JUDGMENT : A.C. RAO, J. 1. The present Criminal Appeal is filed by the appellant – original accused against the judgment and order of conviction dated 21.02.2015 passed in Sessions Case No.38 of 2012 whereby the learned Sessions Judge, Amreli convicted the appellant for the offences under Section 302 and 201 of the Indian Penal Code and sentenced her to undergo life imprisonment with a fine of Rs.2,000/- i/d to undergo further six month's simple imprisonment. 2. On 22.11.2009, the complainant Rasidkhan Mahmadkhan gave a complaint before Amreli Police Station being IC. R.No.162 of 2009 against an unknown person to the effect that he is residing at Sandhi Society, Amreli along with his one of the sons Mahmadkhan, his wife Shabnam and grandsons Shamil – aged about 07 years and Aman, who was aged about 03 years. On the day of incident i.e. on 22.11.2009, till 6:00 O'clock, both his grandsons were playing in the house. The complainant visited the house of neighbor Najuben for tea and, therefore, he took Shamil with him. After some time, Shabnam, his daughter-in-law had rushed to the house of Najuben complaining about missing of Aman though she tried to search him. Therefore, the complainant started to search whereabouts of his grandson Aman in nearby area and also asked Nasimben – appellant (accused), who also resides in the same Sandhi society, however, he could not trace Aman. It is further alleged in the complaint that, at about 9:00 O'clock, he was told by his daughter Nasim, who along with her neighbour Rukshanaben was also trying to search Aman, that they found dead-body of Aman and thereafter Rukshanaben and Shabnam took Aman to civil hospital. After some time the complainant received phone call of his son Mahmadkhan who informed him that he came to know from the doctor that his son Aman is dead. Thereafter the complainant went to Civil Hospital where he found dead body of Aman having cut on his neck wherefrom blood was oozing. The dead-body of Aman was found from bushes opposite to the house and, therefore, the complainant filed complaint against the unknown person. Thereafter the complainant went to Civil Hospital where he found dead body of Aman having cut on his neck wherefrom blood was oozing. The dead-body of Aman was found from bushes opposite to the house and, therefore, the complainant filed complaint against the unknown person. 2.1 On filing of the complaint, police machinery started investigation and on completion of investigation appellant – accused was arrested, chargesheet has been filed, and submitted the same before the Magistrate court who in turn since the case was sessions triable committed the case to the Sessions Court under Section 209 of the Cr.P.C. On accused being produced before the Sessions Court after verifying whether necessary papers are supplied or not as per section 207 of the Cr.P.C., charge has been framed vide Exh.5 for the offences under Sections 302 and 201 of the Indian Penal Code and the same was read over to the accused and plea of the accused was recorded wherein the accused pleaded no guilty and pleaded to be tried. 2.2 To prove its case, the prosecution has examined as many as 20 witnesses and documentary evidences 34 in all. After filing closing pursis vide Exh.74, further statement of the appellant – accused was recorded under Section 313 of the Cr.P.C. wherein also accused denied his involvement in offence and alleged that he has been falsely implicated. After hearing both the sides and taking into consideration the written arguments also, the learned Sessions Judge, Amreli convicted the appellant for the offences under Section 302 and 201 of the Indian Penal Code and sentenced her to undergo life imprisonment with a fine of Rs.2,000/i/d to undergo further six month's simple imprisonment. 3.1 Dr. Dharmesh Pravinchand Gandhi, Prosecution Witness No.1, has stated in his examination-in-chief at Exh.9 that on the day of incident i.e. on 22.11.2009 when he was present at Amreli Civil Hospital as Medical Officer, at about 1:15 at night Police Inspector M.K.Parmar brough dead body of one Aman Mahhamadbhai Pathan, aged about 3 years, resident of Sindhi Society, for the purpose of postmortem with copy of Inquest Panchnama. He started postmortem at about 7:45 in the morning of 23.11.2009 and concluded it at about 9:00 o'clock. He described the lividity and the condition of dead body. He started postmortem at about 7:45 in the morning of 23.11.2009 and concluded it at about 9:00 o'clock. He described the lividity and the condition of dead body. He also described the external and internal injury and stated that injuries caused on the neck of the deceased could be possible by Muddamal Articles No.8 and 9 Knife. In his cross examination he negated that on account of thread in the neck being hooked in the throne such injuries could be possible. 3.2 Rasidkhan Mahhmadkhan Pathan, Prosecution Witness No.2, who is examined at Exh.15, has deposed on the same lines as of the prosecution in his examination-in-chief. He has stated that after receiving the phone call of his son Mahmmadkhan who told him that doctor declared Aman died, this witness had gone to hospital where he found dead body of Aman having cut wound on his neck. Thereafter he disclosed his complaint against unknown person before the police at Amreli Civil Hospital. However, in his cross-examination he has negated the possibility of murder of Aman by appellant – who happens to be the daughter of the present witness i.e. the complainant. In his cross examination he has specifically stated that when all his neighbours were trying to trace Aman including Nasim – the present appellant accused, she (Nasim) along with Karimaben headed towards bushes wherefrom the dead body of the deceased Aman was found. 3.3 Rahim Valibhai Parmar, Prosecution Witness No.3, who is examined at Exh.18 has stated in his evidence that on 23.11.2009 he was called at Amreli City Police Station where he signed panchnama. This witness has identified his signature on the panchnama, however, is declared as hostile witness. The panchnama was prepared for collecting blood sample of parents of deceased Aman viz. Mahmmadkhan Rasidkhan Pathan and Shabnamben @ Shabnam w/o. Mahmmadkhan Pathan. 3.4 Yusufbhai Muradbhai Makrani, Prosecution Witness No.4, who is examined at Exh.20 is a panch witness who is declared as hostile witness. 3.5 Yunushbhai Ismailbhai Kureshi, Prosecution Witness No.5, who is examined at Exh.22 is panch witness of scene of offence who turned witness. 3.6 Prosecution has examined Bhupatgar Mojgar Gosai, Prosecution Witness No.6, at Exh.23 is hostile panch witness for a panchnama prepared while collecting blood samples of parents of the deceased for DNA test. 3.5 Yunushbhai Ismailbhai Kureshi, Prosecution Witness No.5, who is examined at Exh.22 is panch witness of scene of offence who turned witness. 3.6 Prosecution has examined Bhupatgar Mojgar Gosai, Prosecution Witness No.6, at Exh.23 is hostile panch witness for a panchnama prepared while collecting blood samples of parents of the deceased for DNA test. He has stated that on 23.11.2009 when he was going in his auto for purchasing vegetable via Mangvapaal, police jeep passed through his auto, stopped him on the way and took his signatures on the papers. This witness is declared as hostile witness as he has negated the fact that in his presence blood samples of deceased Aman and his parents were collected for DNA test. 3.7 Prosecution Witness No.7 viz. Mahebubbhai Ibrahimbhai Shekh is examined at Exh.24. He is panch witness of arrest panchnama of accused. However, this witness is declared as hostile witness. 3.8 Prosecution Witness No.8 viz. Rukshanaben Jafarbhai Shekh (Sandhi) is examined at Exh.26. She has stated that on 22.11.2009 she came to know that Aman was missing as his mother and grandfather were trying to search him. She has stated that she and her husband along with Shabnambenben were searching Aman in the society as well as in the bushes. There was announcement of missing of the said child in loudspeaker. She has stated that till late night all ladies and gents were searching Aman including Nasimaben. Thereafter Karimaben found dead body of Aman in bushes situated opposite to house of Mahmmadkhan who had cut on his neck. Therefore, this witness along with mother of Aman and other two neighbours took Aman Government Hospital. 3.9 Prosecution Witness No.9 Sadambhai Nurabhai Juneja is examined at Exh.28. He has stated in his evidence that on 24.11.2009 when he returned from Garage, he found police at house of Nasimben and he made signature in panchnama. He has identified his signature in the panchnama at Exh.29. This witness is declared hostile witness. 3.10 Prosecution Witness No.10 Shabnambenben @ Shabbu Mahmmadkhan Pathan is examined at Exh.30. She is the mother of the deceased Aman. She has stated in her evidence that at about 5 or 6 O'clock in the evening she was at her house with Mahek, who is daughter of Nasimben (she is the sister of husband of this witness), her father-in-law and her two sons Aman (deceased) and Shamil. She is the mother of the deceased Aman. She has stated in her evidence that at about 5 or 6 O'clock in the evening she was at her house with Mahek, who is daughter of Nasimben (she is the sister of husband of this witness), her father-in-law and her two sons Aman (deceased) and Shamil. Nasimben had come to her house for taking Mahek to her home. Aman took out his pent to answer nature's call, he was followed by Nasimben. Thereafter her father-in-law had left the house saying that he would go for tea at the house of Nasirbhai. Shamil had also gone outside. After sometime as Aman did not return, she had gone outside and searched him but could not find him. Therefore, she went to the house of the accused Nasimben who stood at the door who negated the presence of Aman at her house. This witness has specifically stated in her evidence that at that time accused Nasimben advised this witness to search Aman in bushes. Thereafter she returned to the house, changed her dress and started searching Aman in the society with the neighbours. This witness again went to house of accused Nasimben and tried to search Aman in her house inquiring about Aman. But the appellant accused stopped this witness at the gate only and as such did not allow this witness to go into her house. She has further stated that she had not trusted her and asked one Kaliya, who is residing nearby Nasimben, to go to the house of Nasimben and search Aman. However, Nasimben did not allow even Kaliya to enter into the house. Therefore, this witness along with others had started search for Aman in nearby areas. That time Nasimben had come to this witness and asked her to make announcement about missing of Aman in loudspeaker of Masjid. This witness has stated that after some time she had gone to police station with one Dilamama and informed the police about the missing of Aman but did not give any complaint. Thereafter while returning from the police station, she met her husband. All the three, this witness and her husband and Dilamama had come to home. Thereafter she along with her husband had gone to Janmahhmad Dargah and returned from there. She stayed at home and her husband and nearby persons started search of Aman. Thereafter while returning from the police station, she met her husband. All the three, this witness and her husband and Dilamama had come to home. Thereafter she along with her husband had gone to Janmahhmad Dargah and returned from there. She stayed at home and her husband and nearby persons started search of Aman. Thereafter one Kadarbapu also came who consoled her not to worry and told that Aman would be found. At about 9:30 when she along with others were standing outside, Nasimben had advised to search Aman in bushes. However, this witness turned down her advice saying that all of them had already searched Aman in bushes. However, Nasimben her own had gone to search Aman in bushes along with Karimaben and Rukshanaben. After some time Nasimben shouted saying Aman laying in bushes. Therefore, this witness fainted but she was caught hold by other ladies. Thereafter, this witness along with others viz. Kulsumben and Ruksanaben took Aman to the hospital. This witness has stated that as there was emergency and auto was driven slow, Aman was shifted to car of one Ilabhai who took him to the hospital. When she reached at Civil Hospital, her husband and father-in-law were present there and her husband informed this witness that Aman sustained knife injury at his neck and he is dead. Thereafter she along with others took back dead body of Aman at the house. In her examination-in-chief, she has stated that her father-in- law, who happens to be the father of Nasimben (appellant – accused) called her and threatened her saying that if she declares name of Nasimben, he (father-in-law) would commit suicide and rope her in the crime. This witness has stated that she informed the police that Karimaben, who is residing behind the house of this witness, had come to her and informed that on the day of incident she had seen Nasimben holding hands of Aman near bushes. The husband of Nasimben viz. Akbarbhai had threated Karimaben not to disclose about the same otherwise he (Akbarbhai) would kill her (Karimaben's) sons. This witness was taken for lie-detector test and then to magistrate where she stuck to her version. In her examination-in-chief she has also disclosed the motive behind the incident stating that, after her marriage, her husband had promised Nasimben that he would handover his first baby boy to her (Nasimben). This witness was taken for lie-detector test and then to magistrate where she stuck to her version. In her examination-in-chief she has also disclosed the motive behind the incident stating that, after her marriage, her husband had promised Nasimben that he would handover his first baby boy to her (Nasimben). After birth of her first child Shamil, Akbarbhai and Nasimben had come to her house for taking Shamil. But this witness did not handover her son. Thereafter, as Nasimben could not give birth to male child, she used to took his son at her house. Nasimben out of grudge used to cause hurt to her son. Thereafter this witness gave birth to another baby boy and Nasimben gave birth to another girl. Thus, as per say of this witness, out of grudge Nasimben has committed murder of her son Aman. In cross-examination of this witness, she has stated that all of the persons i.e. Nasimben and father-in-law of this witness gone outside immediately after her son Aman had gone to answer nature's call. Thus, in her cross-examination also she stuck to her version she had given in examination-in-chief. 3.11 Prosecution Witness No.11 Munafbhai Abdulbhai Rafai, who is examined at Exh.32. He is the witness to the discovery panchnama at Exh.29. He is declared as hostile witness. 3.12 Prosecution Witness No.12 Aminbhai Abdulbhai Bilakhiya, who is examined at Exh.34 is hostile panch witness. 3.13 Prosecution Witness No.13 Karimaben Iqbalsha Fakir is examined at Exh.36. She has stated that prior to about two years at about 5 O'clock, in the evening, when she had gone to purchase some provisional items, she had seen Nasimben holding hand of Aman the son of Shabnamben near bushes. After some time, she came to know from his son Irfan that Aman was missing. Therefore she had gone to Shabnamben. However, she had gone somewhere to get whereabouts of his son and her father-in-law with an old woman was present at the house. Thereafter this witness, herself, had gone to search Aman upto Chittal road and inquired there. Thereafter when she returned Shabnamben with other ladies sat near bushes where Nasimben had also come who insisted to search Aman in the bushes. This witness followed Nasimben and Hakiben towards bushes wherefrom dead body of Aman was found in the light of torch. Thereafter Aman was immediately taken to hospital in auto. Thereafter when she returned Shabnamben with other ladies sat near bushes where Nasimben had also come who insisted to search Aman in the bushes. This witness followed Nasimben and Hakiben towards bushes wherefrom dead body of Aman was found in the light of torch. Thereafter Aman was immediately taken to hospital in auto. This witness has stated that near the house of Kulsamben, Akbarbhai met her who threatened her that if she would disclose name of Nasimben – wife of Akbarbhai, he would kill her sons. Therefore, she did not state anything to the police. In her cross-examination she has stated that she had disclosed to Shabnamben mother of deceased Aman about threat given by Akbarbhai. 3.14 Prosecution Witness No.14 Mahammadkhan Rasidkhan Pathan is examined at Exh.37. He has stated that incident took place on 22.11.2009. On that he had gone Chalal for 'Vardhi'. On that day at about 7:30 in the evening he received message on phone that his son Aman was missing. Therefore, he inquired about the same contacting his father on his mobile, who informed that Aman was missing since 6 O'clock in the evening. When he was returning to the house, he found his wife and one Dilamama who informed the police about the same. Thereafter they had returned to the house and started searching Aman. Thereafter, on arrival of Jafarbapu, he along with his wife had gone to Dargah. When he was searching Aman in nearby areas, he came to know Aman was traced out from bushes. He was taken to civil hospital. At the hospital after examining Aman, doctor declared him dead. Thereafter his father had lodged complaint. In his cross examination he has stated that after 2-3 days of incident, Nurabhai and Munabhai informed that he had seen Nasimben roaming around his house. He has stated that Nasimben used to bring both his sons to her house and used to hurt them. This witness has stated that after the incident his wife informed him that his father threatened her not to disclose name of Nasimben otherwise he would kill himself and implicate her falsely. This was inquired by this witness from his father, however, his father had not responded. This witness has stated that on the day of incident they tried to search Aman from the bushes but could not find him at the place wherefrom he was traced out by Nasimben. This was inquired by this witness from his father, however, his father had not responded. This witness has stated that on the day of incident they tried to search Aman from the bushes but could not find him at the place wherefrom he was traced out by Nasimben. He has disclosed the intention of incident that he had two boys and his sister Nasimben gave birth to two girls and, therefore, he promised that he would give his one of the sons to Nasimben. This witness has doubted about active involvement of Nasimben who is his real sister in the commission of murder of his son Aman. This witness has accepted that his father filed maintenance application against him and his wife, alleging that he was harassed by them. 3.15 Prosecution Witness No.15 Hemangi Rasiklal Shah is examined at Exh.39. She has stated that she has been working as Scientific Officer in Psychology Department at Forensic Science Laboratory for last four years. She has stated that on 21.01.2010 she received yadi for conducting lie-detector test of two persons viz. Shabnam Mahhmadkhan Pathan and Nasimben. She has stated that on conducting lie-detector test of Nasimben it was found that she was trying to hide something about the case. On examination of Nasimben on 28.04.2010 analysis shows that she has the knowledge/information about the offence. She has stated that on the basis of polygraph examination of affirmative and control questions asked to Nasimben it could be said that she was hiding something about her knowledge/information of the offence. Her examination-in-chief remains unshaken during her cross examination. On 26.03.2010 Yadi for profile examination of Brain Electrical Oscillation Signature (B.E.O.S.) was received in respect of Shabnamben and Nasimben. On 28.04.2010 interview of Nasimben Akbarbhai Saiyed was taken in the room for B.E.O.S. and her brain mapping in the form of EEG (brain waves) was taken. On the basis of three sets of probes (one set of probes was on the basis of information given by her, other two sets were prepared by the Investigating Agency) and on the basis of computer generating analysis report, it was suggested that she was having personal knowledge about the crime and she was hiding something. This witness has explained the method of brain mapping and lie-detector test. This witness has explained the method of brain mapping and lie-detector test. She has stated that while the person on whom such tests are performed, from the conduct and answers of sets of probes, they can read actual position of the brain through EEG reading. She has stated that from the EEG analysis report it appears that Nasimben was having knowledge about the offence and that she was hiding something about offence. Whereas in case of Shabnamben analysis report has not disclosed anything which creates suspicion over her. 3.16 Prosecution Witness No.16 Bipinbhai Harikrushnabhai Pandya is examined at Exh.50. He has stated that on 22.11.2009 at about 2345 hrs. on receipt of the complaint from PI Shri M.K.Parmar for registering the offence, this witness has registered the offence and handed over investigation to PI Shri M.K.Parmar. He has stated about the procedures he had followed. 3.17 Prosecution Witness No.17 Atulkumar Kantilal Patel is examined at Exh.53. He has stated that on 20.04.2010 he has reported at Amreli City Police Station and received the papers of the case for investigation from PI Shri M.K.Parmar. He has stated that after receiving permission from higher officers, Nasimben was sent for Brain Electric Oscillation Signature Profiling Test and obtained reports thereof. 3.18 Prosecution Witness No.18 Aniruddh Maganlal Captain is examined at Exh.54. He has stated that on 22.08.2010 he was serving as PI, Amreli City Police Station. He was handed over investigation of offence of murder. He has stated that after receiving report of FSL about Nasimben, he called Shabnamben and Karimaben and recorded their further statements. Thereafter he made application under Section 164 to learned JMFC for recording of their evidence. Thereafter on his transfer he handed over investigation to PI R.L.Mavani. In his cross examination he has stated that in statement of Shabnamben dated 27.11.2009 she had stated that she had doubted her husband for one lady named Manjuben. It was removed when Manjuben tide Raakhi to her husband. She had stated that the complaint was lodged by her brother-in-law against her husband. 3.19 Prosecution Witness No.19 Suryaprakash Mavjibhai Desai is examined at Exh.58. He has stated that in the year 2012 investigation was handed over to him. As he found sufficient evidence against the accused, he arrested the accused and filed charge sheet. He has identified signatures of different police officer who had investigated case earlier. 3.19 Prosecution Witness No.19 Suryaprakash Mavjibhai Desai is examined at Exh.58. He has stated that in the year 2012 investigation was handed over to him. As he found sufficient evidence against the accused, he arrested the accused and filed charge sheet. He has identified signatures of different police officer who had investigated case earlier. He has recorded evidence of Karimaben on 15.10.2011 wherein she has accepted that Akbarbhai husband of Nasimben had given her threat not to disclose name of Nasimben otherwise he would kill her sons. He has stated that before arrest of the accused, this witness was subjected to Brain Mapping and Lie-detector test along with accused. 3.20 Prosecution Witness No.20 Hareshbhai Harkishanbhai Rajpara is examined at Exh.71. He has stated that on 25.11.2009 he was serving as Circle Inspector at Mamlatdar Office at Amreli. He received written yadi for preparing map of scene of offence. He had visited to the place and prepared the map accordingly. Nothing adverse could be elicited from the cross-examination of this witness. 4. At the time of argument, learned Additional Public Prosecutor has placed heavy reliance on the brain mapping test. He has vehemently submitted that there is experienced knowledge of appellant accused which is revealed during brain mapping test i.e. BEAP tests [Brain Electrical Activation Profile Test]and lie-detector test and, therefore, this evidence cannot be discarded because it is very important piece of evidence. It is submitted that brain mapping test can be repeated with same result and importance of scientific evidence cannot be discarded and, therefore, conviction of the appellant need not to be set aside as the trial Court has rightly convicted the appellant. 4.1 In this regard we would like to quote the observations made by the three Judges' Bench of the Apex Court in case of Selvi And Others V/s. State Of Karnataka, (2010) 7 SCC 263 , wherein it is held thus: “We can also contemplate a possibility that even when an individual freely consents to undergo the tests in question, the resulting testimony cannot be readily characterised as voluntary in nature. This is attributable to the differences between the manner in which the impugned tests are conducted and an ordinary interrogation. In an ordinary interrogation, the investigator asks questions one by one and the subject has the choice of remaining silent or answering each of these questions. This is attributable to the differences between the manner in which the impugned tests are conducted and an ordinary interrogation. In an ordinary interrogation, the investigator asks questions one by one and the subject has the choice of remaining silent or answering each of these questions. This choice is repeatedly exercised after each question is asked and the subject decides the nature and content of each testimonial response. On account of the continuous exercise of such a choice, the subject's verbal responses can be described as voluntary in nature. However, in the context of the impugned techniques the test subject does not exercise such a choice in a continuous manner. After the initial consent is given, the subject has no conscious control over the subsequent responses given during the test. In case of the narcoanalysis technique, the subject speaks in a druginduced state and is clearly not aware of his/her own responses at the time. In the context of polygraph examination and the BEAP tests, the subject cannot anticipate the contents of the ‘relevant questions' that will be asked or the ‘probes' that will be shown. Furthermore, the results are derived from the measurement of physiological responses and hence the subject cannot exercise an effective choice between remaining silent and imparting personal knowledge. In light of these facts, it was contended that a presumption cannot be made about the voluntariness of the test results even if the subject had given prior consent. In this respect, we can reemphasize Principle 6 and 21 of the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment (1988). In light of these facts, it was contended that a presumption cannot be made about the voluntariness of the test results even if the subject had given prior consent. In this respect, we can reemphasize Principle 6 and 21 of the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment (1988). The explanation to Principle 6 provides that: "The term ‘cruel, inhuman or degrading treatment or punishment' should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time." Furthermore, Principle 21(2) lays down that: "No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment." we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872 (emphasis supplied)” 4.2 In view of above observations of the Supreme Court, we do not agree with the submissions of learned Additional Public Prosecutor. There is nothing on record of the case which would make evidence admissible under Section 27 of the Evidence Act. The brain mapping test cannot be relied upon as on the basis of it, no further incriminatory evidence is found. 5. While convicting the appellant – accused on the basis of circumstantial evidence, the trial Court need to conclude that to establish that chain of such circumstances is completed. The brain mapping test cannot be relied upon as on the basis of it, no further incriminatory evidence is found. 5. While convicting the appellant – accused on the basis of circumstantial evidence, the trial Court need to conclude that to establish that chain of such circumstances is completed. The trial Court has mainly relied upon the circumstances of 'last seen together' of the appellant and the deceased. The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act,1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given. 6. With the development of law the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of the Apex Court The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. ; In Arjun Marik v. State of Bihar [1994 (Suppl 2) SCC 372], the Apex Court took the view that the where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19 the July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and. therefore, no conviction, on that basis alone, can be founded. 6.1 Even in the case of State of Karnataka v. M.V. Mahesh [ 2003 (3) SCC 353 ], the Apex Court held that merely being last seen together is not enough. What has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the Court. 6.2 In the case of State of U.P. v. Satish [ 2005 (3) SCC 114 ], the Apex Court had stated that the principle of last seen comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. 6.3 Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 7. From the above evidences, it appears that trial Court has convicted the appellant on the ground that victim was last seen together with the appellant; the appellant did not allow the mother of the victim viz. 7. From the above evidences, it appears that trial Court has convicted the appellant on the ground that victim was last seen together with the appellant; the appellant did not allow the mother of the victim viz. Shabnamben to enter into her house for the search of son Aman (the deceased); before the dead-body of the deceased was found from the bushes the appellant had insisted the mother of the deceased (Aman) to search him in bushes; the husband of the appellant Nasimben viz. Akbarbhai had threated Karimaben Iqbalsha Fakir (P.W.No.13) not to name Nasimben otherwise her sons would be in trouble, the father of the appellant had threatened Shabnamben (mother of the deceased Aman) that if she involve the appellant – Nasimben (who happens to be his daughter), he would commit suicide, the appellant, who was having two daughters and not sons, used to hurt and harass the sons of Shabnamben which had created situation that Shabnamben did not allow her sons to go to house of appellant, which annoyed the appellant and, therefore, the appellant has a motive to kill the deceased Aman. 7.1 But the trial Court has failed to consider that Shabnamben [P.W.No.10], in her cross-examination, accepted that she had not disclosed to the police about the threat given by her father-in-law who happens to be the father of appellant Nasimben. Further, Karimaben [P.W.No.13], in her cross-examination, has stated that the husband of the appellant Akbarbhai threatened her not to name any person to the police and she has also accepted that this fact she had disclosed to the police after a month of the incident. Mahmmadkhan Pathan [P.W.No.14], who happens to be the father of the deceased and son of complainant, has admitted that there is maintenance proceeding against him and her wife Shabnamben filed by his father i.e. the complainant. The conviction of the appellant – accused is on the basis of theory of “last seen” which appears to have substantiated as per the evidence of Karimaben [P.W13] as she has stated in evidence that she had seen appellant accused with deceased Aman near the bushes at about 5:00 O'clock in the evening, however, the complainant Rasidkhan [P.W.No.2] has stated in his evidence that till 6:00 O'clock in the evening, both his grandsons viz. Aman and Shamil were playing in the Faliya. Aman and Shamil were playing in the Faliya. Thus, the 'last seen' theory as per the evidence the prosecution does not have any bearing on the facts of the case. It appears that Karimaben [P.W. No.13] has improved her version stating that husband of the appellant had threatened her not to name appellant accused Nasimben before the police. She has not disclosed this fact to the police. In this regard, it is apt to refer to the judgment of the Apex Court in the case of Ashish Jain vs. Makrand Singh reported in AIR 2019 SC 546 wherein the Apex Court has discarded the evidence of important witness as there was delay in recording the same and as such the Apex Court discarded the theory of 'last seen together' circumstance. In the case on hand, the incident occurred on 22.11.2009 whereas the statement of Karimaben [P.W.No.13] was recorded on 15.11.2011. Thus, there is huge delay in recording statement of Karimaben whose version before the police was that she had seen accused holding hand of deceased Aman on the eve of the incident. Her version after two years of the incident before the police, in view of the judgment of the Apex Court referred to above, would loose its significance. 8. In light of the abovementioned contradictions and the uncertainty of evidence, we are unable to sustain the view that on the theory of last seen, the accused can be convicted. This fact is uncorroborated and suffers from apparent contradictions and discrepancies as well. 9. The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisfied that the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established leading to the inescapable conclusion that the appellant was author of murder of deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner also cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the “benefit of doubt”. 10. For the forgoing reasons, the present appeal is allowed. The judgment and order of the conviction dated 21.02.2015 passed in Sessions Case No.38 of 2012 by the learned Sessions Judge, Amreli is quashed and set aside. The appellant is therefore held entitled to acquittal on the “benefit of doubt”. 10. For the forgoing reasons, the present appeal is allowed. The judgment and order of the conviction dated 21.02.2015 passed in Sessions Case No.38 of 2012 by the learned Sessions Judge, Amreli is quashed and set aside. We accordingly order the acquittal and release of the appellant from custody forthwith, unless wanted in any other case. R&P is ordered to be sent back forthwith.