The last seen theory, as a facet of circumstantial evidence, requires corroborative evidence to establish guilt. The onus is on the accused to explain the circumstances under Section 106 of the Evidence Act.

ORDER :

Heard Mr. P.S. Dayal, learned counsel for the appellants and Mr. Pankaj Kumar, learned P.P. for the respondent-State. None appears on behalf of the respondent no. 2.

2. This appeal is directed against the judgment of conviction and order of sentence dated 31.03.1995 passed by Shri Shyam Deo Singh, learned 5th Additional Sessions Judge, Dhanbad in Sessions Trial No. 94 of 1988, whereby and whereunder the appellants have been convicted for the offences punishable u/s 302/34 and 201 of the IPC and have been sentenced to undergo imprisonment for life for the offence punishable u/s 302/34 of the IPC and R.I. for three years for the offence punishable u/s 201 of the IPC. Both the sentences were directed to run concurrently.

3. The fardbeyan of Arun Kumar Mahto was recorded on 27.11.1985 at 12:00 P.M. wherein it has been stated that on 23.11.1985 at around 8:30 P.M. his co-villagers Ramvijay Mahto (appellant no. 3) and Subal Mahto @ Megha Mahto (appellant no. 2) had come to his house and invited his brother Pran Kisto Mahto for catching fish. His brother at this offer went away with Ramvijay Mahto and Subal Mahto. When, even in the morning of the next day Pran Kisto Mahto did not return a search was conducted and in course of search the elder brother and the mother of the informant went to Ramvijay Mahto and Subal Mahto to ask the whereabouts of Pran Kisto Mahto but both of them denied that they had gone to catch fish and Pran Kisto had accompanied them. The brother of Subal Mahto namely, Mahabir Mahto (appellant no. 1) was present at the said place who rebuked them and asked them to contact an exorcist to trace out Pran Kisto Mahto. The demeanor of the accused persons evoked suspicion in the minds of the informant and his family members and they started making a search in the Jungle adjoining their village. It has been alleged that today i.e. on 27.11.1985 in course of search at about 7:00 A.M. the dead body of Pran Kisto Mahto was detected amidst a pile of coal dust. The murder appeared to have been committed by means of strangulation. It has been alleged that there was a friction between Mahabir Mahto and the deceased on account of the conduct of the sister of Mahabir Mahto who was a characterless lady.

Based on the aforesaid allegations Baliapur P.S. Case No. 132/1985 was instituted for the offences punishable u/s 302/201/34 of the IPC. After completion of investigation charge-sheet was submitted against all the three accused persons pursuant to which cognizance was taken and the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 94 of 1988. Charge was framed against the accused persons for the offences punishable u/s 302 and 201 of the IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as nine witnesses in support of its case.

5. P.W.1 (Sohan Mahto) has stated that the incident is of five years back at about 8:00 P.M. and he was in his house when Ramvijay and Subal had come and had taken away his son Pran Kisto with them for catching fish. His son did not return at night and in the morning he had asked Ramvijay and Subal about the whereabouts of his son who had stated that Pran Kisto had returned back to his house in the night itself. The dead body of his son on search was found buried and the same was concealed under the pile of coal dust.

In cross-examination, he has deposed that he had seen Ramvijay and Subal in the courtyard and there were no articles in their hands. He does not know about any quarrel involving Pran Kisto Mahto prior to the occurrence.

6. P.W.2 (Gangia Mahatain) is the mother of the deceased Pran Kisto Mahto who has stated that on the date of occurrence Ramvijay and Subal had come to take away Pran Kisto Mahto to catch fish which was objected by her since darkness had already fallen. However, on the assurance that Pran Kisto will returned back shortly to his house they