this point. What has come in the statements of these witnesses is that Nawdha Ramayan programme was organized in the village in which the accused/appellant was also present and during the course of recitation, accused/appellant had offered Rs.10/- through the deceased to the group reciting Nawdha Ramayan. Thus, according to these witnesses, the accused/appellant was also present in the close proximity of the area where the deceased was. It has not been deposed by any of the witnesses that they saw the deceased leaving that place along with accused/appellant or any of them had seen the accused/appellant at the place from where the body of the deceased was recovered or nearby the same in close proximity of time. Mere presence of the accused/appellant at the place where the deceased was also present by itself cannot be regarded conclusive so as to establish the complicity of accused/appellant in the offence of murder of deceased. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. Here in this case, there is no conclusive evidence to the extent that the deceased was last seen alive in the company of the accused/appellant and soon thereafter he was found dead. In these circumstances, we have no hesitation in saying that the Court below has erred in concluding that there was sufficient material on record to show that the deceased was last seen alive in the company of the appellant.
