JUDGMENT : Shree Chandrashekhar, J. Dinesh Mandal, Bulo Mandal and Horiya Mandal are convicted and sentenced to RI for life and fine of Rs.10,000/- each under section 302/34 of the Indian Penal Code, with a default stipulation that they shall undergo further simple imprisonment for one month. 2. In Sessions Case No. 130 of 2009, the learned trial Judge took note of the following circumstances, as recorded in paragraph no. 23 of the judgment under challenge, to hold that the appellants committed murder of Komud Jha: (i) The appellants came to the house of Komud Jha and took him alongwith them; (ii) Horiya Mandal admitted to his mother that the deceased was with him for about an hour; (iii) Dinesh Mandal was found threatening in the village that he would kill one brahmin; and (iv) Komud Jha died a homicidal death. 3. At the outset we may indicate that the circumstance no. (ii) that Horiya Mandal told the mother of Komud Jha that he was with him for about an hour cannot be considered an incriminating circumstance in this case. 4. From a reading of the judgment in Sessions Case No. 130 of 2009, we gathered that the appellants are convicted on the basis of last seen together evidence tendered through PW1, PW2 and PW12. Mrs. Vani Kumari, the learned counsel for the appellants refers to the judgments in “Manivel and others v. State of Tamil Nadu” (2008) 12 SCC 748 , “Ram Bharosey v. State of U.P.” AIR 1954 SC 704 and in “Nizam and another v. State of Rajasthan” (2016) 1 SCC 550 to contend that may be the last seen together theory assume significance in a case based on circumstantial evidence but without corroboration by any other independent evidence the accused cannot be convicted on the ground that the deceased was seen alive last in his company. 5. The prosecution case unfolds in the fardbeyan of Rani Devi who is the wife of Komud Jha. She gave her fardbeyan at 05:45 AM on 30th April, 2009 before the officer-in-charge of Thakurgangti PS stating that around 05:00 AM her younger son Ashish Kumar Jha heard the villagers talking near parasi more that a dead body was lying at Mahuara fields (maidan). She gave her fardbeyan at 05:45 AM on 30th April, 2009 before the officer-in-charge of Thakurgangti PS stating that around 05:00 AM her younger son Ashish Kumar Jha heard the villagers talking near parasi more that a dead body was lying at Mahuara fields (maidan). Last evening, around 07:00 PM, her husband was ready for dinner when Horiya Mandal and Bulo Mandal came to her house and asked her husband to come along for negotiating a compromise. Though her husband was feeling hungry the accused forcibly took him away saying that they were hit by Yogesh Yadav with bicycle. She further stated that when her husband did not come back home late in the night her mother-in-law went out searching for him, and that the mother of Horiya Mandal told her that no one was present in her house. Around 11:30 PM, her mother-in-law and daughter Beauty Kumari again went to the house of Horiya Mandal and created a ruckus. The mother of Horiya Mandal then said that Horiya Mandal had gone to sleep. When her mother-in-law woke him up, Horiya Mandal told her that Jhaji (Komud Jha) was with him for sometime but he cannot say where he had gone thereafter. She has further stated that 2-3 days prior to this occurrence Dinesh Mandal was seen declaring in the village that he would kill one brahmin. 6. Meharma (Thakurgangti) PS Case No. 59 of 2009 was registered at 03:00 PM on 30th April, 2009 against Dinesh Mandal, Bulo Mandal and Horiya Mandal for committing murder of Komud Jha in furtherance of common intention. A charge-sheet was laid against these accused and they faced the trial on the charge under section 302/34 of the Indian Penal Code which was framed against them by a common order dated 09th July, 2009. The prosecution has examined twelve witnesses during the trial. Three witnesses PW3, PW6 and PW7 who are co-villagers of Komud Jha, however, did not support the prosecution case. PW1 Abhirama Devi is the mother, PW2 Beauty Kumari is the daughter, PW4 Rahul Kumar Jha and PW10 Ashok Kumar Jha are sons and PW12 Rani Devi, informant, is the wife of the deceased. The material witnesses are closely related to the deceased but their evidence to the effect that Komud Jha was seen alive last in the company of Horiya Mandal and Bulo Mandal has remained intact. 7. Mrs. The material witnesses are closely related to the deceased but their evidence to the effect that Komud Jha was seen alive last in the company of Horiya Mandal and Bulo Mandal has remained intact. 7. Mrs. Vani Kumari, the learned counsel for the appellants would submit that the facts recorded in the fardbeyan which is the first story given by the informant at the earliest point of time should normally be attached some importance even though a First Information Report is not a substantive piece of evidence. The learned counsel referring to examination-in-chief of PW-12 submits that the informant made substantial improvement in her testimony in the Court by incorporating name of Dinesh Mandal who according to her was standing at the door of his house whereas there is no whisper about presence of Dinesh Mandal in the fardbeyan. 8. No witness claimed in the Court that he could see the appellants committing murder of Komud Jha. The prosecution has rested its case against the appellants on circumstantial evidence. In a case based on circumstantial evidence the prosecution is required to lead cogent and consistent evidence to prove that the cumulative effect of the incriminating circumstances appearing against the accused is that there is no doubt on complicity of the accused in the crime. 9. In “State of Goa v. Sanjay Thakran and another” (2007) 3 SCC 755 the Hon’ble Supreme Court has observed as under: “13. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 10. The evidence of PW1, PW2 and PW12 is in identical terms and all that we gathered from their testimony is that the appellants came to the house of the deceased and called him on the pretext of a quarrel with Yogesh Yadav. The prosecution did not produce Yogesh Yadav or any other witness to indicate that on a false pretext the appellants called Komud Jha. Horiya Mandal was found sleeping in his house when PW1 visited his house at around 11:30 PM. The circumstance that the mother of Horiya Mandal at the first instance informed PW1 that her son was not at home which according to the prosecution was a false statement is not at all significant. The learned counsel for the appellants would contend that it has come in the prosecution evidence that Dinesh Mandal was living just two paces away from the house of the deceased and if at all the prosecution witnesses are truthful they would have first gone to the house of Dinesh Mandal and not to Horiya Mandal. 11. Though the opinion of a doctor as to the time of death is necessarily opinionative but the theory of last seen together which is largely founded on a premise that if the victim was seen alive last in the company of the accused and soon thereafter he was found murdered a grave suspicion would arise against the accused. The theory of last seen together is therefore primarily premised on small time gap between the two events – last seen and death of the victim. 12. In “Ramreddy Rajesh Khanna Reddy v. State of A.P.” (2006) 10 SCC 172 the Hon'ble Supreme Court has observed as under: “27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and 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. Even in such a case the courts should look for some corroboration.” 13. PW11 Dr. Ajay Kumar Jha who conducted autopsy over the dead body of Komud Jha has rendered an opinion that the time elapsed since death was 24 hours. We further find that what creates doubt on the finding recorded by the learned trial Judge in paragraph no. Even in such a case the courts should look for some corroboration.” 13. PW11 Dr. Ajay Kumar Jha who conducted autopsy over the dead body of Komud Jha has rendered an opinion that the time elapsed since death was 24 hours. We further find that what creates doubt on the finding recorded by the learned trial Judge in paragraph no. 24 of the judgment is statement of the doctor in the cross-examination that if the death had occurred within 16 to 17 hours condition of the dead body would have been different. 14. In a criminal trial the evidence of last seen together if proved would be a highly incriminating material against the accused, however, there must be something more, to say that, some other independent evidence to corroborate the theory of last seen together. 15. In “Nizam v. State of Rajasthan” (2016) 1 SCC 550 the Hon'ble Supreme Court has held as under: “14. …. Undoubtedly, the “last seen theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “last seen theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on “last seen theory”. “Last seen theory” should be applied 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.” 16. No motive has been ascribed by the prosecution to the appellants for committing murder of Komud Jha. All that the witnesses said in the Court is that Dinesh Mandal was found issuing threats in the village that he would kill a brahmin, but then Komud Jha was not the only brahmin in the village. On the contrary, PW12 admits in the Court that there was no enmity with the appellants. 17. This is a general notion that in a criminal trial motive does not play 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. In “Surinder Pal Jain v. Delhi Administration” (1993) Supp. 17. This is a general notion that in a criminal trial motive does not play 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. In “Surinder Pal Jain v. Delhi Administration” (1993) Supp. (3) SCC 681 the Hon'ble Supreme Court has observed as under: 11. “…. In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.” 18. Mr. Vineet Kumar Vashistha, the learned APP would however submit that silence of the appellants when they were examined under section 313 of the Code of Criminal Procedure must go against them and on the basis of last seen together evidence rendered by PW1, PW2 and PW12 the appellants were rightly convicted for murder of Komud Jha. 19. We are unable to agree with the learned APP primarily for the reason that when the prosecution evidence lacks on fundamental aspects of the case and it is not shown to the Court that there is prima facie case against the accused, the appellants cannot be convicted on the ground that they did not offer any explanation in their examination under section 313 of the Code of Criminal Procedure. 20. In “Sujit Biswas v. State of Assam” (2013) 12 SCC 406 the Hon'ble Supreme Court has observed as under: “25. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself.” 21. In a later judgment, in “Kanhaiya Lal v. State of Rajasthan” (2014) 4 SCC 715 the Hon'ble Supreme Court has observed as under: “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. 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.” 22. In view of the aforesaid discussions, we hold that the prosecution has failed to establish the charge under section 302/34 of the Indian Penal Code and, accordingly, the judgment of conviction of the appellants, namely, Dinesh Mandal [in Criminal Appeal (DB) No. 555 of 2010], Bulo Mandal [in Criminal Appeal (DB) No. 696 of 2010], and Horiya Mandal [in Criminal Appeal (DB) No. 729 of 2010] for the offence under sections 302/34 of the Indian Penal Code dated 07th June, 2010 and the order of sentence of RI for life and a fine of Rs.10,000/- each under section 302/34 of the Indian Penal Code dated 10th June, 2010 passed by the learned Sessions Judge, Godda in Sessions Case No. 130 of 2009 are set-aside. 23. Mr. Vineet Kumar Vashistha, the learned APP states that the appellants, namely, Dinesh Mandal [in Criminal Appeal (DB) No. 555 of 2010], Bulo Mandal [in Criminal Appeal (DB) No. 696 of 2010] and Horiya Mandal [in Criminal Appeal (DB) No. 729 of 2010] are on bail in Sessions Case No. 130 of 2009, but Horiya Mandal is in custody in another sessions trial being S.T. No. 146 of 2010. 24. Accordingly, the appellants, namely, Dinesh Mandal [in Criminal Appeal (DB) No. 555 of 2010], Bulo Mandal [in Criminal Appeal (DB) No. 696 of 2010] and Horiya Mandal [in Criminal Appeal (DB) No. 729 of 2010] are discharged of liability of the bail-bonds furnished by them. 25. In the result, Criminal Appeal (DB) No. 555 of 2010, Criminal Appeal (DB) No.696 of 2010 and Criminal Appeal (DB) No. 729 of 2010 are allowed. 26. Let the lower Court records be transmitted to the Court concerned, forthwith. 27. Let a copy of the Judgment be transmitted to the Court concerned through FAX.