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TAPAS HALDAR vs STATE OF OF NCT OF DELHI & ANR.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 6th August, 2024
Pronounced on: 3rd October, 2024
+ CRL.A. 378/2022
TAPAS HALDAR ….. Appellant
Through: Mr. Shivek Trehan (DHCLSC), and Ms. Rishika Goyal, Advocates (M: 9311611900).
Versus
STATE (G.N.C.T. OF DELHI) ….. Respondent
Through: Mr. Ritesh Kumar Bahri, APP for the State with Mr. Lalit Luthra and Mr. Antariksh Pal, Advocates (M: 9910645959).
Insp. Darpan Singh & Insp. Rajesh Jha, P.S. New Ashok Nagar.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1.   The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (for short, ‘CrPC’) has been filed assailing the judgment of conviction dated 24.11.2021 and order on sentence dated 24.12.2021, passed by Sh. Arun Sukhija, learned Additional Sessions Judge-03, East District, Karkardooma Courts, Delhi, in Sessions Case No. 1231/2019, arising out of FIR No. 617/2018, under Sections 302/201 of the Indian Penal Code, 1860, (for short, ‘IPC’), registered at PS New Ashok Nagar.
2.   Vide the impugned judgment of conviction and order on sentence, the Appellant has been convicted for the offences punishable under Sections 302, 201, 203, 404 of the IPC. The Appellant has been sentenced to undergo life imprisonment alongwith fine of Rs. 5,000/- and in default of payment of fine, to further undergo simple imprisonment for 1 month for the offence punishable under Section 302 of the IPC. The Appellant was also sentenced to the period already undergone i.e., 3 years and 24 days as on 23.12.2021, alongwith fine of Rs. 2,500/- and in default of payment of fine, to further undergo simple imprisonment for 15 days for the offence punishable under Section 201 of the IPC. The Appellant has also been sentenced to undergo simple imprisonment for 1 year for the offence punishable under Section 203 of the IPC. The Appellant has also been sentenced to undergo simple imprisonment for a period of 2 years alongwith fine of Rs. 2,500/- and in default of payment of fine, to further undergo simple imprisonment for 15 days for the offence punishable under Section 404 of the IPC. Benefit of Section 428 of the CrPC was also granted to the Appellant and all the sentences for substantive offences were directed to run concurrently; however, sentences to be undergone in default of payment of fine were directed to run consecutively.
BRIEF BACKGROUND
3.   Brief facts which are necessary for the disposal of the present appeal are as follows: –
i)   On 25.11.2018, vide DD No. 14A (Ex. PW-11/A), a PCR call was received at PS New Ashok Nagar from Satish Kumar (PW-2), who is the landlord, regarding his tenant residing at Room No. 46, K-313, Pratap Chowk, Dallupura, Delhi, whereby it was informed that gate of latter’s room is locked for last 2 days and it was anticipated that he might have committed suicide. 
ii)  The said information was given to ASI Arvind Kumar/PW-26 (hereinafter, referred to as ‘PW-26’) who alongwith other senior police personnel went to the aforesaid address. Locks of the house were broken in the presence of other persons including PW-2 and one male dead body in decomposed state was found lying on bed.  
iii) Thereafter, the crime team arrived there, and they were informed that the room was opened by breaking the lock in the presence of house owner, PW-2, and Head Constable Sultan and the said broken lock was taken into custody vide seizure memo Ex. PW-2/B dated 25.11.2018. Efforts were made to identify the dead body; however, no credible information was received from neighbours. It was noted that by this point in time, neither any eye-witness nor any other relevant information was available with PW-26 regarding this incident.
iv) Vide MLC No. 016195 dated 25.11.2018, medical examination of the deceased was conducted on the same day wherein he was declared brought dead. The corpse of the deceased was sent to LBS Hospital Mortuary for preservation for the next 72 hours.
v)  On 26.11.2018, FSL team was constituted to inspect the crime scene. The said team collected 3 exhibits from the said room, viz were blood stains taken from bed and floor, and cutting of pillow, and handed them over to PW-26. Seizure memos of said exhibits were prepared in the presence of Head Constable Baleram. The receipt of one mobile phone allegedly purchased by the deceased-Bappi Pal, on 18.11.2018 from a shop named SOPNO Communication, Malda, West Bengal, alongwith box of said mobile phone was also taken into police custody and kept in maalkhana. 
vi) IMEI numbers of said mobile phone were put on surveillance and, it was found that the same were being operated from West Bengal and thus, a team constituted and headed by PW-26 was sent to Malda, West Bengal. 
vii) In the meanwhile, on 26.11.2018, one neighbour namely, Ms. Seema Haldar (PW-1), who was residing in the 4th floor of the same building from where the corpse of the deceased was found, came forward and identified the deceased through the photographs available with the police, and also, with the enquiry from the brother of deceased (PW-7) as Bappi Pal. PW-1 also informed the police that she, Appellant and deceased hail from the same village. PW-1 further informed the police that initially the Appellant used to reside with his mother in his rented premises but after some time, he had returned to his native village alongwith his mother.
viii)   Thereafter, rukka was prepared by SI Neeraj Kumar for DD No. 14A dated 25.11.2018 and FIR No. 617/2018 (Ex. PW-10/B), under Sections 304/201 of the IPC, was registered at PS New Ashok Nagar on 28.11.2018 at 15:19 hrs. After the registration of the FIR in the present case, further investigation was entrusted to the main Investigating Officer, IO/PW-29.
ix) Statement of PW-2, under Section 161 of the CrPC was recorded, whereby it was stated that the Appellant had gone back to his native village six months ago and had returned to Delhi on 20.11.2018 and stayed in Delhi for 2 days. It was also stated that he was accompanied by one boy, who was also from his village, and later, the identity of the said boy was revealed as Bappi Pal. He further stated that on 25.11.2018, when the neighbours complained of foul smell from the room of the Appellant, the said PCR call was made by him.
x)  In between, the team led by PW-26 arrested the Appellant from village Chhityan Gachi, Malda, West Bengal, vide arrest memo Ex. PW-7/A dated 30.11.2018 and after obtaining a transit remand from the learned Chief Judicial Magistrate, Malda, West Bengal, the Appellant was brought to Delhi on 02.12.2018. Arrival entry regarding the same was made vide DD No. 39A on 02.12.2018. Medical examination of the Appellant was conducted. Disclosure statement dated 30.11.2018, Ex. PW-22/A, of the Appellant was recorded by PW-26.
xi) Thereafter, on 03.12.2018, as per the case of the prosecution, the Appellant had confessed, vide supplementary disclosure statement, Ex. PW-26/B, that he had murdered his village friend, Bappi Pal, by strangulating latter’s neck with the help of a cloth rope (Ex.P-2 (colly)); the same has been referred to as improvised rope in the impugned judgment of conviction) and the same can be recovered from his room in Delhi. One Airtel Mobile SIM card, which later identified as bearing No. 8670884224, was also seized by PW-26 from the Appellant, vide seizure memo Ex. PW-7/D, during the personal search of the latter at the time of his arrest. The reason given for killing Bappi Pal by the Appellant was that they had an altercation and quarrel as the former had refused to give Rs. 6,000/- to him and after the murder, latter had taken the said sum and newly purchased mobile phone of Bappi Pal with him. He also stated that, later on, he handed over the said mobile phone of the deceased to his brother, PW-7. It was also stated in the said confessional statement that on the night of 21.11.2018, he consumed liquor in the room of Mr. Roshan Kumar Jha (PW-3) with other boys namely, Gopal Vishwas (PW-4) and Sunny Kumar Mandal (PW-5) and returned to Malda by train in the morning of 22.11.2018. 
xii) Then, on 03.12.2018, one bag (Ex. P-1(colly)) was recovered from the room of the Appellant at latter’s instance and from this bag, the said rope (Ex. P-2 (colly)) of mixed golden, white and maroon colour measuring about 3 meters, which was allegedly used to strangulate the deceased by the Appellant, was seized and taken into custody in the presence of PW-26, PW-29 and PW-2/landlord vide seizure memo Ex. PW-2/C.
xiii)   On arrival of relatives of Bappi Pal, identification of the corpse was done at LBS Hospital Mortuary and dead body identification memo (Ex. PW-7/B dated 03.12.2018) was prepared in the presence of Sameeran Pal/PW-7, brother of Bappi Pal, and Hardhan Pal (maternal uncle) and post-mortem of the deceased was conducted vide P.M. No. 603/18 (Ex. PW-14/A). Thereafter, the corpse of the Bappi Pal was handed over to his relatives alongwith the death certificate vide dead body delivery memo Ex. PW-7/C. 
xiv)   PW-7, brother of the deceased, informed the IO regarding the clothes of his brother-Bappi Pal which were also recovered from the room of the Appellant at latter’s instance in the presence of IO/PW-29, PW-26, Sameeran/PW-7 and Seema Haldar/PW-1 and were taken into custody vide seizure memo Ex. PW-1/A which comprised six clothes.
xv) All the exhibits and evidence collected during the investigation were sent for examination to FSL. On 05.12.2012, a scaled site plan of the site of occurrence was prepared and the DPCR Form regarding the PCR call was also appended with the file.
xvi)   During the investigation, after analysing the activity of the IMEI numbers of the newly purchased mobile phone of the deceased and the mobile number of the Appellant, it was revealed that the aforesaid mobile number, i.e., 8670884224, which is originally the number of the Appellant, was used by the latter in the said purchased mobile phone of the deceased on 21.11.2018 from 07:33:06 hrs to 19.32.22 hrs, and thereafter, from 24.11.2018 till 26.11.2018. It was also noted that the location of the said SIM number and IMEI number of the mobile phone of the deceased was in Delhi till 22:00:42 hours on 21.11.2018, and thereafter, location was shown in West Bengal, from where the Appellant was arrested, from 24.11.2018 onwards.
xvii)   The said mobile phone purchased by the deceased was taken into custody from his brother/PW-7 vide seizure memo Ex. PW-7/D on 04.02.2019 from his village in Malda, West Bengal. Statement under Section 161 of the CrPC of the seller of the mobile phone was also recorded.
xviii)  After obtaining a subsequent opinion from the Autopsy Surgeon at LBS Hospital Mortuary regarding Ligature Mark at the neck of the deceased, on 26.02.2019, chargesheet in the present case was filed before the Court of competent jurisdiction for the offences punishable under Sections 302, 201 of the IPC naming the Appellant as the main accused in the present case. 
xix) FSL reports, which were kept awaited, were filed by way of supplementary chargesheet. 
4.   Prosecution had cited 32 witnesses in the chargesheet and out of them, 29 were examined before the learned Trial Court to prove the guilt of the Appellant. The material prosecution witnesses were PW-1 Smt. Seema Haldhar; PW-2 Satish Kumar; PW-3 Roshan Kumar Jha; PW-4 Gopal Vishwas; PW-5 Sunny Kumar Mandai; PW-7 Sameeran Pal; PW-9 Hardan Pal; PW-12 Joynata Das; PW-14 Dr. S. Lal and PW-19 Sunil Kumar. The prosecution evidence commenced on 18.02.2020, statement of the Appellant under Section 313 of the CrPC was recorded on 16.03.2020, final arguments were heard from 01.03.2021 to 29.10.2021. It is pertinent to note that after the judgment was reserved for pronouncement by the learned Trial Court, the same was listed for clarification thrice on 15.11.2021, 20.11.2021 and 24.11.2021. The statement of the Appellant under Section 165 of the Indian Evidence Act, 1872 (for short, ‘IEA’) was recorded on 24.11.2021.
5. The learned Trial Court after conducting trial found the Appellant guilty for the commission of murder of Bappi Pal, the deceased, on 21.11.2018 at around 03:00 P.M., based on the circumstantial evidence brought forth by the prosecution. Hence, the present appeal has been filed by the Appellant assailing the impugned judgment.
SUBMISSIONS ON BEHALF OF THE APPELLANT
6.   Learned Counsel for the Appellant has raised the following contentions in support of the present appeals which are: –
i)   It is submitted that the learned Trial Court vide the impugned judgment has not correctly appreciated the evidence led by the prosecution as there were many lacunae in the chain of circumstantial evidence and the Appellant has been convicted on the basis of conjectures and surmises. It is also submitted that, as per the admitted case of prosecution, that no one had seen the Appellant killing or strangulating the deceased. 
ii)  It is also submitted that even though there were many contradictions in the testimonies of PW-1 and PW-7, still the learned Trial Court has erred in placing reliance on their testimonies while convicting the Appellant for the commission of murder of Bappi Pal, the deceased. It is further submitted that the alleged chain of events, as per the case of prosecution, is neither consistent with the hypothesis of the guilt of the Appellant nor conclusive in nature.
Delay in Registration of FIR
iii) It is the case of the Appellant that, admittedly, the PCR call which forms the basis of registration of FIR in the present case was made on 25.11.2018; however, FIR (Ex. PW-10/B) was registered on 28.11.2018. This inordinate delay of 3 days in registration of FIR, after the preparation of rukka, casts aspersions over the case of prosecution and its version on the alleged chain of events sought to be proved by them. Moreover, this delay has not been explained by the prosecution or PW-26, who was the initial Investigating Officer in the present case, or, Main Investigating Officer, (hereinafter referred to as ‘PW-29’). It is the case of the Appellant that delay in registration of FIR assumes much more importance because the Appellant in the present case was arrested on 28.11.2018 and was illegally detained for those 3 days and this custody period has not been shown by the prosecution or IO anywhere in the records.
iv) Attention of this Court has been drawn towards the testimony of PW-7, to show that the Appellant was apprehended by PW-7 and not by the Officials of Delhi Police as the same is contrary to the arrest memo which shows the date of arrest as 30.11.2018. The case of the Appellant is that the latter was detained by PW-7 and his family members much before Delhi Police team headed by PW-26 had arrived in village Chityan Gachi, Malda, West Bengal. Therefore, it is submitted that this illegal detention of the Appellant by the private persons is sufficient to acquit him as the same demolishes the case of the prosecution.
v) Reliance has been placed on Meharaj Singh v. State of U.P., (1994) 5 SCC 188, to contend that FIR in a criminal case, and particularly in a murder case, is a vital and valuable piece of evidence. Delay in lodging the FIR often results in embellishment, which is a creature of afterthought.
Delay in Conducting Post-Mortem/Autopsy
vi)  Attention of this Court has been drawn towards the testimony of PW-1, who had stated that she had identified the corpse of the deceased on 26.11.2018 and it is argued that since the identity of the deceased was ascertained as early as on 26.11.2018 then, why was the corpse not sent for conducting post-mortem, and instead, sent to LBS Hospital Mortuary for preservation for next 72 hours. It is pointed out that, as noted above, the post-mortem in the present case was conducted on 03.12.2018. Therefore, it is the case of the Appellant that since the corpse was initially in a decomposed state, which has also been mentioned in the MLC of the deceased conducted on 25.11.2018, then, the said post-mortem report cannot be accepted in its entirety with respect to the time and date of death of the deceased.
vii) Reliance has also been placed on Naveen Kumar Ahuja v. State (NCT of Delhi), 2012 SCC OnLine Del 37, to contend that delay in lodging FIR, absence of motive and delay in conducting post-mortem are factors that cast doubt on the case of the prosecution.
Arrest of the Appellant
viii) It is pointed out that the learned Trial Court in the impugned judgment has given conclusive finding at para 51(i) and recorded that the Appellant in the present case was arrested on 28.11.2018, which itself is contrary to the case of the prosecution because, per the arrest memo (Ex. PW-7/A), the date of arrest of the Appellant is 30.11.2018.
ix) The case of the Appellant is that the latter was illegally detained by PW-7 alongwith his family members, local villagers, and local Police for 3 days from 28.11.2018 till the time Delhi Police Team arrived there to arrest him. To support this contention, reliance has been placed on the testimony of PW-7, who had stated that he alongwith his family members and 2-3 other villagers had apprehended the Appellant from village Ganga Rampur and handed over the Appellant to the local police in their native village (Chityan Gachi) till the time Delhi Police had arrived in their village to arrest the Appellant. Attention of this Court has also been drawn to the answer given to question No. 24 by the Appellant in his statement under Section 313 of the CrPC and it is submitted that the Appellant had also stated that he was illegally detained for 3 days at his native village in Malda.
x)   It is also submitted that the learned Trial Court has relied on the selective portions of the testimonies recorded before it instead of analysing such testimonies as whole. It is the case of the Appellant that had it been a case of legal arrest the police officials from Delhi Police Team would have been able to recover the mobile phone of the deceased, which was recovered from PW-7 on 04.02.2019 after 2 months from the arrest of the Appellant.
Recovery of Alleged Weapon of Offence & Other Articles
xi) It is submitted that learned Trial Court had erroneously concluded in the impugned judgment that the recovery of the alleged weapon of offence was made at the instance of the Appellant in pursuance of the disclosure and supplementary disclosure statement made by him. As per the case of the prosecution, on 02.12.2019, the Appellant led the police party to his rented premises, place where the corpse of the deceased was found, and the alleged weapon of offence i.e., multicolour improvised rope, was recovered from the pithu bag. Thereafter, on the same day, when PW-29 was recording the statement of PW-7, the latter informed PW-29 regarding the clothes of his brother, the deceased, which he had brought to Delhi with him. Those clothes were also recovered from the pithu bag from the rented premises of the Appellant vide Ex. PW-1/A seizure memo dated 03.12.2019. 
xii)  It is the case of the Appellant that since the prosecution has not been able to render any plausible and satisfactory explanation regarding the illegal detention of the Appellant, it cannot be ruled out that the recoveries which were made pursuant to the disclosure statement made by the Appellant were planted by the police personnels to implicate the former in the present case. It is also pointed out that the bag from which the alleged recoveries were made can be seen lying in the photos of the room taken by the crime team on 25.11.2018. It is further submitted that since the said pithu bag was lying there, then, why was the same not taken into custody by the initial IO, PW-26, or Main IO/PW-29. Therefore, the recoveries made by the IO based on the disclosure statement of the Appellant are doubtful and cannot be read in evidence.
xiii) Reliance has been placed on Mani v. State of Tamil Nadu, (2009) 17 SCC 273, to contend that discovery is a weak evidence and reliance cannot be placed on discovery of articles which were lying near the dead body but recovered after undue delay.
xiv) Attention of this Court is drawn towards the seizure memo of clothes of the deceased (Ex. PW-1/A) and seizure memo of the alleged murder weapon i.e., improvised rope (Ex. PW-2/C) and it is submitted that, in the seizure of clothes dated 03.12.2018, it was mentioned that improvised rope had already been recovered the day before, i.e., on 02.12.2018, a day prior to the recovery of those clothes; however, Ex. PW-2/C, the seizure memo of improvised rope records the date of its recovery as 03.12.2018. It is further pointed out that initial IO, PW-26, and Main IO, PW-29, both had stated that the said improvised rope was recovered on 03.12.2018. It is also submitted that, as per the testimony of PW-2, none of the family members of the deceased was present in the room of the Appellant when the recovery of the alleged improvised rope was made. Additionally, the case of the Appellant is that despite the glaring contradictory statements given by PW-7 in his testimony, the latter was not declared hostile by the prosecution. The statements of PW-1 and PW-2 also contradict each other in so far as the presence of PW-7 at the time of recovery of the bag of clothes is concerned. It is further the case of the Appellant that the report regarding whether the death of a person by strangulation can be caused with the help of the said improvised rope is inconclusive and reads as, “could be possible.”
xv) Attention of this Court has further been drawn towards the testimonies of PW-1 and PW-7 and submitted that the aforesaid seizure memos and recoveries of clothes and improvised rope has been supported by PW-1; however, PW-7 has stated that the bag containing the clothes of his brother, deceased, was lying in the Police Station and was shown to him there only. In view of these contradictions, it is submitted that reliance placed by the learned Trial Court on these alleged recoveries in convicting the Appellant is misplaced and the impugned judgment is to be set aside.
xvi) Reliance has been placed on Jose Alias Pappachan v. Sub-Inspector of Police, Koyilandy and Anr., (2016) 10 SCC 519, to contend that suspicion and conjectures cannot take the place of legal proof.
Recovery of Mobile Phone of the Deceased
xvii)   It is submitted that the learned Trial Court in the impugned judgment has also given finding to the effect that the Appellant was seen holding the mobile phone of the deceased in the evening on 21.11.2018; however, the said mobile phone was not recovered from the personal search of the Appellant when he was arrested by PW-26. It is pointed out that the said mobile phone was taken into custody vide seizure memo Ex. PW-7/D dated 04.02.2019, i.e., after around 2 months from the date of arrest of the Appellant in the present case, from PW-7, brother of the deceased. 
xviii) Reliance has been placed on P. Mani v. State of T.N., (2006) 3 SCC 161, to contend that burden of proof only shifts upon the accused once the prosecution proves the guilt of the accused beyond doubt and it is pointed out that in present case, the prosecution has not been able to prove the foundational facts required to shift evidential burden of proof on the Appellant.
xix)   It is the case of the Appellant that if the said mobile phone was with PW-7 then, why did he not hand it over to PW-26 when the Appellant was arrested on 30.11.2018. Moreover, no explanation, whatsoever, has been given by the IO/PW-29 or PW-26 or PW-7 regarding the delayed recovery of the mobile phone after 2 months from arrest of the Appellant. It is further submitted that the testimonies of PW-4 and PW-19 to the effect that they had seen the mobile phone of the deceased in the hands of the Appellant in evening of 21.11.2018 cannot be relied on as they were never shown the case property and, in any case, nor they had identified the same during trial.
Recovery of SIM Card & Section 165 of the IEA
xx) As per the case of the prosecution, the said SIM card was recovered from the Appellant during his personal search and it is the same SIM card which the Appellant was using in the mobile phone of the deceased after killing the latter. Later on, it was discovered that the said SIM card was registered in the name of Ms. Menka Mahto, sister of the deceased.  It is the case of the Appellant that the manner in which the latter has been arrested cannot rule out the possibility that the said SIM card can be plotted by the Police to implicate him. It is also submitted that said Menka Mahto has not been examined by the prosecution nor her name was cited as witness in the chargesheet. 
xxi)   Regarding the statement recorded by the learned Trial Court on 24.11.2021, it was submitted that the said statement under Section 165 of IEA was recorded by the learned Trial Court after the culmination of the final arguments in the present case, when the judgment was reserved for pronouncement. It is the case of the Appellant that the learned Trial Court by such conduct had tried to fill up the missing links in the chain of circumstantial evidence led by the prosecution and had acted in a prejudicial and biased manner.
xxii) Reliance has been placed on Omprakash Shankarlal Sharma v. State of Maharashtra, 1992 SCC OnLine Bom 413, to contend that Section 165 of the IEA cannot be used to fill gaps in the prosecution case.
Last Seen Theory
xxiii)  As per the case of the prosecution, the Appellant was the person who was lastly seen in the company of the deceased-Bappi Pal on 21.11.2018 at around 11:00 A.M. and the same is corroborated by the testimony of PW-1. It is pointed out that PW-1 had stated that she had met the deceased in the company of the Appellant for the first time on 20.11.2018 which demonstrates that she had never met him before. It is further pointed out that PW-1 was able to identify the corpse of the deceased on 26.11.2018 only after seeing the pictures sent by PW-7 to her. It is also submitted that, regarding the factum of last seen theory, there are many inconsistencies and contradictions in the testimonies of PW-1 and PW-2. It is also the case of the Appellant that the incriminating evidence as stated by PW-1 regarding the fact that she had seen the Appellant in the company of the deceased-Bappi Pal on 21.11.2018 at around 11:00 AM has not been put to the Appellant when his statement under Section 313 of the CrPC was recorded. Therefore, testimony of PW-1 so far as it relates to the identification of the deceased and last seen evidence cannot be relied on. 
xxiv) Reliance has been placed on Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359, to contend that in absence of a clinching chain of circumstances, conviction cannot be solely based on last seen evidence and lack of explanation of incriminating circumstances under Section 313 of the CrPC.

xxv) Reliance has also been placed on Surender Prashad v. State, 2014 SCC OnLine Del 234, to contend that last seen evidence does not by itself necessarily leads to an inference that the accused committed the crime unless the same is duly supported by other links in the chain of circumstantial evidence unerringly pointing out the guilt of the accused. In a case based on circumstantial evidence, all the incriminating circumstances must be supported by reliable and clinching evidence.
xxvi) Without prejudice to the aforesaid argument, it is further submitted that, in any case, even if the testimony of PW-1 is taken on its face value, last seen theory can be invoked only in cases where the time gap between the death of the deceased and the person who was lastly seen in the company of the deceased is so small which rules out the possibility that deceased might have met some other person other than the person who was lastly seen with him. However, in the present case, as per the case of the prosecution, the Appellant was lastly seen in the company of the deceased on 21.11.2018 at around 11:00 AM and corpse of the deceased was found on 25.11.2018. It is further submitted that as per the story of the prosecution there is a gap of 4 days between the last seen evidence and the day on which the corpse of the deceased was recovered.
xxvii)   It is further the case of the Appellant that, as per the post-mortem report which was conducted on 03.12.2018, the probable time of death was reported to be 1½ weeks prior to the said date, which comes out nearly to be around 23.11.2018, and that still leaves a gap of 2 days from day when the deceased was lastly seen with the Appellant and the day when the corpse of the deceased was found. Thus, it was submitted that the last seen theory cannot be invoked in the present case to prove the guilt of the Appellant and reliance placed on the same by the learned Trial Court is misplaced.
xxviii) Reliance has also been placed on Nizam v. State of Rajasthan, (2016) 1 SCC 550, to contend that it is not prudent to base conviction on last seen theory when time gap is long. Circumstances from which the conclusion of guilt is drawn must be fully proved and must be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence.
Culpable Homicide Not Amounting to Murder
xxix) Without prejudice to the aforesaid arguments, it is submitted that the present case is entirely based on circumstantial evidence and the prosecution has not been able to establish any motive against the Appellant for killing the deceased-Bappi Pal. The prosecution has also not been able to establish the complete chain of circumstantial evidence before the learned Trial Court which can lead to the hypothesis consistent with the guilt of the Appellant. Therefore, in absence of any cogent and satisfactory incriminating evidence against the Appellant, it cannot be said that the present case falls within the purview of Section 300 of the IPC.
xxx) It is not the case of the prosecution that the act of the Appellant was premeditated. The prosecution has also not been able to attribute any substantial motive to the Appellant whereby it can be safely concluded that the latter had murdered the deceased to accomplish the said motive. The recovery of the alleged mobile phone was not affected from personal search of the Appellant and the said sum of Rs. 6,000/- was also not recovered from the Appellant. The delay in registration of FIR, conducting autopsy, recovery of clothes and mobile phone of the deceased have not been explained satisfactorily by the Appellant. Hence, it was submitted that, in case, the judgment of conviction passed by the learned Trial Court cannot be overturned then, the same is to be altered to under Section 304 of the IPC which is culpable homicide not amounting to murder.
SUBMISSIONS ON BEHALF OF THE STATE
7. Learned APP for the State, refuting the contentions made by learned Counsel for the Appellant, has made the following submissions: –
i) The learned Trial Court had convicted the Appellant after due appreciation of the entire circumstantial evidence led and proved by the prosecution during the trial. Entire chain of circumstances has been proved beyond reasonable doubt and there are no missing or broken links therein. The chain of these circumstances leads to hypothesis which is consistent only with guilt of the Appellant.
ii) He further submitted that the Appellant has not been able to point out any contradictions and inconsistencies in the evidence led by prosecution before the learned Trial Court neither by way of cross-examination nor was he able to give any cogent explanation regarding the incriminating circumstances put to him in his statement under Section 313 of the CrPC.

Last Seen Theory
iii) As per the case of the prosecution, the Appellant was lastly seen in the company of the deceased on 21.11.2018 at 11:00 AM and the same has been duly corroborated by the testimony of the PW-1 as she had seen both the Appellant and deceased on 20.11.2018 and 21.11.2018. It is also the case of the prosecution that the corpse of the deceased was found lying on the bed inside the rented premises of the Appellant on 25.11.2018 in a decomposed state. Attention of this Court has been drawn towards the answer given by the Appellant to the Question No. 4 in the statement under Section 313 of the CrPC and submitted that the Appellant had instead of rendering any explanation or rationale regarding his last seen evidence stated that, “I did not met with the deceased.”
iv) It is further submitted that, as per the testimony of PW-1, deceased and the Appellant had met her in the stairs of the building in which they reside on 21.11.2018 and the said fact has also been denied by the Appellant with the same answer as noted in the aforesaid paragraph.
v) As per the post-mortem report conducted on 03.12.2018, it has been concluded that the corpse of the deceased was found in a decomposed state. It is submitted that the time of death as per the said report was stated to be 1½ week prior to the date of report. Hence, 10 days were taken as threshold as the same is best in case of a body found in decomposed state. Reliance has been placed on the following text of Medical Jurisprudence and Toxicology by H.W.V. Cox, 6th Edition published in 1997, which read as under: –
“8. Time Since Death—In this context, we are discussing only the estimation of time since death of skeletal material, as the fresh and partly decomposed body has been dealt with in another chapter. The estimation of time since death of bones is extremely difficult because the rate of decay is more dependent upon the environmental conditions than upon the time factor. As an example, the author has seen complete disappearance of the body, including the bones, after only ten to fifteen years burial in water logged, peaty ground where the acidity of the soil water due to rotting vegetation caused complete decalcification. In contrast, bones of Roman date, almost 2000 years old, buried in dry sand were as well preserved as a medical student’s demonstration skeleton.”
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15. Important Facts about Post-Mortem Changes
1. The estimation of time since death is highly inaccurate, whether this is done soon after death or after a considerable period.
2. One should never give a single estimate of the time since death, but use a range of times, between which the death was presumed to have taken place.
3. Post-mortem hypostasis, even when visible through skin pigmentation is of no use in timing death.
4. Rigor mortis is of very limited used in estimating the time since death and must only be used in conjunction with other factors.
5. It is a fallacy to believe that post-mortem hypostasis remains fixed after a certain time—this is not so.
6. The chemical methods for estimating the time since death are themselves temperature dependent.
7. The use of the condition of the stomach contents as a method of estimating time since death is fraught with dangers. Unless death was sudden and unexpected, no reliance whatsoever can be placed upon the state of digestion or the volume of stomach contents.
8. The interpretation of the insect infestation of a dead body as a measure of the time since death is a matter for an expert entymologist.
9. No time scale can be laid down for the onset of the various putrefactive changes, within a very wide margin of error.

16. Indian Case-law (State of digestion, presence of faecal matter in intestines, how far determine time of death) –As observed by the Supreme Court in P.Venkaiah v. State of A.P. [AIR 1985 SC 1715;1985 (2) Crimes 746]; 1985 Cr LJ 2012] medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerized or mathematical fashion so as to be accurate to the last second.
The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of. [Masjit Tato Rawool v. State of Maharashtra, AIR 1971 S.C. 2119; 1971 Cr LJ 1463:1971 SCC (Cri) 73; Gopal Singh v. State of U.P., AIR 1979 SC 398.”

vi) It is pointed out that the last seen evidence as has emerged, based on testimonies of PW-1, PW-3, PW-4, PW-5 and PW-19 was that the Appellant and deceased were last seen together on 21.11.2018 i.e., 12 days prior to the date of post-mortem report and there is only a gap of 2 days in the estimated time of death and last seen evidence in the present case. Therefore, since the burden of proof has been discharged by the prosecution, it was incumbent on the Appellant to explain before the learned Trial Court that in what circumstances he had parted away from the company of the deceased that day.
vii) Attention of this Court has been drawn towards the cross-examination of PW-1 to PW-5 and statement under Section 313 of the CrPC of the Appellant and submitted that no suggestion has been given to these witnesses with respect to the fact that the Appellant was not seen in the company of the deceased on 21.11.2018 nor the Appellant has given any explanation regarding the said fact except the answer as quoted hereinabove.
viii) Attention of this Court has further been drawn towards answer to Question No. 11 in the statement, under Section 313 of the CrPC, of the Appellant and it is submitted that regarding the stay of the deceased with the Appellant and last seen evidence, the latter had stated that, “It is matter of record.” It is further submitted that answers given to Question nos. 29, 30, 38 and 39 suggest that the Appellant had sought to establish a false plea of alibi; however, he was not able to do so. The Appellant vide order dated 17.02.2021 was provided opportunity to lead defence evidence however, he had not led any defence evidence to dispel the case of the prosecution. Thus, it is the case of the prosecution that the plea of alibi sought to be established by the Appellant has been falsified in the present case.
Burden to Prove Special Circumstance is on Appellant
ix) It is further submitted that corpse of the deceased has been recovered from the rented premises of the Appellant i.e., Room No. 46, and the same has not been denied by the Appellant that the said room was not his rented premises at that point in time. Police verification of the same by PW-29 also verifies that the said room was tenanted premises of the Appellant. The Appellant has also stated that the same is a matter of record in his statement under Section 313 of the CrPC. The Appellant has also not rebutted the incriminating facts from the testimony of PW-1 with any plausible explanation, apart from the fact that, the same were denied by him.
x) Attention of this Court has been drawn towards Section 106 of the IEA and it is submitted that once the prosecution has discharged its legal burden of proof then, evidential burden to prove any special circumstance within the knowledge of the Appellant was on him. However, the Appellant in the instant case has not provided any explanation either by way of cross-examination or in his statement under Section 313 of the CrPC. Reliance has placed on Ranjit Kumar Haldar v. State of Sikkim, (2019) 7 SCC 684, to contend that Section 106 of the IEA was introduced not to relieve prosecution of their duty, but it is designed to meet situation, in which it would be impossible or difficult for prosecution to establish facts which are especially within the knowledge of the accused.
Recovery of Murder Weapon and Other Articles
xi) It is further submitted that the recoveries in the present case were affected pursuant to the disclosure statement made by the Appellant. It is pointed out that the Appellant was arrested on 30.11.2018, his disclosure statement was recorded by PW-26 on 30.11.2018, Appellant was brought to Delhi on 02.11.2018 and the said recoveries were made on 03.12.2018. Therefore, there is no undue delay in conducting investigation in the present case by PW-26 or PW-29 nor there was any occasion for PW-29 to implant the incriminating objects in the rented premises of the Appellant if the timeline of events is seen carefully.
xii) He has further submitted that PW-26 had arrived in Delhi on 02.12.2018 and the recovery of the murder weapon was affected on 03.12.2018. Regarding the discrepancy in the contents of Ex. PW-1/A and the date of recovery of Ex. P-2 (colly) i.e., murder weapon (improvised rope), it is submitted that no question has been put to IO/PW-29 which could suggest that improvised rope was recovered the day before i.e., on 02.12.2018. It is further pointed out that the improvised rope was taken into custody separately by seizure memo Ex. PW-2/C, wherein the date of seizure is mentioned as 03.12.2018 and the same has not been disputed by the Appellant. The witnesses to both these exhibits have also stated on the similar lines and their credibility stands unrebutted by the Appellant.
xiii) Moreover, the said discrepancy arises from the testimony of PW-7, who himself was not witness to the recovery of the seizure memo Ex. PW-2/C vide which the murder weapon was taken into custody.
xiv) Reliance has been placed on Pattipati Venkaiah v. State of A.P., (1985) 4 SCC 80: AIR 1985 SC 1715, (para 11), to contend that the medical evidence of time of death should not be viewed with mathematical precision. Reliance has also been placed on Rohtas v. State of Haryana, (2019) 10 SCC 554, to contend that it is the duty of the Court to separate the grain from the chaff and then, to arrive at a finding of guilt of an accused or otherwise. It is also submitted that maxim falsus in uno, falsus in omnibus has not received general acceptance in India nor has this maxim come to occupy the status of rule of law.
Relevancy of Subsequent Conduct of the Appellant: Section 8 of IEA
xv) It is also the case of prosecution that since there is no direct evidence in the present case, the subsequent conduct of the Appellant is also relevant under Section 8 of IEA. Reliance has been placed on illustrations (h) and (i) to Section 8 of the IEA, to contend that the conduct of the Appellant in the evening of 21.11.2018, the day when the Appellant was last seen with the deceased, does not inspire confidence as PW-3, PW-4, and PW-5, all have stated that he was looking anxious and was in a perplexed state of mind. It is pointed out that the said fact has not been rebutted by the Appellant in the cross-examination of the said witnesses. However, in his statement under Section 313 of the CrPC, the Appellant has stated that the incriminating facts as per the testimonies of the said witnesses are incorrect. 
Absence of Motive Not Fatal to the Case of the Prosecution
xvi) It is the case of the prosecution that the motive as established before the learned Trial Court against the Appellant is that the deceased during an altercation with the former had refused to give him Rs. 6,000/-. It is also pointed out that basis of the said motive is the disclosure statement made by the Appellant and the same has not been rebutted by the latter. Reliance has been placed on Ranganayaki v. State by Inspector of Police, AIR 2005 SC 418, to contend that merely because the prosecution failed to translate the mental disposition of accused into evidence, it cannot be concluded that no such mental condition existed in the mind of the assailants.
xvii) It is further submitted that non-existence of motive is not fatal to the case of the prosecution as the entire chain of circumstantial evidence points towards and is consistent with the hypothesis of the guilt of the Appellant. Reliance has also been placed on State of Madhya Pradesh v. Chhaakki Lal, (2019) 12 SCC 326: AIR 2019 SC 381, to contend that when evidence of witness contains ring of truth, then, their evidence cannot be doubt and minor discrepancies which do not shake the credibility of witness and basic version of prosecution case are to be discarded.
Call Detail Records & Location
xviii) It is pointed out that as per the CDR, Ex. PW-28/B-1, the mobile phone of the deceased was active in Delhi on 21.11.2018 and last call made from the said phone was at 22:00:42 hrs on 21.11.2018 and location of the said mobile phone at that time was also in Delhi. However, thereafter, the said phone was switched off and was again, activated on 24.11.2018 at 17:33:17 hrs and the location of the said phone at that time was in the native village of the Appellant from where he was arrested.
xix) It is also the case of the prosecution that the presence of the Appellant in Delhi till 22.11.2018 morning has been proved as per the testimonies of PW-3 to PW-5. Therefore, in view of the aforesaid facts, it cannot be negated that the Appellant was not in Delhi till 22.11.2018 morning and his presence in Delhi cannot be ruled out. In view of the aforesaid incriminating facts, the presence of the Appellant in Delhi on the probable date of the death of deceased, as per the post-mortem report, cannot be ruled out.
Statement Under Section 165 of the IEA
xx) Reliance has been placed on Chhotey Badri Prasad v. State of U.P. & Anr., 2006 CRI. L. J. 711, to contend that the Court has unrestricted power to re-examine or to recall any witness including the accused at any stage for just decision of the case. Even if judgment is reserved and while writing judgment, Court finds that any material point is omitted consideration of which is necessary, the Court can pass order for examination or re-examination of witnesses and there is no restriction on power of the Court.
xxi) Therefore, the statement of the Appellant under Section 165 of the IEA recorded by the learned Trial Court does not suffer from any legal infirmity and the Court was well within its powers while the said statement of the Appellant was recorded.
8. Learned APP for the State, to support the impugned judgment of conviction and his contentions, has also placed reliance upon the following judgments: –
a. Ramesh Chandra R. Daga v. Rameshwari R.C. Daga, AIR 2005 SC 422;
b. Mohammed Ashif Gulamkadar Shaikh v. State of Gujarat & Anr., 2009 CRI. L. J. 3582;
c. S Balaraman v. State, 2009 CRI. L. J. 3603;
d. State of Rajasthan v. Ani @ Hanif and Ors., AIR 1997 SC 1023;
e. In re Bandi Murugulu, AIR 1963 Andhra Pradesh 87 (V 50 C 34);
f. Palur Pullamma V. N. Venkata Subbaiah, AIR 1963, Andra Pradesh 93 (V 50 C 35);
g. Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, AIR 2007 SC 2531;
h. Rajender v. State (NCT of Delhi), (2019) 10 SCC 623;
i. Nawab v. State of Uttarakhand, (2020) 2 SCC 736;
j. State of Himanchal Pradesh v. Raj Kumar, 2018 [1] JCC 174;
k. Smt. Jaya Tiwari & Anr. V. The State & Ors., 2018 [1] JCC 179;
l. Mulakh Raj Etc. v. Satish Kumar & Ors., (1992) 3 SCC 43.
REJOINDER BY THE APPELLANT
9. Learned counsel for the Appellant has submitted that the prosecution has not given explanation regarding the delay in conducting the post-mortem of the deceased on 03.12.2018. It is pointed out that PW-14 in his cross-examination has stated that he cannot give a probable date of death given the state of the corpse of the deceased. It is further submitted that the last seen evidence must be seen not only in respect of the person who was last seen with the deceased but also in connection with location where they were last seen. It has also been argued that the prosecution has not been able to ascribe any motive towards the Appellant and that the act done by the Appellant was premeditated which was done in pursuance of the any motive.
ANALYSIS AND FINDINGS
Last Seen Theory
10. The case of the prosecution is that the Appellant was seen in the company of the deceased on 21.11.2018 at around 11:00 A.M. The said fact has been sought to be proved through the testimony of PW-1, Seema Haldar. PW-1 has stated in her testimony that the Appellant belonged to her native village and used to reside in the same building alongwith his mother but after some time he returned back to his village with his mother. She has stated that on 20.11.2018, the Appellant alongwith the deceased met her and informed her that the deceased was a resident of their native village. She had a conversation with the deceased wherein, the latter told her that he had come to Delhi with the Appellant from his village and was residing in his room, i.e., Room No. 46, Third Floor, House of Sunil, Village, Dallupura. She further stated that, on 21.11.2018 at around 11:00 A.M., she met the deceased and Appellant and on the same day, at around 08:00 P.M., she met the Appellant near the stairs of the building. She enquired from the Appellant regarding the deceased, however, the latter replied that the deceased had gone somewhere after locking the room. She further stated that thereafter, she had neither met the Appellant nor the deceased. 
11. She further stated that on 25.11.2018, the landlord, Satish/PW-2, had informed the Police regarding the foul smell coming from the room of the Appellant and subsequently; after breaking the lock of the room of the Appellant, one body was found in the decomposed condition. It is pertinent to note that after PW-1 met the deceased in the company of the Appellant, at around 11:00 A.M., on 21.11.2018, nobody saw the deceased alive. It is further pertinent to note that it was also stated by the Appellant to PW-1 that the deceased had locked the door and left.
12. The aforesaid witness, PW-1, was cross-examined, however, the same could not affect the credibility of her testimony. Learned counsel for the Appellant has contended that PW-1 was able to identify the deceased on 26.11.2018 only after seeing the pictures of the deceased sent by PW-7(brother of the deceased) to her. It is further contended that this fact demonstrates that PW-1 had never met the deceased because if she would have met the deceased earlier, as testified by her, then, she would not have required the photographs to identify the deceased. Similarly, it was also contended that the fact of last seen evidence was not put to the Appellant when his statement under Section 313 of the CrPC was recorded. It is further argued that even if it is assumed that PW-1 had seen the deceased and the Appellant together on 21.11.2018 at around 11:00 A.M., even then, there is a gap of four days between the said day and the day on which the body was recovered. It is further submitted that as per the post mortem report, which was conducted on 03.12.2018, the probable time of death was reported to be 1½ week prior to the said date, which would be around 23.11.2018 and that still leaves as gap of two days when the deceased was last seen in the company of the Appellant and the day on which the corpse of the deceased was found.
13. Another relevant witness pertaining to this issue is the landlord of the building, Satish Kumar/PW-2, where the Appellant was residing in Room No. 46 in rented premises and from where the corpse of the deceased was found. PW-2 in his testimony has stated that he saw the Appellant alongwith the deceased on 20.11.2018. However, on 21.11.2018, he had only seen the Appellant and the deceased was not accompanying the Appellant on that day and thereafter, he had never seen the deceased till his corpse was found on 25.11.2018 from the rented premises of the Appellant. PW-2 had, in fact, informed the Police via PCR call regarding the foul smell coming from the Room No. 46 of which the Appellant was a tenant. 
14. Similarly, other witnesses, namely, PW-3, PW-4, PW-5, and PW-19, who were neighbours of the Appellant and resident of the same building, have categorically deposed that the present Appellant was a tenant of the Room No. 46 in the same building where they all were residing. The stand of the Appellant in his statement under Section 313 of the CrPC to the aforesaid incriminating evidences is as under: –
“Q.11 It is also in evidence against you that PW-2 Satish Kumar identified you being residing as a tenant in third floor in room no. 46 from the last two years from the date of incident. Initially, you were living there along with your mother, but prior to 6 months of the incident, one boy Bappi Pal also accompanied you in the said room. He also identified Seema, who residing as a tenant on the fourth floor, belong to your village. He had seen you in the company of deceased in the said room on 20.11.2018, however, on 21.11.2018, you were alone and Bappi Pal was not accompanying you and thereafter, he never saw the Bappi Pal in the building no. A-313. What have you to say? 
Ans.: It is matter of record.”

15. Thus, two facts which stand proved after analyzing the aforesaid evidence are that, firstly, the deceased was last seen in the company of the Appellant on 21.11.2018 at around 11:00 A.M., and secondly, the corpse of the deceased was recovered from the room which was under the power and possession of the Appellant. In his defence, the Appellant has not been able to show any intervening circumstance or any other event to establish that after 21.11.2018, the deceased had gone somewhere else or seen with some other person(s) or where he himself was. 
16. The contention of the learned counsel for the Appellant that the last seen evidence was not put to the latter, under Section 313 of the CrPC, is also not factually correct in view of the Question No. 3 put to him, which has been reproduced as under: –
“Q. 3 It is also in evidence against you that on 20.11.2018 you – accused along with Bappi Pal met said Seema Haldhar (PW-1) and Seema Haldhar also knew Bappi and asked him how he came to Delhi on which he replied that he had come to Delhi with you – accused and also residing in the same room with you i.e. Room No. 46, Third floor of above mentioned house. What have you to say? 
Ans.: I do not know.”

17. So far as the contention with regard to the time of the death shown in the post-mortem report is concerned, suffice to say that the same cannot be 100% accurate, and since, the corpse of the deceased was found in a decomposed state, it is not possible to determine the exact time of death. In any case, it is not the stand of the Appellant that he had left the company of the deceased on 21.11.2018 after 11:00 A.M. and the latter had gone somewhere else. The corpse of the deceased was recovered from the rented premises of the Appellant. Thus, it was incumbent on the Appellant to explain the circumstances and the manner in which he left the company of the deceased. Nothing has been brought on record by the Appellant to dispel the case of the prosecution against him. The fact that PW-1 had sought help from photograph of the deceased for identification cannot create a doubt on her testimony regarding the fact that the Appellant was last seen with the deceased as it was a brief meeting and since the body was found in a decomposed state, therefore, use of photograph cannot create doubt on her identification on 21.11.2018.
18. It has also come on record through the testimonies of PW-3, PW-4 and PW-5 that they had met the Appellant on 21.11.2018 at around 05:00 P.M. It has also come on record through the testimony of PW-19 that he had met the Appellant on 21.11.2018 at around 08:00 P.M. Thereafter, the present Appellant was not seen and was finally arrested in West Bengal. No explanation has been brought on record by the Appellant regarding his movement from Delhi to West Bengal on 22.11.2018. The case of the prosecution is that the Appellant had travelled from Delhi to Malda, West Bengal, on the morning of 22.11.2018. All the aforesaid circumstances clearly establish that the deceased was last seen in the company of the Appellant.
19. Learned counsel for the Appellant, to dispel the last seen theory, has placed reliance on some precedents which are distinguishable from the facts of the present case as follows: –
a) In Anjan Kumar Sharma (supra), the Appellant therein was initially acquitted by the learned Trial Court, however, his acquittal was overturned by the Hon’ble High Court which was subsequently, set aside by the Hon’ble Supreme Court and the findings of the learned Trial Court were affirmed. The foundational facts on the basis of which last seen theory was purportedly sought to be proved by the prosecution against the said Appellant were not satisfactorily proved on record. There was no conclusive evidence placed on record against the said Appellant whereby it could be said that he had stayed overnight with the deceased therein at her bungalow and his presence with the deceased during the probable time of death, as per the post-mortem report in the said case, was doubtful. However, in the present case, it has come on record that the Appellant was last seen in the company of the deceased on the probable date when his death was caused i.e., 21.11.2018.
b) In Nizam (supra), the body of the deceased therein was found in a field in a village and his private part was tied with rope and blood was oozing out from his nostrils. The village, where the corpse of the deceased in this case was found, was a notable place for prostitution where people from different areas used to come for enjoyment. The Appellant therein was acquitted on the basis of the time gap between the deceased being left in the truck and recovery of his body, and also, the place and circumstances in which the body of the deceased was recovered. Therefore, in the said circumstances, the possibility of others intervening could not be ruled out. However, in complete contrast to these facts, in the instant appeal, the corpse of the deceased herein was found in a room which was rented by the Appellant and was under his possession.
c) In Surender Prasad (supra), the deceased child therein had gone to watch Jagran, in the locality where he used to reside, in night and Jagran was taking place where the presence of many people was quite usual. The Appellant therein knew the family of the deceased child, and therefore, it was not unusual for the deceased child to be seen in the company of the Appellant. Learned Division Bench of this Court in this case had not attached much credibility to the last seen evidence since there was a wide gap between the last seen evidence and the time of death of the said child in view of the fact that Appellant therein was last seen in the company of the deceased child near a shop where the Jagran was taking place. However, in the present case, both the Appellant and deceased hail from same village and were seen together on 21.11.2018 in the vicinity of the building where the Appellant’s rented premises were situated. The corpse of the deceased in the present case was also found in the room of the Appellant which was locked from outside.
Arrest of the Appellant
20. Learned counsel for the Appellant has submitted that the latter was illegally detained by the relatives of the deceased in Malda on 28.11.2018, and was subsequently arrested by the initial Investigating Officer (PW-26) in the present case on 30.11.2018. It is further submitted that the learned Trial Court in the impugned judgment has incorrectly recorded the date of arrest of the Appellant as 28.11.2018 as the same is contrary to the case of the prosecution itself. It is a matter of record that PW-7 in his testimony stated that when he was informed regarding the recovery of the corpse of his brother, the deceased, he went to the house of the Appellant in his native village to enquire about the latter, where he was not found. He stated that subsequently, he independently alongwith other persons kept a watch on the Appellant and when he was apprehended, they took him to the local police station and was subsequently handed over to the Delhi Police team headed by PW-26 on their arrival. 
21. It is the case of the Appellant that he was illegally detained from 28.11.2018, however, there is nothing on record to show that he was detained from the said date. It is also a matter of record that the Appellant was arrested by the Delhi Police team on 30.11.2018 after they had arrived in West Bengal. It is not the case of the Appellant that during the said period of his alleged illegal detention he was made to sign any document or anything which has now been used against him in the present case/trial. In fact, during cross-examination of PW-26 (Arresting Officer) this fact of alleged illegal detention has not been put to him and further suggestion was given that all the documents were prepared in Delhi after their arrival from Malda, West Bengal. The Appellant has taken this plea in his statement under Section 313 of the CrPC in response to Question No. 24 by claiming that he was illegally detained and was made to sign all the documents. Thus, the stands taken are contradictory. Be that as it may, the alleged illegal detention cannot be a ground to discard the entire evidence collected by the prosecution which is otherwise independent of it.
Recovery of Mobile Phone of the Deceased
22. It is the case of the prosecution that after the recovery of the corpse of the deceased on 25.11.2018, PW-26 again, visited the crime scene, i.e., Room No. 46 belonging to the Appellant on 26.11.2018, and during investigation, found one new mobile box of Intel company and on opening the same found a bill/invoice of the said mobile phone in the name of “Bapi Paul” mentioning the address of Malda, West Bengal. The name of the shop on the bill was mentioned as Sopno Communication. The said mobile box (Ex. P3A) and invoice/bill (Ex. P4) were seized vide seizure memo Ex. PW-18/B dated 26.11.2018. The bill/invoice was also taken into possession after affixing it on a blank paper (Ex. PW-12/A). Thereafter, PW-26 after taking the IMEI number mentioned in the said bill/invoice sought the CDRs through the appropriate authorities and on 27.11.2018, received information about activation of the said mobile phone from a location in the area of Malda, We