JUDGMENT : P.V.BALA KRISHNAN, J. This appeal is filed by the first accused in SC No.363/2018 on the files of the Additional Sessions Court-II, Kasaragod challenging his conviction and sentence passed under Section 302 IPC . 2. The prosecution case is that on 6/8/2017 at about 6.30 pm the accused two in number, in furtherance of their common intention to murder Rangappagaji, hit him on his chest using a laterite stone causing fractures on his ribs and resulting in his death. It is alleged that the motive for committing the act is the deceased demanding back the money borrowed by the first accused. It is also alleged that after commission of the crime, the first accused misappropriated the mobile phone of the deceased. Hence, the prosecution alleged that the accused have committed the offences punishable under Sections 302 & 404 read with section 34 IPC . 3. On appearance of the accused before the trial court, charges were framed against them for afore offences, to which they pleaded not guilty. Thereafter, from the side of the prosecution, PW1 to PW24 were examined and Exhibits P1 to P31 documents and MO1 to MO27 were marked. On questioning under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing against them in evidence and contended that they are innocent. The first accused stated that he is not having any connection with the alleged murder and he has been falsely implicated in the case. Even though the accused were called upon to enter their defence, no evidence was adduced from their side. The trial court, on an appreciation of the evidence on record, found the second accused not guilty of the offences alleged against him and acquitted him. The trial court also acquitted the first accused of the offence punishable under section 404 read with section 34 IPC . But, it found the first accused guilty of committing an offence punishable under Section 302 IPC and convicted him thereunder. The first accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- under Section 302 IPC . In case of default, he was ordered to undergo rigorous imprisonment for a period of one year. 4. The learned Counsel for the appellant Adv. V.A.Johnson contended that the prosecution has not proved the entire chain of circumstances relied on by it to reach a conclusion of guilt against the accused. In case of default, he was ordered to undergo rigorous imprisonment for a period of one year. 4. The learned Counsel for the appellant Adv. V.A.Johnson contended that the prosecution has not proved the entire chain of circumstances relied on by it to reach a conclusion of guilt against the accused. He submitted that the trial court has also erred in applying the last seen theory to the present case since, the prosecution has not even established the exact date and time when Rangappagaji died. He contended that the evidence of PW 11 and PW16 are mutually contradictory and are not reliable at all. He argued that the prosecution has not proved the recovery of MO5 and that it belonged to the deceased. Hence, he prayed that this appeal may be allowed. 5. Per contra, learned Public Prosecutor Adv.Ranjith T.R. contended that, prosecution has proved its case beyond reasonable doubt. He argued that the evidence of PW8,PW11 and PW16 would clearly show that the deceased was last seen with the accused just before his death and the appellant has not offered any explanation as to how the deceased sustained injuries and died. He submitted that from the evidence of PW12 coupled with Exts.P7 and P8, the date and time of death of Rangappagaji can be deduced to be around 6.30 pm on 6/8/2017, the time when the afore witnesses have seen the accused and the deceased together. He argued that the recovery of MO5 mobile phone belonging to the deceased at the instance of the appellant also clinches the case against him. Hence, he prayed that this appeal may be dismissed. 6. Before delving into the evidence let in by the prosecution, it would be apt to discuss the material evidence in this case. PW2 is the Panchayat member, who discovered the decomposed body of the deceased in a lonely place near the National Highway at Chattanchal on 9/8/2017 and lodged Ext.P3 FIS. PW5 is the father of the deceased, who identified the body in the place of occurrence on the basis of the tattoo marks on the right and left hands of the body. He also stated that the accused has two phone numbers, one ending with “68” and the other ending with “81”. 7. PW8 is a person who is running a way side eatery near the place of occurrence. He also stated that the accused has two phone numbers, one ending with “68” and the other ending with “81”. 7. PW8 is a person who is running a way side eatery near the place of occurrence. He deposed that the deceased used to come to his shop and about four days before his death, he had come to his shop. He is also acquainted with the first accused and on the day, when he came to know about the death of Rangappagaji, he had seen the first accused going to Cherkala Bus stand. He also had seen the first accused and the deceased regularly going towards the place where Rangappagaji was found dead. 8. PW10, who is running a shop by name Manjunatha Seva Kendra, deposed that he had handed over a mobile phone of Huawei brand to the police and had signed in Ext.P6 mahazar at the time. He identified the mobile phone as MO5 and stated that he had paid Rs.500/- as consideration for purchasing it. He also stated that he is not sure whether it is the first accused who had sold the phone to him. 9. PW11 is a driver of a lorry used for transporting buffaloes. He deposed that he had acquaintance with both the deceased and the accused and on 6/8/2017 at about 6 pm near Cherkala Mosque he had seen the deceased, followed by the accused going up the hill. At that time, one of them was holding a water bottle in his hand and the other was holding a packet. Before 7.30 pm, he saw both the accused returning, but did not see the deceased. It is two months thereafter, when he came back to his native place, he came to know about the death of Rangappagaji. 10. PW12, is the doctor who conducted the postmortem examination of deceased Rangappagaji and issued Exts.P7 and P8 certificates. He deposed that at the time of examination, he had noted two ante mortem injuries and one among them was a contusion of the chest muscle on the left side of the front of the chest; underneath, the 2 to 7 ribs were found fractured at their angles. Tattoo marks were also seen in the right hand and front of the right forearm. He opined that the deceased died of blunt violence sustained to the chest. Tattoo marks were also seen in the right hand and front of the right forearm. He opined that the deceased died of blunt violence sustained to the chest. He also stated that he visited the scene of occurrence on 13/8/2017 and on 20/11/2017 the investigating officer had shown him three stones which he identified as MO6 series. He stated that the big stone (MO6) is not the weapon in this crime and it is either MO6(a) or MO6(b) which had caused the injuries sustained by the deceased. He further stated that the injuries are sufficient to cause death in the ordinary course of nature and death might have occurred definitely two days back from the date of postmortem and it may be two to four days. 11. PW16 is a person acquainted with both the deceased and the accused and who used to sell liquor to them and to other guest workers. He deposed that he had last seen the deceased on 6/8/2017 at about 5.45 pm. While he was consuming liquor sitting alone on the top of the hill, the deceased came there and requested a drink, which he refused. At that time, he saw both the accused coming with liquor and the deceased went with them in between a mound of earth lying on the western side . Thereafter, he heard a cacophony from there and the same continued till he returned at 6.30 pm. In his cross examination, he stated that he did not know whether there was anyone else at that place and that many people used to come there to consume liquor. 12. PW21 is the police officer, who conducted a part of the investigation. He registered Ext.P14 FIR and went to the place of occurrence and seized MO7 to MO10 articles from near the body. Thereafter, he prepared Ext.P5 inquest and searched the room of the deceased and seized MO1 to MO4, after preparing Ext.P4. He also seized MO11 to MO27 articles from the body of the deceased and forwarded them to the court as per Exts.P15 and P16 property lists. He also forwarded the articles collected by the Scientific Assistant as per Ext.P17 property list. 13. PW22 is the scientific officer, who visited the place on 10/7/2017 and collected samples. She took samples from the stains in the stones, packed it and handed it over to PW21. 14. He also forwarded the articles collected by the Scientific Assistant as per Ext.P17 property list. 13. PW22 is the scientific officer, who visited the place on 10/7/2017 and collected samples. She took samples from the stains in the stones, packed it and handed it over to PW21. 14. PW24 is the investigating officer who completed the investigation and laid the charge. He deposed that on 22/9/2017 at about 3.30 pm he prepared Ext.P2 scene mahazar and thereafter, collected Ext.P11 photos by preparing Ext.P20 mahazar. On 12/11/2017 at about 8.30 pm, he arrested the accused after preparing Ext.P21 to P24 documents. On the basis of Ext.P26 confession, he recovered MO5 mobile phone by preparing Ext.P6 seizure mahazar. Thereafter, he also seized Ext.P13 CDR of the mobile phone used by the deceased as per Ext.P28. He further prepared and forwarded Ext.P29 forwarding note and received Ext.P31 chemical analysis report.MO6 series stones were forwarded to the court as per Ext.P30 property list. 15. The materials on record go to show that the prosecution is heavily relying upon the last seen theory and the recovery of a mobile phone belonging to the deceased at the instance of the first accused to reach a conclusion of guilt against him. Before evaluating the evidence, we feel that it would only be appropriate to discuss the settled principles of law on the point of last seen together theory. The 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 the 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.[See Ganpat Singh v. State of Madhya Pradesh [(2017) 16 SCC 353] and Bodhraj v. State of J & K [ (2002) 8 SCC 45 ] . 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.[See Ganpat Singh v. State of Madhya Pradesh [(2017) 16 SCC 353] and Bodhraj v. State of J & K [ (2002) 8 SCC 45 ] . In Kanhaiya Lal v. State of Rajasthan [ (2014) 4 SCC 715 ], the Apex Court has also held that: “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”. ”The theory of last seen—the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. “ 16. Keeping in mind the afore principles of law, we will now appreciate the evidence on record. In order to prove the last seen together theory, the prosecution is relying upon the testimonies of PW11 and PW16. Evidence of PW11 is to the effect that sometime after 6 pm, on 6.8.2017, he had seen the deceased, followed by both the accused going towards the hill. At that time, one of them was having a water bottle and the other was having a packet in their hands. Before he returned from the place, which is at about 7.30 pm, he saw the accused returning but did not see the deceased. Now coming to the evidence of PW16, his evidence is to the effect that at about 5.45pm, on 6/8/2017 while he was sitting on top of the hill consuming liquor, the deceased had approached him. Before he returned from the place, which is at about 7.30 pm, he saw the accused returning but did not see the deceased. Now coming to the evidence of PW16, his evidence is to the effect that at about 5.45pm, on 6/8/2017 while he was sitting on top of the hill consuming liquor, the deceased had approached him. It is also his version that at that time both the accused came there with liquor and the deceased went along with them and sat in between a mound of earth situated on the western side. He also stated that thereafter he heard a commotion from that place, which continued till he left the place at 6.30 pm. His evidence also reveals that he is not sure as to whether any other persons were there at that place at the relevant time and also that a lot of people come to that place for drinking. Now, at the outset itself, it can be seen that the evidence of PW11 and PW16 is not consistent with regard to the time when the deceased and the accused were allegedly found together. Even though PW11 says that it is after 6 pm, he had seen the deceased, accompanied by the accused going towards the hill, PW16 would say that it is at 5.45 pm, he had seen the deceased with the accused on the top of the hill. It has also come out in the evidence of PW16 that he had left the place, (which admittedly is a place accessible to anyone), at about 6.30 pm and also that he is not sure as to whether any other persons were there with the deceased and the accused at that time. Similarly, the evidence of PW11 would go to show that he had also left the place at about 7.30 pm. If so, it cannot be stated for sure as to what had transpired after PW11 and PW16 left the place, thus leaving open all possibilities. Hence, merely because of the fact that PW11 did not witness the deceased coming back along with the accused, it cannot be inferred that the accused have returned after killing the deceased. This is more so, considering the fact that evidence is lacking to prove the exact date and time when Rangappagaji was killed. Hence, merely because of the fact that PW11 did not witness the deceased coming back along with the accused, it cannot be inferred that the accused have returned after killing the deceased. This is more so, considering the fact that evidence is lacking to prove the exact date and time when Rangappagaji was killed. It is to be taken note that, even though the evidence of PW12 coupled with Exts.P7 and P8 would go to show that the cause of death of Rangappagaji is homicidal, it does not in any manner help the court to decide the date and time of his death. The evidence of PW12 only shows that death could have occurred at any time during the past two to four days from the date of postmortem examination, which was on 10/8/2017. This, in turn, means that the death could have taken place at any time on 6/8/2017 or 7/8/2017. In such circumstances, merely because of the fact that PW11 and PW16 had seen the deceased in company of the accused on the evening of 6/8/2017, it cannot be stated that the accused were the persons who were last seen with the deceased before his death. At this juncture, it is to be kept in mind that the body of Rangappagaji was not discovered immediately thereafter, but only on 9/8/2017. In such circumstances, it also cannot be stated that the lapse of time between the point when the accused and deceased were seen together and when the deceased was found dead is so minimal so as to exclude the possibility of a supervening event involving the death at the hands of another. Further, in the case on hand the deceased was having a cordial relationship with the accused at the relevant time and the prosecution has not even adduced a semblance of evidence to prove the motive for the commission of the crime. Hence, in the light of the afore facts and circumstances, we are of the view that the principle of last seen together theory is not at all applicable in the present case and the same cannot be used to rope in the accused in this crime. 17. Now what remains is the recovery of MO5 mobile phone allegedly belonging to the deceased, at the instance of the first accused. 17. Now what remains is the recovery of MO5 mobile phone allegedly belonging to the deceased, at the instance of the first accused. But it is a settled law that even if such a recovery exists, the same itself is not a ground to convict an accused in the absence of other credible substantive evidence. (See Thankayyan v. State of Kerala [1994 SCC (Cri) 1751] and Manoj Kumar Soni v. State of Madhya Pradesh [2023 SCC OnLine SC 984] Further, in the present case, it is to be seen that there is no convincing evidence to prove that MO5 in fact belongs to the deceased or that it is the first accused who had sold MO5 to PW10. No documentary evidence has been adduced to prove the ownership of MO5 with the deceased and the details of phone calls and messages allegedly made from MO5 and as spoken to by PW24, has not been proved as required by law. Apart from above, there is also no convincing evidence to show that the number 9037513192' belongs to the deceased and the evidence of PW15 would go to show that it is he who had taken the number and had given it to one Nagaraj and not to the deceased. If so, we are of the view that the recovery of MO5 at the instance of the appellant will not in any manner help the prosecution. 18. The upshot of the afore discussions on evidence is that the prosecution has utterly failed to prove that the appellant has committed murder of Rangappagaji. The trial court has not properly appreciated the evidence on record and it has arrived at a wrong conclusion of guilt against the accused. This in turn means that this appeal is only liable to be allowed, thereby setting aside the conviction and sentence passed against the appellant. In the result, this appeal is allowed and the conviction and sentence passed against the appellant/first accused in SC 363/2018 under Section 302 IPC , by the Additional Sessions Court-II, Kasaragod is set aside and the appellant /first accused is set at liberty.