The judgment emphasizes the need for caution and care in evaluating circumstantial evidence, extra judicial confessions, and recoveries, and highlights the principles for considering extra judicial confessions and the evidentiary value of the 'last seen' theory.

Sanjiv Khanna, J.;—

The appellant Pramod, a rickshaw puller, impugns his conviction, vide judgment of the trial court dated 21st April, 2011, under Section 302 of the Indian Penal Code, 1860 (IPC) for having committed murder of Giriraj, a property dealer, on the night intervening 26th – 27th April, 2009. By order of sentence dated 16th May, 2011, the appellant has been sentenced to undergo life imprisonment and to pay fine of Rs.12,000/-, and in default of payment of fine, to further undergo simple imprisonment for six months.

2. Homicidal death of Giriraj has been established from the post mortem report (Ex. PW7/A) which was proved by Dr. B.N. Mishra, who conducted the post mortem on 28th April, 2009. Ex. PW7/A records that a dead body was found in a park near Palam Railway Station. As per the post mortem, the dead body had external and internal injuries. Ligature mark was present all around the neck and horizontally placed below the thyroid cartilage, measuring whole circumference of the neck with ill-defined margins, with contused underneath tissue of the neck, with collection of scattered blood clots into the soft tissue of the neck. Further, the sub scalp haematoma of size 5x4 cms was present at occipital region of the head, with cherry red coloured blood clot, with fracture of occipital bone of skull. The body was highly decomposed, swelled up, bloated, emitting foul smell, with peeling of skin. The mouth was partially open with protruded tongue. White colour pyjama was encircled around the neck with two fold in situ. The cause of death was stated to be asphyxia caused by ligature strangulation using the block present in situ. The time of death was about 1.3 days (or 40 hours) before post mortem, which was conducted from 3.45 to 4.45 PM on 28th April, 2009.

3. The real question is whether the prosecution has been able to show and establish that the said injuries or the “act” was caused and done by the appellant Pramod. The prosecution version is that the deceased had received a missed call from mobile No. 9958293716 belonging to (PW-6) Amit. The deceased thereupon spoke to the appellant Pramod on the said telephone number, and thereafter met Pramod, the rickshaw puller, and was with him in his rickshaw. The appellant rickshaw puller purchased liquor from the liquor shop and both of them, i.e. the appellant and the deceased, drank liquor together in the park. Thereafter, the appellant killed the deceased.

4. There are no eye-witnesses. The prosecution’s case is based purely upon circumstantial evidence. It is primarily based on circumstances of last seen, extra judicial confession and recovery.

5. To establish the evidence of last seen, the prosecution heavily relies upon statement of PW-12, Gajanand. (PW-12) Gajanand has stated that on 27th April, 2009, at about 8.00 AM, he came to know that his neighbour Giriraj had not returned from his shop, since evening of 26th April, 2009. He went to the house of Giriraj, met his son, and informed him that he had seen Giriraj on 26th April, 2009, near the liquor shop in Sector 20, Marble Market, on a rickshaw and that

“……….. I had also seen the rikshaw puller purchasing some liquor and a water bottle and handing over the same to Giriraj and further that I had asked Giriraj as to where was he going on which he had told me that he was going to attend a party and thereafter Giriraj had gone towards CNG filling station in the same rickshaw, after which I had returned to my house after purchase some usable articles for my house.

On this information being given to me by Vijay, I along with Vijay, his cousin Kamal and his relative Raja Ram went to PS Palam where one Satish Lamba, friend of the deceased was already present. He told us that on 26.4.2009 Giriraj had received a missed call on his mobile phone at about 7.30 PM and after receiving the said missed call he had gone out of his shop……………..”

6. Is PW-12 a chance witness or a planted witness, who had last seen the appellant with th