ORDER : 1. Accused-appellant, Manohar Lal Dethudia has preferred the present appeal under Section 374 (2) Cr.P.C. aggrieved against the judgment dated 13.11.2009 passed by Additional Sessions Judge No.2, Chittorgarh (‘the trial court’) in Session Case No.37/2005 whereby Manohar Lal Dethudia was convicted for offence under Sections 302 and 201 of IPC and sentenced him as under: 302 IPC Life Imprisonment with fine of Rs.10,000/- with default stipulation to further undergo six months’ additional simple imprisonment. 201 IPC Seven Years’ rigorous imprisonment with fine of Rs.5,000/-with default stipulation to further undergo three months’ additional simple imprisonment. 2. During pendency of the present appeal, accused/appellant Manohar Lal Dethudia died on 01.07.2020 and an application under proviso to Section 394 (2) Cr.P.C. was filed by his wife, Smt. Santosh Bai, which came to be allowed on 20.07.2022 while condoning the delay in filing the application and the applicant Smt. Santosh Bai was granted leave to continue the appeal. 3. Brief facts relevant and essential for disposal of the present appeal are as under: 4. A report (Exhibit-P/41) was lodged by Smt. Sunita on 03.04.2005 wife of Nandlal Thakre (deceased), inter-alia, indicating that her husband Nandlal had left at 08.00 am on 31.03.2005 on his new motorcycle and didn’t return that night. On enquiries, she came to know that her husband was with Kan Singh Chouhan on 31.03.2005 and his motorcycle was parked at his quarter. When her brother-in-law Keshavji (elder brother of her husband) went to the house of Kan Singh, his wife Vimla Devi told him that he would return from wherever he has gone, he could have gone to Beawar. She indicated that her husband had illicit relations with Vimla, wife of Kan Singh, and therefore, her husband be searched. 5. On 09.04.2005, another report (Exhibit-P/39) was lodged by wife of Nandlal, reiterating the contents of her complaint dated 03.04.2005 and indicated that since lodging of the complaint on 03.04.2005, they were searching for her husband, however, they failed. She indicated that her husband was at the residence of Vimla Devi on 31.03.2005, the whole day and in the night. Anand, son of her brother-in-law Keshavji, saw Vimla Devi and her husband alongwith two persons going somewhere on motorcycle. She indicated that she suspected that Vimla Devi, Kan Singh and her family members have abducted him, killed him and have misappropriated the motorcycle. 6. Anand, son of her brother-in-law Keshavji, saw Vimla Devi and her husband alongwith two persons going somewhere on motorcycle. She indicated that she suspected that Vimla Devi, Kan Singh and her family members have abducted him, killed him and have misappropriated the motorcycle. 6. On 10.04.2005, Keshav, brother of the deceased made another report (Exhibit-P/42) indicating that on 9th night, he received information about some dead body was lying in a ‘Nala’, however, they could not see it in the night and on the next day morning, they saw clothes, sleepers of his brother Nandlal and also his skeleton and his motorcycle was also parked there; and therefore, he was making the report. Based on the said report (Exhibit-P/42), F.I.R. (Exhibit-P/40) was registered by the police, wherein names of suspects were indicated as Vimla Devi, Kan Singh and his family members, as it was alleged by Smt. Sunita wife of deceased that her husband has illicit relations with Vimla and he had lent Rs.4,00,000/-to Vimla and Kan Singh and also indicated that on missing of her husband, when she contacted Vimla and she visited her home, she gave conflicting versions. 7. After registration of the F.I.R., investigation commenced by the police, during the course of which, statements of the witnesses were recorded and appellant Manohar Lal Dethudia was arrested. After completion of the investigation, charge sheet was filed against appellant Manohar Lal Dethudia only for offence under Section 302 IPC. 8. The trial court framed charges against the accused under Section 302 IPC, which he denied and pleaded not guilty and claimed trial. The prosecution in support of its case examined as many as 21 witnesses and also got exhibited 52 documents. The appellant was examined under Section 313 Cr.P.C., wherein he denied having committed the offence and also examined himself as DW.1 and he also got exhibited six documents in defence. 9. After hearing the arguments advanced by the learned Public Prosecutor and the counsel for the defence, and upon appreciating the evidence available on record, the trial court proceeded to convict the accused appellant as indicated hereinbefore vide judgment impugned. The present appeal has been filed aggrieved of the judgment. 10. Learned counsel for the appellant vehemently contended that the entire prosecution case is false, fabricated and hovers in a cloud of suspicion. The present appeal has been filed aggrieved of the judgment. 10. Learned counsel for the appellant vehemently contended that the entire prosecution case is false, fabricated and hovers in a cloud of suspicion. The prosecution has failed to bring home the guilt against the appellant on the strength of circumstance of last seen, as deposed by PW.15-Anand Thakre and PW.17-Gurpreet Singh, which evidence was not at all sufficient to apply the theory of last seen in the present case. Submissions have been made that evidence on record including that of PW.15 and PW.17 clearly indicated that deceased and appellant Manohar Lal Dethudia were purportedly seen at a liquor shop at 11/11:30 am on 31.03.2005 and the purported star witness viz. Anand Thakre (PW.15) in his statements indicated that at about 02:30 – 02:45 pm, he saw motorcycle of his uncle/deceased Nandlal at the quarter of Kan Singh and at about 09:30 – 09:45 pm, he saw his uncle Nandlal, Kan Singh, Manohar, and Kan Singh’s wife and two more persons on two motorcycles, one motorcycle was of his uncle and another of Kan Singh, however, the trial court based on purported last seen on 31.03.2005 at 11/11:30 am of deceased Nandlal with appellant Manohar Lal Dethudia, has convicted him, which is exfacie illegal and against the settled preposition of law. 11. Further submissions have been made that witnesses viz. PW.2, PW.4, PW.5 and PW.6 have turned hostile and rest most of the witnesses were formal witnesses and, therefore, except for the statements of PW.15 Anand Thakre and PW.17 Gurpreet Singh, which have been taken as evidence of last seen, the conviction recorded by the trial court is exfacie illegal. 11. Further submissions have been made that witnesses viz. PW.2, PW.4, PW.5 and PW.6 have turned hostile and rest most of the witnesses were formal witnesses and, therefore, except for the statements of PW.15 Anand Thakre and PW.17 Gurpreet Singh, which have been taken as evidence of last seen, the conviction recorded by the trial court is exfacie illegal. Submissions were made that the wife of deceased Smt. Sunita in her reports dated 03.04.2005 (Exhibit-P/41) and 09.04.2005 (Exhibit-P/39) and the report (Exhibit-P/42) and FIR (Exhibit-P/40) specifically made allegations against Kan Singh and his wife Vimla and alleged illicit relations of deceased with that of Vimla, however, said Kan Singh and Vimla were not even interrogated by the investigating officer and when the investigating officer PW.21-Bhanwar Singh was put in cross-examination the aspect of the name of appellant Manohar Lal not reflecting in any of the complaints and specific apprehension expressed by the wife of deceased against Vimla and Kan Singh, claimed that during investigation, no evidence was found against Vimla and Kan Singh and that he did not even record their statements, which clearly reflects that the entire investigation was made up and the appellant was falsely roped in and, therefore, the judgment impugned deserves to be quashed and set aside. 12. Submissions were made that except for the two statements of PW.15 and PW.17, which are full of contradictions and cannot be used to indicate the appellant only having been last seen with the deceased, the conviction deserves to be set aside. It is well settled that no conviction only on the basis of last seen theory can be made and, therefore, the same deserves to be set aside. Reliance was placed on Boby vs. State of Kerala : 2023 Cr.L.R. (SC) 225. 13. Learned Public Prosecutor supported the judgment impugned. It was submitted that the statements of PW.15 and PW.17 clearly indicates that deceased was seen on 31.03.2005 with appellant Manohar Lal Dethudia at 11/11:30 am and, therefore, under the provisions of Section 106 of the Evidence Act, the burden lay on him to indicate as to what happened to the deceased and, therefore, the trial court was justified in coming to the conclusion that the offence was committed by Manohar Lal Dethudia and therefore, the judgment impugned does not call for any interference. 14. 14. We have considered the submissions made by counsel for the parties and have perused the material available on record. 15. A bare perusal of the judgment passed by the trial court, more particularly paragraphs 19 to 21, would reveal that the trial court has made reference to the statements of PW.15 Anand Thakre, nephew of deceased that he has seen alongwith Gurpreet Singh (PW.17) deceased at about 11/11:30 am at a liquor shop with Manohar Lal and thereafter he saw the deceased again in the evening on motorcycle alongwith four persons, who were though named in the statements, however, does not find place in the judgment, wherein the witness had said that he saw the deceased with Manohar Lal, Vimla, Kan Singh and two other persons. Whereafter the trial court jumped to the conclusion that once the deceased was seen in the morning with the accused, the burden lie on him to indicate the whereabouts of the deceased and applying the theory of last seen, convicted the appellant. 16. As indicated hereinbefore, apparently the entire investigation by the police was botched up, wherein though the wife of deceased repeatedly made accusation against Kan Singh and his wife Vimla of wrong doing, which indication was also made in the FIR (Exhibit-P/40) besides Exhibits-P/41, P/39 and P/42; the investigating officer PW.21 Bhanwar Singh, did not even find it appropriate to record the statements of Kan Singh and his wife Vimla and surprisingly the trial court also during trial even when specific allegations were made by PW.13 Sunita, wife of the deceased against Kan Singh and Vimla and even in the statements of PW.15 Anand Thakre, it had come on record that in the evening of 31.03.2005, the deceased was seen besides Manohar Lal with Vimla and Kan Singh, did not take any action including under the provisions of Section 319 Cr.P.C., which empowers the court to proceed against other persons appearing to be guilty of offence. 17. Be that as it may, the application of theory of last seen based on the statements of PW.15 and PW.17 and convicting the appellant cannot be sustained under any circumstance. 17. Be that as it may, the application of theory of last seen based on the statements of PW.15 and PW.17 and convicting the appellant cannot be sustained under any circumstance. PW.15, as noticed hereinbefore, in his statement indicated having seen the deceased alongwith Manohar Lal at 11/11:30 am, where after he saw the motorcycle of the deceased at the house of Kan Singh at about 02:30 – 02:45 pm and again at 09:30-09:45 pm, he saw his uncle Nandlal, Kan Singh, wife of Kan Singh and accused Manohar Lal and two more persons on two motorcycles. If the statements of PW.15 are taken at its face value, the last seen evidence, in the present case would pertain to the deceased being with Kan Singh, Vimla, Manohar, and two more persons. As to out of said five persons, who were last seen with the deceased, no reason is forthcoming from the record as to why Manohar Lal alone was picked up for the purpose of accusing him of murder of Nandlal, based on last seen when besides him, four more persons were last seen by Anand Thakre, that also in a case where the wife of the deceased since the day the deceased was missing, was accusing Kan Singh and his wife of wrong doing. Strangely enough, as noticed hereinbefore, the investigating officer did not even record the statements of Kan Singh and Vimla and, therefore, apparently even if the deceased was seen with the accused Manohar Lal at a liquor shop on 31.03.2005 at 11/11:30 am, the said evidence of them being together, in no circumstances, can be made the basis for applying the theory of last seen as after 11/11:30 am, the witness PW.15 claims to have seen the motorcycle of the deceased at the house of Kan Singh and ultimately the deceased was seen besides accused Manohar Lal with Kan Singh and his wife Vimla. The trial court, very conveniently ignored the said part of the statement of the witness PW.15 last seeing the deceased alongwith Kan Singh, Vimla along with other persons. There is no evidence worth the name other than the oral statements of PW.15 connecting the accused with the offence in question. 18. The trial court, very conveniently ignored the said part of the statement of the witness PW.15 last seeing the deceased alongwith Kan Singh, Vimla along with other persons. There is no evidence worth the name other than the oral statements of PW.15 connecting the accused with the offence in question. 18. In these circumstances, the finding of the trial court, based on the theory of last seen that the accused appellant was guilty of the offence under Section 302 IPC, is on the face of it, perverse and cannot be sustained. 19. The Hon’ble Apex Court in Jabir & Ors. vs The State of Uttrakhand : Criminal Appeal No.972/2013, decided on 17.01.2023, on the aspect of convicting the accused only on the basis of last seen circumstance, laid down as under: “23. This court is also of the opinion that apart from the above serious infirmities, there is no evidence, oral or any material object, which connects the appellant-accused with the crime. It has been repeatedly emphasized by this court, that the “last seen” doctrine has limited application, where the time lag between the time the deceased was seen last with the accused, and the time of murder, is narrow; furthermore, the court should not convict an accused only on the basis of the “last seen” circumstance. In Jaswant Gir vs. State of Punjab, 6 this court explained the soundness of such a rule: “Without probing further into the correctness of the "last-seen" version emanating from P.W. 14's evidence, even assuming that the deceased did accompany the accused in their vehicle, this circumstance by itself does not lead to the irresistible conclusion that the Appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the Appellant and his companions were responsible for the murder, though grave suspicion arises against the accused. There is considerable time-gap between the deceased boarding the vehicle of the Appellant and the time when P.W. 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence it is not possible to convict the Appellant solely on the basis of the "last-seen" evidence, even if the version of P.W. 14 in this regard is believed. In view of this, the evidence of P.W. 9 as regards the alleged confession made to him by the Appellant assumes importance.” 24. In view of this, the evidence of P.W. 9 as regards the alleged confession made to him by the Appellant assumes importance.” 24. Recently, in Rambraksh vs. State of Chhattisgarh, this court after reviewing previous decisions, stated as follows: “10. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the 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 perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. 11. In a similar fact situation this Court in the case of Krishnan v. State of Tamil (2014) 12 SCC 279 , held as follows: 21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp (2) SCC 372) “31. Thus the evidence that the Appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the Appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.” 22. This Court in Bodhraj v. State of (2002) 8 SCC 45 ) held that: “31. This Court in Bodhraj v. State of (2002) 8 SCC 45 ) held that: “31. The last seen theory 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.” It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together. 23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased. 24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438 ), this Court held that in the absence of any other links in the chain of circumstantial evidence, the Appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed.” Again, in Nizam & Ors. v State of Rajasthan, it was held as follows: “Courts below convicted the Appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the Appellants on 23.01.2001. Undoubtedly, "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.” 20. 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.” 20. In view of the above principle also, besides the fact that theory of last seen circumstance relied by the trial court i.e. 11/11:30 am on 31.03.2005 in the present case is not even available, inasmuch as if the statements of PW.15 are to be believed, the actual last seen was with four more persons, besides the accused, the conviction of the appellant without anything more and specially in the circumstances wherein the wife of the deceased on account of alleged illicit relations between the deceased and other person, who were also last seen with the deceased had made specific allegations, which aspect was not even investigated, the conviction cannot be upheld. 21. Consequently, the appeal filed by the appellant in relation to conviction of Manohar Lal, husband, who has died during pendency of the appeal on 01.07.2020, is allowed. The conviction and sentence of accused Manohar Lal Dethudia, is set aside and he is acquitted of all the charges. The judgment dated 13.11.2009 passed by Additional Sessions Judge No.2, Chittorgarh Camp Begun in Session Case No.37/2005 is quashed and set aside.