JUDGMENT :

Shree Chandrashekhar, J.

Dinesh Mandal, Bulo Mandal and Horiya Mandal are convicted and sentenced to RI for life and fine of Rs.10,000/- each under section 302/34 of the Indian Penal Code, with a default stipulation that they shall undergo further simple imprisonment for one month.

2. In Sessions Case No. 130 of 2009, the learned trial Judge took note of the following circumstances, as recorded in paragraph no. 23 of the judgment under challenge, to hold that the appellants committed murder of Komud Jha:

(i) The appellants came to the house of Komud Jha and took him alongwith them;

(ii) Horiya Mandal admitted to his mother that the deceased was with him for about an hour;

(iii) Dinesh Mandal was found threatening in the village that he would kill one brahmin; and

(iv) Komud Jha died a homicidal death.

3. At the outset we may indicate that the circumstance no. (ii) that Horiya Mandal told the mother of Komud Jha that he was with him for about an hour cannot be considered an incriminating circumstance in this case.

4. From a reading of the judgment in Sessions Case No. 130 of 2009, we gathered that the appellants are convicted on the basis of last seen together evidence tendered through PW1, PW2 and PW12. Mrs. Vani Kumari, the learned counsel for the appellants refers to the judgments in “Manivel and others v. State of Tamil Nadu” (2008) 12 SCC 748, “Ram Bharosey v. State of U.P.” AIR 1954 SC 704 and in “Nizam and another v. State of Rajasthan” (2016) 1 SCC 550 to contend that may be the last seen together theory assume significance in a case based on circumstantial evidence but without corroboration by any other independent evidence the accused cannot be convicted on the ground that the deceased was seen alive last in his company.

5. The prosecution case unfolds in the fardbeyan of Rani Devi who is the wife of Komud Jha. She gave her fardbeyan at 05:45 AM on 30th April, 2009 before the officer-in-charge of Thakurgangti PS stating that around 05:00 AM her younger son Ashish Kumar Jha heard the villagers talking near parasi more that a dead body was lying at Mahuara fields (maidan). Last evening, around 07:00 PM, her husband was ready for dinner when Horiya Mandal and Bulo Mandal came to her house and asked her husband to come along for negotiating a compromise. Though her husband was feeling hungry the accused forcibly took him away saying that they were hit by Yogesh Yadav with bicycle. She further stated that when her husband did not come back home late in the night her mother-in-law went out searching for him, and that the mother of Horiya Mandal told her that no one was present in her house. Around 11:30 PM, her mother-in-law and daughter Beauty Kumari again went to the house of Horiya Mandal and created a ruckus. The mother of Horiya Mandal then said that Horiya Mandal had gone to sleep. When her mother-in-law woke him up, Horiya Mandal told her that Jhaji (Komud Jha) was with him for sometime but he cannot say where he had gone thereafter. She has further stated that 2-3 days prior to this occurrence Dinesh Mandal was seen declaring in the village that he would kill one brahmin.

6. Meharma (Thakurgangti) PS Case No. 59 of 2009 was registered at 03:00 PM on 30th April, 2009 against Dinesh Mandal, Bulo Mandal and Horiya Mandal for committing murder of Komud Jha in furtherance of common intention. A charge-sheet was laid against these accused and they faced the trial on the charge under section 302/34 of the Indian Penal Code which was framed against them by a common order dated 09th July, 2009. The prosecution has examined twelve witnesses during the trial. Three witnesses PW3, PW6 and PW7 who are co-villagers of Komud Jha, however, did not support the prosecution case. PW1 Abhirama Devi is the mother, PW2 Beauty Kumari is the daughter, PW4 Rahul Kumar Jha and PW10 Ashok Kumar Jha are sons and PW12 Rani Devi, informant, is the wife of the deceased. The material witnesses are closely related to the deceased but their evidenc