JUDGMENT : Shree Chandrashekhar, J. In Peterwar P.S. Case No. 15 of 2010 which was lodged on 15.02.2010 Ram Krishna Manjhi has expressed a suspicion that Mangra Manjhi has killed Sugmati Devi. After the investigation a charge-sheet was filed against him and he has faced the trial on the charge under section 302 of the Indian Penal Code (in short, IPC) for committing murder of his wife and under section 201 IPC for causing disappearance of her dead body. During the trial, the prosecution has examined eight witnesses out of whom PW-1 and PW-2 are sons of the appellant. PW-6 and PW-7 are the brothers of Sugmati Devi. 2. The learned Sessions Judge has held that the circumstances established by the prosecution indicate that it was Mangra Manjhi who has caused death of his wife, namely, Sugmati Devi. Accordingly the appellant was Convicted and sentenced to R.I for life and a fine of Rs.10,000/- under section 302 and R.I. for five years under section 201 IPC ; both the sentences are to run concurrently and in default of Payment of fine the appellant has to undergo further imprisonment of R.I for three months. 3. The initial case of the prosecution was that the sons of the appellant have seen injury on the neck of Sugmati Devi and on the night of 05.02.2010 they have seen the appellant carrying her body to some place. During the trial PW-1 and PW-2 have turned hostile and they have flatly refused to have said anything before the police. In the trial the prosecution has tendered circumstantial evidence to prove the charge under sections 302 and 201 IPC against the appellant. In “Sukhram v. State of Maharashtra" (2007) 7 SCC 502 the Hon'ble Supreme Court has held that the circumstance from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. 4. PW-6, the informant is brother of Sugmati Devi. He has deposed in the Court that on 15.02.2010 he received an information that the appellant has skilled Sugmati Devi and concealed her dead body. His sister would sometime come to his house with the appellant and stay there in the night. The would enjoy drinks together and start quarreling. 4. PW-6, the informant is brother of Sugmati Devi. He has deposed in the Court that on 15.02.2010 he received an information that the appellant has skilled Sugmati Devi and concealed her dead body. His sister would sometime come to his house with the appellant and stay there in the night. The would enjoy drinks together and start quarreling. After the marriage they were working near Ramgarh and residing there. It is about six months when he received an information that the appellant has badly assaulted his sister. She came to his house and he got her treated then. After some days the appellant came to hi house with the villagers, confessed his mistake and assure him that in future he would not assault his wife. He has further stated that on 05.02.2010 the appellant and his sister had visited him and after dinner they left for home. PW-4 is the maternal uncle of Sugmati Devi. He has depose in the Court that he came to know about murder of Sugmati Devi from PW-6 on 15.02.2010. He has further stated that at the pointing out of the appellant, dead body of Sugmati Devi was recovered by the police from Chhatapakhana Nala and as informed by him the police has seized hoe(kudal) and axe (kulhari) from his house. He has put his signature on the seizure-memo. PW-5 is the nephew of Sugmati Devi. He has put his signature on the seizure-memo. PW-5 is the nephew of Sugmati Devi. He has stated in the Court that on 15.02.2010 on the way to Tenughat he met PW-6, who told him that the appellant has killed his sister. He has further stated that in his presence police has searched house of the appellant and a blood-stained tanga and kulhari were recovered from his house. He is also a seizure-memo witness PW-7 is another brother of Sugmati Devi. He has stated that PW-6 has telephonically informed him about murder of Sugmati Devi. He has stated that PW-6 has telephonically informed him about murder of Sugmati Devi whereupon he has gone to the house of the appellant. There he has found the police questioning him. On disclosure of the appellant the police has gone to Chhatapakhana Nala. He has also gone there with the police and seen the dead body of Sugmati Devi. He has seen injury on her neck and identified the dead body. There he has found the police questioning him. On disclosure of the appellant the police has gone to Chhatapakhana Nala. He has also gone there with the police and seen the dead body of Sugmati Devi. He has seen injury on her neck and identified the dead body. He has seen injury on her neck an identified the dead body. He has stated that the police has prepared paper (inquest report) which was signed by him. PW-8 is the investigating officer who has state that after registering the First Information Report he visited the house of the appellant. He has brought the appellant and his son at the police station where the appellant confessed his guilt. Thereafter he was taken back home from where a tangi and hoe were recovered. He has further deposed that dead body of Sugmati Devi was recovered from Chhatapakhana Nala near Tenughat Dam; the body was in decompose condition and the witnesses have identified the dead body as that of Sugmati Devi. 5. In his cross-examination PW-4 has stated that he resides at a place about three kilometers away from the house of the appellant. The appellant was working at Ramgarh and he would return home after a week or ten days and sometimes after a month or two. He has admitted in his cross-examination that on 15.02.2010 PW-6 did not tell him since when Sugmati Devi was missing from home. In the Court he has admitted that he cannot read and write Hindi and was not able to tell even the date when he was deposing in the Court and he has stated that he cannot say what was written in the seizure list. To a question by the defence, he has admitted that on 15.02.2010 the appellant was working at Ramgarh. He has stated that near the house of the appellant there are several other houses in the village (basti) and that Sugmati would go to the forest for getting fire-wood. These suggestions were given to him to suggest that it was impossible that any village has not seen the appellant committing the crime and that Sugmati Devi might have been killed by the wild animals in the forest. PW-5 was residing at a distance of about one kilometer from village-Motha Tanr. He has stated that when the police was conducting search he had gone there. PW-5 was residing at a distance of about one kilometer from village-Motha Tanr. He has stated that when the police was conducting search he had gone there. He says that at the time of search no other person was there. The presence of PW-4 and PW-5 in the village of the appellant at the crucial time has not been explained by the prosecution. The informant has stated in his cross-examination that his sister left her husband and married the appellant because her husband had married another woman an after her daughters were married she severed all relations with Shiv Nath Manjhi, her first husband. He says that on 15.02.2010 he could know about murder of his sister on hulla. If that is true why the appellant was brought by the police 2-3 days prior to 15.02.2010 from Ramgarh and how the villagers could know about the death of Sugmati Devi have remained mystery. 6. The appellant is the husband of Sugmati Devi but for that reason alone an inference cannot be drawn that he has killed his wife. In a series of judgments the Hon’ble Supreme Court has observed that in law a presumption would arise that it is the person who was last seen with the accused would have kille that deceased and the burden to rebut the same lies on the accused to show otherwise. However, the importance of last-seen together evidence cannot be over emphasized in a criminal trial as this by itself along is not sufficient to record conviction of an accused and it is quite a settled proposition in a law that before onus shifts on the accused by operation of section 106 of the Evidence Act it must beheld that the prosecution has established a prima-facie case against the accused. In “Shambhu Nath Mehra Versus State of Ajmer” AIR 1956 SC 404 the Hon’ble Supreme Court has held that section 106 of the Evidence Act cannot be used to undermine the well cases, the burden is on the prosecution and never shifts in a criminal trial and before the prosecution presses that onus has shifted on the accused by operation of section 106 of the Evidence Act it must be found that the prosecution has established a prima-facie case against the accused. In “Ranjit Singh Versus State of Punjab” (2011) 15 SCC 285 the Hon’ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Evidence Act to hold an accused guilty for murder. The dead body of Sugmati Devi was found at Chhatapakhana Nala. The doctor who has conducted autopsy over the dead body has stated that it was in a decomposed condition and the death has occurred about 9 to 11 days before the post-mortem. Since when Sugmati Devi was missing is not known an the fact that the appellant was working at a different place is not in dispute. It has also come in the evidence of PW-4 that for weeks together the appellant would not come back home from work. PW-7 has admitted in his cross-examination that the police did not inquire about the occurrence form him and about one week before the incident he had met her and the appellant. From his evidence it can be inferred that around 8th February, 2010 he has seen Sugmati Devi alive and if that is true his evidence contradicts the prosecution story that the appellant and the deceased were lastly seen together on 05.02.2010. The case set up by the prosecution against the appellant does not disclose any motive for the crime. This is a general notion that in a criminal trial motive does not play an important role but motive is altogether irrelevant is not a proposition acceptable in law. In a case based on circumstantial evidence motive plays an important role, as held by the Hon’ble Supreme Court in “State of H.P. Versus Jeet Singh” (1999) 4 SCC 370 that; “33. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.” 7. The incident of beating of Sugmati Devi which according to the informant has happened about six months before her death would not provide any motive for committing her murder. Sugmati Devi was second wife of the appellant. The two sons of the appellant were young and at the time of death of Sugmati Devi her first husband was also alive. These are the circumstances elicited by the defense from the prosecution witnesses to suggest probability of Sugmati Devi dying in a circumstance otherwise than sought to be shown by the prosecution. PW-3 has noted that there was a cut mark in the neck of Sugmati Devi but beyond this he has not stated anything, to say what was the extent of the injury and how the said injury could have been caused. The dead body of Sugmati Devi has been found at Chhatapkhana Nala but none of the prosecution witnesses has stated that it was so concealed that no one could have seen the dead body. The dead body was in a highly decomposed condition and it must have started leaving foul smell but even after 9 to 11 days of her death no one could see her dead body. There are several houses near the house of the appellant but no one has seen him carrying the dead body to Nala. The recovery of the alleged crime weapons from the house of the appellant is also saying that it was recovered in their presence and a seizure-memo was prepared by the police. There are several houses near the house of the appellant but no one has seen him carrying the dead body to Nala. The recovery of the alleged crime weapons from the house of the appellant is also saying that it was recovered in their presence and a seizure-memo was prepared by the police. First of all they have failed to established their presence at the place of occurrence on 15.02.2010 and secondly their evidence about the seizures is cryptic and there is no other evidence such as FSL report to connect hoe and axe recovered from the house of the appellant with the crime-hoe and axe are commonly found in every house in the villages. The appellant who was working at Ramgarh was not seen in his village by anyone around 15th February or 2-3 days before he was brought by the police from Ramgarh to his village. On such facts, it cannot be inferred that the appellant has killed his wife and concealed hoe and kulhari in his house. 8. There is another circumstances which creates a doubt on complicity of the appellant in the crime. The appellant was lastly seen with his wife on 05.02.2010 at the house of the informant near Chhatapakhana Nala. The circumstances of last seen together is generally considered a strong incriminating material against an accused but before an inference is drawn on the basis of the last-seen-together on principle which has to be kept in mind and which is quite settled in law is that the evidence of last-seen-together should satisfy the proximity test-there should not be a long gap between the victim lastly seen with the accused and when the dead body of the victim was found. 9. In “Bodhraj @Bodha Versus State of Jammu and Kashmir” (2002) 8 SCC 45 the Supreme Court has explained the law on last-seen-together, thus; “31. The 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 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. 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...................” 10. In the present case there was a long gap of about 10 days after which the dead body of Sugmati Devi has been recovered. The star witnesses for the prosecution who could have deposed in the Court against the appellant have turned hostile, recovery of the crime articles is doubtful and no motive has been disclosed by the prosecution. We are of the opinion that the prosecution evidence is not sufficient to prove any incriminating circumstance against the appellant and, obviously, the chain of circumstance cannot be said to be proved. 11. In the end, we conclude that the prosecution has failed to prove the charge under sections 302 and 201 IPC against the appellant and, therefore, his conviction in Sessions Case No.231 of 2010 is set-aside. 12. Mrs. Nehala Sharmin, the learned APP states that the appellant is in custody. 13. Accordingly, the appellant, namely, Mangra Manjhi who is in custody shall be released forthwith, if not wanted in connection to any other case. 14. Criminal Appeal (DB) No. 971 of 2016 is allowed. 15. Let the lower-Court records be sent to the Court concerned forthwith. 16. Let a copy of the Judgment be transmitted to the Court concerned Jail Superintendent through FAX.