JUDGMENT : Mir Alfaz Ali, J. Heard learned counsel, Mr. A.Dasgupta for the appellants and learned Addl. P.P., Ms. S. Jahan for the State-respondent. 2. This appeal is directed against the judgment and order passed by the learned Sessions Judge, Dhubri in Sessions Case No.251/2014, whereby, the learned Addl. Sessions Judge convicted the appellants under section 302 IPC and sentenced them to imprisonment for life and fine of Rs.2,000/- each with default stipulation. 3. An FIR was lodged by Jibesh Ch. Ray @ Jibu (PW-11) alleging, that on 09-10-11 at about 10 pm, the accused persons Sibu Ram Ray, Manik Ray and Debendra Nath Ray picked up quarrel with the informant Jibesh Ch. Ray and abused him with filthy language and they also assaulted the informant Jibesh Ch. Ray. When he raised alarm, the deceased Hemant Kumar Ray came there for his rescue, whereupon the said accused persons named in the FIR assaulted Hemanta Ray causing grievous injury, as a result of which, the deceased met with instantaneous death. On the basis of the said FIR, police registered Golakganj P.S. No. 519/2011 u/s 294/323/302/34 and commenced investigation. In course of investigation, police recorded the statement of the witnesses, prepared the inquest report, sent the body for post mortem examination and Dr. Hafizur Rahman conducted the post mortem examination on the body of the deceased. 4. The autopsy doctor (PW-10), who conducted post mortem examination found the following injuries :- 1. Deep lacerated injury on the left side of the chest deep into the lungs and chambers of heart measuring 1 "x 1 at the entry point of the injury. No exist point of the injury. 2. 1 x 1 x 1 inch laceration seen on the left hand, dorsal aspect. Page No.# 3/9 3. Deep penetrating injury at left iliac region and left flanks measuring 1 x 1 inch and 1 x 1 inch at the entry point respectively. 4. Multiple penetrating injuries perforating the large intestine are seen. 5. Left kidney was found ruptured with penetrating injury. 6. Urinary bladder ruptured. Left lung, pericardium of the heard was found ruptured. 7. Left chamber of the heart are perforated and empty. 5. In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of the injuries, which were ante-mortem in nature. 6. 5. Left kidney was found ruptured with penetrating injury. 6. Urinary bladder ruptured. Left lung, pericardium of the heard was found ruptured. 7. Left chamber of the heart are perforated and empty. 5. In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of the injuries, which were ante-mortem in nature. 6. On completion of the investigation charge-sheet was laid against all the three accused persons named in the FIR and eventually they stood trial. 7. In course of trial, charges were framed against the three accused persons including the present appellants u/s 352/302 IPC read with Section 34 IPC, to which they pleaded not guilty. Twelve witnesses were examined by the prosecution in order to bring home the charges against the appellants and on appreciation of evidence learned Sessions Judge convicted all the three appellants u/s 302 IPC and awarded sentence as indicated above. During pendency of the appeal, the appellant Debendra Nath Ray died and therefore, only the appellants Manik Ch. Ray and Sibu Ray are now before us. 8. Learned counsel for the appellants, Mr. Dasgupta strenuously arguing for acquittal of the appellants submits, that there was no direct evidence and the circumstantial evidence relied by the learned trial court was not of conclusive nature so as to lead to the irresistible conclusion of guilt of the accused. It is also pointed out by the learned counsel for the appellants, that the prosecution evidence reflected multiple place of occurrence. Learned Addl. Public Prosecutor, however, supported the judgment of the trial court. 9. We have meticulously scrutinized the evidence and materials brought on record. On our assessment of the evidence and perusal of the impugned judgment, we find that the learned trial court primarily relying on the ''last seen theory'' recorded the conviction of the appellants. We also notice that the learned trial court heavily relied on the oral testimony of PW-3 and PW-4, inasmuch as, the "last seen theory" also emanates from the oral testimony of PW-4 being the wife of the deceased. 10. Pw-4 stated in her evidence, that on 09-10-2011 there was a quarrel going on in the house of the appellant Manik Ray and Manik came to her house and took along the deceased with him for settlement of the dispute. 10. Pw-4 stated in her evidence, that on 09-10-2011 there was a quarrel going on in the house of the appellant Manik Ray and Manik came to her house and took along the deceased with him for settlement of the dispute. She also stated, that after departure of her husband (deceased), she was standing outside the house and a little later she heard noise in the house of the accused persons. Suddenly the noise subsided, and then, she immediately rushed to the house of the appellants, but found none inside the house. She further stated that the inmates of the house were running around. Thereafter, she rushed to the house of Badra Nath (PW-3) and requested him to go to the place of occurrence and to see as to what had happened. She further stated, that one Jamini told her that her husband was not available inside the house of the appellants. During cross-examination, this witness stated that the place of occurrence was at a hearing distance from her house. She further stated that the place of occurrence was "Buri Dham", where preparation was going on for performance of puja. 11. Pw-3, stated that having come to know about the occurrence from PW-4, he went to the place of occurrence on a bicycle and on arriving at the place of occurrence, he found that Hemanta was lying in an injured condition on the ground and he was not in a position to talk. He further stated that when he learnt that the place of occurrence was in the house of Debendra Nath Ray, he immediately informed the police and at about 12 O'clock at midnight police arrived and he again accompanied the police to the place of occurrence. In cross-examination, he stated that the place of occurrence was near a ditch, used for processing jute. He also stated to have found a crowd of 200/300 persons at the place of occurrence. According to him, the body of the deceased was lying in a ditch floating on the water. 12. Pw-5 testified, that on hearing hue and cry at "Buri Dham", which was located near the house of accused persons, he immediately came to the place of occurrence and found the body of the deceased Hamenta lying with injuries. 13. Pw 2, PW-7 and PW-8 were declared hostile by the prosecution. 12. Pw-5 testified, that on hearing hue and cry at "Buri Dham", which was located near the house of accused persons, he immediately came to the place of occurrence and found the body of the deceased Hamenta lying with injuries. 13. Pw 2, PW-7 and PW-8 were declared hostile by the prosecution. PW-2 stated, that having heard about the occurrence, he came to the place of occurrence and found the body of the deceased lying there. According to PW-7 and PW-8, their house was far away from the place of occurrence and therefore, they pleaded ignorance about the occurrence. During their cross-examination, prosecution could not elicit anything. We further notice that even in the previous statement of these three witnesses, which were confirmed by police, they stated to have heard about the occurrence from others. It is the settled position of law, that the testimony of the hostile witness does not get washed off the record, merely because of he/she being declared hostile or his/her testimony being disowned by the prosecution. The evidence of the hostile witness, to the extent found to be consistent with the other prosecution evidence can very well be taken into consideration. However, we find nothing in the oral testimony of PW-2, PW-7 and PW-8, worthy of placing reliance. 14. Pw-1 stated that having heard about the occurrence he arrived at the place of occurrence and found the body of the victim lying there and there were also a large crowd near the body of the deceased. PW-9 was the doctor, who attended the informant Jibesh Ch. Ray and found no external injury on his person. 15. Pw-11, who happened to be the brother of the deceased and also the first informant, pleaded ignorance about the occurrence and stated that he was not aware about the contents of the FIR. 16. On our assessment of the oral testimony of the prosecution witnesses, we find, that the evidence of PW-4 regarding accused Manik Ray, having come to their house and taking the victim along with him to settle some family dispute remained uncontroverted. 16. On our assessment of the oral testimony of the prosecution witnesses, we find, that the evidence of PW-4 regarding accused Manik Ray, having come to their house and taking the victim along with him to settle some family dispute remained uncontroverted. Learned trial court recorded conviction of the appellant primarily on 'last seen theory', on the basis of the said evidence of the PW-4, that the deceased was seen in company of the accused Manik Ray immediately prior to the occurrence and the body of the deceased have been found at the place of occurrence, which was adjacent to the house of the appellant and failure of the appellant to give explanation as to how the death of the deceased was caused. 17. We find no evidence or material on record to show that the other appellants Sibu Ram Ray and Debendra Nath Ray were there with Manik Ray when the occurrence took place, nor there was any evidence of the deceased being seen along with them immediately prior to the occurrence. Therefore, we find no reason to attribute the circumstances of "last seen theory" to the other two appellants, i.e, Sibu Ray and Debendra Nath Ray (since deceased). Evidently the place of occurrence was near the house of the deceased at a hearing distance and in close proximity to the house of the appellant, where preparation was going on for performance of puja. It is also in the evidence of PW-3, that about 200/300 persons arrived at the place of occurrence. PW-4 also stated in her evidence that she heard noise in the house of the appellant and when suddenly such noise subsided, she went to the place of occurrence and found the inmates of the house of the appellants running around. She also stated that neither her husband (deceased), nor any other person was found in the house of the appellants. Evidently the body of the deceased was found by the side of the road. According to the PW-3, the body of the deceased was floating on the water in a ditch. However, from the sketch map, it is apparent that the ditch was by the side of the road. 18. Evidently the body of the deceased was found by the side of the road. According to the PW-3, the body of the deceased was floating on the water in a ditch. However, from the sketch map, it is apparent that the ditch was by the side of the road. 18. What therefore, transpires from the evidence of PW-3, PW-4 and PW-5 is that though, the appellant Manik Ray came to the house of the deceased and took the deceased along with him to the place of occurrence in order to settle some dispute, evidently a large number of people gathered at the place of occurrence and the preparation for puja was going on. It is also in the evidence of PW-4, that she had seen the inmates of the house of the appellants running around and the deceased was not in the house of the appellant. Therefore, even if it is accepted, that the appellant Manik Ray was seen in company of the deceased when he left the house with the deceased, apparently the place, where the occurrence took place, or the deceased was taken by Manik, was not a private place, nor Manik Ray was alone with the deceased. Rather, there was huge number of people. Immediately after the occurrence, the PW-5 came and found the body of the deceased lying there. Admittedly the deceased was the own brother of the appellants Manik Ray and Sibu Ray. In view of the above evidence on record, though, the victim went out along with the accused Manik Ray, it is difficult to say, that only Manik Ray or the other appellants were with the deceased immediately before his death or there was no possibility of any other persons being with deceased and assaulting him causing his death. 19. The last seen theory can be pressed into service, if the time gap between the point of time, when the deceased was last seen alive with the accused and when the victim was found dead is very small and also that the probability of some other person/persons intruding in between was bleak. 19. The last seen theory can be pressed into service, if the time gap between the point of time, when the deceased was last seen alive with the accused and when the victim was found dead is very small and also that the probability of some other person/persons intruding in between was bleak. The Apex Court in Amitava Benerjee-Vs- State of West Bengal, (2011) AIR SC 2913 observed that 'last seen theory' is a highly incriminating circumstance, when corroborated by the medical evidence fixing the time of death and other circumstances proved in the case are explainable only on the basis of the hypothesis that the appellant was guilty of killing the deceased". The Apex Court in State of U.P. Vs Satish, 2005 AIR SC 100 observed that "last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small, that possibility of any person, other than the accused being the author of crime, becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused, when there is a long gap and possibility of other person existed. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to the conclusion of guilt in those cases." The Apex Court in Paramshivam Vs- State, 2014 AIR (SC) observed that "presumption as to who have committed the murder can be drawn on the basis of 'last seen theory' where the prosecution proved that it is the accused alone who knew what happened to him as the deceased was found murdered within a short time after abduction and the accused had failed to give explanation". Therefore, in order to raise a presumption of the accused being the perpetrator of the offence on the basis of "last seen theory" prosecution has to prove beyond doubt, that it was the accused alone, who can throw light on the facts as to how the death of the deceased was caused or it was within his special knowledge because of the deceased being last seen alive with him, immediately before death and probability of some other person intruding in between does not exist or such a probability becomes impossible. 20. In the present case from the evidence, it is apparent that though, appellant Manik Ray, who happens to be the brother of the deceased, took the deceased along with him telling that some dispute was to be settled in their house, there were large number of people arranging puja at the place the occurrence, and as such, the possibility of some person/persons other than the appellant Manik assaulting the victim causing the fatal injury, leading to his death could not be ruled out. When there was also a possibility of other persons being the author of the crime, and the facts and circumstances suggested that the deceased was not with the appellant Manik alone, rather there were large number of people, in our considered view, the appellant Manik Ray alone could not be saddled with the responsibility to explain as to how the death of the deceased was caused by putting a reverse burden on him u/s 106 of the Evidence Act. Therefore, having regard to the evidence and facts and circumstances of the case, we are unable to concur with the findings of the learned Sessions Judge, that only the appellants were with the deceased immediately before his death and owed an explanation u/s 106 of the Evidence Act. 21. One must not lose sight of the fact, that in a criminal trial, it is the burden of the prosecution to prove the guilt, and the accused has a right to keep silent. Unless the facts and circumstances of the case proved by the prosecution clearly indicates the incriminating circumstances to be within the special knowledge of the accused, he cannot be saddled with the responsibility to explain such circumstances, nor the accused is under obligation to prove his innocence, unless the prosecution proves it's case beyond reasonable doubt. When evidently the deceased was not with the appellant Manik Ray alone and admittedly before the occurrence, there were large number of people at the place of occurrence, in our considered opinion, the "last seen theory'' cannot be invoked in the present case to rope in the appellant Manik Ray with the commission of the offence for the simple reason, that there were many others present at the time of occurrence, besides Manik Ray. 22. 22. It is the settled principle that when the criminal case rests solely on the circumstantial evidence, prosecution is required to prove the complete and unbroken chain of circumstances, which leads to the sole conclusion that it was none else, but the appellant, who was the perpetrator of the offence. If the circumstances are such, that there is also a possibility of person/persons other than the accused being the perpetrator of the offence, the accused cannot be convicted on the basis of such circumstances, which may also be consistent with his/their innocence. Thus, having considered the evidence in its totality as discussed hereinabove, we are of the considered opinion, that prosecution has not been able to establish beyond reasonable doubt the circumstances or chain of events for leading to the irresistible conclusion that it was the accused/appellant Manik Ray, who was the perpetrator of the offence. Rather, from the evidence and materials brought on record, some other conclusion, consistent with his innocence is also probable. Therefore, we are of the opinion that the prosecution evidence falls short of proving the charge against the appellant Manik Ray beyond reasonable doubt. So far the other accused Sibu's complicity is concerned, we find absolutely no material against him, and as such, the conviction and sentence of the appellants cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellants and allow the appeal. 23. The appellants be set at liberty forthwith, if not required in any other case. 24. We do not interfere with the order passed by the learned Sessions Judge in the impugned judgment to the extent of compensation to be paid to the victim or the dependent/dependants of the victim u/s 357-A CrPC. 25. The appeal stands allowed. 26. Send back the LCR