JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant stood convicted for committing an offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-(Ten Thousand) and if fine is not paid, then to undergo rigorous imprisonment for one year, vide Judgment of Conviction and Order of Sentence dated 26th April, 2011 passed by the learned Session Judge, Simdega in Session Trial No.48 of 2007. 3. The prosecution case is based on the fardbayan of Chowkidar of the Village (P.W.5). He says that he received an information that a dead body of an unidentified person was lying in the field. On receipt of such information, he reached the place of occurrence and saw that the dead body of a male was lying and two weapons, i.e., a knife and an axe were also found besides the dead body. None of the villagers could identify the dead body. It was suspected by him that some unidentified miscreants have committed murder of the deceased. 4. On the basis of the aforesaid fardbeyan, Simdega Police Station Case. No.142 of 2006 was registered for offence punishable under Section 302 of the Indian Penal Code against unknown. The police investigated the case and thereafter filed charge sheet against the appellant. Charge was framed against the appellant on 23.05.2007 for committing an offence under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried, upon which he was put on trial. 5. To prove the case of the prosecution, 8 (eight) prosecution witnesses were examined, i.e., P.W.1 Budhuwa Munda, P.W.2 Bimal Nayak, P.W.3 Kawleshwar Nayak, P.W.4 Suresh Nayak, P.W.5 Dasrath Baraik, P.W. 6 Dr. Krishna Kumar Sharma, P.W.7 Sukhdeo Manjhi and P.W.8 Rambaran Singh. (a) P.W.2 Bimal Nayak is the inquest witness. (b) P.W. 4 Suresh Nayak has stated that he has got no knowledge about the deceased nor about the person who has committed the murder. (c) P.W.5 Dasrath Barak is the Chowkidar and he is informant also, who admittedly, is not an eye witness. (a) P.W.2 Bimal Nayak is the inquest witness. (b) P.W. 4 Suresh Nayak has stated that he has got no knowledge about the deceased nor about the person who has committed the murder. (c) P.W.5 Dasrath Barak is the Chowkidar and he is informant also, who admittedly, is not an eye witness. He supported his version, which he narrated in the FIR, that he received information about the unknown dead body and went to the place of occurrence and had seen the dead body and the weapons, which were allegedly used for murder. (d) P.W.1 is Budhuwa Munda, has stated that he along with the deceased and this appellant went to see the Mela, where these two persons, i.e., the appellant and the deceased left him. He also stated that while going to the Mela, this appellant had taken a knife, on the pretext that since it is night, they should keep it for their safety. He stated that the father of the deceased came to him to inquire about the whereabouts of his son, when he stated that his son had left with this appellant. He stated that thereafter he came to know about the death of the appellant and he suspected that it must be this appellant, who committed the murder. He identified the appellant in Court. In cross examination, he has stated that he has not seen as to who has committed murder of Karma Manjhi. He has also stated that he had not seen the dead body also. He stated that in the police station, he had seen the knife, which the appellant had carried with him. He stated that since the appellant was with the deceased, he suspected that the appellant might have committed murder of the deceased. (e) P.W.3 Kawleshwar Nayak is alleged to be the eye witness of the said occurrence. He stated that he had also gone to Mela and while he was returning, he had seen this appellant committing murder of the deceased. He stated that out of fear, he fled from the place of occurrence. In cross examination, he has stated that the police had recorded his statement under Section 161 of the Code of Criminal Procedure, but, he had not stated that this appellant had committed murder and nor he stated that he is the eye witness to the occurrence. He stated that out of fear, he fled from the place of occurrence. In cross examination, he has stated that the police had recorded his statement under Section 161 of the Code of Criminal Procedure, but, he had not stated that this appellant had committed murder and nor he stated that he is the eye witness to the occurrence. (f) P.W.7 Sukhdeo Manjhi is the father of the deceased. He has stated that his son had gone to see the Mela with Budhuwa Munda. He further stated that his son did not return when he inquired from Budhuwa Munda (P.W.1), he stated that his son has been murdered. He stated that there was some love triangle between the deceased, the appellant and one lady Dayawanti and because of the said love triangle, this occurrence had taken place. In cross examination, he also stated that it is the Budhuwa Munda, who had narrated before him that it is this appellant, who had committed murder of the deceased. Admittedly, this witness is also not an eye witness of the said occurrence. (g) P.W.6 is the doctor, who has conducted the postmortem of the deceased. He has found the following injuries: - (i) Injury No.1 incised wound of size about 6” x 1” cutting trachea, Oesophagus, and vessels of throat. (ii) Injury No.2 abrasion 1 ½ x 1” over right hand (palm) He opined that the Injury No.1 was caused by sharp cutting object like knife and axe whereas injury No.2 was caused by hard and blunt substance like back of axe. Both the injuries are ante-mortem in nature. Cause of death was due to hemorrhage and shock produced by injury No.1. Doctor was not cross examined. (h) P.W.8 is the investigating officer, who stated that some spies had informed him about the appellant, who had committed the murder. He stated that this appellant was arrested and his confession was recorded and on his confession, the murder weapon was recovered. He stated that he has submitted charge sheet in this case. 6. Some documents were also exhibited during evidence. He stated that this appellant was arrested and his confession was recorded and on his confession, the murder weapon was recovered. He stated that he has submitted charge sheet in this case. 6. Some documents were also exhibited during evidence. The documents, which were exhibited are: Exhibit 1 : Signature of Bimal Nayak on the Inquest Report Exhibit 2 : Fardbayan Exhibit 3 : Postmortem Report Exhibit 4 : Formal FIR Exhibit 5 : Carbon Copy of Inquest Report Exhibit 6 : Confessional Statement of the appellant Exhibit 7 : Carbon copy of the seizure list. 7. After closure of the evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure in which he has denied the entire allegation, which has been leveled against him. No evidence was led by him. 8. After hearing the arguments of learned counsel for the parties, by Judgment of Conviction and Order of Sentence dated 26th April, 2011 passed in Session Trial No.48 of 2007, the Trial Court found the appellant guilty for committing the offence under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life with a fine of Rs.10,000/-and if fine is not paid then to undergo rigorous imprisonment for one year. 9. Aggrieved by the said judgment of conviction and the sentence, the appellant has preferred this appeal before this Court. 10. We have heard learned counsel for the appellant and the learned A.P.P. appearing for the State. 11. Learned counsel, appearing on behalf of the appellant, submits that there is no eye witness to the said occurrence. He submits that P.W.3 is absolutely not a reliable witness and his evidence cannot be relied upon, simply because he had not stated before the police that he had seen the occurrence. For the first time in Court, he has posed before the Court to be an eye witness. So far as evidence of P.W.1 is concerned, he is also not an eye witness. He himself has stated that he is only suspecting that this appellant might have committed murder of the deceased. At best, it is a case of last seen because as per P.W.1, this appellant has accompanied the deceased in the Mela. So far as evidence of P.W.1 is concerned, he is also not an eye witness. He himself has stated that he is only suspecting that this appellant might have committed murder of the deceased. At best, it is a case of last seen because as per P.W.1, this appellant has accompanied the deceased in the Mela. He further states that on the basis of the last seen theory, which is very weak piece of evidence, that too in a Mela which is a crowded place, the appellant cannot be convicted. He further argues that if the evidence of P.W.3 is discarded, there is no material against the appellant, which is sufficient to convict him. He further submits that the evidence of investigating officer is also contradictory as because he says that the murder weapon was recovered on the confession of the appellant, but, it is the prosecution case as per the FIR and also the version of P.W.5 that the murder weapon was already present at the place of occurrence, when the body was recovered. He further argues that P.W.7 has stated that Budhuwa Munda had disclosed before him that the appellant had committed murder of the deceased, but, surprisingly, P.W.1 has not stated the aforesaid fact. He further submits that as per P.W.1, it is the P.W.1 and P.W.7 who went to the police station to give information about the son of P.W.7, who went missing, but, this fact has not been narrated by the investigating officer. The Investigating Officer has never stated that P.W.1 and P.W.7 had gone to the police station to give information about his missing son, when they came to know about the death of the son of P.W.7. He submits that thus, the conviction of the appellant is absolutely bad and he deserves to be acquitted by setting aside the impugned judgment and order of sentence. 12. Learned A.P.P. appearing for the State opposes the prayer and submits that P.W.1 has categorically stated that this appellant and deceased had left Mela premises and the appellant was carrying a knife. He submits that same knife was found from the place of occurrence. Thus, it can safely be concluded that appellant has committed murder of the deceased. He submits that the impugned judgment and order of sentence passed by the Trial Court need no interference. 13. He submits that same knife was found from the place of occurrence. Thus, it can safely be concluded that appellant has committed murder of the deceased. He submits that the impugned judgment and order of sentence passed by the Trial Court need no interference. 13. After hearing the counsel for the parties, we find that P.W.3 is not a reliable witness. He poses himself to be the eye witness, but, surprisingly, for the first time in Court he stated that he had seen the occurrence. He himself admitted that he had not given such statement before the investigating officer. This conduct of P.W.3 establishes that he is not a reliable witness. Thus, his statement cannot be considered. 14. Now the only witness, which remains is P.W.1. He says that he, the deceased and the appellant had gone to the Mela. He has stated that the appellant and the deceased had left him and went from the Mela, but, they did not return. Later on, he came to know that the deceased has been murdered. Thus, he suspected that appellant has committed murder of the deceased. He stated that the genesis of the occurrence is a love triangle between one Dayawanti, the deceased and the appellant. In cross examination, he stated that he does not know who has killed the deceased nor he has seen the occurrence. He stated that he along with the father of the deceased had gone to the police station where he had identified the knife, which the appellant had carried with him. 15. Now, if we read the evidence of P.W.1 with the evidence of P.W.7, who is the father of the deceased, we find that the father of the deceased has stated that when he inquired from the P.W.1 about the whereabouts of the deceased, P.W.1 had stated to him that it is this appellant, who had committed murder of the deceased. This statement of P.W.7 is not corroborative with the statement of P.W.1 as P.W.1 never stated that he had informed the father of the deceased (P.W.7) that the appellant had committed the murder. Further, from the evidence of P.W.1, at best, we can say that it is a case of last seen. Save and except the last seen theory, there is nothing more to establish the connectivity between the accused and the crime. Further, from the evidence of P.W.1, at best, we can say that it is a case of last seen. Save and except the last seen theory, there is nothing more to establish the connectivity between the accused and the crime. Furthermore, the alleged murder weapon was not produced before the Court. There is also no FSL Report to suggest as to whether those weapons were used in the crime. We further find that P.W.1 is the only witness produced by the prosecution to prove the fact that the appellant was in the Mela with the deceased when there was high probability that other persons could have also seen him. No other witness were produced to suggest that the appellant was in the mela with the deceased. 16. Thus, on the facts of the case and the evidence adduced, we feel that the materials collected is not sufficient to convict the appellant. 17. Further, the Hon’ble Supreme Court, in the case of Nizam versus State of Rajasthan, reported in (2016) 1 SCC 1 550, has held that it is a well settled theory 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 that the circumstances that precede and follow the point of being last seen. 18. Thus, applying the said judgment, we find that in this case, save and except the “last seen theory”, there is nothing against the appellant to convict him. 19. In the result, we come to the conclusion that conviction of this appellant and sentence awarded by the Trial Court is absolutely bad. We set aside the Judgment of Conviction and Order of Sentence dated 26th April, 2011 passed by the learned Session Judge, Simdega in Session Trial No.48 of 2007. The appellant, who is in custody, is directed to be released and set at liberty forthwith, if his custody is not required in any other case. 20. This appeal, accordingly, stands allowed. 21. The Amicus Curiae has very ably assisted this Special Bench, that too on a holiday. The Secretary, Jharkhand High Court Legal Services Committee is directed to reimburse the fee of the Amicus Curiae, as per the schedule. 22. Let a copy of this order be communicated to the Secretary, Jharkhand High Court Legal Services Committee for needful. 21. The Amicus Curiae has very ably assisted this Special Bench, that too on a holiday. The Secretary, Jharkhand High Court Legal Services Committee is directed to reimburse the fee of the Amicus Curiae, as per the schedule. 22. Let a copy of this order be communicated to the Secretary, Jharkhand High Court Legal Services Committee for needful. 23. Let the Lower Court Records be transmitted to the Court concerned forthwith along with a copy of this judgment.