JUDGMENT : Parthivjyoti Saikia, J. This is a common judgment for these two jail appeals, as they arise out of the same judgment. 2. Heard Ms. B. Sarma, learned Amicus Curiae appearing for the appellants. Also heard Ms. B. Bhuyan, learned Senior Counsel/Addl. Public Prosecutor, Assam assisted by Mr. J. Das, learned counsel appearing for respondent. 3. Challenge in this appeal is to the judgment and order dated 10.10.2018 passed by the learned Additional District Judge No.3, Nagaon in Sessions (T-1) Case No.82(N) of 2014. By the impugned judgment, the trial court has convicted the appellants under Section 302 of the Indian Penal Code (IPC) read with Section 34 of the said Code and sentenced them to undergo rigorous imprisonment for life and also to pay fine of Rs.10,000/-, in default of payment of fine, they were sentenced to undergo rigorous imprisonment for a period of 6(six) months. 4. The prosecution case is that on 01.05.2014, Ajijul Islam had picked up the deceased Faizul Islam from his house and they travelled together in a motorcycle. On the way, they also picked up Md. Dil Islam. The trio travelled in the same motorcycle. Next morning, the dead body of the deceased was discovered by the side of the road. It is alleged that Ajijul Islam and Dil Islam had committed murder of Faizul Islam by slitting his neck with a sharp weapon 5. The FIR was lodged by Md. Mansur Ali, the elder brother of the deceased Faizul Islam. 6. The dead body of the deceased was subjected to post-mortem examination. The doctor opined that the death of the deceased was due to haemorrhage and shock as a result of injuries (dissection of carotid artery, large vessels etc.). 7. On conclusion of investigation, police filed the charge sheet against Dil Islam and the present appellants. 8. In course of trial, the prosecution side examined 13 witnesses including the police investigating officer and the doctor who had conducted post-mortem examination upon the dead body of the deceased. The accused persons also examined two defence witnesses. 9. On the basis of the evidence on record, the trial court convicted the present two appellants and acquitted Dil Islam. 10. We have carefully gone through the prosecution evidence. 11. The first prosecution witness is the complainant Mansur Ali (PW-1). He is not an eye witness and his evidence is hearsay. The accused persons also examined two defence witnesses. 9. On the basis of the evidence on record, the trial court convicted the present two appellants and acquitted Dil Islam. 10. We have carefully gone through the prosecution evidence. 11. The first prosecution witness is the complainant Mansur Ali (PW-1). He is not an eye witness and his evidence is hearsay. He has stated in his evidence that one day at about 7 A.M., a person called Sahabuddin informed him over telephone that the dead body of his brother was lying by the side of the road at a place called Juria. At that time he was also informed his elder brother that on the previous day at about 8 P.M., the appellant Ajijul Islam had picked up the deceased and at that time, Johura Khatun and Umme Habiba were present in the house. The witness Mansur Ali has quoted another person called Alauddin as saying to him that it was the appellants Ajijul Islam and Dil Islam who had taken the deceased to Juria in a motorcycle. 12. His cross-examination is irrelevant at this stage because whatever he has stated in his evidence-in-chief, is based on whatever he had heard from others. 13. The second prosecution witness is Mustafa Kamal (PW-2). He is the elder brother of PW-1 as well as the deceased. He has stated that on 01.05.2014, he was at home with his mother Johura Khatun and Umme Habiba who is the wife of the deceased. Mustafa Kamal has stated that on that day at about 8 P.M., Ajijul Islam had come in his house in a motorcycle and from there, the deceased went out with him in the said motorcycle. Mustafa Kamal had disclosed that he had asked Ajijul Islam the deceased did not return and on the next morning, the witness was informed by someone that the dead body of the deceased Faizul Islam was lying by the side of the road at Juria. 14. During cross-examination, Mustafa Kamal has stated that the appellant Ajijul Islam and his brother Faizul were friends. He also stated that the names of Md. Ajijul Islam and Md. Dil Islam are mentioned in the FIR only on the basis of the suspicion. Mustafa Kamal also stated that dacoits might have killed Faizul Islam because he was carrying a cash amount of Rs.35,000/-and a mobile phone with him. 15. He also stated that the names of Md. Ajijul Islam and Md. Dil Islam are mentioned in the FIR only on the basis of the suspicion. Mustafa Kamal also stated that dacoits might have killed Faizul Islam because he was carrying a cash amount of Rs.35,000/-and a mobile phone with him. 15. The third prosecution witness is Mulesur Rahman (PW-3). He was the VDP Secretary at the relevant time. He has stated in his evidence that he had heard that a dead body was lying at a distance at about 1 and ½ furlong from his house and after hearing that news, being the VDP Secretary, he informed police. 16. In his cross-examination, Mulesur Rahman has stated that theft and dacoity are often committed at the place where the dead body of the deceased was found. He has disclosed that incidents of dacoity and robbery are very common there. 17. The forth prosecution witness is Mrs. Umme Habiba (PW-4). She is the wife of the deceased Faizul Islam. She has stated that one day at about 7/8 P.M., Ajijul Islam had come to their house in a motor cycle. Faizul Islam reportedly asked this witness to bring his driving licence and she accordingly handed over the driving licence to her husband. Faizul Islam reportedly told this witness that he was intending to buy a new motorbike. According to this witness, Ajijul Islam and her husband went out in the motorcycle of Ajijul Islam. Till 11 P.M. that night, Ajijul Islam did not return home and therefore, this witness called him over phone, which was found to be switched off. Umme Habiba has stated that next morning, PW-1 informed her that the dead body of her husband was lying behind Singai College. 18. During cross-examination, Umme Habiba has stated that her husband Faizul had a shop and on some occasions, he stayed back in his shop at night. Umme Habiba has further stated that on many occasions, her deceased husband used to travel with Ajijul Islam in his motorcycle. 19. The fifth prosecution witness is Md. Alaluddin (PW-5). He has stated in his evidence that on the relevant day of occurrence at about 9/9.30 P.M., while he was watching T.V. by sitting in a shop at Amtola Bazar, he noticed three persons were travelling in a motorcycle towards Juria and next morning, he heard about the murder of Faizul Islam. 20. Alaluddin (PW-5). He has stated in his evidence that on the relevant day of occurrence at about 9/9.30 P.M., while he was watching T.V. by sitting in a shop at Amtola Bazar, he noticed three persons were travelling in a motorcycle towards Juria and next morning, he heard about the murder of Faizul Islam. 20. The witness Alaluddin was declared as hostile as because he had resiled from his earlier statement made before police. When he was cross-examined by the prosecution counsel, he has stated that Dil Islam was driving the motorcycle and Faizul Islam was sitting just behind him whereas Ajijul Islam was sitting on his back. 21. In his cross-examination by the defence counsel, Alaluddin has stated that the road where he noticed the motorcycle is Nagaon-Juria main road and in that road, motorcycle can be driven at 60/70 kms. per hour. 22. The sixth prosecution witness is Md. Sahidullah (PW-6). He is a relative of the deceased. He has stated in his evidence that on the day of occurrence, while he was working in his tailoring shop at about 9.30 P.M., the deceased Faizul and two other persons had come to his shop in a motor cycle. According to Sahidullah, Faizul told him that he would be returning soon and after saying that, he left the place along with the other two persons. Sahidullah has stated that next morning he heard about the death of Faizul. 23. In his cross-examination Sahidullah has stated that he could not recognize the companions of deceased Faizul. 24. The seventh prosecution witness is Khairul Islam (PW-7). He is a relative of deceased Faizul Islam. He has stated in his evidence that on 01.05.2014 at about 9 P.M., the appellants had come to his shop along with Faizul and purchased some vegetables from his shop. Faizul reportedly told this witness that he was taken by the appellants to show a motorcycle and after that, Faizul Islam went away with the appellants. Next morning, this witness came to know about the death of Faizul Islam. 25. Khairul Islam has stated in his cross-examination that prior to the incident, he often noticed the appellants in the company of Faizul Islam though at that time he did not know their names. 26. The eighth prosecution witness is Md. Ali Islam (PW-8). Next morning, this witness came to know about the death of Faizul Islam. 25. Khairul Islam has stated in his cross-examination that prior to the incident, he often noticed the appellants in the company of Faizul Islam though at that time he did not know their names. 26. The eighth prosecution witness is Md. Ali Islam (PW-8). In his evidence he has stated that on the relevant day of occurrence at about 9 P.M., he had seen the deceased Faizul along with the appellants travelling towards Juria in a motorcycle. According to this witness, the motorcycle was driven slowly at that time and therefore he could recognize Faizul Islam and asked him where he was going. According to Ali Islam, Faizul reportedly told him that they were going towards Juria. This witness has stated that next morning, he came to know about the death of Faizul Islam. 27. During his cross-examination, Ali Islam has stated that when he met the deceased and the appellants, he had gone to buy some goods. 28. The ninth prosecution witness is Johura Khatun (PW-9). She is the mother of the deceased Faizul Islam. She has stated that at around 7 P.M., Ajijul Islam came to her house and took the deceased with him in his motorcycle and in the following morning, she came to know that Faizul was murdered. 29. Her cross-examination has nothing relevant for a thorough discussion. 30. The tenth prosecution witness is Dr. Jugananda Bori (PW-10). He had conducted the post-mortem examination upon the dead body of deceased Faizul Islam. He spoke about his report. 31. In his cross-examination Dr. Jugananda Bori has stated that the type of injuries sustained by the deceased Faizul could also be sustained in an accident. 32. The eleventh prosecution witness is Md. Jitu Ali (PW-11). He has stated in his evidence that one day he noticed one motorcycle in his house and his father told him that the appellant Nazrul Islam had left the motorcycle there because it had a mechanical breakdown. On that day at about 10.30 P.M., police arrived and seized the said motor cycle. 33. There is nothing relevant in his cross-examination. 34. The twelfth prosecution witness is Ratul Ali (PW-12). On that day at about 10.30 P.M., police arrived and seized the said motor cycle. 33. There is nothing relevant in his cross-examination. 34. The twelfth prosecution witness is Ratul Ali (PW-12). He has stated that one night the appellant Nazrul Islam had come to his house along with a motorcycle and told him that the said motor cycle had broken down and therefore he wanted to leave the motorcycle there. This witness has stated that he allowed Nazrul Islam to keep his motorcycle in his house. 35. Ratul Ali has further stated that on the said night, police came to his house accompanied by Nazrul Islam and seized the motorcycle that was kept in his house. 36. This witness was not cross-examined by the defence counsel. 37. The last prosecution to be examined is the police investigating officer and in his evidence, he spoke about the investigation. 38. The appellants examined two witnesses. They are, Nurul Hassan Choudhury (DW-1) and Taffjul Islam (DW-2). 39. The Nurul Hassan Choudhury has stated that he works as a Manager in a Hotel and the deceased Faizul used to run a Paan Shop in front of his Hotel. According to this witness, Dil Islam and the appellant Ajijul Islam are employees of his Hotel. Nurul Hassan Choudhury has stated that on the relevant day at about 11.30 P.M., he returned home leaving behind Dil Islam and the appellant Ajijul Islam in the Hotel and on the next morning at about 8 A.M., he came to know that police had arrested them. Nurul Hassan Choudhury has further stated that the appellant Nazrul was also arrested in the next day. Nazrul Hassan Choudhury has stated that another employee called Taffajul Islam also works in the same Hotel and on that night, he even called Taffajul Islam over phone in order to know whether Dil Islam and the appellant Ajijul Islam were still in the Hotel. Taffajul Islam reportedly informed this witness that both of them had stayed at that night. 40. During cross-examination, Nurul Hassan Choudhury has stated that on the relevant day, while leaving his Hotel for home at about 11.30 P.M., he had given the responsibility of the Hotel to Dil Islam. 41. Taffajul Islam reportedly informed this witness that both of them had stayed at that night. 40. During cross-examination, Nurul Hassan Choudhury has stated that on the relevant day, while leaving his Hotel for home at about 11.30 P.M., he had given the responsibility of the Hotel to Dil Islam. 41. The second defence witness DW-2 has stated that he works in the same Hotel with the appellants and Dil Islam and on the relevant day, he was there in their company. DW-2 has stated that on the next morning at about 8.30 A.M., police took away the appellants and Dil Islam. 42. After going through the evidence on record, we have found that the learned trial court has relied upon the theory of last seen together to convict the appellants because, there is evidence in this case that up-to 9.30 P.M., the appellants were seen together with the deceased and on the next morning, the dead body of the deceased was discovered. 43. The theory of “Last seen together” is one where two persons are seen ‘together alive’ and after an interval, one of them is found alive and the other dead. If the span between two is too short, presumption as to the person alive being the creator of the death of the other can be drawn. Time span should be such that it rules out the risk of somebody else committing the crime. It is a piece of circumstantial evidence. In the absence of any eyewitnesses or tangible evidence, this theory is the last resort to the prosecution. The base of this theory is principles of probability. The circumstance of the theory does not by itself leads to the inference that it is the accused who has committed the crime. There must be something more establishing connectivity between the accused and the crime. 44. In the case in hand, there is a gap of about 11 hours after which, the dead body of the deceased was discovered. There is unchallenged evidence in this case that the deceased Faizul was carrying a cash amount of Rs. 35,000/-and the place where his dead body was discovered is infested with dacoits and robbers. 45. We are of the opinion that the 11 hours time gap between last seen together and the discovery of the dead body is an enormous one. There is unchallenged evidence in this case that the deceased Faizul was carrying a cash amount of Rs. 35,000/-and the place where his dead body was discovered is infested with dacoits and robbers. 45. We are of the opinion that the 11 hours time gap between last seen together and the discovery of the dead body is an enormous one. In such a long gap, involvement of other persons in the offence cannot be ruled out. Under this circumstance, it is hard to draw up a presumption that the appellants had caused the death of the deceased. Therefore, we are of the opinion that the prosecution side has failed to prove the offence against the appellants beyond all reasonable doubt. 46. We could not agree with the decision of the learned trial court. We are of the opinion that there is a thick cloud of doubt hovering over the veracity of the prosecution case against the appellants. Naturally, the benefit of doubt goes in favour of the appellants. 47. Thus, the appeals are allowed and the impugned judgment is set aside. The appellants are acquitted on benefit of doubt. If the appellants are in custody, they shall be set at liberty forthwith, if not required for any other case. 48. Before parting with the record, we record our appreciation for the learned Amicus Curiae for assisting this Court. Registry is directed to pay the remuneration allowed by the rules to the learned Amicus Curiae. Send back the LCR.