JUDGMENT : Sanjiv Khanna, J. 1. Roshan Lal by the impugned judgment dated 19.8.2010 has been convicted for murder of Sonia in the intervening night between of 22nd and 23rd July, 2007 at Dashera Grounds. By order on sentence dated 21.8.2010 for the offence under Section 302 of the Indian Penal Code, 1860 (IPC in short) the appellant Roshan Lal has been sentenced to life imprisonment and fine of Rs. 10,000. In default of payment of fine, the appellant Roshan Lal is to undergo rigorous imprisonment for six months. 2. Dead body of an unknown person was found on 23rd July, 2007 at about 8.30 a.m. in Dashera Ground near PVR Vikas Puri, West Delhi by the PCR 626 Ct. Bir Sen DD Entry No. 11 A, PW6/A was recorded in P.S. Vikas Puri on 23.7.2007 at 8.30 p.m. The dead body could not be identified, therefore, on 24th July, 2007 hue and cry notice was published (PW Ex.20/H). Subsequently after investigations, on 3rd August, 2007 the appellant Roshan Lal was arrested, charge-sheeted and by the impugned judgment stands convicted. 3. -Homicidal death suffered by the deceased is proved in view of the postmortem report Ex.PW 8/A which was proved by Dr. Komal Singh (PW3) and Dr. Shefali (PW14). PW8 has opined that cause of death was asphyxia due to ligature strangulation over the neck associated with hyoid injury caused by blunt impact. The postmortem report also records that the deceased was pregnant at the time of her death. The following external and internal injuries were noticed at the time of postmortem : "External injury 1. Loosing over upper lips centrally placed 2x1 CM. 2. Abrasion over left chin, obliquely placed 4.2 x 1 CM. 3. Abraded bruise over right angle at mouth 1.7 x.5 CM. Oval in shape. 4. Abraded bruise just below the above injury.5 x.2 CM. 5. Irregular bruises two in number present over right neck at its upper region each of.5 x.2 CM. 6. Abrasion over middle pinna of left ear 3 CM x 5 mm. And other abrasion 3 CM medial. 7. Lacerated wound over left occipital over 3.6 CM x 2 mm in size surrounding scalp hair blood stained and it was placed 11 CM above the left mandible. 8. 6. Abrasion over middle pinna of left ear 3 CM x 5 mm. And other abrasion 3 CM medial. 7. Lacerated wound over left occipital over 3.6 CM x 2 mm in size surrounding scalp hair blood stained and it was placed 11 CM above the left mandible. 8. Ligature mark 21 CM x 1 CM encircling whole of neck, anteriorly and thinned latterly upto 1 CM is size, 5 CM from the hyper extended chin, 6.7 CM from left pinna and 3 CM below right pinna. 8.4 CM from upper boarder of sternum surface of ligature mark is abraded and redish in colour. Internal Injuries 1. Subscapular hematoma under lacerated wound and subarchnoid hemorrhage over left parito-occipital region. Hemorghgic contusions in parenchyma of left occipital lobe approximately 5 ml. 2. Underneaths skin under ligature mark was redish and collection of clotted blood over connective and muscular tissues of neck. Fracture of hyoid bone at its left greater cornu, clotted blood present around the fractured site. There was collection of blood at posterior surface of criciod cartilage trachea lower lobes were congested. AH other organs were congested." 4. The FSL report Ex.PW 20/S and 20/T does not indicate presence of semen or semen stains on the deceased's clothes. The FSL report specifically records that semen could not be found on cotton wool swab. PW8 Dr. Komal Singh had also submitted a report PW 20/B dated 9th May, 2008 that the cause of death was already given in the postmortem report Ex.PW 8/A and after the FSL report (Ex.PW 20/S and T) (viz. the vaginal swab) had been received and showed absence of semen, there was nothing further to add. under the circumstances the cause of death remained the same. No charge under Section 376IPC had been framed against the appellant. 5. The main issue and question raised in the present appeal pertains to involvement of the appellant in the said crime and whether he was the perpetrator who had committed murder of Sonia. 6. There is no eye witness and as noted above the dead body initially could not be identified. PW20 inspector Ghanshyam Meena, the investigating Officer, has stated that dead body of the deceased was subsequently identified by Sham Kumar @ Rahul, Santa and Seema. The statements of Shani Kumar @ Rahul PW20/K, Sarita PW20/L and Seema PW 20/M, are undated. 6. There is no eye witness and as noted above the dead body initially could not be identified. PW20 inspector Ghanshyam Meena, the investigating Officer, has stated that dead body of the deceased was subsequently identified by Sham Kumar @ Rahul, Santa and Seema. The statements of Shani Kumar @ Rahul PW20/K, Sarita PW20/L and Seema PW 20/M, are undated. Shani Kumar, Sarita and Seema did not depose as witness. 7. The dead body of the deceased was handed over to Smt. Sarita her mother-in-law vide memo Ex.PW20/0. The said memo is dated 27th July, 2007. 8. Importantly, the substratum of the prosecution case rests on the testimonies of Rinkoo Chaurasiya PW1, Sunil Kumar PW2 and Suresh @ Pappu PW3. Prosecution relies upon these witnesses to prove and establish factum of last seen. 9. PW1 Rinkoo Chaurasiya has averred that he used to prepare and sell paranthas in front of PVR Vikas Puri, Delhi but had stopped doing the said work from 23rd December, 2008. On 22nd July, 2007 at about 11 p.m., the appellant Roshan Lal had purchased paranthas from him. At that time he had seen him talking to the deceased. The deceased appeared to be insane and had started roaming aroundout in the said area one and a half month prior to the incident. He had asked the deceased not to talk to the accused at his shop and that they should speak to each other outside. Thereafter, deceased and the accused sat on the iron benches in front of the parking where two other boys were already sitting. The two other boys spoke to the deceased along with the appellant. At 12 a.m. when PW-1 closed the shop he saw the boys were following the lady towards Dashera Ground near Oxford School. Next day i.e. on 23rd July, 2007 police officer informed him that the lady in question had been murdered and photograph was shown to him. His statement was re- corded by the police on 23rd July, 2007, when he had informed the police that he had seen the deceased with the appellant and two other boys in the intervening night of 22nd -23rd July, 2007. on 3rd August, 2007, he identified the appellant who was produced before him and affirmed that he had seen the appellant with the deceased. The appellant was interrogated in his presence and disclosure statement (PW1/C) was recorded. on 3rd August, 2007, he identified the appellant who was produced before him and affirmed that he had seen the appellant with the deceased. The appellant was interrogated in his presence and disclosure statement (PW1/C) was recorded. At this stage, we only note that nothing was recovered pursuant to the disclosure statement and, therefore, the disclosure statement is of no relevance in the present case. 10. PW-1 in his cross-examination has stated that the appellant was used to reside in Pankaj Tower behind PVR Vikas Puri. He has stated to the effect that he had not specifically noticed whether the deceased was with the two boys, when the appellant had left with the paranthas. However, he corrected himself immediately and said that the two boys were still there but the deceased was not there. He then formulated that the two boys went away at about 12 midnight, when he closed the shop and it was correct that he had seen the two boys along with the deceased. He has voluntarily explained that the lady was ahead followed by two boys and Roshan Lal was following at a distance of 20 steps towards Dashera Ground near Oxford School. He then accepted that to go to the room of the appellant one need not go to Dashera Ground and the two were in opposite direction from his shop, in reply to a court question as to the shortest way to reach the room of Roshan Lal, PW1 has deposed that it was from a different/other side and not from the side in which the appellant had moved. However, he has clarified that the appellant could have taken a turn to his house but that would not have been the shortest way. The distance between his shop and the Dashera Ground was about 750/1000 meters and there was one turn on the road on which the appellant was moving, from where the appellant could have reached his room by the side of PVR cinema, in essence, according to PW1's statement, the appellant had purportedly followed the deceased and the two boys and taken a road towards Dushera Ground which, albeit was not the shortest way to the appellant's place, but could have still lead to the appellant's room by taking another turn/path. 11. 11. PW2 Sunil Kumar has stated that he was working as parking attendant in PVR Vikas Puri in the year 2007 and on 22nd-23rd July, 2007 at about 12 midnight was on duty. At that time he had seen the appellant go towards Oxford School along with a girl who used to roam around in the area, on 23rd July, 2007 police came to him and showed him a photograph of the said girl whom he identified, in the cross-examination he has accepted that the distance between Oxford School and PVR Vikas Puri was less than a kilometer and to reach Oxford School from PVR Vikas Puri they had to cross numerous shops; a PCO, a paan shop, a police assistance booth and then again a PCO. He has accepted that while going towards Oxford School from PVR Vikas Puri, a pedestrian could take a turn to H Block. PW2 was not aware that the appellant was residing in H Block behind PVR Vikas Puri. The Dashera Ground was situated behind Oxford School. He has accepted that it was not possible to see a person going towards H Block or Oxford School from the parking gate and there was a gurudwara on the left side from where a person could again turn. In response to a Court question, PW2 has deposed that his earlier statement to the effect that he had seen the accused going towards Oxford School along with the girl was correct but at the same time he has accepted that there were many cuts on the road and from the parking gate one could not see if a person was taking a turn unless one came to the patri by the side of the road. He has further denied the suggestion that due to presence of trees and potted plants, he could not have seen whether a person could be going towards Oxford School. He has denied that the road was not visible from the parking gate of PVR Cinema, in response to the court question he has accepted as correct that many roads were going towards H Block from the road towards Oxford School. 12. Suresh @ Pappu (PW3) in his deposition has said that he was working as a parking attendant at PVR Vikas Puri, New Delhi and the appellant used to roam around in the area with the deceased, who was mentally unstable. 12. Suresh @ Pappu (PW3) in his deposition has said that he was working as a parking attendant at PVR Vikas Puri, New Delhi and the appellant used to roam around in the area with the deceased, who was mentally unstable. PW3's knew that the appellant used to work at a Marry-Go-Round and he had seen the appellant and the deceased on 23.7.2007 at about 8.00 or 9.00 p.m. As per PW3's version the appellant had consumed liquor and was roaming around with the deceased but she fled away after getting herself released. The appellant then asked one rehriwala about the deceased and came to know that the deceased was behind PVR Vikas Puri. Thereafter, he noticed the appellant taking the deceased towards the park. Next day, in the morning at about 11.00 a.m. dead body of the deceased was found in the park i.e. the place where he had seen the appellant talking the deceased. Photograph Ex.PW 2/A was also shown to him and he identified that he had seen the appellant taking the lady in the photograph towards the park. The Additional Public Prosecutor was permitted to ask leading question and in response, he has deposed that the appellant had taken the deceased in the intervening night of 22nd-23rd July, 2007 towards park at about 12 mid night or 12.30 a.m. He has stated that he was called to police station and voluntarily stated that the appellant was also present there. At the PVR Vikas Puri, his duty was upto 1.30 a.m. or 2.00 a.m. from 10 a.m. However, later in the cross-examination he has accepted that he had not informed the police that he had seen the accused with the girl on 22nd July, 2007 at about 2.00 or 9.00 p.m. Neither had he deposed that the appellant had consumed liquor or that the girl had fled away after getting herself released or that the appellant had talked to rehriwala etc. He has stated that he had seen the appellant going towards the park with the deceased. He went further and stated that the appellant had caught hold of the hand of the deceased. However, he has accepted that Dashera Ground was at a distance of one kilometer from PVR Vikas Puri and the appellant was residing in a shop where the Jhullas were operational. 13. He went further and stated that the appellant had caught hold of the hand of the deceased. However, he has accepted that Dashera Ground was at a distance of one kilometer from PVR Vikas Puri and the appellant was residing in a shop where the Jhullas were operational. 13. We have grave doubts about the court deposition by PW3 Suresh @ Pappu. There are several reasons for the same. His statement under Section 161 Cr.P.C. purportedly recorded on 1st August, 2007 is altogether on a separate factual assertion, in his section 161 statement, he had spoken about an extra judicial confession, which was allegedly made by the appellant to him after 25th July, 2007. In his statement under Section 161 Cr.P.C., PW3 had purportedly stated that he was working in the District Centre, Janak Puri and not in the parking lot of PVR Cinema, Vikas Puri. The two parking lots are in different locality and not in the same area. He had further stated that on 25th July, 2007, a police officer had met him and, on seeing the photograph and he had identified the deceased who had a husband and a child. She was mentally unbalanced and used to roam around in PVR Vikas Puri area. Her husband at that time was detained in police station Janak Puri. it appears that PW3's statement under section 161 Cr.P.C. was not recorded on 25th July, 2007. We have examined the police diary. PW3 was interrogated by the investigating officer on 26th July, 2007 and he had then informed the investigating officer that he had not seen the deceased after 19th July, 2007. unfortunately in the present case, the amicus curiae appearing for the appellant in the trial court did not read PW3's statement under Section 161 Cr.P.C. This aspect was even missed by the public prosecutor and the trial court. In case, PW3 was working in the parking lot at District Centre, Janak Puri, he would not have been present and he was certainly not the parking attendant at PVR Vikas Puri. In his court deposition PW3 has not deposed anything about extra judicial confession of the appellant. The prosecution had never claimed that PW3 was to testify or had last seen the appellant and the deceased going towards the park. 14. In his court deposition PW3 has not deposed anything about extra judicial confession of the appellant. The prosecution had never claimed that PW3 was to testify or had last seen the appellant and the deceased going towards the park. 14. We are cautious of the fact that the case diary can be relied only to the limited extent as stipulated in Section 172 Cr.P.C. The code stipulates that criminal court can ask for the Police diary and may use such diaries not as evidence but as an aid in such inquiry or trial. 15. We are not using the police diaries as an evidence but only as an aid to find out whether PW3 had made a truthful and correct deposition in the Court. We have also relied upon his Section 161 Cr.P.C. statement. 16. At this stage we may also notice that name of Rinkoo Chaurasiya does not find mention in the case diary dated 23rd July, 2007. The said diary refers to several persons who are interrogated on the said date but records that no clues or leads were obtained. As per the police version/charge-sheet, statement of PW1, under Section 161 Cr.P.C., was recorded on 23rd July, 2007 itself. This creates doubt whether PW1 is a planted witness and whether his court deposition should be accepted. As per the case diary, the appellant was interrogated and questioned on 25th July, 2007. The prosecution case is that he was arrested on 3rd August, 2007. It is not stated or averred by any of the police witness that the appellant was absconding and was not traceable after 23rd July, 2007. The appellant in his statement under section 313 Cr.P.C. has stated that he was detained on 25th July, 2007. PW4 Head Constable Mewa Ram and PW20 inspector Ghanshyam Meena have not averred a single word as to why the appellant was not arrested in case PW1 and PW2 had clearly implicated the appellant in their statement under Section 161 Cr.P.C. on 23rd July, 2007 and the principle of last seen was applicable in view of the said statements. 17. Even otherwise, principle of last seen cannot be applied in the present case. The said principle is applicable in a case where the accused and the deceased were last seen together before the occurrence. 17. Even otherwise, principle of last seen cannot be applied in the present case. The said principle is applicable in a case where the accused and the deceased were last seen together before the occurrence. Proximity of time and place when they were seen together and time and place where the offence occurred should be established. Place of occurrence is relevant and an important factor when we weigh and reflect upon the evidentiary value to be given to said fact. When an offence occurs within a house/room or a secluded place, last seen can be construed as an evidence of considerable evidential value. It may require some explanation from the accused. But the court must rule out possibility of a third person's involvement and should be satisfied that the facts prove and establish that the accused was the perpetrator. (See State of U.P. v. Shyam Behari (2009) 15 SCC 548 . Teppram Prabhakar v. State of A.P. (2009) 13 SCC 534 .) Degree of certainty and evidentiary value of last seen, therefore, depends upon several factors and factual matrix of each case. Thus, the principle of last seen may have limitation and cannot be applied and treated as conclusive without reference to the facts of a particular case. 18. In the present case the distance between PVR Vikas Puri and the park is about one kilometer. None of the witnesses had actually seen the appellant at the park or entering the park. Park is an open place which can be frequented by anyone. A park cannot be equated with a house or room, as it is accessible to all. It cannot be said with certainty that no other third person could have followed the deceased, met the deceased or interacted with her. Presence of third person in and around the PVR Vikas Puri and park is not ruled out and is a clear possibility. Several persons in the locality knew the deceased, it also appears that the deceased used to charge money for physical intimacy. PW1 has stated that there were two other boys but the police has not able to identify and ascertain who these two boys were, in fact, PW1 supports the appellant when he states that there were boys who were following the deceased. PW1 has stated that there were two other boys but the police has not able to identify and ascertain who these two boys were, in fact, PW1 supports the appellant when he states that there were boys who were following the deceased. PW2's statement is to the effect that he has seen the deceased and the appellant together near PVR Cinema and going towards Oxford school. He has accepted that there were numerous diversions or cuts on the road. Therefore, on the basis of his testimony it cannot be ascertained whether the appellant followed the deceased to the park. The appellant could have gone in a different direction. Appellant could have gone to his room. In the present case no belongings of the appellant was found at the place of occurrence/crime. No investigation has been conducted to identify the father of the baby in the womb of the deceased. Thus, the last seen theory falters and breaks down. We are unable to find any other inculpating evidence. No other incriminating material has been placed before us. 19. In these circumstances we set aside the judgment of conviction and acquitted the appellant. He shall be released forthwith unless required to be detained in any other case in accordance with law. 20. We appreciate the efforts and hard work put in by learned amicus curiae Mr. Sumer Kumar Sethi in the present case. 21. The Deputy Commissioner of Police will examine the police file and the allegations made in the charge-sheet and statements recorded under Section 161 Cr.P.C. A report will be submitted to the Court in the sealed cover. As and when the report is received the same will be placed before the Roster Bench. Copy of this order be sent to the concerned DCP. Appeal stands disposed of.