JUDGMENT : Rajendra Kumar, J. 1. Present Jail Appeal has been directed against the judgment and order dated 31.07.2009 passed by Additional Session Judge, Moradabad in Session Trial No. 27 of 2002, State vs. Badan Singh and Others under Section 302, 201 IPC, Police Station Kurh Fatehgarh, District Moradabad, whereby Trial Court has convicted accused Badan Singh and sentenced him to life imprisonment and a fine of Rs. 2,000/- under Section 302 IPC, 2 years R.I. under Section 201 IPC while acquitting accused Moolchand and Tikaram under the aforesaid sections. 2. Prosecution case in short is that PW-1 Komil presented a written report (Exhibit Ka-1) in the police station concerned stating therein that on 9.9.2001 at about 5.00 P.M. he himself and his brother Ram Prasad (victim) were sitting in the Verandah of one Chiranjee Singh, when accused Badan Singh came there and called upon him and on the pretext that there erupted some dispute amongst his relatives in village Imratpur, took the victim with him to settle the dispute. PW-2 Chiranji Singh and Sohan Lal Maurya, who were present there, have also seen Ram Prasad going with the company of the accused Badan Singh. When his brother did not come back for two days, he (informant PW-1) visited Ram Singh (brother in law) to know about Ram Prasad. Ram Singh told that Ram Prasad had not come there. On this, informant inquired Badan Singh accused about his brother whereupon he answered that on hearing news of compromise amongst relatives, the victim had returned to Jahangirpur the same day but Badan Singh was perplexed while saying this. Informant alongwith other colleagues searched Ram Prasad everywhere in relations but failed. On 14.9.2001, dead body of Ram Prasad was found in sugarcane field of Chunni. Body was damaged by some animals and decomposed and there were maggots in the body. It was also doubted by the informant that Ram Prasad was murdered by accused Badan Singh, Kishanlal, Tikaram and Veerpal on account of enmity with Kishanlal, Veerpal and Tikaram. Tehrir (written report) was got scribed by one Jaswant Singh. 3. On the basis of written report (Exhibit Ka-1), Chik FIR (Exhibit Ka-3) was registered by PW-4 Lala Ram Sharma in police station being Case Crime No. 138 of 2001 under Sections 302, 201 IPC. 4. Tehrir (written report) was got scribed by one Jaswant Singh. 3. On the basis of written report (Exhibit Ka-1), Chik FIR (Exhibit Ka-3) was registered by PW-4 Lala Ram Sharma in police station being Case Crime No. 138 of 2001 under Sections 302, 201 IPC. 4. Investigation of the case was handed over to S.I. Sri Hori Lal Gangwar, PW-8 who visited the spot, prepared site plan and conducted the inquest of dead body, sent it for post mortem and recorded the statement of witnesses. 5. Dr. Sandeep Kumar Rastogi, PW-7 conducted autopsy of deceased Ram Prasad and prepared post mortem report (Ex.Ka-6) under his signature. 6. Further investigation of the case was taken over by then S.O. Sumer Lal (PW-5), who after completing all formalities of investigation submitted charge sheet Ex. Ka-5 against the accused appellant and three others. 7. Case being exclusively triable by Court of Sessions, was committed to Session Judge for trial wherefrom, it was transferred to Additional Sessions Judge for disposal according to law. 8. A charge was framed against accused appellant on 23.2.2002 under Sections 302 and 201 IPC to which accused denied and claimed trial. Ka-5 against the accused appellant and three others. 7. Case being exclusively triable by Court of Sessions, was committed to Session Judge for trial wherefrom, it was transferred to Additional Sessions Judge for disposal according to law. 8. A charge was framed against accused appellant on 23.2.2002 under Sections 302 and 201 IPC to which accused denied and claimed trial. Charges reads as under: ^^eSa rstohj flag vij l= U;k;k/kh'k dksVZ la[;k&12 eqjknkckn vki vfHk;qDrx.k cnu flag] ohjiky] Vhdkjke vkSj ewypUæ dks fuEufyf[kr vkjksiksa ls vkjksfir djrk gwa %& ¼1½ ;g fd fnukad 9-9-2001 dks le; djhc 5%00 cts lka; LFkku xzke tgkaxhjiqj Fkkuk dq<Qrsgx< tuin eqjknkckn ls vki esa ls cnu flag oknh eqdnek dksfey ds HkkbZ jke Álkn dks xzke bejriqj esa viuh fj'rsnkjh esa QSlyk djkus ds cgkus ys x;sA vkSj jkeÁlkn dh gR;k vki yksxksa us ,d jk; gksdj xkao ds taxy esa mDr frfFk o 14-9-2001 ds e/;dkfjr dh bl Ádkj vkius /kkjk 302 lgifBr /kkjk 34 HkkŒnaŒlaŒ ds v/khu n.Muh; vijk/k fd;k tks bl U;k;ky; ds ÁlaKku esa gSA ¼2½ ;g fd mijksDr fnukad le; ,oe~ LFkku ls oknh eqdnek dksfey ds HkkbZ jkeizlkn dk xzke bejriqj esa fj'rsnkjh esa QSlyk djkus ds cgkus ys tkdj vkius jkeÁlkn dh gR;k dkfjr dh vkSj mldh yk'k dks pqUuh iq= uUn fd'kksj dh bZ[k esa fNikus ds vk'k; ls Qsad fn;k vkSj bl Ádkj vkius /kkjk 201 lgifBr /kkjk 34 HkkŒnaŒlaŒ ds v/khu n.Muh; vijk/k fd;k tks bl U;k;ky; ds ÁlaKku esa gSA ,rn~}kjk vkidks funsZ'k fn;k tkrk gS fd mijksDr vkjksiksa ij vkidk fopkj.k bl U;k;ky; }kjk fd;k tk;sA** I Tejveer Singh, Additional Sessions Judge, Court No. 12, Moradabad, charge you accused Badan Singh, Veer Pal, Teeka Ram and Mool Chand as under: "(1) That on 9.9.2001 at about 5:00 pm from village Jahagirpur, P.S. Kurh Fatehgarh, District Moradabad, Badan Singh from amongst you took away Ram Prasad brother of informant Komil Singh to village Imratpur on the pretext of getting a dispute amongst you relatives resolved and in furtherance of your common intention of you all committed murder of Ram Prasad in jungle near the village between the aforesaid date and 14.9.2001. Thus you all committed an offence punishable under Section 302 read with Section 34 IPC and within cognizance of this Court. Thus you all committed an offence punishable under Section 302 read with Section 34 IPC and within cognizance of this Court. (2) That on the aforesaid date, time and place after taking away Ram Prasad, brother of informant Komil on the pretext of resolving a dispute amongst relatives in village Imratpur, you all caused murder of Ram Prasad and threw his dead body in a sugarcane field with intention to disappear the evidence and thereby you committed an offence punishable under Section 201 read with 34 IPC and within cognizance of this Court. And I hereby direct you be tried for the aforesaid charges." (English Translation by Court) 9. In support of his case, prosecution examined PW-1 Komil, PW-2 Chiranji Lal, PW-3 Sohan Lal as witnesses of fact. PW-4 Constable Clerk Lala Ram Sharma, PW-5 S.I. Sumer Lal, PW-6 Sudhanva Singh I.O., PW-7 Dr. Sandeep Kumar Rastogi and PW-8 S.I. Hori Lal Gangwar formal witnesses were examined in oral evidence, who have proved FIR, written report, recovery memo, P.M. report, panchayatnama (Ex.Ka-2) and charge sheet as documentary evidence. 10. Statement of accused under Section 313 Cr.P.C. was recorded by Court explaining all incriminating other evidence and circumstances. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication on account of enmity of partibandi (groupism) but produced no defence. 11. After analyzing entire evidence led by prosecution, learned trial court convicted accused appellant as stated above. Feeling aggrieved with impugned order of conviction, the present appeal has been filed from Jail. 12. We have heard Sri Gaurav Sharma, Advocate (Amicus Curiae) for appellant and Sri Ratan Singh, learned A.G.A. for State-respondents at length and have gone through the record available on file carefully. 13. Learned Amicus Curiae made following submissions:- (i) This is a case of circumstantial evidence and there is no motive to accused to commit murder of Ram Prasad. (ii) There is no complete chain of evidence so as to indicate that accused is the only person who has committed crime. (iii) There is no evidence of murder or unnatural death of Ram Prasad. (iv) Medical evidence is not compatible with oral evidence. (v) As per post mortem report, death of Ram Prasad might be occurred 21-30 days prior to post mortem. (vi) There are several contradictions rendering prosecution case doubtful. (iii) There is no evidence of murder or unnatural death of Ram Prasad. (iv) Medical evidence is not compatible with oral evidence. (v) As per post mortem report, death of Ram Prasad might be occurred 21-30 days prior to post mortem. (vi) There are several contradictions rendering prosecution case doubtful. (vii) FIR has been lodged by PW-1 (brother of victim) close relative of deceased after five days without explaining any sufficient reason for delay in lodging FIR. 14. Per contra learned AGA opposed submissions by submitting that PWs. 1, 2 and 3 are witnesses of fact, who have seen accused carrying Ram Prasad (victim). Since then Ram Prasad did not come back to his house and his dead body was found in sugarcane field of Chunni, therefore, accused is the only and only person who committed murder of Ram Prasad. 15. We now proceed to consider rival submissions on merits. 16. It is evident from record that PWs. 1, 2 and 3 are witnesses of fact, they proved theory of last seen. All three witnesses have established that victim was seen going with accused at about 5:00 p.m. on 09.09.2001 from Verandah of one Chiranji Singh. It has come in statement of PW-1 that victim could not return back home for two days and his dead body was found on 14.09.2001 in the sugarcane field of Chunni. There is no other evidence except theory of last seen to connect accused with present case. 17. PW-1 real brother of deceased has not lodged any FIR till dead body is found. Explanation for not lodging FIR has not been properly given by informant. 18. PW-7 Dr. Sandeep Kumar Rastogi deposed that on 15.09.2001, he was posted as Medical Officer in District Hospital, Moradabad. He conducted autopsy on the person of deceased and prepared post mortem report Ex-Ka-6 under his signature. On external examination, he found no mark of injury, body had been decomposed and there were maggots in the body. Cause of death could not be ascertained. Viscera was preserved. In his cross-examination, he opined that victim had died 21 to 30 days before the post mortem. 19. In present case, PWs. 1, 2 and 3 are witnesses of last seen. Nobody has seen victim till dead body is received. No other evidence is on file. Cause of death could not be ascertained. Viscera was preserved. In his cross-examination, he opined that victim had died 21 to 30 days before the post mortem. 19. In present case, PWs. 1, 2 and 3 are witnesses of last seen. Nobody has seen victim till dead body is received. No other evidence is on file. It is also not proved that victim was murdered or death was caused due to other reason as viscera report is also not available on file. This case totally rests upon circumstantial evidence. 20. It is no doubt a case where there is no eye witness of crime. Prosecution totally rests on circumstantial evidences, which found favour with Court below and finding prosecution version proved beyond reasonable doubt, Trial Court has convicted appellant. 21. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all circumstances must be consistent only with guilt of accused. 22. In Hanumant vs. State of Madhya Pradesh, (1952) AIR SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said: "..........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.......it must be such as to show that within all human probability the act must have been done by the accused." (Emphasis added) 23. In Hukam Singh vs. State of Rajasthan, (1977) AIR SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person. 24. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) AIR SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent:- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent:- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (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. (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. 25. In Ashok Kumar Chatterjee vs. State of Madhya Pradesh, (1989) AIR SC 1890, Court said: "........when a case rests upon circumstantial evidence such evidence must satisfy the following tests:- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 26. In C. Chenga Reddy and Others vs. State of Andhra Pradesh, (1996) 10 SCC 193 , Court said: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." (Emphasis added) 27. In Bodh Raj @ Bodha and Others vs. State of Jammu and Kashmir, (2002) 8 SCC 45 Court quoted from Sir Alfred Wills, "Wills Circumstantial Evidence" (Chapter VI) and in para 15 of judgment said: "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum. (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability. (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits. (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt. (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 28. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another vs. Registrar General High Court of Karnataka, (2007) 4 SCC 713 and Tomaso Bruno vs. State of U.P. (2015) 7 SCC 178 . 29. In present case, circumstantial evidence commences with statement of Informant that his brother Ram Prasad was taken by accused with him on the pretext that there was some dispute in relation, therefore, he has to go to solve out dispute, last seen by two witnesses of facts in company of appellant going with victim and thereafter, on 14.9.2001 his dead body was found in field of Chunni. 30. Learned counsel for appellant contended that circumstances relating to last seen have wrongly been applied in the case in hand for the reason that deceased might have gone elsewhere and somebody else might have killed and there is a long gap of time. 31. We may examine as to what is the concept of last seen and in what circumstances it is a relevant crucial circumstantial evidence for proving culpability of a person of crime. 32. 31. We may examine as to what is the concept of last seen and in what circumstances it is a relevant crucial circumstantial evidence for proving culpability of a person of crime. 32. The circumstance of "last seen" of deceased with accused person, as a relevant circumstantial evidence, when can be taken into account, has been discussed time and again. In Bodh Raj @ Bodha and Others vs. State of Jammu and Kashmir (supra) Court said that last seen theory comes into play where the time gap between the point of time when accused and deceased were seen last alive and when deceased is found dead is so small that possibility of any person other than accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that deceased was last seen with accused when there is a long gap and possibility of other persons coming in between exists. 33. Theory of "last seen" is a relevant circumstance when corroborated by other evidence to prove guilt against accused person. In State of U.P. vs. Satish, (2005) 3 SCC 114 , Court said:- "The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." 34. In Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438 , Court also said that in absence of any other links in chain of circumstantial evidence, it is not possible to convict appellant solely on the basis of last seen evidence, even if, version of witnesses of fact in this regard is believed. 35. In Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438 , Court also said that in absence of any other links in chain of circumstantial evidence, it is not possible to convict appellant solely on the basis of last seen evidence, even if, version of witnesses of fact in this regard is believed. 35. The above observation on theory of "last seen" has been followed in Tipparam Prabhakar vs. State of Andhra Pradesh, (2009) 13 SCC 534 , Rishi Pal vs. State of Uttarakhand, (2013) 12 SCC 551 , Krishnan vs. State of Tamil Nadu, (2014) 12 SCC 279 , State of Karnataka vs. Chand Basha, (2016) 1 SCC 501 , Rambraksh vs. State of Chhattisgarh, (2016) 12 SCC 251 , Anjan Kumar Sarma and Others vs. State of Assam, (2017) 14 SCC 359 and Ganpat Singh vs. State of Madhya Pradesh, (2017) 16 SCC 353 . 36. Above authorities show that term "time gap" is not to be measured in terms of length of period but it has to be seen whether in a given facts and circumstances, the time at which accused and deceased were seen alive together and till detection of death, whether there is any possibility of crime being committed by someone else or not, that is relevant. 37. In the present case, we find that except last seen theory, no other chain of circumstances is proved. Nobody has seen deceased in the company of appellant nearby place where his dead body was found in decomposed position. There is no evidence of murder or other unnatural death of victim. According to PW-7, who conducted post mortem, cause of death could not be ascertained, viscera was preserved by him but there is no viscera report on record place from the side of prosecution to prove cause of death. There is long "time gap" between last seen alive and detection of dead body of Ram Prasad in sugarcane field of Chunni. 38. Last seen theory has been applied as one of several circumstances that deceased was seen last alive in company of appellant by informant and two witnesses of fact on 09.09.2001 at about 5:00 p.m. and thereafter, his dead body was found in field of Chunni on 14.9.2001. Nobody, in village, had seen deceased and in night as per Informant, deceased did not come to house. Nobody, in village, had seen deceased and in night as per Informant, deceased did not come to house. Meaning thereby, having gone with appellant till detection of his dead body, there was nothing to show what happened with deceased and it cannot be said that crime could not have been committed by somebody else. 39. It is settled that it is not prudent to base conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of prosecution in its entirety and keeping in mind circumstances that precede and follow the point of being so last seen. 40. Looking into entirety of facts and circumstances of the case, as discussed above, we are of the view that Court below was not correct in convicting appellant, broadly relying on statement of PW-1 in respect of last seen, treating it to be a conclusive proof of incident overlooking other major contradictions in the evidence, medical evidence and missing chain of circumstantial evidence. In our view, appellant is entitled to benefit of doubt and it cannot be said that prosecution has been successful in proving guilt of appellant beyond reasonable doubt. 41. In the result, appeal is hereby allowed. Impugned judgment and order dated 31.7.2009 in Sessions Trial No. 27 of 2002 is hereby set aside. Appellant is acquitted of charges levelled against him. He is in jail and shall be released forthwith, if not wanted in any other case. 42. Keeping in view provisions of Section 437-A Cr.P.C. appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court. 43. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action. 44. Before parting, we provide that Sri Gaurav Sharma, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/-. 43. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action. 44. Before parting, we provide that Sri Gaurav Sharma, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and in any case, within one month from the date of receipt of copy of this judgment.