JUDGEMENT : Shree Chandrashekhar, J. On the basis of fardbeyan of Baudh Paswan which was recorded on 30th March, 2005 at about 11:30 a.m. in Chaman Katta forest near Tumbia village, Pratappur P.S. Case No. 09 of 2005 was registered against thirteen accused persons under sections 147, 149, 302 and 201 of the Indian Penal Code. After the investigation, a charge-sheet was submitted against Budhan Bharti and Chandra Deo Bharti; Chandra Deo Bharti has absconded. 2. In S.T. No. 03 of 2006, the appellant has been convicted and sentenced to R.I. for life under section 302 of the Indian Penal Code and R.I. for seven years under section 201 of the Indian Penal Code. 3. The informant of this case is son of Jagdeo Paswan, the deceased. In his fardbeyan, he has stated that on 29th March, 2005 at around 2 p.m. his co-villagers, namely, Brahmdeo Yadav, Shibu Yadav, Bali Yadav, Chandradeo Yadav, Chaman Yadav, Krishna Yadav, Chandra Kumar Yadav, Budhan Bharti, Manoj Bharti, Ganeshi Bharti, Sukhdeo Bharti, Sanjay Bharti and Nakhdeo Bharti forcibly took away his father for performing witch-craft and the next day morning at about 10-11 a.m. dead body of his father was found lying in Chaman Katta forest. The informant has stated that due to a land dispute with the villagers and their doubt about his father practicing witch-craft the accused persons have killed his father. The informant has been examined as PW-2 in the court. He has narrated a similar story about the incident which had happened in the afternoon of 29th March, 2005. He has spoken about the accused persons coming to his house, taking away his father forcibly and recovery of dead body of his father in the forest. 4. The prosecution has sought to corroborate testimony of PW-2 through the evidence of PW-3, PW-4 and PW-6. 5. PW-3, who is nephew of the deceased, has deposed in the court that in the afternoon of 29th March, 2005 he was in his filed. At that time he has seen 20-25 persons forcibly taking away his uncle. They were saying that by practicing witch-craft his uncle has killed a child. Both PW-2 and PW-3 have stated that by the evening several villagers came back but Jagdeo Paswan did not return home. 6. At that time he has seen 20-25 persons forcibly taking away his uncle. They were saying that by practicing witch-craft his uncle has killed a child. Both PW-2 and PW-3 have stated that by the evening several villagers came back but Jagdeo Paswan did not return home. 6. The time of death of Jagdeo Paswan does not corroborate the prosecution story of taking away of Jagdeo Paswan in the afternoon of 29th March, 2005. Dr. Suresh Sahu-PW-1, who has conducted the post-mortem examination, has found following injuries on Jagdeo Paswan: “(i) whole body was swollen foul smell , gasses were coming out. (ii) Fracture of sternums between upper and lower 2/3rd a red brown in colour, with Bruise over sternum. On explanation there was blood on plural cavity about 200 m.l. red blackish colour, left lung cease lacerated in middle part 5x3x2 c.m. red black in colour. Right lung congested. Heart empty left, right small amount of blood. Head-bruise right parietal and temporal region red blackish colour. (iii) There was depressed fracture of right parietal and temporal bone with extra clout beneath it. 10x7x3 c.m. red black. Fracture margin red black in colour.” 7. According to the doctor, the injuries on Jagdeo Paswan were caused by hard and blunt substance and the time elapsed since death was 39 hours. 8. According to the prosecution, PW-4 and PW-6 have stated that the appellant has led them to the place from where dead body of Jagdeo Paswan has been recovered. 9. Under section 27 of the Indian Evidence Act, discovery of a new fact is admissible in evidence. In “Pulukuri Kottaya Vs. Emperor” reported in AIR 1947 PC 67 , the Privy Council has observed that section 27 of the Evidence Act incorporates an exception to the restrictions under section 25 and section 26 and enables certain statements made by an accused in police custody to be proved. It has been held that the condition necessary to bring section 27 of the Evidence Act into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates discovery to the fact thereby discovered may be proved. 10. 10. There is no written confessional statement of the appellant and recovery of the dead body of Jagdeo Paswan allegedly at the instance of the appellant is not covered under section 27 of the Indian Evidence Act. 11. From the evidences led by the prosecution, we find that the only circumstance which has been proved by the prosecution against the appellant is of last-seen-together. But then, only on the basis of the last-seen-together evidence, conviction of an accused cannot be recorded for a serious offence like murder. Through PW-2 and PW-3, the prosecution has tried to prove motive for the crime but the evidence led by the prosecution on motive is inconsistent. In the fardbeyan the informant has stated about land dispute with the villagers whereas PW-2 and PW-3 have spoken about death of a child due to witch-craft practiced of the deceased. The name of the child and his parents have not been disclosed by the prosecution and, moreover, there were several villagers who according to PW-2 and PW-3 were taken away by the accused persons and except Jagdeo Paswan all had returned home in the evening of 29th March, 2005. It is also important to record here that out of thirteen accused persons; PW-3 has spoken about 20-25 accused persons, a charge-sheet was submitted only against two though the case of the prosecution against all of them is identical. 12. In the above facts, an inference on complicity of the appellant in the crime who was also taken away by the accused persons along with several other villagers cannot be raised in law. Under section 106 of the Indian Evidence Act, a presumption may arise against an accused who was lastly seen in the company of the deceased and soon thereafter his dead body has been recovered, but then, as observed by the Supreme Court in “Shambhu Nath Mehra v. State of Ajmer” reported in AIR 1956 SC 404 : this lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience.”, the prosecution must prove the foundational facts. 13. The case against the appellant is based on circumstantial evidence but the prosecution has not been able to prove such circumstances which would unerringly prove guilt of the appellant. 14. In “Bhagat Ram Vs. State of Punjab” reported in AIR 1954 SC 621 , the Supreme Court has laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. In “C. Chenga Reddy Vs. State of A.P.” reported in (1996) 10 SCC 193 , it has been observed that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. 15. From the evidences laid by the prosecution, we find that the prosecution has failed to establish that the chain of circumstances is so complete as to lead to an irresistible conclusion that it was the appellant and the appellant alone who has committed the crime. In fact, in his examination under section 313 Cr.P.C. the appellant has offered a plausible explanation. He has stated that he was taken away by the villagers for searching Jagdeo Paswan. 16. In the aforesaid state of affairs, we find that the prosecution has failed to establish the charge under section 302 and section 201 of the Indian Penal Code against the appellant and, therefore, his conviction for the aforesaid offences is set-aside. 17. Accordingly, the appellant is acquitted of the criminal charges framed against him by the trial court. 18. Mrs. Laxmi Murmu, the learned APP states that the appellant is in custody. 19. Accordingly, the appellant, above-named, shall be released forthwith if not wanted in connection to any other case. 20. We appreciate the assistance rendered by Mrs. Sadhna Kumar, the learned Amicus, who on the first date of hearing itself has ably assisted the court. 21. Let the lower court records be transmitted to the court concerned, forthwith.