JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment dated 9.4.2014 passed by the Additional Sessions Judge, Mungeli, in Sessions Trial No.13/2013, by which the appellant herein has been convicted for offences under Sections 302 and 201 of the IPC and sentenced him to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine to further undergo imprisonment for one month and rigorous imprisonment for seven years and fine of Rs.1000/-, in default of payment of fine to further undergo imprisonment for one month. Both sentences were directed to run concurrently. 2. Case of the prosecution, in brief, is that the appellant/accused on 13.1.2013 at 4 p.m. committed murder of his wife Baijantibala by strangulation and caused disappearance of the evidence by falsely informing the police that she died by electrification. It is further case of the prosecution that the appellant along with his two daughters Rameshwari and Chandani had visited village Lalpur on 18.12.2013 to Ghasidas mela organized therein and from where the parents of the deceased namely Rohit Kumar (PW-1) and his wife Smt. Shail Bai (PW-5) also met them and thereafter they had gone to the house of Rohit Kumar (father of the deceased) at village Baigakapa, wherein the appellant herein demanded money from his wife, which she refused to give and the appellant also assaulted to her and thereafter the appellant came back to village Chhata along with his daughters on 19.12.2012. Thereafter on the understanding given by Golu and Govind from village Chhata, Baijantibala (deceased) came back to stay with the appellant on 1.1.2013, but on 13.1.2013, Rohit Kumar (PW-1) (father of the deceased) received information that his daughter became unwell and thereafter also received information that Baijantibala has died, then he came to village Chhata along with other 4-5 persons and on being asked, the appellant informed to him that Baijantibala is said to have died by electrification. Rohit Kumar (PW-1) reported the matter to Police Station Lalpur vide merg intimation (Ex.P-1) and thereafter First Information Report was registered vide Ex.P-10. Jurisdictional Judicial Magistrate First Class was informed about the incident. Thereafter the Station House Officer, Police Station Lalpur reached to the spot and served notices to the witnesses. Naksha panchnama was prepared vide Ex.P3. Spot map was prepared by investigating officer vide Ex.P5. Jurisdictional Judicial Magistrate First Class was informed about the incident. Thereafter the Station House Officer, Police Station Lalpur reached to the spot and served notices to the witnesses. Naksha panchnama was prepared vide Ex.P3. Spot map was prepared by investigating officer vide Ex.P5. Dead body of deceased Baijantibala was sent for postmortem to Government Hospital, Mungeli vide Ex. P-11, where postmortem was conducted by Dr.Deepak Dhritlahre (PW-9) vide Ex.P-14 in which he opined that cause of death was asphyxia due to strangulation. Thereafter the accused was arrested, he was given memorandum statement on 12.2.2013 (Ex.P-7), but no recovery pursuant to memorandum statement was made. However, sari was recovered from possession of the appellant on 14.1.2013 vide Ex.P-4. The appellant was chargesheeted before the Judicial Magistrate First Class, Mungeli, who was committed the case to the Court of Session, Mungeli, from where the Additional Sessions Judge, Mungeli received the case on transfer for trial. The accused/appellant abjured the guilt and entered into defence. 3. In order to prove the prosecution case, the prosecution examined as many as 9 witnesses and exhibited 14 documents Exs.P-1 to P-14. Statement of the accused/appellant under Section 313 of the CrPC was recorded in which he denied guilt. However, the accused took a plea of alibi and examined 4 witnesses to prove his defence and brought out statement of Shail Bai in his favour as Ex.D-1. 4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 9.4.2014, convicted the appellant herein holding that death of deceased Baijantibala was homicidal in nature and further theory of last seen together has been established and it is only the appellant who has caused murder of his wife Baijantibala and also caused disappearance of the evidence and sentenced him as aforementioned, against which, this criminal appeal has been preferred by the appellant herein. 5. Ms Savita Tiwari, learned counsel for the appellant/accused, would submit as under :- (i) That death of deceased Baijantibala was not homicidal in nature as it is the case of hanging. 5. Ms Savita Tiwari, learned counsel for the appellant/accused, would submit as under :- (i) That death of deceased Baijantibala was not homicidal in nature as it is the case of hanging. (ii) That theory of last seen together which is one of the incriminating piece of evidence has not been established as according to Smt. Shail Bai (PW-5) (mother of deceased Baijantibala), prior to and on the date of incident, the accused was residing along with his father, mother, two sisters, his brother Gaukaran, Gaukaran's wife Sulakshana and two daughters Rameshwari and Chandani. As such, the prosecution has failed to establish the plea of last seen together on the date of offence. (iii) Assuming though not admitting that the plea of last seen together is established, yet in statement recorded under Section 313 CrPC, the appellant has not been afforded an opportunity to explain such an incriminating evidence against him, which the trial Court was obliged to offer in order to act upon the self-serving incriminating piece of evidence of last seen together, otherwise he would have explained the said incriminating piece of evidence allegedly made out by the prosecution. (iv) That the appellant has established the plea of alibi and on the date of offence he along with his family members had gone for threshing paddy and he was not present in the house and he was informed by his daughter Rameshwari (DW-4) and they have clearly proved that the appellant was not present in the house on the date of commission of offence and even in cross-examination, this witness has maintained her version and as such, the plea of alibi is fully established. Therefore, the impugned judgment is liable to be set-aside. 6. On the other hand, Mr. Sunil Otwani, learned Additional Advocate General with Mr. Devesh Chand Verma, learned Government Advocate appearing for the respondent/State, would submit that the prosecution has adduced sufficient evidence of clinching nature to demonstrate that it is only the appellant who has committed murder of deceased Baijantibala and therefore, the trial Court has rightly convicted the appellant herein for offences under Sections 302 and 201 of the IPC. They would further submit that death has rightly been held to be homicidal in nature as it is proved by medical evidence adduced on behalf of the prosecution particularly by Dr. They would further submit that death has rightly been held to be homicidal in nature as it is proved by medical evidence adduced on behalf of the prosecution particularly by Dr. Deepak Dhritlahre (PW-9), who has conducted post-mortem on the body of the deceased and in para-7, he has clearly stated that it is the case of strangulation. Therefore, death of the deceased to be homicidal in nature is clearly established. They would also submit that on the date of offence, the appellant and the deceased were staying together as husband & wife and they have seen together in good health and on the same date, she (Baijantibala) has been found dead in the house of the appellant herein. As such, it has fully been established that death was caused by the appellant herein and therefore, criminal appeal preferred by the appellant herein deserves to be dismissed. 7. We have heard learned appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. The first question for consideration would be, whether the trial Court was justified in holding that death of the deceased Baijantibala was homicidal in nature. The trial Court has answered the issue in affirmative relying upon medical evidence of Dr.Deepak Dhrithare (PW-9), who has conducted postmortem on the body of the deceased. 8. The first question for consideration would be, whether the trial Court was justified in holding that death of the deceased Baijantibala was homicidal in nature. The trial Court has answered the issue in affirmative relying upon medical evidence of Dr.Deepak Dhrithare (PW-9), who has conducted postmortem on the body of the deceased. For sake of convenience, paras 2 to 6 are relevant and being reproduced hereinbelow: 2& ijh{k.k djus ij nks cts esjs }kjk &'kjhj dks ih0,e0 Vscy esa fpr voLFkk esa FkkA jkbxj ekfVZl mi0 FkkA nksuksa gkFk ,oa iSj esa vdM+u FkkA eaqg can Fkk] psgjk uhyxw Fkk] I;wfiy cM+k Fkk] vka[k yky FkkA xys esa rhu czswt mifLFkr FkkA nwljk czswt xys ds e/; Hkkx esa Fkk] ftldk vkdkj 2 x 1-5 lseh FkkA nwljk czswt& Fkk;jkbZV dkftZyst ds uhps Fkk] vkSj LVueZ ds mij Fkk ftldk vkdkj 2-1 x 2-9 lseh- FkkA rhljk czwt xnZu ds nkfgus lkbZTk esa Fkk ftldk vkdkj 2-1 x 1-3 lseh- FkkA rhuksa czwt Hkwjs jax dk FkkA gYdk lk lw[kk FkkA peMs+ ds mij dkxt tSlk gks x;k FkkA igys czwt ds ysVjsjy lkbZt esa nks uk[kwu ds fu'kku v/kZ pUnzkdj esa FkkA ftldk vkdkj 1 lseh FkkA e`frdk dh pksaVs & ,aVheksVZe FkkA 3& esjs }kjk vkarfjd ijh{k.k djus ij [kksiMh diky d'ks:dk flYyh] esa dqN ugha Fkk lkekU; FkkA efLr"d vkSj es:jTtw datsLVsM FkkA rFkk NksVs NksVs lqbZ ds vkdkj dk [kwu fjlko dk pksaV FkkA inkZ] ilyh dkseyl lkekU;] QwLQwl datsLVsM] daB vkSj 'okl uyh] esa Fkk;jkbZV dkfVZyst dk QSDpj Fkk] Vªsfd;k jIpj gks x;k Fkk] f=dk;sM dkfVZyst dk QSDpj FkkA nka;k QsQM+k datsLVsM Fkk ,oa lc I;wyk ds uhps gsejst FkkA 4& cka;k QsQM+k datsLVsM Fkk] isufØ;kl datsLVsM Fkk] ân; ds nkfgus rjQ [kwu Hkjk Fkk ,oa cka;k [kkyh FkkA o`gn okfgdk lkekU; Fkk] inkZ] lkekU; Fkk] vkarksa dh f>Yyh] eqag xzkl uyh xzluh datsLVsM Fkk] isV [kkyh Fkk] NksVh vkar ,oa mlds Hkhrj v/kipk [kkuk Fkk cMh vkar esa ipk gqvk [kkuk FkkA ;—r Iyhgk xqnkZ datsLVsM FkkA ew=k'k;] Hkhrjh ,oa ckgjh tuusfUnz; lkekU; FkkA 5& eSus rhu ckVy esa Lis'khesu lhycan dj lacaf/kr vkj{kd dks fn;k FkkA 6& esjs erkuqlkj e`rd ds 'kjhj ij ik;h x;h pksaVs ijh{k.k ds 24 ?k.Vs ds vanj dh FkhA e`frdk dh e`R;q xyk nckus ls ne ?kqVus ls 'okl vojks/k gksus ds dkj.k mlds ân; ,oa QsQMs+ dke djuk can gksus ls mldh e`R;q gqbZA esjh fjiksVZ Á0ih014 gS] ftlds v ls v Hkkx ij esjs gLrk0 gSA 9. In his cross-examination, it was suggested by defence to Dr.Deepak Dhrithare (PW-9) that in case of hanging also, there can be rapture to thyroid and trachea, which he answered in affirmative, but he has further clarified that in the instant case in view of nature of injuries, it is the case of strangulation. Nothing further has been brought out to demonstrate that it is the case of hanging and not the case of strangulation. After going through the records and after hearing learned counsel appearing for the parties, we are of the considered view that the learned trial Court is absolutely justified in holding that it is the case of strangulation and not the case of death by hanging. We affirm the finding so recorded by the trial Court. 10. The next question for consideration would be, whether death of deceased Baijantibala was caused by the appellant herein, which the trial Court has held that it has been caused by the appellant herein and convicted & sentenced for the said offence. 11. From the statements of Rohit Kumar (PW-1) (father of the deceased), Tileshwari (PW2) (sister of the deceased), Minakshi (PW4) (sister of the deceased) and Smt.Shail Bai (PW-5) (mother of the deceased), it is established fact that the appellant along with his two daughters namely Rameshwri and Chandani had visited on 18.12.2013 to Ghasidas mela organized at village Lalpur and on that place, the deceased parents Rohit Kumar (PW-1) and Smt.Shail Bai (PW-5) had also joined therein and thereafter all of them went back to village Baigakapa (resident of the deceased father and mother) and in the next morning, the appellant demanded money from Baijantibala, which she refused to give stating that she left out the money for payment of insurance, then the appellant became annoyed and assaulted his wife Baijantibala and came back to village Chhata along with his two daughters on 19.12.2013. Thereafter, the appellant sent his nephew Golu and one other relative Govind to village Baigakapa to bring Baijantibala to his house and on understanding given by that two persons, the appellant's wife Baijantibala came back to the accused house on 1.1.2013 and thereafter she was staying with her husband. 12. Thereafter, the appellant sent his nephew Golu and one other relative Govind to village Baigakapa to bring Baijantibala to his house and on understanding given by that two persons, the appellant's wife Baijantibala came back to the accused house on 1.1.2013 and thereafter she was staying with her husband. 12. At this stage, it would be appropriate to notice the statement of Smt.Shail Bai (PW-5) (mother of the deceased), she has clearly stated in his statement before the Court that the deceased used to stay with the appellant in joint family. In para11, she has clearly stated that the appellant used to stay with his parents, two sisters, his two daughters Rameshwari and Chandani, his brother Gaukaran and Gaukaran's wife Sulakshana (DW-2). As such, it is established fact that the appellant used to stay in joint family along with abovestated persons in house in question where Baijantibala died and it is not the case that on the date of offence, he was staying with Baijantibala alone. 13. Deceased Baijantibala was found dead on 13.1.2013 at 4 p.m. as Rohit Kumar (PW-1) (father of the deceased) was informed by Vedkumar Satnami (not examined) about Baijantibala became unwell, then Rohit Kumar (PW-1) along with 4-5 persons visited to village Chhata where he found his daughter Baijantibala to be dead and accordingly, he reported the matter to the police station and wheels of investigation started running which culminated into filing of chargesheet against the appellant herein for the aforesaid offences. The trial Court after recording the death to be homicidal in nature that she died by strangulation further proceeded to hold that the deceased and the appellant both were residing as husband and wife in the house and the deceased and the appellant both were seen in healthy condition and on the same date, Baijantibala was found dead in the house of the appellant. 14. Now the question for consideration would be, whether the plea of last seen together can be held to be established, which is based on Section 106 of the Evidence Act. 15. Section 101 of the Evidence Act states as under: “101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. 15. Section 101 of the Evidence Act states as under: “101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 16. Under Section 101 of the Evidence Act, whoever desires any Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus, Section 106 constitutes an exception to Section 101. 17. Section 106 of the Evidence Act states as under: “106. Burden of proving fact especially within knowledge. – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.” 18. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference. 19.The Supreme Court in the matter of Bodhraj alias Bodha and others v. State of Jammu and Kashmir, (2002) 8 SCC 45 has laid down the principle on which last seen theory can be invoked into and held as under: “31. The lastseen theory comes into play where the timegap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. The lastseen theory comes into play where the timegap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes 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. 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. In this case there is positive evidence that deceased, A1 and A2 were seen together by witnesses. i.e. PWs 14, 15 and 18; in addition to the evidence of PWs l and 2.” 20.The Supreme Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 has held that when the death had occurred in his (the appellant therein) custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. It was observed as under: “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P., (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife....” 21.Similarly, the Supreme Court in the matter of State of Rajasthan v. Thakur Singh, (2014) 12 SCC 211 relying upon the decision of the Supreme Court in Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 has held as under: “16. Way back in Shambhu Nath Mehra v. State of Ajmer this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is wellnigh impossible or extremely difficult for the prosecution to prove that fact. It was said: (AIR p. 406, para 11) “11. This [Section 101] 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 word 'especially' stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.” 22. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.” 22. The Supreme Court in the matter of Vikramjit Singh alias Vicky v. State of Punjab, (2006) 12 SCC 306 has held that Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. It was observed as under: “14. Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule e.g. where burden of proof may be imposed upon the accused by reason of a statute.” 23. Reverting to the facts of the present case in light of principles of law laid down by the Supreme Court in the abovestated judgments (supra) qua principle of invocation of theory of last seen together and incriminating evidence on behalf of the prosecution, it would be appropriate to consider the nature of evidence available on record as to whether on the date and time of offence only the appellant alone was present in house in question along with his wife deceased Baijantibala. Smt.Shail Bai (PW-5) (mother of deceased Baijantibala) in para11 of her cross-examination has clearly stated that the appellant used to stay along with his father, mother, two sisters, two daughters, one brother Gaukaran and Gaukaran's wife Sulakshana. Gaukaran's wife Sulakshana has been examined as DW2. Smt.Shail Bai (PW-5) (mother of deceased Baijantibala) in para11 of her cross-examination has clearly stated that the appellant used to stay along with his father, mother, two sisters, two daughters, one brother Gaukaran and Gaukaran's wife Sulakshana. Gaukaran's wife Sulakshana has been examined as DW2. Sulakshana (DW-2) has also clearly stated in her examinationinchief that prior to the date of alleged offence she has delivered a baby, therefore, she was in the house on that very day and the deceased was also sleeping in next room (after one wall) and in the afternoon, Rameshwari (daughter of the appellant/accused) has come to drink water and then she cried and found her mother hanging, then she told Rameshwari to inform her father and thereafter her father Karan Prasad / appellant herein and Dhansai Ratre who were working in the house of Bhat Maharaj came to their house and saw her dead body hanging. As such, the prosecution has failed to establish that on the date and time of offence, only the appellant and the deceased were staying in the appellant's house, rather it has been established on record by the defence and that too with the help of prosecution witness Smt.Shail Bai (PW-5) (mother of the deceased) that apart from the appellant, several other members i.e. father, mother, brother Gaukaran, brother's wife Sulakshana, two sisters and two daughters all were staying in the house in question where death of the deceased has occurred. As such, in case in hand, Section 106 of the Evidence Act has wrongly been invoked and applied in by the trial Court. 24. Furthermore, the appellant has taken the plea of alibi as contained in Section 11 of the Evidence Act that he was not present in the house on the date of offence. In order to prove the same, he has been examined four defence witnesses namely Janakram (DW-1), Sulakshana (DW-2), Dhansai (DW-3) and Rameshari (DW-4). It is the case of the appellant herein that on the date of offence he was working in the house of Bhat Maharaj along with his father Mangtu and involved in the work of threshing paddy. Janakram (Aam Mukhtir of Bhat Maharaj) has been examined as DW-1. It is the case of the appellant herein that on the date of offence he was working in the house of Bhat Maharaj along with his father Mangtu and involved in the work of threshing paddy. Janakram (Aam Mukhtir of Bhat Maharaj) has been examined as DW-1. He has clearly stated in para3 of his statement that Mangtu (father of the appellant) and his son Karan / appellant herein both were working in the house of Bhat Maharaj and involved in threshing of paddy on that day, at that time, the appellant's daughter Rameshwari came and informed, which he could not hear properly. Sulakshana (DW-2) has also stated that on the date of offence, the appellant, his father, his mother Smt.Shail Bai (PW-5) all were in barn (kothar) of Bhat Maharaj. In her cross-examination, she has refuted the adverse questions asked from her. Dhansai (DW-3) has also stated the same lines and the appellant's daughter Rameshwari (DW-4) has stated the same lines. Rameshwari (DW-4) has been subjected to cross-examine on behalf of the prosecution. She has clearly stated that on the date of offence, her father has gone to barn (kothar) of Bhat Maharaj for threshing paddy and further suggestion given on behalf of the prosecution that her father has left barn for a period of one hour, but she has maintained her version that her father has throughout in barn of Bhat Maharaj for the purpose of threshing paddy. As such, the prosecution has failed to prove the plea of last seen together and further failed to prove that on the date and time of offence the appellant and the deceased only were present in the house of the deceased, whereas the defence has proved the fact that on the date of offence, the appellant herein was in barn of Bhat Maharaj for the purpose of threshing paddy as adhiyadar. Furthermore, even it is assumed as argued that theory of last seen together has been established, but the appellant has not been afforded an opportunity to explain those adverse circumstances of last seen together while examining him in statement under Section 313 CrPC. 25. The Supreme Court in the matter of Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan, AIR 2013 SC 3150 while highlighting the object and purpose of examining the accused person under Section 313 CrPC has held as under :- “25. 25. The Supreme Court in the matter of Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan, AIR 2013 SC 3150 while highlighting the object and purpose of examining the accused person under Section 313 CrPC has held as under :- “25. In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration.” 26. The Supreme Court in the matter of Vikramjit Singh (supra) has held that the circumstances which according to the prosecution lead to proof of the guilt against the accused must be put to him in his examination under Section 313 of the Code of Criminal Procedure. 27. In the instant case, admittedly, the trial Court has held the theory of last seen together as incriminating piece of evidence against the appellant herein, but surprisingly under Section 313 CrPC though as many 33 questions had been put to the accused, but no such question qua the alleged incriminating circumstance of his last seen together with the deceased has been put to the accused asking him to furnish explanation with that regard, yet on the basis of his last seen together with the deceased, guilt of the appellant has been recorded by which he has sufficiently suffered prejudice in not affording an opportunity to explain the circumstances as he has specifically taken the plea of alibi by examining defence witnesses which have been discussed hereinabove. 28. 28. As a upshot of the aforesaid discussion, we are of the considered opinion that though the prosecution has succeeded in proving the death of deceased Baijantibala to be homicidal in nature, but further failed to establish the plea of last seen together as incriminating piece of evidence and also failed to prove that it is only and only the appellant who has committed murder of the deceased by strangulation. Accordingly, we set aside the impugned judgment dated 9.4.2014 passed by the Additional Sessions Judge, Mungeli in Sessions Trial No.13/2013. The appellant is acquitted of the charge under Sections 302 and 201 of the IPC. He is in jail. He be released forthwith if not required in any other case. 29. The criminal appeal is allowed to the extent indicated hereinabove.