JUDGMENT : RAMESH SINHA, J. 1. This criminal appeal under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 10.12.2021 passed by the First Additional Sessions Judge, Ramanujganj, in Sessions Case No. R-11/2016, by which the appellant herein has been convicted for offence punishable under Sections 366, 376, 302 and 201 of the IPC and sentenced to undergo RI for five years and fine of Rs.500/- in default of payment of fine to further undergo imprisonment for 30 days, RI for ten years and fine of Rs.500/- in default of payment of fine to further undergo imprisonment for 15 days, imprisonment for life and fine of Rs.500/- in default of payment of fine, to further undergo imprisonment for 30 days and RI for five years and fine of Rs.500/- in default of payment of fine to further undergo imprisonment for 15 days. 2. Case of the prosecution, in brief, is that on 05.10.2015 at 2 p.m. at Wadrafnagar, P.S. Basantpur, the appellant/ accused kidnapped the prosecutrix and took her at Makhaphaker nursery forest where he committed forcefully intercourse with her and thereafter killed her and tried to disappear the evidence. Missing report was lodged by Smt.Mudhun Devi (PW-1) vide Ex.P-13 and thereafter merg intimation was recorded by her vide Ex.P-22. On the basis of dehali nalishi, FIR in Crime No. 108/2015 for offence under Section 302 and 201 of the IPC was registered against the appellant vide Ex.P-15. Thereafter the appellant was interrogated and on the basis of his memorandum statement vide Ex.P-3, identification panchnama was prepared vide Ex.P-4. Dead body of deceased Manto was recovered vide recovery panchnama Ex.P-5 in presence of Shivkumar and Anand Kushwaha (PW-3). Bicycle was seized vide Ex.P-11. Bloodstained stone of 4.500 kg. bloodstained soil and plain soil were seized from the spot vide seizure memo Ex.P-10. The accused/appellant was sent for examination vide Ex.P-19A and he was examined by Dr.Govind Singh (PW-15) vide Ex.P-19 in which he has opined that the appellant/accused was capable of performing sexual intercourse. Naksha panchayatnama was prepared vide Ex.P-7. Spot map was prepared by the investigating officer vide Ex.P-8. A pair of anklet of the deceased was seized from the spot vide Ex.P-9. The appellant was arrested vide arrest memo Ex.P-12. Dead body of the deceased was sent for postmortem to Primary Health Center, Wadrafnagar, where Dr. Naksha panchayatnama was prepared vide Ex.P-7. Spot map was prepared by the investigating officer vide Ex.P-8. A pair of anklet of the deceased was seized from the spot vide Ex.P-9. The appellant was arrested vide arrest memo Ex.P-12. Dead body of the deceased was sent for postmortem to Primary Health Center, Wadrafnagar, where Dr. Shashank Gupta (PW-12) conducted postmortem over the body of the deceased vide Ex.P-16 and found following injuries: “1. Lacerated wound over center of the forehead size 1 x 1 x 1 cm caused by hard & blunt object. Antemortem in nature. 2. Lacerated wound on left side just lateral to chins 3 x 2 x 1 cm caused by hard & blunt object & antemortem in nature. 3. Lacerated wound over right side temporal bone size 8 x 4 x 3 cm & some one temporal bone fracture, caused by hard & blunt objects & antemortem in nature. 4. Whole skin as peeling off. 5. Contusions over right temporal & right parietal bone part of the skull & right side of the face size 15 x 10 cm below this injuries fracture right temporal & right parietal bone & right side mandible caused by hard & blunt objects & antemortem in nature.” He opined that mode of death as asphyxia resulting from throttling and death was homicidal in nature. Seized articles were sent for chemical examination to the Forensic Science Laboratory and vide report dated 14.1.2016 (not exhibited), blood was found on article “C” which was used for commission of offence. 3. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge-sheet was filed against the appellant before the jurisdictional criminal court and the case was committed to the Court of Sessions for trial from where the learned First Additional Sessions Judge, Ramanujganj received the case on transfer for trial and for hearing and disposal in accordance with law. 4. The trial Court has framed charges against the appellant for offences punishable under Sections 366, 376, 302 and 201 of the IPC and proceeded on trial. The appellant abjured guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 5. The prosecution in order to bring home the offence examined as many as 17 witnesses and exhibited 24 documents Exhibits P-1 to P-24. The appellant abjured guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 5. The prosecution in order to bring home the offence examined as many as 17 witnesses and exhibited 24 documents Exhibits P-1 to P-24. The appellant has examined two defence witnesses namely Ramvilas Kushwaha (DW-1) and Shyambihari (DW-2) in support of his case. However, no document has been exhibited on his behalf. Statement of the appellant was recorded under Section 313 of the Cr.P.C. in which he abjured the guilt and pleaded innocence. 6. The trial Court after completion of trial and after appreciating oral and documentary evidence available on record, by the impugned judgment dated 10.12.2021 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the Cr.P.C. has been preferred by him calling in question the impugned judgment. 7. Mr. Mirza Kesar Beg, learned counsel appearing for the appellant, would submit that the prosecution has failed to bring home the offence beyond reasonable doubt and theory of last seen together is not proved. Even otherwise, merely on the basis of last seen together, no conviction can be recorded unless the chain of circumstances is complete to reach to a conclusion that it is only and only the accused/appellant who has caused the murder of the deceased. He would further submit that in the present case, there is no eye witness and conviction of the appellant is based on circumstantial evidence. The prosecution has failed to prove the motive of the appellant for commission of offence. As such, the impugned judgment deserves to be set aside and the appeal deserves to be allowed by acquitting the appellant of the charges levelled against him. 8. Mr. Gagan Tiwari, learned State counsel, would support the impugned judgment and would submit that conviction of the appellant is well founded and well supported by the circumstantial evidence leading to inference that the appellant has committed the aforesaid offence, as such, the trial Court has rightly convicted the appellant for the aforesaid offences and the appeal deserves to be dismissed. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question is, whether the death of the deceased was homicidal in nature, which the trial Court has recorded in affirmative relying upon the statement of Dr. Shashank Gupta (PW-12) proved by his postmortem report Ex.P-16 holding the mode of death as asphyxia resulting from throttling and death was homicidal in nature, which is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Now, the question is, whether the trial Court is justified in holding that the appellant is perpetrator of the crime? 12. The trial Court has relied upon the statement of Smt.Mudhun Devi (PW-1) (mother of the deceased) that accused/appellant was last seen with the deceased. 13. Smt. Mudhun Devi (PW-1) (mother of the deceased) has stated in her evidence that at the time of the incident, she and her husband were admitted to Vadrafnagar Hospital for treatment, at the same time, her daughter (deceased) was also suffering from fever, so she was admitted to the hospital by her son for treatment. During the treatment, the doctor has suggested her daughter for blood test, when she along with her daughter going to pathological lab for blood test, at that time the appellant came to them and told that he is taking the deceased sitting on the bicycle, he took the deceased to the forest and killed her by pelting her with a stone. In para-3 of her evidence, she has stated that when her daughter did not come after getting her blood tested from the lab, she went to the accused house in search of her daughter, the accused was not there and he had gone to his sister’s house at Pratappur. Thereafter she lodged report at Police Chowki Wadrafnagar. After lodging the report, the police officials and Shyambihari Yadav of village Kotrahi went to the house of the appellant’s sister at Pratappur, where the appellant found. When the police interrogated the accused, according to the accused, the dead body was found in the forest and the accused assaulted her daughter with a stone and pressed it with a stone. After lodging the report, the police officials and Shyambihari Yadav of village Kotrahi went to the house of the appellant’s sister at Pratappur, where the appellant found. When the police interrogated the accused, according to the accused, the dead body was found in the forest and the accused assaulted her daughter with a stone and pressed it with a stone. In para-5 of her cross-examination, she has stated that she did not saw the appellant assaulting her daughter. It is incorrect to say that she did not see the accused carrying the deceased on a bicycle. It is also incorrect to say that the accused did not take her daughter to the forest. 14. From the evidence of Smt. Mudhun Devi (PW-1), it is clear that that prosecution has proved that it is only and only the accused/appellant who has kidnapped the deceased and took her at Makhaphaker nursery forest where he committed forcefully intercourse with her and thereafter committed murder of the deceased. 15. Anand Kumar Kushwaha (PW-3), who is witness of dead body recovery panchnama (Ex.P-5), has stated in para-2 of his evidence that at the time of interrogation the appellant has told to the police that he has killed the deceased in Banaras Road near nursery. The police prepared the memorandum statement (Ex.P-3) in which he has signed. The appellant, Shivkumar Kushwaha and 40-50 people of the village along with police went to the jungle and the appellant shown the place where he killed the deceased and showed the dead body. The police has prepared dead body identification panchnama vide Ex. P-4 in which he has signed. In para-3 of his evidence, he has stated that there was no clothing on the body of the deceased and sari was tied around the neck of the deceased. The police has seized the dead body vide dead body recovery panchnama Ex.P-5 in which he has singed. In para-7 of his cross-examination, he has stated that it is incorrect to say that dead of the deceased was not shown to the appellant. In his cross-examination, he has stated that sari was tied around the neck of the deceased and the rest of the body was unclothed. It is incorrect to say that the head of the deceased was not crushed and under the stone. In his cross-examination, he has stated that sari was tied around the neck of the deceased and the rest of the body was unclothed. It is incorrect to say that the head of the deceased was not crushed and under the stone. As such, Anand Kumar Kushwaha (PW-3) has proved dead body identification panchnama (Ex.P-4) and dead body recovery panchnama (Ex.P-5) in which he has signed as a witness. 16. The next circumstance that has been pointed out by the prosecution is the circumstantial evidence. 17. The most celebrated decision in this regard is the judgment of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 in which their Lordships have underlined the conditions which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 18. These five cardinal principles have been reiterated on numerous occasions, including in the recent decisions in Mohd. Younus Ali Tarafdar vs. State of West Bengal, (2020) 3 SCC 747 and R. Damodaran vs. State Represented by the Inspector of Police, 2021 SCC Online SC 134. 19. The case of the prosecution in the present case heavily relies upon the principle of ‘last seen theory’. Briefly put, the last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Elaborating on the principle of “last seen alive” a 3-judge bench of the Supreme Court in the matter of Satpal vs. State of Haryana, (2018) 6 SCC 610 has, however, cautioned that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence. The Court further held: “..............Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter-alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter-alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.” 20. We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused. 21. The prosecution in the present case has undoubtedly established that the deceased was last seen alive in the company of the appellant and has also adduced evidence about the events leading up to and following the point of last seen. Smt. Mudhun Devi (PW-1) is the person who lastly saw the deceased alive on 05.10.2015, and she has categorically deposed that she had seen the deceased along with the appellant. 22. It is trite in law that the job of the prosecution is to put forth the best evidence that is collected during the investigation. Although it is ideal that the prosecution case is further substantiated through independent witnesses, but it would be unreasonable to expect the presence of third-parties in every case. 23. Upon considering the prosecution evidence in its entirety and having meditated on the grounds raised by the appellant to every possible extent, we find no reason to disbelieve the prosecution version of last seen theory against the appellant. 24. 23. Upon considering the prosecution evidence in its entirety and having meditated on the grounds raised by the appellant to every possible extent, we find no reason to disbelieve the prosecution version of last seen theory against the appellant. 24. The prosecution has also proved the motive of the appellant that with intention to commit rape on the deceased, the appellant kidnapped her and took her in Makhapokhar forest where he committed rape with her and thereafter caused her murder and to hide the evidence, the body of the deceased was mutilated by crushing it with a stone and the body was hidden. 25. Considering the facts and circumstances of the case and the material available on record, taking into consideration the evidence of Smt. Mudhun Devi (PW-1), also the evidence of Anand Kumar Kushwaha (PW-3), recovery of dead body vide recovery memo (Ex.P-5) on the basis of memorandum statement of the appellant vide Ex.P-4, also taking into consideration that the prosecution has proved the motive of the appellant for commission of offence and evidence of the doctor who proved the death of the deceased to be homicidal in nature and further considering the FSL report dated 14.01.2016 in which on article “C” i.e. piece of stone which was used for commission of offence, blood was found, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Sections 366, 376, 302 and 201 of the IPC. We do not find any illegality or infirmity in the findings recorded by the trial Court. 26. For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 27. It is stated at the Bar that the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 28. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.