The judgment established the importance of last seen evidence, recovery of evidence at the instance of the accused, and the application of section 27 of the Indian Evidence Act in cases based on circumstantial evidence.

JUDGMENT SUJOY PAUL, J. : – This appeal filed under section 374(2) of the Code of Criminal Procedure, 1973 (In short “Cr.P.C”) assails the judgment dated 21-2-2011 passed in Sessions Trial No. 670/2009 whereby the appellant was held guilty for committing offence under section 302 of Indian Penal Code and directed to undergo sentence of life imprisonment with fine of Rs. 1,000/- with default stipulation.

2. The brief facts are that appellant and deceased Jagdamba Prasad Saket were students and were residing in room No. 19 of Industrial Training Institute (ITI), Madhotal, Jabalpur. The deceased left the hostel on 12-8-2009 and went to his native place namely; Singrauli. In the meantime, Hostel Superintendent Shri L. M. Agnihotri (PW-1) issued an order to change the room of both the said students. The appellant was directed to shift room No. 16 whereas deceased was directed to remain in room No. 19.

3. As per the prosecution story, deceased Jagdamba Prasad came back from Singrauli to his room No. 19 on 24-8-2009 at around 6:00 A.M. When Jagdamba Prasad opened his locker, he found that his mark-sheet is missing. He promptly informed the other students and Superintendent Shri L. M. Agnihotri about non-availability of said mark-sheet. In turn, Shri Agnihotri came to the hostel and in the presence of other students apprised the appellant that if missing mark-sheet of Jagdamba Prasad is available with him, he may return it back to him. Thereafter, Agnihotri went back to his residence.

4. On 24-8-2009 at around 6:30 P.M., another student Zakir Hussain (PW-6) had seen that appellant and Jagdamba Prasad have left the hostel. On the same day, both of them reached the house of another student Gulab Singh (PW-3) at around 7:30 P.M. After spending time at Gulab’s residence for 15-20 minutes, both of them left the place together by saying that they are going to see Ganesha idols.

5. The prosecution story further shows that appellant came back to the hostel on 25-8-2009 at around 1:00 A.M. covered with mud. He entered the hostel room and closed the door from inside. The other students enquired from him about Jagdamba Prasad but he did not inform whereabouts of Jagdamba Prasad. His shoes and clothes were full of mud. Ashutosh took bath in the night itself. At around 1:15 A. M. Ashutosh Agnihotri and Polus James (PW-2) approached hostel Superintendent L. M. Agnihotri (PW-1) and informed him that Ashutosh and Jagdamba left the hostel in the evening together but Ashutosh Kaithwas (appellant) alone came back in a dirty condition and is taking bath. Appellant is not informing anything about Jagdamba Prasad. Indeed, he is saying that he did not leave the hostel with Jagdamba Prasad.

6. M. L. Agnihotri, in turn, lodged the ‘Gum Insan’ report of Jagdamba Prasad in Police Station Madhotal, Jabalpur. On 27-8-2009, the police enquired whereabouts of Jagdamba from appellant. As per the case of the prosecution, in the presence of Rampal Saket (PW-6) and Rajpal Saket (PW-8) on 27-8-2009 at around 20:30 O’clock, appellant informed that he has murdered Jagdamba Prasad by assaulting him by means of a knife and stone. The dead body is kept in an agricultural field. His memorandum Ex. P/15 was prepared and on the same date at around 22:00 O’clock along with witnesses Rampal and Rajpal, Kamlesh Yadav and Santosh, the dead body was recovered from an agricultural field near the Patan Bypass, National Highway No. 7. The identification and recovery Panchnama Ex. P/2 was prepared. At the instance of appellant, a stone of almost 5 Kg. weight and knife of 9 inch long were recovered. A seizure memo Ex. P/16 was prepared. A site map Ex. P/7 was prepared. A cycle of appellant was seized. The earth/soil in appellant’s shoes, paddle of cycle were taken through Ex. P/6 and P/8.

7. The dead body of Jagdamba Prasad was identified by his father Rajpal and brother-in-law Rampal. There was an injury near right eye of the deceased. The body was decomposed and on the face of it, it a