rigorous imprisonment with fine of Rs. 1,500/- and in case of default in payment of fine to further undergo 6 months rigorous imprisonment. 3. The prosecution case as per the First Information Report (Exhibit-1-FIR), which was lodged on 8.6.2012, at about 8.55 hrs, at P.S. Kalyanpur, district Fatehpur, as case crime No. 111 of 2012, under Sections 302/201/377 IPC, by Dilshad (PW1), brother of the deceased, is that the deceased (Rahul @ Chand), aged about 17 years, was employed as a helper at a Dhaba of Amit Shukla (PW3). On 4.6.2012, the informant, who is a resident of district Barabanki, had come to meet his brother. On 6.6.2012, at about 5 p.m., the deceased left the Dhaba with the accused-appellant, a fellow worker at the Dhaba, for taking a bath at a nearby canal (Nahar) but when they did not return, despite passage of considerable time, PW3 was informed. Whereupon, with the help of others, search was made but to no avail. Thereafter, on 8.6.2012, upon sensing foul smell emanating from bushes near the Dhaba, at about 7:30 a.m., the informant discovered body of the deceased in a decomposed condition with just an underwear on it. Soon thereafter, the informant informed the owner of the Dhaba. Thereafter FIR was lodged. In the FIR it was suspected that the appellant, after indulging in unnatural offence with the deceased, strangulated him to death and hid his body in the bushes. 4. Upon lodging of FIR, inquest proceedings started at about 9:50 a.m. and was completed by about 11:00 a.m. An inquest report (Ex-2) was prepared. The inquest witnesses were Dilshad (informant - P.W.1); Mohammad Amir (PW-2); Sanjay Singh; Sonu Pandey and Indra Pal Singh Gautam. Thereafter, on 8.6.2012 itself, post-mortem was conducted. It started at about 4:35 p.m. and got over by 5:15 p.m.. According to the post-mortem report (Ex-3), continuous ligature mark of 33x3 cm horizontally placed below Thyroid Cartilage, around the neck, with no gap, 6 cm below from right ear; 5 cm below from left ear; and 4 cm below from chin, was found. Around anus, laceration 3x3 cm with blood clot was found. According to the post-mortem report (Ex-3), continuous ligature mark of 33x3 cm horizontally placed below Thyroid Cartilage, around the neck, with no gap, 6 cm below from right ear; 5 cm below from left ear; and 4 cm below from chin, was found. Around anus, laceration 3x3 cm with blood clot was found. The cause of death, according to the opinion of the doctor, was as a result of anti-mortem strangulation. The approximate time of death was estimated about two days before. 5. Two anal smear slides were drawn and sent for forensic examination. As per pathological report (Ex-4) neither dead nor alive spermatozoa was seen. Consequently, after investigation, charge-sheet (Ex-12) was submitted against the appellant for offences punishable under Section 302 /201 IPC only. 6. The prosecution examined the following witnesses : (A)- Dilshad - (PW1) (the informant of the case). He deposed that he is a resident of district Barabanki. His brother (deceased) had been working as a helper at the Dhaba of Amit Shukla for last one year. He had come to meet his brother (deceased) on 4.6.2012 with his friend Mohd. Amir (PW2). On 6.6.2012, at about 5 p.m., his brother (deceased) left with the accused (appellant), who was a fellow worker at the Dhaba, to have a bath at a nearby canal. On the same day in the evening, at about 6:00-6:30 p.m., the appellant returned back but without his brother. When whereabouts of his brother (the deceased) was asked from him, the accused (appellant) stated that the deceased would be coming shortly. However, when his brother did not return he made an attempt to search for his brother but in vain. Thereafter, on 8.6.2012, at about 7:30-7:45 a.m., in the morning, when foul odour was sensed, emanating from the bushes just behind the hotel/Dhaba, upon inspection, the informant found the dead body of his brother in just an underwear. Immediately thereafter, the Dhaba owner (Shukla-PW3) and his friend Moh. Amir (PW2) were informed and they all went to the place where the dead body was found. Thereafter, the first information Report (Ext.Ka-1) was prepared at the Dhaba of Amit Shukla (PW3) and was scribed by PW2, upon which, the informant put his signature. The informant stated that thereafter inquest proceedings were held. During which he as well as his friend Mohd. Amir, amongst others, were present. Thereafter, the first information Report (Ext.Ka-1) was prepared at the Dhaba of Amit Shukla (PW3) and was scribed by PW2, upon which, the informant put his signature. The informant stated that thereafter inquest proceedings were held. During which he as well as his friend Mohd. Amir, amongst others, were present. He proved his signature on the inquest report whereupon the inquest report was marked Ext. Ka-2. In his cross-examination, PW1 stated that his brother had come to the Dhaba in search of work about a year ago; he had visited his brother two or three times before; that Dhaba was owned by Amit Shukla; that his deceased brother was getting rupees 2-3 thousands per month; that he saw the accused Mahendra Singh (appellant) for the first time on 4.6.2012; that on 8.6.2012 he got an information about the death of his brother; that where the deceased was murdered he was not present; that he himself came to know about the death of his brother; that just behind the Dhaba there was a grove with Mango trees, which he did not count; that on 6.6.2012 when his brother had not returned back, he, at about 7 p.m., had went to look out for him at the canal, but, after one hour gave up the search and returned back; that, thereafter, he did not go to search for his brother; that on 8.6.2012, while he was sitting alongwith other persons at the Dhaba, from just behind the Dhaba, foul odour was coming, upon which, he alongwith his friend Mohd. Amir (PW2) went there and saw his brother’s body lying in the bushes; and that after the incident the accused had absconded and was apprehended by the police on 8.6.2012. Upon suggestion, he denied that Dhaba owner got the deceased murdered and, thereafter to save himself got the appellant falsely implicated, as he had been pressing for his wages. He also refuted the suggestion that Amit Shukla (Dhaba owner) had informed him about the death of informant’s brother. (B) PW2 - Mohammad Amir, a resident of district Barabanki. Upon suggestion, he denied that Dhaba owner got the deceased murdered and, thereafter to save himself got the appellant falsely implicated, as he had been pressing for his wages. He also refuted the suggestion that Amit Shukla (Dhaba owner) had informed him about the death of informant’s brother. (B) PW2 - Mohammad Amir, a resident of district Barabanki. He stated that he had come on 4.6.2008, with PW1 to Fatehpur, at the Dhaba of PW3 where the deceased worked as a helper; that on 6.6.2012, at about 5 p.m., Rahul @ Chand (deceased) left with the accused, a fellow worker at the Dhaba, to have a bath at the canal; that the accused retuned back alone at about 7 p.m.; that on 8.6.2012 the body of the deceased was found lying in the bushes behind the Dhaba; that the First Information Report was prepared by him on PW1’s dictation; and thereafter, he, alongwith PW1 and Amit Shukla (PW3)-owner of the Dhaba, went to the Police Station to lodge the FIR. He proved the inquest proceedings, of which he was one of the witnesses. In his cross-examination, he stated that the canal (Nahar) was at a distance of about 1.5 Km. from the Dhaba. (C) PW3 - Amit Shukla (the Dhaba owner). He stated that Rahul @ Chand (deceased) as well as accused were both employed at his Dhaba; that the accused was employed at his Dhaba since last one month, whereas, the deceased had been in his employment for the last one and half year; that on 4.6.2012 PW1 and PW2 had come to meet the deceased; in the past also, PW1 had come to meet the deceased 3-4 times; that on 6.6.2012 the deceased, at about 5 p.m., had gone with the accused to have bath at the canal; thereafter, the accused returned alone between 6:00-6:30 p.m, upon being queried as to where the deceased was, he replied that he would be coming shortly; and that an attempt was made to search for the deceased but the deceased was not found. He proved the presence of Dilshad (PW1) and Amir (PW2) at the Dhaba on 6.6.2015, at the time, when the deceased allegedly left with the accused to have a bath at the canal. He proved the presence of Dilshad (PW1) and Amir (PW2) at the Dhaba on 6.6.2015, at the time, when the deceased allegedly left with the accused to have a bath at the canal. He also stated that on 8.6.2012 when Dilshad (PW1) & Amir (PW2) had discovered the body of the deceased, he, alongwith them, went to the police station to lodge the FIR. In his cross-examination he stated that on the date of incident there were about 46 employees working at his Dhaba; that accused had been under his employment for about a month and was being paid Rs. 6,000/- per month by way of wages; that Rahul @ Chand (deceased) had been under his employment for about two and half years as a helper; that the Dhaba starts at 9 a.m. in the morning and continues up to 2:00 a.m., post midnight, during which, he remains at the Dhaba; that the place of occurrence is at a distance of about 300 meters from the canal (Nahar) and is about 200-300 meters behind the Dhaba; that neither FIR nor missing report was lodged by him either on 6.6.2012 or on 7.6.2012, although they were all searching for the deceased; that he came to know about the death of the deceased only upon information received from the brother of the deceased; that he had put his signatures on certain documents relating to the inquest proceedings, which lasted for about an hour; and that on the date of incident there were about twenty workers working in the night shift, but he is not in a position to disclose their names. (D) PW4- Dr. Krishnakant Singh, the doctor who conducted the post-mortem on the dead body of the deceased. He proved the post-mortem report. He stated that an anal smear slide was taken and sent for forensic examination to pathology laboratory of district hospital, Fatehpur. He stated that injuries found on the anal region could be possible on account of forceful penile penetration. In his cross-examination, he stated that the estimated time of death disclosed in the post-mortem report could vary by six hours on either side. (E) PW5- Dr. B.C. Budhani, the then Pathologist posted at District Hospital, Fatehpur. He stated that on examination of anal smear slide, no dead or alive spermatozoa was seen although blood constituents were found. In his cross-examination, he stated that the estimated time of death disclosed in the post-mortem report could vary by six hours on either side. (E) PW5- Dr. B.C. Budhani, the then Pathologist posted at District Hospital, Fatehpur. He stated that on examination of anal smear slide, no dead or alive spermatozoa was seen although blood constituents were found. He stated that no opinion could be formed as regards anal intercourse. (F) PW6- Ram Chandra, Head Moharrir at the police station where FIR was lodged. He proved the lodging of the FIR at the police station and stated that PW1; PW2; and one Rizwan had come to lodge F.I.R. (G) PW7- S.I., Jitendra Singh. He proved holding of inquest proceedings and preparation of other related documents. (H) PW8- J. P. Yadav, S.O., Police Station- Kalyanpur, District- Fatehpur - the investigating officer. He proved investigation related documents. He stated that he arrested the accused on 8.6.2012 at Chaudagra, at about 11 p.m. He stated that he prepared the site plan of the place where the dead body was found. 7. In his cross-examination, he stated that in the site plan he did not mention the distance between the Canal (Nahar) and the place of occurrence i.e. where the body was found as well as of the Dhaba, because he did not consider it necessary; that the canal must be at a distance of about 110-125 meters towards north from the place of occurrence; that the place of occurrence was a grove, which was at a distance of about 40-50 meters from the Dhaba (Shukla Hotel); that at the place of occurrence there were mango trees all around but they were not so dense as to make it dark during day hours; that between the place of occurrence and the Shukla Hotel /Dhaba, there is open area/field lying vacant. 8. The gist of prosecution evidence was explained to the accused-appellant to record his statement under Section 313 CrPC. The accused-appellant denied the allegations and claimed that he was falsely implicated by the Dhaba owner in collusion with the brother of the deceased. 9. 8. The gist of prosecution evidence was explained to the accused-appellant to record his statement under Section 313 CrPC. The accused-appellant denied the allegations and claimed that he was falsely implicated by the Dhaba owner in collusion with the brother of the deceased. 9. The trial Court on the basis of evidence that the deceased was last seen alive with the accused and there was no cogent explanation from the accused to discharge the burden placed upon him (by Section 106 of the Evidence Act) to explain the circumstances within his knowledge, convicted the accused-appellant for offences under Section 302/201 IPC, by observing that the accused took the deceased, under the pretext of having a bath at the canal, to the grove where he indulged in unnatural sex with the deceased and, thereafter, strangulated him and hid his body in the bushes. While holding as above, the trial Court also observed that the accused had absconded as he had to be arrested by the police. 10. Assailing the judgement and order of conviction passed by the trial Court, the learned counsel for the appellant submitted that this is a case where there was no eye-witness account of the incident; there was no convincing evidence of unnatural offence therefore neither charge-sheet was filed under Section 377 IPC nor a charge to that effect was framed, hence the finding of the trial Court that the motive for the crime was unnatural sex is purely conjectural; that there was no evidence to disclose that the accused was seen with the deceased going towards the place i.e. grove from where the body was recovered or was seen coming out from that place at the relevant time; and that the observation that the accused had absconded is completely perverse inasmuch as the prosecution evidence itself was to the effect that the accused had returned back between 6 p.m. and 6.30 p.m. on the same day. Otherwise also, FIR was lodged on 8.6.2012 at 8.55 p.m. whereas arrest was effected at about 11 p.m. on 8.6.2012 therefore there was no occasion to come to a conclusion that the accused had absconded. Otherwise also, FIR was lodged on 8.6.2012 at 8.55 p.m. whereas arrest was effected at about 11 p.m. on 8.6.2012 therefore there was no occasion to come to a conclusion that the accused had absconded. It was contended that there was no recovery of any incriminating material from or on the pointing out of the accused and, as the body was found from a grove not belonging to the accused, the chain of circumstances were not complete so as to rule out all other hypothesis than the guilt of the accused. It was submitted, under the circumstances, shifting of onus/burden on the accused to explain as to how the deceased was murdered was uncalled for. Apart from above, it was contended that the evidence that the deceased left with the accused at about 5:00 p.m. on 6.6.2012 is also not convincing and reliable, inasmuch as PW1 and PW2 were admittedly not residents of the place where the Dhaba was; and the Dhaba owner (PW3) had not disclosed the identity of other workers at the Dhaba and they were also not produced to disclose the true story. It was pointed out that the place of occurrence, as per the statement of Investigating Officer, was just behind the Dhaba which, admittedly, runs till well past midnight and had 46 workers working there on regular basis, out of them, as per statement of PW3, at least, 20 were working in the night shift, therefore it is highly improbable that incident could have occurred at such a place, which was at close proximity to the Dhaba, between 5:00 p.m. and 7:00 p.m., on a peak summer day. It was submitted that there is no evidence to suggest that the murder was committed at another place, and the dead body was dragged and thrown at that place. It was submitted that the witnesses, who, allegedly, saw the deceased being taken away by the accused for a bath, are not reliable, firstly, because PW1 and PW2 are not residents of the place though they claim that they had arrived on 4.6.2012 i.e. two days before the date when deceased went missing; and, secondly, because they made no effort to lodge either FIR or missing report on 6.6.2012 or on the following day. In fact, they did not even disclose the efforts they made to search out the deceased on 7.6.2012. In fact, they did not even disclose the efforts they made to search out the deceased on 7.6.2012. Further, discovery of dead body by the brother of the deceased (PW1), upon sensing foul odour, while sitting at the Dhaba, appears to be a concocted story, inasmuch as, what was the justification for (PW1) to remain at the Dhaba for two days, particularly, when his own brother was not there and he himself was not a resident of that place. It was submitted that the circumstances suggest that after discovery of the body of the deceased, PW1 was informed and, thereafter, story was developed. It was submitted that the prosecution has not come out with best evidence, inasmuch as, all those workers, who were engaged at the Dhaba, which, according to PW3, were 46 in number during day time and about 20 in the night shift, have not been produced as witnesses, which warrants drawing of adverse inference against the prosecution. It was thus submitted that the appeal be allowed and the appellant be acquitted. 11. In reply to the submissions of learned counsel for the appellant, the learned A.G.A. submitted that the evidence led by the prosecution fully established that the deceased was last seen alive in the company of the accused on or about the probable time of his death; that all the three prosecution witnesses are consistent in their stand that the deceased had left with the appellant at about 5 p.m. on 6.6.2012 for taking a bath at the canal and, thereafter, the accused-appellant returned back alone between 6:00 and 6:30 p.m. on 6.6.2012 and, he, despite query, gave no satisfactory answer regarding whereabouts of the deceased, and, two days later, the body of the deceased was recovered. It was submitted that as post-mortem report dated 8.6.2012 estimated the probable time of death to be two days earlier, the burden was on the appellant to explain as to when and where the deceased parted his company. But since no evidence was led by the appellant to discharge that burden, and it was found that the deceased was murdered, presumption about appellant’s guilt was rightly drawn by taking the aid of illustrations (g) and (h) of Section 114 read with Section 106 of the Evidence Act. It was thus submitted that the order of conviction does not call for any interference. 12. It was thus submitted that the order of conviction does not call for any interference. 12. We have considered the rival submissions and have perused the record carefully. 13. As this case is based on circumstantial evidence and there is no ocular evidence of the incident, before we proceed to test the evidence led by the prosecution, it would be apposite to first notice the law relating to proof of guilt of an accused on the basis of circumstantial evidence. The Apex Court, after considering various precedents, in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , laid down the principles on which a case based on circumstantial evidence is to be appreciated with a view to find out whether an accused could be held guilty or not of the offence for which he is charged for. The principles are discernible from paragraphs 152 and 153 of the report, which are extracted below : 152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v. State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 153. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 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. 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: “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. 14. In the light of law noticed above, which has been consistently followed, we shall appreciate the prosecution evidence to find out whether the accused could be held guilty of the offences punishable under Sections 302/201 IPC on the basis of evidence led during the course of trial. 14. In the light of law noticed above, which has been consistently followed, we shall appreciate the prosecution evidence to find out whether the accused could be held guilty of the offences punishable under Sections 302/201 IPC on the basis of evidence led during the course of trial. The evidence that has come from the side of the prosecution in this case is that the deceased was last seen alive with the accused on 6.6.2012, at about 5 pm, at the Dhabha, leaving with the accused for bath at the canal, and, thereafter, the accused returned back alone between 6 pm and 6.30 pm on 6.6.2012, but the deceased was thereafter never seen alive. The evidence is also to the effect that the accused on his return, upon query, told that the deceased would be coming back shortly. However, the deceased did not return, though, later on 8.6.2012, between 7.30 am and 8 am, body of the deceased was discovered lying in a grove in just an underwear. The post-mortem, which was held on 8.6.2018, at about 5.15 pm, estimated time of death about two days before. In his oral testimony, the doctor (PW4) stated that the actual time of death could vary by plus or minus six hours. Which means that death could have occurred any time between 12 noon and 12 midnight on 6.6.2012. 15. The evidence of the deceased being last seen alive with the accused is a piece of circumstantial evidence, the value of which is to be assessed on the facts of each case keeping in mind the entire evidence on record. It should not be forgotten that ultimate burden to prove the guilt is on the prosecution. It is only when the circumstances are such that they tend to exclude all other hypothesis than the guilt of accused that the burden shifts, under Section 106 of the Evidence Act, on the accused to disclose those facts, of which he has special knowledge, which would serve as an explanation to hold him not guilty. In State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , the Apex Court, on the value of the evidence of the deceased being last seen with the accused, in the context of Section 106 of the Evidence Act, had observed as follows: “The principle is well-settled. In State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , the Apex Court, on the value of the evidence of the deceased being last seen with the accused, in the context of Section 106 of the Evidence Act, had observed as follows: “The principle is well-settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric 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.” (Emphasis supplied) 16. In State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 , the Apex Court had, in paragraph 34 of the report, observed: “34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. (Emphasis supplied) 17. In Nizam v. State of Rajasthan, (2016) 1 SCC 550 , the Apex Court, in the context of the evidence of the deceased being last seen with the accused, observed as follows: “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. In Nizam v. State of Rajasthan, (2016) 1 SCC 550 , the Apex Court, in the context of the evidence of the deceased being last seen with the accused, observed as follows: “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.” (Emphasis supplied) 18. In Nizam’s case (supra), the deceased was last seen with the accused leaving in a truck on 23.1.2001 and, thereafter, his body was found on 26.1.2001. The Apex Court, after analyzing the evidence of that case, observed, in paragraph 18 of the report, as follows: “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 time gap 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.” (Emphasis supplied) 19. Seen in the light of the law noticed above, when we go through the prosecution evidence, we find that the prosecution evidence does not disclose that the accused and the deceased were seen entering the grove, from where the body was recovered, at any point of time, on 6.6.2012. Seen in the light of the law noticed above, when we go through the prosecution evidence, we find that the prosecution evidence does not disclose that the accused and the deceased were seen entering the grove, from where the body was recovered, at any point of time, on 6.6.2012. There is also no evidence that the accused was seen coming out of the grove from where the body was recovered. Further, there is no evidence that any incriminating article, which could be linked with the accused, was recovered from the spot, where the body was found. Above apart, it is not the case that the grove belonged to the accused to which he alone had access. Further, there is no forensic evidence that by DNA profiling the blood constituents found in the anal smear could be linked to the appellant. Under the circumstances, there are many missing links, in the chain of circumstances, to rule out intervention of any other person in the crime so as to exclude all other hypothesis than the guilt of the appellant. 20. More over, as per the testimony of the doctor, the death could have occurred any time between 12 noon and 12 midnight on 6.6.2012. The deceased was seen with the accused at the Dhaba, leaving for bath at the canal, on or about 5 pm, on 6.6.2018, thereafter, as per the prosecution evidence, the appellant was seen back at the Dhaba, on or about 6.30 pm. Considering that there was considerable time gap between the deceased being last seen alive with the appellant and the discovery of his dead body, keeping in mind that death could have occurred any time between 12 noon and 12 midnight of 6.6.2012, the possibility of the deceased being murdered in the late hours of the night by some other person cannot be ruled out. In such circumstances, even if no evidence has been led by the accused, since the chain of circumstances itself is not complete to rule out all possible hypothesis other than the guilt of the accused, it would be unsafe to record conviction of the accused by taking the aid of Section 106 of the Evidence Act, particularly, in absence of any corroboratory evidence such as recovery of incriminatory material, etc. 21. Apart from above, there are other noticeable features in the prosecution evidence, which make it unsafe to record conviction. 21. Apart from above, there are other noticeable features in the prosecution evidence, which make it unsafe to record conviction. In that regard it may be observed that, according to PW2, the distance of canal from the Dhaba is about 1 and ½ km, whereas, according to PW3, the distance of canal from the Dhaba is 300 meters. PW3, the Dhaba owner, in his statement disclosed that the place of occurrence is about 200-300 meters away from his Dhaba, whereas the Investigating Officer disclosed that the distance of Canal (Nahar) from the Dhaba is 100-125 meters and the place of occurrence is just 40-50 meters from the Dhaba. From the oral testimony of the witnesses, it appears, the dead body was discovered by PW1 when he sensed foul odour, while he was at the Dhaba. Thus, it appears, the distance of the place, where the dead body was found, is not that far, say 200-300 meters from the Dhaba, as suggested by PW3, but appears to be 40-50 meters or even less, as stated by the Investigating Officer. As per prosecution case, the appellant left with the deceased at about 5 pm and returned back same day at about 6:00-6:30 p.m. Therefore, if the appellant had committed murder of the deceased, the murder must have been committed between 5:00pm and 6:30 p.m. Admittedly, the incident is of 6.6.2012 when summer is at its peak and there is sufficient light in the northern region of India up to at least 7 pm. If the incident had really taken place at that point of time, at the place from where the body was recovered, when, admittedly, a large number of workers were present at the Dhaba, any alarm could have invited attention of other workers. Therefore, it does not appear probable that the appellant would commit murder at that point of time and calmly walk back to the Dhaba immediately thereafter. Rather, he would abscond. But that does not appear to be the case here. The observation of the trial Court that the appellant had absconded because he had to be arrested by the police is completely misplaced inasmuch as it is the own case of the prosecution that the appellant had returned back and had met the witnesses on the same day (6.6.2012), at or about 6.00-6.30 pm. The observation of the trial Court that the appellant had absconded because he had to be arrested by the police is completely misplaced inasmuch as it is the own case of the prosecution that the appellant had returned back and had met the witnesses on the same day (6.6.2012), at or about 6.00-6.30 pm. In this case, a named FIR was lodged at about 8.55 am on 8.6.2012 and thereafter, arrest was effected, at or about 11 pm, on 8.6.2018. Hence, there was no basis to infer that the appellant had absconded. Therefore drawing adverse inference against the appellant on that count was completely misplaced. Like wise, there was no evidence worth the name for the trial Court to conclude that motive for the crime was unnatural sex. It is noteworthy, that there is no evidence to suggest about proclivity of the appellant to such sex. Hence, the observation of the trial Court about the motive is purely conjectural. 22. That apart, according to the post morterm report, the deceased was aged about 17 years and of average built, weighing about 60 kg. It is expected that a person of that age and built would offer resistance and it may not be easy to secretly kill him in close vicinity of a busy place, like a Dhaba, during the course of a summer day, without letting others know about it. In that context, it would be appropriate to observe that there had been an effort to hide the identity of other workers who were engaged at the Dhaba. As per statement of PW3, the Dhaba owner, there were about 46 workers engaged, on a regular basis, at his Dhaba, and at least 20 workers were engaged in the night shift. Identity of those persons have not been disclosed and they have not been examined as witnesses of fact. All this shows that there had been an attempt to suppress what could have been the best evidence. 23. Further, if PW1 and his friend PW2 had come all the way to meet his brother (the deceased) why would they not lodge a missing report either in the night of 6.6.2012 or on the next day. All this shows that there had been an attempt to suppress what could have been the best evidence. 23. Further, if PW1 and his friend PW2 had come all the way to meet his brother (the deceased) why would they not lodge a missing report either in the night of 6.6.2012 or on the next day. This also throws some doubt as to whether they were there as witnesses of the deceased being last seen with the accused on 6.6.2012 or had arrived on information when body of the deceased was recovered as is the suggestion of the defence. 24. For all the reasons mentioned above and upon taking a conspectus of the entire evidence led by the prosecution, we are of the firm view that on the basis of evidence brought on record, it would not be safe to sustain the conviction of the appellant. The benefit of doubt must therefore be extended to the accused-appellant. 25. We, accordingly, allow the appeal. The judgement and order dated 5.8.2013 passed by the Additional Sessions Judge, Court No. 1 Fatehpur in S.T. No. 278 of 2012 (State v. Mahendra Singh @ Dhoni) is hereby set aside. The appellant is held not guilty for offences punishable under Sections 302 & 201 IPC and is, consequently, acquitted of the charges. The appellant, Mahendra Singh @ Dhoni, who is reported to be in jail, shall be released forthwith, unless he is wanted in any other case. 26. We record our appreciation for the effort put in by Sri Dilip Kumar Srivastava, learned Amicus Curiae in assisting us. We, accordingly, provide that he shall be paid Rs. 15000/-, as remuneration for his effort, from the concerned fund. There is no order as to costs.