JUDGMENT : Kailash Prasad Deo, J. Heard learned Amicus Curiae, Mr. Rajesh Kumar in Cr. Appeal (DB) No. 537 of 2014, learned counsel Mr. A.S.Dayal in Criminal Appeal (DB) No. 1885 of 2004 and learned counsel Mr. Dilip Kumar Prasad and Mr. Nilesh Kumar in Cr.Appeal (DB) No. 1974 of 2004. 2. All these three Criminal Appeals are being heard together as they are arising out of a common First Information Report and common set of evidence. Cr. Appeal (DB) No. 537 of 2014 has been preferred against the judgment of conviction dated 25.01.2014 and order of sentence dated 27.01.2014 passed by District & Additional Sessions Judge-V, Ranchi in Sessions Trial No. 208/2003(A), whereby the sole accused/appellant, Rajesh Oraon has been held guilty for the offence committed and punishable under Sections 302/34 of the Indian Penal Code and awarded rigorous imprisonment for life with a fine of Rs. 2,000/-and in case of default in payment of fine further simple imprisonment for 3 months. 3. Criminal Appeal (DB) No. 1885 of 2004 with Criminal Appeal (DB) No. 1974 of 2004 have been preferred against the judgment of conviction and order of sentence both dated 28.09.2004 passed in Sessions Trial No. 208/2003 passed by learned Additional Judicial Commissioner, Fast Track Court No. 5, Ranchi, whereby the appellants, Ali @ Dharmendra Kumar Singh and Laldeo Mahto have been held guilty for the offence committed and punishable under Sections 302/34 I.P.C and awarded rigorous imprisonment for life. 4. The prosecution case is based upon the Fardbeyan of Ram Pravesh Singh (P.W.1) recorded by S.I, M. Kumar of Gonda Police Station on 15.04.2002 at 9.00 A.M at Mishir Gonda, Lohra Kocha. Informant has stated that he is working as a Security Guard at C.C.L, Gandhi Nagar Hospital and yesterday i.e., 14.04.2002 at about 3.00 P.M, he saw his brother near the hospital gate. His brother Ram Prasad Singh (deceased) thereafter did not return to his house. Today i.e., on 15.04.2002 while he was going to attend his duty at around 6.00 A.M and when he reached near the cycle stand of hospital gate, persons standing on duty at the hospital gate informed him that dead body of his brother is lying near Mishri Gonda, Lohra Kocha adjacent to the orchard of Pandey jee. Today i.e., on 15.04.2002 while he was going to attend his duty at around 6.00 A.M and when he reached near the cycle stand of hospital gate, persons standing on duty at the hospital gate informed him that dead body of his brother is lying near Mishri Gonda, Lohra Kocha adjacent to the orchard of Pandey jee. The informant after hearing the same, went to the place and saw the dead body of his brother, Ram Prasad Singh in pool of blood. Informant has stated that his brother Ram Prasad Singh came from his parental house at Hirdan Bigha, P.S.-Bada Lakhisarai, ten days ago. His brother used to take liquor and it has been informed to the informant that on 14.04.2002 his brother was walking along with Ali @ Dharmendra Kumar Singh, son of Kapildeo Singh, resident of Gandhinagar Colony with two unknown persons towards Mishri Gonda in the evening. Informant has stated that it appears that the occurrence has been committed in the night. 5. On the basis of Fardbeyan of the informant, the police has registered Bariatu (Gonda) P.S. Case No. 60/2002 dated 15.04.2002 under Section 302 I.P.C against unknown accused persons. 6. On completion of the investigation, the police submitted charge-sheet vide no. 77 of 2002 dated 05.07.2002 under Sections 302/34 I.P.C against Ali @ Dharmendra Kumar Singh, Rajesh Oraon and Laldeo Mahto. Cognizance of the offence has been taken and the case has been committed to the Court of Sessions. The charge has been framed against all the three accused persons under Sections 302/34 I.P.C vide order dated 19.04.2003. The charge has been read over and explained to the accused persons, to which they have pleaded not guilty and claimed to be tried. 7. In order to prove the prosecution case, the prosecution has examined altogether 11 prosecution witnesses and also exhibited a number of documents upto Ext.-9. Ram Pravesh Singh (informant of the case) and brother of the deceased has been examined as P.W.1. He is a hearsay witness. Informant has also proved his signature on the Fardbeyan, which has been marked as Ext.-1. Ram Prakash Singh, another brother of the informant and the deceased, being a hearsay witness, has been examined as P.W.2. Ashok Kumar Singh has been examined as P.W.3. He is also a hearsay witness and has proved his signature on the inquest report, which has been marked as Ext.-1/1. Ram Prakash Singh, another brother of the informant and the deceased, being a hearsay witness, has been examined as P.W.2. Ashok Kumar Singh has been examined as P.W.3. He is also a hearsay witness and has proved his signature on the inquest report, which has been marked as Ext.-1/1. The signature of Ram Pravesh Singh (informant of the case) on the inquest report has been proved by P.W.3 and marked as Ext.-1/2. Vikram Verma has been examined as P.W.4. He has proved his signature on the seizure-list, which has been marked as Ext.-1/3, though this witness has categorically stated that his statement has not been recorded by the police. Sudama Kumar has been examined as P.W.5. He has proved his signature on the seizure-list, which has been marked as Ext.-1/4. Ram Bachan Singh has been examined as P.W.6. He is Security Inspector, C.C.L. He heard about the murder of younger brother of Ram Pravesh Singh, who was posted as Security Guard and has informed the informant about the occurrence. He is a hearsay witness. Birsi has been examined as P.W.7 and has been declared hostile by the prosecution. Mahadeo Lakra has been examined as P.W.8 and has also been declared hostile by the prosecution. Mithilesh Kumar, Sub-Inspector of Police-cum-Officer-Incharge, Gonda Police Station, who has recorded the Fardbeyan of the informant, Ram Pravesh Singh (P.W.1) and investigated the case, has been examined as P.W.9. He has proved the Fardbeyan in handwriting of A.S.I., D.N. Paswan bearing his signature, which has been marked as Ext.-2. Forwarding on the Fardbeyan has been proved and marked as Ext.-2/1. The endorsement made by Officer-Incharge Parmeshwar Shukla of Bariatu Police Station on the Fardbeyan has been proved and marked as Ext.-2/2. The seizure-list of blood stained soil recovered from the place of occurrence prepared in his presence by A.S.I, D.N.Paswan in presence of two witnesses has been proved and marked as Ext.-3. On the basis of confessional statement of the arrested accused, recovery of one full pant and one full T.Shirt of Ali @ Dharmendra Kumar Singh has been seized and seizure-list of the same has been prepared in presence of this witness by A.S.I, D.N. Paswan, which bears signature of this witness and has been marked as Ext.-4. On the basis of confessional statement of the arrested accused, recovery of one full pant and one full T.Shirt of Ali @ Dharmendra Kumar Singh has been seized and seizure-list of the same has been prepared in presence of this witness by A.S.I, D.N. Paswan, which bears signature of this witness and has been marked as Ext.-4. On the basis of confessional statement of accused, Laldeo Mahto, a baniyan with one full pant of Grey colour and knife with wooden handle were recovered and seized. Seizure-list of the same has been prepared by A.S.I, D.N.Paswan, which bears his signature, which has been proved and marked as Ext.-5. The formal F.I.R bearing handwriting and signature of Officer-In-Charge Bariatu Police Station, Parmeshwar Shukla has been proved and marked as Ext.-6. The inquest report prepared by A.S.I, D.N.Paswan bearing signature of this witness has been proved and marked as Ext.-7. The postmortem report of the deceased has been proved and marked as Ext.-8 by Medical Officer, Dr. Ram Sevak Sahu, who has been examined as P.W.-10. Kumari Ranjana Asthana, learned Munsif, who has recorded the statement of the witness Birsi under Section 164 Cr.P.C has been examined as P.W.-11 and the statement of Birsi recorded in her handwriting and signature has been proved and marked as Ext.-9. 8. After closure of the prosecution evidence, the accused/appellants have been examined under Section 313 Cr.P.C. on different dates. Rajesh Oraon absconded and as such his Sessions Trial was split up as S.T. No. 208/2003(A), whose statement under Section 313 Cr.P.C has been recorded later on, on 19.6.2012, whereas the statement of accused, Ali @ Dharmendra Kumar Singh and Laldeo Mahto have been recorded under Section 313 Cr.P.C on 23.8.2004. Rajesh Oraon absconded and as such his Sessions Trial was split up as S.T. No. 208/2003(A), whose statement under Section 313 Cr.P.C has been recorded later on, on 19.6.2012, whereas the statement of accused, Ali @ Dharmendra Kumar Singh and Laldeo Mahto have been recorded under Section 313 Cr.P.C on 23.8.2004. Accused, Ali @ Dharmendra Kumar Singh and Laldeo Mahto have denied their involvement in the case and they have claimed themselves to be innocent and have stated that they have been falsely implicated in this case, whereas appellant, Rajesh Oraon has categorically stated that he has been falsely implicated in the case and two days prior to the occurrence, his father died after falling from the terrace and being the eldest son he was Karta and remain engaged in his rituals (Saradh) for 15 days and could not came out of his house and he has no criminal antecedent nor has been sent to jail earlier but no defence evidence has been adduced on behalf of any of the appellants. 9. After hearing learned counsel for the parties and on the basis of materials available on record, learned Trial Court has convicted the accused/appellants, Ali @ Dharmendra Kumar Singh and Laldeo Mahto in Sessions Trial No. 208/2003 vide judgment of conviction and order of sentence both dated 28.9.2004, whereas Rajesh Oraon has been convicted by the court below vide judgment of conviction dated 25.1.2014 and order of sentence dated 27.1.2014 passed in S.T.No. 208/2003(A). All three appellants have preferred separate criminal appeal before this Court, those are being heard together as they are arising out of common First Information Report and common set of evidence. 10. Heard learned Amicus Curiae, Mr. Rajesh Kumar in Criminal Appeal (DB) No. 537 of 2014, Mr. A. S. Dayal in Criminal Appeal (DB) No. 1885 of 2004 and learned counsels, Mr. Dilip Kumar Prasad and Nilesh Kumar in Criminal Appeal (DB) No. 1974 of 2004 and Mr. Nehru Mahto, Additional Public Prosecutor for the State in all these three criminal appeals. 11. Learned Amicus Curiae as well as learned counsel for the appellants have submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsels have submitted that there is no eye witness to the occurrence. 11. Learned Amicus Curiae as well as learned counsel for the appellants have submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsels have submitted that there is no eye witness to the occurrence. The brother of the informant, Ram Prasad Singh died and his dead body was found in a pool of blood near the orchard of Pandeyjee at Mishri Gonda Lohra Kocha. The information was given to the informant, who went to the place of occurrence and saw the dead body. Thereafter, on the basis of suspicion that the deceased was moving along with Ali @ Dharmendra Kumar Singh, F.I.R has been lodged against unknown persons. On the basis of suspicion the accused, Ali @ Dharmendra Kumar Singh and Lal Deo Mahto were arrested by the police on 18.04.2002. Learned counsels have submitted that there is no legal material against the appellants, as learned trial court has convicted the appellants on the basis of circumstantial evidence without proving the necessary ingredients as per the Panchsheel principle. Learned trial court has taken note of the fact that on the basis of confessional statement of the co-accused, blood stained cloth and blood stained weapon have been recovered, though confessional statement has not been brought on record nor exhibited. The blood stained cloth and blood stained weapon has not been sent to forensic science laboratory to establish that blood on the cloth as well as on the weapon is of the same blood group, that of the deceased. Learned counsels have further submitted that the second circumstance, which has been taken by learned court below against the appellants is that they were last seen with the deceased. Learned counsels have submitted that the court below has not taken note of the time gap while considering the last seen theory. Learned counsels in support thereof have relied upon the judgment in the case of Krishnan alias Ramasamy & Ors. Vs. State of Tamilnadu as reported in (2016) 12 SCC 251 , paragraphs 9 to 12. Learned counsels have further relied upon the judgment in the case of Anjan Kumar Sarma & Ors. Vs. State of Assam as reported in (2017) 14 SCC 359 . Vs. State of Tamilnadu as reported in (2016) 12 SCC 251 , paragraphs 9 to 12. Learned counsels have further relied upon the judgment in the case of Anjan Kumar Sarma & Ors. Vs. State of Assam as reported in (2017) 14 SCC 359 . Relying upon such submissions, learned counsels have submitted that there was large time gap between the point of time when the accused and deceased were last seen and the dead body was recorded. In the present case, as per the evidence brought on record by P.W.1 and P.W.2 they have seen the deceased with Ali @ Dharmendra Kumar Singh and two unknown persons in the previous evening. P.W.1, Ram Pravesh Singh has seen the victim with Ali @ Dharmendra Kumar Singh at 3 P.M. on the previous day, whereas Ram Prakash Singh, another brother, who has been examined as P.W. 2 has categorically stated that he has seen the deceased with Ali @ Dharmendra Kumar Singh on the previous day at 4-5 P.M. Learned counsels have submitted that the dead body was recovered on subsequent day. The prosecution has failed to prove that in between 4 P.M to the recovery of the dead body there was no other person, who can come in contact with the deceased. As such, learned counsels relying on the aforesaid judgment have submitted that last seen theory has been wrongly relied upon by learned trial court. As such, the impugned judgments passed by courts below are fit to be set aside. Learned counsels have further submitted that another circumstance, which has been taken against the appellants are extra judicial confession of the accused, purportedly leading to recovery of blood stained cloth and weapon, seizure-list of which have been marked as Exts. 4 and 5. Learned counsels have submitted that the confessional statement or part of the confessional statement has not been exhibited so as to bring such recovery i.e. Exts. 4 & 5 under ambit of Section 27 of the Indian Evidence Act. Learned counsels have submitted that the recovered articles have not been sent for forensic examination so as to establish that the blood mark found on the cloth and the weapon are of the same group, as of deceased. 4 & 5 under ambit of Section 27 of the Indian Evidence Act. Learned counsels have submitted that the recovered articles have not been sent for forensic examination so as to establish that the blood mark found on the cloth and the weapon are of the same group, as of deceased. Learned counsels thus submitted that the impugned judgment of conviction and order of sentence on the basis of alleged confessional statement of the accused, purportedly leading to recovery of the cloth and weapon are not legally proved to bring as an evidence as against the appellants. Learned counsels have further submitted that P.W.7, Birsi has been declared hostile by the prosecution. The Prosecution has relied upon the statement of Birsi recorded under Section 164 of the Cr.P.C, which has been proved by P.W. 11, Kumari Ranjana Asthana, learned Munsif which has been marked as Ext.-9. But from perusal of the evidence of P.W. 11, it appears that she is not identifying the accused nor she has proved her thumb impression on the statement recorded under Section 164 Cr.P.C, rather as per Ext.-9, the same is in the handwriting and signature of learned Munsif. The same document has not been supported by the witness, Birsi, who was examined as P.W.7, as Birsi has categorically stated during her examination in Court, that she has no knowledge about the occurrence and police has never recorded her statement. She has never given her statement under Section 164 Cr.P.C in the Court. Learned counsels have thus submitted that under the aforesaid circumstances nothing has been brought on record to establish the guilt against the accused/appellants. Learned counsels have further submitted that the motive has not been proved by the prosecution. As per the First Information Report, it appears that the deceased came from his native village, 10 days ago, and there was no motive for committing the crime by these appellants as wrongly considered by learned court below for convicting the appellants. Learned counsels have thus submitted that the appellants deserve to be acquitted from the charge and conviction under Section 302/34 I.P.C as the prosecution has failed to prove the charge beyond all shadow of reasonable doubt against the appellants. 12. Learned counsel for the State, Mr. Learned counsels have thus submitted that the appellants deserve to be acquitted from the charge and conviction under Section 302/34 I.P.C as the prosecution has failed to prove the charge beyond all shadow of reasonable doubt against the appellants. 12. Learned counsel for the State, Mr. Nehru Mahto, Additional Public Prosecutor has vehemently argued the case and submitted that the impugned judgment of conviction and order of sentence has been passed by learned trial court on the basis of the materials available on record. Learned counsel for the State has submitted that brother of the informant, Ram Prasad Singh (deceased) was seen by the informant, Ram Pravesh Singh (P.W.1) and Ram Prakash Singh (P.W.2) in association with Ali @ Dharmendra Kumar Singh the appellant in Cr. Appeal (DB) No. 1885 of 2004 along with two unknown persons. After recovery of the dead body on the basis of suspicion, the police apprehended Ali @ Dharmendra Kumar Singh. On his confession, the accused/appellant, Laldeo Mahto was apprehended. Both have confessed their guilt and on the basis of that blood stained full pant and T. Shirt of Ali @ Dharmendra Kumar Singh and blood stained Baniyan of Laldeo Mahto were recovered along with knife. This shows that these two appellants have killed the deceased. 13. Learned State counsel has stated that on the basis of such confession, the articles have been recovered and as such trial court has rightly convicted the appellant, Ali @ Dharmendra Kumar Singh, Laldeo Mahto along with Rajesh Oraon, who were involved in commission of brutal murder of the brother of the informant i.e., Ram Prasad Singh. Learned counsel for the State has submitted that though Birsi (P.W.7) has not supported her statement recorded under Section 164 Cr.P.C but during investigation, she has categorically stated that after taking toddy from her house, all these four persons went out of the house and after commission of murder, three of them returned to her house, took toddy and disclosed that they have killed the person as he was not selling his betel shop to them. Learned State counsel has thus submitted that there was motive for these accused persons to commit murder of the deceased, as such the trial court has rightly convicted the appellants under Section 302/34 I.P.C. This court may not interfere with finding recorded by the learned Trial Court in the impugned judgment of conviction and order of sentence. 14. Heard learned Amicus Curiae Mr. Rajesh Kumar in Cr. Appeal (DB) No.537 of 2014, learned counsel Mr. A.S. Dayal in Cr. Appeal (DB) No.1885 of 2004 and learned counsels Mr. Dilip Kumar Prasad and Mr. Nilesh Kumar in Cr. Appeal (DB) No.1974 of 2004 and also learned counsel for the State Mr. Nehru Mahto, learned Additional Public Prosecutor. 15. This Court has scrutinized the materials brought on record including F.I.R, framing of charge, evidence of 11 prosecution witnesses, 9 prosecution exhibits, statement of appellants recorded under Section 313 Cr.P.C as well as impugned judgments. From perusal of the materials brought on record, it appears that there is no eye-witness to the occurrence. The entire prosecution case hinges on the circumstantial evidence. The circumstance, which has been produced before the Court is that of last seen theory as pointed out by P.W.1, Ram Pravesh Singh about time of seeing the accused/appellant, Ali @ Dharmendra Kumar Singh with the deceased, Ram Prasad Singh on the previous day at around 3 P.M. P.W.2 Ram Prakash Singh, another brother has pointed out at around 4-5 P.M. on the previous day he was last seen the deceased with Ali @ Dharmendra Kumar Singh but the dead body was recovered on the next day i.e. 15.4.2002 at around 9 A.M. The last seen theory being a circumstantial evidence to hold the conviction has to pass through the test prescribed by the Apex Court. The impugned judgment of conviction is based upon the circumstantial evidence of last seen theory, apart from recovery of certain material brought on record as Exts.3, 4 and 5, that is the blood stained clothes of Ali @ Dharmendra Kumar Singh and blood stained baniyan with knife of accused, Laldeo Mahto. Apart from these circumstances, the court below has also taken note of extra judicial confession of the accused persons before Birsi Devi, whose statement has been recorded under Section 164 Cr.P.C., which has been brought on record as Ext.9. Apart from these circumstances, the court below has also taken note of extra judicial confession of the accused persons before Birsi Devi, whose statement has been recorded under Section 164 Cr.P.C., which has been brought on record as Ext.9. While examining these materials on record, this Court has taken note of the rule of circumstantial evidence as enunciated in the case of Vasanta Sampat Dupare Vs. State of Maharashtra reported in (2015) 1 SCC 253 , paras-34, 35 and 36, which reads as under: “34. Regard being had to the aforesaid circumstances, it is to be seen whether on the basis of the said circumstances, it can be held whether such circumstances lead towards the guilt of the accused regard being had to the principle that they lead to a singular conclusion that the appellant is guilty of the offence and it does not allow any other probability which is likely to allow the presumption of innocence of the accused. In this context, we may refer with profit to the decision rendered more than six decades back in Hanumant Govind Nargundkar v. State of M.P., wherein it has been held as follows: (AIR pp. 345-46, para 10) “10. … 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.” 35. 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.” 35. In Sharad Birdhichand Sarda v. State of Maharashtra, the five golden principles which have been stated to constitute the “panchsheel” of the proof of the case based on circumstantial evidence are: (i) that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely “may be” fully established; (ii) that 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; (iii) that the circumstances should be of a conclusive nature and tendency; (iv) that they should exclude every possible hypothesis except the one to be proved; and (v) that 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. 36. In C.Chenga Reddy v. State of A.P. it has been held that: (SCC pp. 206-07, para 21) “21. In a case based on circumstantial evidence … 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. 206-07, para 21) “21. In a case based on circumstantial evidence … 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. [That apart], the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” The Hon'ble Supreme Court has held that the golden principle of 'Panchsheel' of proof of the case based on circumstantial evidence are : (i) that the circumstance from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established; (ii) that the facts so established should be consistent only with the hypothesis of the guilt of the accused, i.e. to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) that the circumstances should be of a conclusive nature and tendency; (iv) that they should exclude every possible hypothesis except one to be proved; and (v) that 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. 16. While examining the facts brought on record on the basis of these five principles, this Court is of the view that as per P.W.1 Ram Pravesh Singh the deceased Ram Prasad Singh was seen with accused Ali @ Dharmendra Kumar Singh and two unknown persons on the previous day i.e. 14.4.2002 at around 3 P.M. as per P.W.1 and at around 4-5 P.M. as per P.W.2, Ram Prakash Singh. The dead body was found on the next day i.e. 15.4.2002 at around 9 A.M. Prosecution has not able to bring on record such evidence to show that from the period when the accused was seen with the deceased and the time when the dead body was recovered, the deceased did not come in contact with any other person and presence of any other person with him was completely excluded. 17. Under the aforesaid circumstances, the prosecution has not able to justify the conviction on the basis of last seen theory being part of the circumstantial evidence. 17. Under the aforesaid circumstances, the prosecution has not able to justify the conviction on the basis of last seen theory being part of the circumstantial evidence. This Last seen theory has been dealt with in the case of Satpal Vs. State of Haryana, AIR 2018 SC 2142 para-6. It has been held thereunder that criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity with time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes wrong explanation or absconds, motive is established, then there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. 18. In the case of Rambriksh @ Jalim Vs. State of Chhattisgarh, (2016) 12 SCC 251 para-9 to 12, it has been held as under:- “12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, 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 perpetrator of the crime becomes impossible. Normally, 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 perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.” (emphasis supplied, not part of original text.) In the case of Anjan Kumar Sarma & Ors. Vs. State of Assam, (2017) 14 SCC 359 , it has been held at paras-19 and 23 as under :- “19. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan, this Court held that: (SCC p. 719, paras 12 & 15) “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. ** * 15. The theory of last seen—the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan.” 23. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under: (SCC p. 776, para 34) “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. 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, not part of original text.) 19. From perusal of the material brought on record prosecution has failed to prove 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 incidence before the commission of crime in the intervening period. From perusal of the material brought on record prosecution has failed to prove 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 incidence before the commission of crime in the intervening period. The last seen theory in such case would not be relevant evidence for the present case, as in the present case P.W.1 the informant Ram Pravesh Singh and P.W.2 Ram Prakash Singh, both brother of the deceased have stated in their evidence that deceased was last seen with Ali @ Dharmendra at 3 P.M. and 4-5 P.M. on 14.4.2002, whereas the dead body was recovered on 15.4.2002 at 9 A.M. Under the aforesaid circumstances, in view of the judicial pronouncement as referred above, the last seen theory has not been proved by the prosecution. 20. So far the other circumstantial evidence of extra judicial confession of the accused is concerned, it is apparent from the materials brought on record that confessional statement of the accused or part of the confession of the accused in police custody leading to recovery of any facts has not been established by the prosecution. Moreover, the blood stained pant and shirt of Ali @ Dharmendra Kumar Singh and blood stained baniyan with knife of Laldeo Mahto though recovered, have not been sent for forensic examination so as to establish that the blood found on the seized materials belongs to the same group of blood of the deceased. As such, the confession of the accused leading to recovery has not been established. In the case of Sahadevan & Anr. Vs. State of Tamil Nadu, (2012) 6 SCC 403 at paras-14 and 16 it has been held as under :- “14. It is a settled principle of criminal jurisprudence that extrajudicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration. 15. Now, we may examine some judgments of this Court dealing with this aspect. 15.1. In Balwinder Singh v. State of Punjab this Court stated the principle that: (SCC p. 265, para 10) “10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.” 15.2. In Pakkirisamy v. State of T.N. the Court held that: (SCC p. 162, para 8) “8. … It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.” 15.3. Again in Kavita v. State of T.N. the Court stated the dictum that: (SCC p. 109, para 4) “4. There is no doubt that convictions can be based on extrajudicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the [witnesses] to whom it is made.” 15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram stated the principle that: (SCC p. 192, para 19) “19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.” The Court further expressed the view that: (SCC p. 192, para 19) “19. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.” The Court further expressed the view that: (SCC p. 192, para 19) “19. … Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.…” 15.5. In Aloke Nath Dutta v. State of W.B. the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material as unjustified, observed: (SCC pp. 265-66, paras 87 & 89) “87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; and (iii) corroboration. 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof.” 15.6. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan held that: (SCC p. 611, paras 29-30) “29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extrajudicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P, Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B.] 30. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P, Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B.] 30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872.” 15.7. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in Rameshbhai Chandubhai Rathod v. State of Gujarat held as under: (SCC pp. 772-73, para 53) “53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.” 15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B. and Pancho v. State of Haryana.) The principles 16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused: (i) The extra-judicial confession is a weak evidence by itself. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused: (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved any other fact and in accordance with law. 21. In the case of Munna Kumar Upadhyay @ Munna Upadhyaya Vs. State of Andhra Pradesh through Public Prosecutor, Hyderabad, (2012) 6 SCC 174 , para-56 to 63, the same principles that extra-judicial confession in its nature is a weak type of evidence and without any corroborative material, the same cannot be made basis for conviction of the appellant has been reiterated by the Hon’ble Apex Court. This Court has also taken note of the evidence of the learned Munsif (P.W.11) Kumari Ranjana Asthana who has recorded the statement of witness Birsi Devi under Section 164 Cr.P.C. though Birsi Devi while examining as P.W.7 has denied that her statement was ever recorded by the police under Section 161 Cr.P.C. nor under Section 164 Cr.P.C. before the Court. Her thumb impression has also not been proved and exhibited, rather statement of P.W.7 under Section 164 Cr.P.C in the hand-writing and the signature of learned Munsif has been exhibited and brought on record as Ext.9. The witness Birsi Devi has not supported such statement which was recorded by learned Munsif, where it has been alleged that witness has disclosed before the Court under Section 164 Cr.P.C. that accused after committing the crime returned to her house and disclosed that deceased was not transferring his betel shop , as such he has been killed by them. Since the witness itself has not supported this version during her trial as P.W.7 as such, such extra-judicial confession of the accused before the witness (P.W.11) is not admissible under the law. 22. Since the witness itself has not supported this version during her trial as P.W.7 as such, such extra-judicial confession of the accused before the witness (P.W.11) is not admissible under the law. 22. Under the aforesaid circumstances, in view of lack of evidence and only an extra-judicial confession, the conviction cannot be recorded. In the case of State of Uttar Pradesh Vs. M.K. Anthony, (1985) 1 SCC 505 , the Hon’ble Supreme Court has observed that there is no rule of law nor rule of prudence that extra judicial confession cannot be acted upon, unless corroborated. Prosecution has not brought any corroborative materials on record to substantiate that the statement of the accused as extra judicial confession is corroborated with other materials brought on record. The statement recorded under Section 164 Cr.P.C. of the witness Birsi not supported by her while examining as P.W.7 is not a substantive piece of evidence to corroborate the same. The same cannot be legally considered to be an extra judicial confession of the accused so as to uphold his conviction under Section 302/34 I.P.C. The statement of Birsi recorded under Section 164 Cr.P.C. is not fit to be taken into account. As such, in the entire prosecution evidence it has not brought anything to suggest that these accused persons have any motive in commission of the offence. Apart from this, there are laches on the part of the prosecution such as the blood stained sample i.e., articles seized under Exts.3 and 4 were not sent for forensic examination to match with blood of the deceased so as to establish their group being similar. The prosecution has not investigated the case properly. Apart from this, the confessional statement of the accused leading to recovery of blood stained clothes and blood stained baniyan and knife have also not been brought on record so as to bring the part of the confession leading to discovery of fact under Section 27 of the Evidence Act as admissible as evidence. 23. Under such background, in view of such serious and major lacunae in the prosecution case, the conviction of the appellants recorded under Section 302/34 I.P.C. by the impugned judgments passed in S.T. No.208/2003(A) and S.T. No. 208/2003 are not sustainable in the eyes of law on re-appreciation of the evidence. 23. Under such background, in view of such serious and major lacunae in the prosecution case, the conviction of the appellants recorded under Section 302/34 I.P.C. by the impugned judgments passed in S.T. No.208/2003(A) and S.T. No. 208/2003 are not sustainable in the eyes of law on re-appreciation of the evidence. Under the aforesaid circumstances, since there is no eye-witness to the occurrence and the entire prosecution case hinges upon the circumstantial evidence and none of the circumstance brought by prosecution are sufficient to prove and complete the chain to prove the guilt against the accused persons, this Court is of the view that the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law. Accordingly the impugned judgment of conviction dated 25.01.2014 and order of sentence dated 27.01.2014 passed by District & Additional Sessions Judge-V, Ranchi in Sessions Trial No. 208/2003(A) (in Criminal Appeal (DB) No. 537 of 2014) and the impugned judgment of conviction and order of sentence both dated 28.09.2004 passed in Sessions Trial No. 208/2003 passed by Shri C. Tanti, Additional Judicial Commissioner, Fast Track Court No. 5, Ranchi (in Criminal Appeal (DB) No. 1885 of 2004 with Criminal Appeal (DB) No. 1974 of 2004), are hereby set aside. The appellant, Rajesh Oraon who is in custody is directed to be released forthwith, if not wanted in any other cases. So far as the appellant Ali @ Dharmendra Kumar Singh and Laldeo Mahto are concerned, they are on bail. They are discharged from the liabilities of their bail bonds. Let the lower court records be sent down along with a copy of this judgment. 24. Accordingly, all the three Criminal Appeals (DB) are allowed. 25. Before parting, we record our appreciation for the valuable assistance accorded by learned Amicus Curiae in this case. The Secretary, High Court Legal Services Committee would ensure that the legal remuneration of learned Amicus Curiae are duly paid within a period of 4 weeks from the date of receipt of an application along with a certified copy of this judgment.