1. In all the appeals, since common question of fact and law is involved and have been arisen from one Sessions Trial No. 15/2014, therefore, they have been clubbed together, heard together and are being decided by this common judgment.

2. Umesh Kumar Dhruw (A-1), S. Kumar Dhruw (A-2), Doman Lal Dhimar (A-3), Dharmendra Kumar Patel (A-4) and Raja @ Akash Sahu (A-5) have preferred these appeals under Section 374(2) of Cr.P.C. questioning the legality, validity and correctness of impugned judgment of conviction and order of sentence dated 08.04.2015, by which they have been convicted for the offence punishable under Sections 302 read with Section 34 and 201 read with Section 34 of Indian Penal Code and sentenced as under with a direction to run the sentences concurrently.

3. Case of the prosecution, in short, is that on 22.05.2014 at about 9:00 p.m. at village Aamdi Khar, all the accused persons transpired together and Raja @ Akash Sahu (A-5) took away the deceased Jageshwar Vishwakarma in the motorcycle and they have committed his murder and thrown the dead body into canal in order to screen themselves from the offence; thereby, offences have been committed. Further case of the prosecution is that on the next date on 23.05.2014, information was received by Assistant Sub-Inspector-H.L.Sahu, (PW-2) that dead body of unknown person is lying at village Aamdi Khar in canal waterfall and then Gajanand (PW-7) lodged Dehati-Nalisi (Ex.P-2) informing that on 22.05.2014, at night, his son has left his house to walk around the village and thereafter, did not come. H.L.Sahu (PW-2) informed about the dead body of unknown person, then Gajanand (PW-7) reached to the spot and saw the dead body and identified to be his son. The FIR was registered vide Ex.P-7, inquest was conducted vide Ex.P-5 and dead body was sent for post-mortem, which was conducted by Dr. D.K.Bisen (PW-3) who proved the post-mortem report vide Ex.P-9, in which cause of death was due to strangulation and death was homicidal in nature. The motive of the offence was established that Raja @ Akash Sahu (A-5) had illicit relation with the sister of the deceased namely Neelu Vishwakarma (PW-8). Pursuant to memorandum statement of Umesh Kumar Dhruw (A-1), motorcycle was seized; on the memorandum statement of S. Kumar Dhruw (A-2), the remains of Ghamchha was seized, on the memorandum statement of Doman Lal Dhimar (A-3), footwear was seized; there is no memorandum of Dharmendra Kumar Patel (A-4) and on the memorandum statement of Raja @ Akash Sahu (A-5), motorcycle was seized and the seized articles were sent for examination to FSL, but no FSL report has been brought on record. After due investigation, the appellants were charge-sheeted for the aforesaid offences before the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated.

4. In order to bring home the offence, prosecution examined as many as 10 witnesses and exhibited 37 documents and the appellants-accused in support of their defence have neither examined any witness nor exhibited any document.

5. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the offences under Sections 302 read with Section 34 and 201 read with Section 34 of Indian Penal Code and sentenced them as mentioned in the opening paragraph of the judgment against which the present appeals have been preferred.

6. Learned counsel for the respective appellants would submit that appellants have been convicted solely on the basis of circumstantial evidence, but nature of circumstantial evidence is not as such which can be made basis for their conviction. It has been argued that there is no evidence against the appellants connecting them in any manner for committing murder of the deceased. It is further submitted that the trial Court is absolutely unjustified in convicting the appellants for the aforesaid offences and, as such, the impugned judgment of conviction and order of sentence is liable to be set aside and the appeals deserve to be allowed.

7. Learned State counsel would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and learned trial Court has rightly convicted the appellants herein for the aforesaid offences and therefore, the appeals deserve to be dismissed.

8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

9. The first question for consideration as to whether the death of deceased Jageshwar Vishwakarma was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-9 proved by Dr. D.K.Bisen (PW-3), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

10. Now, the next question for consideration is, whether the appellants are the authors of the crime

11. The trial Court has convicted the appellants basically on the fact that appellant No. 5 and deceased were last seen together on 22.05.2014 at 9:00 p.m., which was seen by sister of the deceased Neelu Vishwakarma (PW-8) and further on the basis of the statement of Neelu Vishwakarma (PW-8), appellants No. 1 to 4 have also been implicated and thereafter, dead body of the deceased was recovered on 23.05.2014 at 10:00 a.m. vide Ex.P-2 proved by H.L.Sahu (PW-2). As such, appellants have been convicted on the basis of theory of last seen together and motive has also been found to be established against Raja @ Akash Sahu (A-5), which has been challenged by the appellants in these batch of criminal appeals.

12. Now, the question for consideration would be, whether the trial Court is justified in convicting the appellants only on the basis of the theory of last seen together finding it to be duly established

13. In the matter of Jaharlal Das v. State of Orissa (1991) 3 SCC 27, the Supreme Court has noted the fact that at the stage of inquest, the important incriminating circumstance namely, the deceased was last seen in the company of the accused, was not noted and that is not there in the inquest report. Thereafter, in that view of the above fact and other evidence on record, their Lordships have held that the deceased was last seen in the company of the accused is not established beyond reasonable doubt.

14. In the matter of Arjun Marik v. State of Bihar  1994 Supp (2) SCC 372, it has been held by their Lordships of the Supreme Court that conviction cannot be made solely on the basis of theory of 'last seen together' and observed in paragraph 31 as under :-

"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 though a number of witnesses have been examined 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."

15. Likewise, in the matter of State of Goa v. Sanjay Thakran (2007) 3 SCC 755, the Supreme Court has held that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was observed in paragraph 34 as under :-

"34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. "

16. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan  (2014) 4 SCC 715, their Lordships of the Supreme Court have clearly 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 and 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. It has been held in paragraphs 15 and 16 as under :-

"15. 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. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan.

16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise."

17. In the matter of Anjan Kumar Sarma v. State of Assam (2017) 14 SCC 359, their Lordships of the Supreme Court have clearly held that in a case where other links have been satisfactorily made out and circumstances point to guilt of accused, circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In absence of proof of other circumstances the only circumstance of last seen together and absence of satisfactory explanation, cannot be made basis of conviction.

18. In the matter of Navaneethakrishnan v. State by Inspector of Police  (2018) 16 SCC 161, the Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration, and observed in paragraph 22 as under:-

"22. PW-11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross-examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."

19. In the matter of State of Goa v. Sanjay Thakran and another  (2007) 3 SCC 755, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.

20. In the instant case, Raja @ Akash Sahu (A-5) and deceased were last seen alive on 22.05.2014 at 9:00 p.m. by Neelu Vishwakarma (PW-8) and dead body was recovered on 23.05.2014 at 10:00 a.m., which is evident from Ex.P-3, as such, there is a gap of more than 12 hours and there is considerable time gap between the last seen together and the time when the dead body of the deceased was recovered. Furthermore, pursuant to memorandum statement of Umesh Kumar Dhruw (A-1), only motorcycle has been seized, which is of no use to the prosecution; further from the memorandum statement of S.Kumar Dhruw (A-2), the remains of Gamchha after having burnt were seized, which is also of no use to the prosecution; from the memorandum statement of Doman Lal Dhimar (A-3) footwear has been seized near the canal, but it has not been established that it is the footwear of Doman Lal Dhimar (A-3) and there is no memorandum statement of Dharmendra Kumar Patel (A-4) nothing has been seized from him, however, from the memorandum statement of Raja @ Akash Sahu (A-5) motorcycle has been seized and it has been alleged that he had an illicit relationship with Neelu Vishwakarma (PW-8), which is not established as PW-8 has not made any statement in the Court that she had any relationship with Raja @ Akash Sahu (A-5). The trial Court had relied upon the statement recorded under Section 161 of Cr.P.C. of Chandrashekhar Thakur (PW-9) who has not made any such statement before the Court as such Section 161 Cr.P.C. statement is not admissible in evidence.

21. Returning to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court particularly, in Anjan Kumar Sarma (supra), it is quite vivid that the prosecution has only established that Raja @ Akash Sahu (A-5) and deceased were last seen together on 22.05.2014 at 9:00 p.m. and dead body of the deceased was recovered on 23.04.2014 at 10:00 a.m. and there are no other connecting links that have been satisfactorily made out and no other incriminating circumstance, which leads to the hypothesis of guilt against the appellants, has been proved and even the motive of offence against the Raja @ Akash Sahu (A-5) has also not been proved by the prosecution. As such, in absence of poof of other circumstances, only on the basis of last seen together of Raja @ Akash Sahu (A-5) and deceased, it would be unsafe to convict the appellants in absence of corroboration as laid down by their Lordships of the Supreme Court in Navaneethakrishnan (supra). Therefore, in our considered opinion, the trial Court is absolutely unjustified in convicting the appellants only on the basis of the theory of 'last seen together' finding it fully established in absence of motive and in absence of corroboration in light of the principles of law laid down by their Lordships of the Supreme Court in Arjun Marik (supra), Sanjay Thakran's case (supra) and Kanhaiya Lal (supra). Therefore, they are entitled for acquittal on the basis of benefit of doubt.

22. Accordingly, the impugned judgment of conviction and order of sentence dated 08.04.2015 is hereby set aside. The appellants stand acquitted giving them benefit of doubt from the charges framed against them for the offences punishable under Sections 302 read with Section 34 and 201 read with Section 34 of Indian Penal Code. Umesh Kumar Dhruw (A-1), S.Kumar Dhruw (A-2), Doman Lal Dhimar (A-3) & Dharmendra Kumar Patel (A-4) are on bail, they need not surrender; however, their bail bonds shall remain in force for a period of 6 months in view of the provisions contained in Section 437-A of Cr.P.C. However, Raja @ Akash Sahu (A-5) is in jail, he is directed to be released forthwith from jail, unless he is required in any other offence.

23. In view of the above, all these criminal appeals are allowed.

24. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the Raja @ Akash Sahu (A-5) is suffering the jail sentence.