JUDGMENT R. L. Khurana, J.: The present appeal has been directed by the accused, Dhondup Tsering, through Superintendent, Model Central Jail, Nahan, against the judgment dated 8.8.1997, of the learned Additional Session Judge (1), Dharamsala, in Sessions Case No. I2-D/96, whereby he has been convicted for the offences under Section 376 and 302, Indian Penal Code, and sentenced to: (a) rigorous imprisonment far ten years and fine of Rs.5000/- for the offence under Section 376, Indian Penal Code and in default of payment of fine rigorous imprisonment for a further period of one year, and (b) rigorous imprisonment for life for the offence under Section 302, Indian Penal Code. 2. The two substantive sentences of imprisonment were ordered to run concurrently. 3. Briefly stated, the prosecution story is this. The accused, a Tibetan national, in June 1996 was working in the Tibetan Staff Mess at Macleodganj, Dharamsala. He was residing in a residential accommodation just near the Mess. Just in front of his residential accommodation PW 3, Tsering Yanki, who is working as Computer Staff in TCRC office, was residing. The deceased Tsering Dolkhar, a girl of about 11 years of age and a student of class V in T.C. V. School, Dharamsala, was the niece (sisters daughter) of PW 3 and was residing with PW 3. The parents of the deceased were residing at Mysore in Karnataka. 4. There were vocations in T.C.V. School from 1.6.1996 to 10.6.1996. On 10.6.1996, at about 9 A.M., PW 3 left her house as usual for her office. The deceased was a home. When P W 3 returned home at about 5.30 P.M. she found her house locked from outside. The key was found hanging on a peg outside. The deceased was not present at home. Not finding the deceased at home PW 3 carried out a search for her in the neighbourhood. The deceased could not be found. PW 3 having failed to find the deceased till about 2 A.M. went to sleep thinking that since the school was reopening the next day, the. Deceased would return early in the morning. Since the deceased did not return in the morning, P W 3 again carried out a search for her in the library at Macieodganj. PW 3 having failed to find the deceased till about 2 A.M. went to sleep thinking that since the school was reopening the next day, the. Deceased would return early in the morning. Since the deceased did not return in the morning, P W 3 again carried out a search for her in the library at Macieodganj. Having failed in her efforts to find the deceased, PW 3 accompanied by her cousin Tashi and a friend Paidon proceeded towards the Police Station to make a report. While she was on her way to the Police Station, one Phuntsok Nymgyal, Manager T.C.R.C. met her and told her that the dead body of the deceased was lying in the bushes by the side of a public path behind the house of Major J.S. Mankotia. On receiving such information, PW 3 rushed to the spot where she found the dead body of the deceased in a naked position. There was bleeding per vagina showing signs of rape. The deceased appeared to have been dune to death by strangulation. 5. The police by then had already been informed about the dead body by PW 2 Varinder Mankotia on telephone. PW19, Inspector Hari Singh, came to the spot and recorded the statement Ex. PW 3/A of PW/3 under Section 154, Code of Criminal Procedure. On the basis of such statement, the present case came to be registered vide FIR No. 179/96 (Ex. PW 17/A). 6. PW 19, Inspector Hari Singh, while preparing the inquest report observed the bleeding per vagina and also the ligature marks over the neck of the deceased. The dead body was then sent to Zonal Hospital, Dharamsala. Post-mortem was conducted by PW 13, Dr. Neelam Mahajan. She observed, as under: - "There were multiple abrasions over the middle of fore-head nose and left cheek, yellow coloured powdery material was found in both eyes. Nostrils mouth and vaginal opening, white froth was coming from both nostrils. Nails and toes were bluish. Lips were blackish blue in colour. Mouth was opened. There was ligature mark reddish blue which extended from front of neck upto the right extreme right and left side of the neck up to the right extreme right and left side of the neck. It was also extended posteriorly leaving 2 inches on the back of the neck. Lips were blackish blue in colour. Mouth was opened. There was ligature mark reddish blue which extended from front of neck upto the right extreme right and left side of the neck up to the right extreme right and left side of the neck. It was also extended posteriorly leaving 2 inches on the back of the neck. On layer by layer dissection of neck and hyoid bone thyroid cartilage tracheal, rings intact. No scalp injury was seen. Breasts were not developed. Small breast nodules present. Public axillary heirs not present. External Genitalia: There were multiple abrasions on the mons, both thighs and groins. Slight blood oozed out of vaginal opening. Yellowish powderly material alongwith twigs and dry leaves were present in the vaginal outlet size of tear 1" long x 1" wide, it was a tear mark on the right and left labia majora and minora at 60 Clock extending posteriorly into the perineum and exposing the underlying muscles. Organs of generation external and internal: Hymen was badly torn. Only few Tags were found posteriorly and laterally. Vagina admitted two fingers very easily." 7. In the opinion of PW 13, the deceased died of asphyxia due to combined effect of gagging, smothering and ligature strangulation and that the deceased was subjected to rape. 8. The investigation officer took into possession blood soiled earth and leaves from the spot. A search was launched for the accused who was found absent from duty since the afternoon of 10.6.1996. On 12.6.1996, at-about 5 A.M. the accused was seen climbing the stairs to the Mess slowly. He was apprehended. Since the accused could not speak and understand Hindi, Sarvshri Lahmo Tsering and Dorjee, who were taking water from a nearby tap were called. PW 4 Dawa Tsering, Tibetan Welfare Officer was also called to act as Interpretor. The shirt, which the accused was then wearing, was found to be blood stained. The same was taken into possession. During interrogation whilst in custody the accused made a disclosure statement leading to the recovery of the domes and chappals of the deceased from his residential quarter. One blood stained mattress, one blood stained vest, one black blanket and a rape were also recovered from such residential quarter. All these articles were sent to the Forensic Science Laboratory for examination. The accused was subjected to medical examination. He was found fit and capable6f sexual intercourse. One blood stained mattress, one blood stained vest, one black blanket and a rape were also recovered from such residential quarter. All these articles were sent to the Forensic Science Laboratory for examination. The accused was subjected to medical examination. He was found fit and capable6f sexual intercourse. Some simple injuries were also found on his person. The clothes of the deceased as well as the shirt of the accused were found to have stains of human blood of group-B, which was the blood group of the deceased. 9. Upon having been charged for the offences under Sections 376 and 302, Indian Penal Code, the accused pleaded not guilty. His defence is that of denial simpliciter. 10. The prosecution, in support of its case, examined nineteen witnesses in all. No defence was produced by the accused inspite of having been called upon to do so. 11. The learned trial court, upon consideration of the evidence led before it, came to the conclusion that both the offences under Sections 376 and 302, Indian Penal Code, stood proved against the accused beyond all reasonable doubts. The accused was, therefore, convicted and sentenced as aforesaid. 12. The case of the prosecution is entirely based on circumstantial evidence. It is well established principle of law that where the inference of guilt of an accused person is to be drawn from circumstantial evidence, only those circumstances must, in the first place, be cogently established. Further, these circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else. [See: Rama Nand and others v. The State of Himachal Pradesh, 1981 Cr L. J. 298]. 13. The Supreme Court in Jaharial Das v. State of Orissa [1991 Cr. [See: Rama Nand and others v. The State of Himachal Pradesh, 1981 Cr L. J. 298]. 13. The Supreme Court in Jaharial Das v. State of Orissa [1991 Cr. L.J. 1809], while dealing with a case of rape and murder based on circumstantial evidence, has held:- "It is well settled that the circumstantial evidence in order to sustain conviction must satisfy three conditions: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances) should be of a definite tendency unerringly a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused." 14. The Supreme Court further sounded a word of caution that in case depending largely upon circumstantial evidence there is always a danger/that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the complete chain must be such as to rule out a reasonable likelihood of innocence of the accused. 15. ln Akhilesh Hajam v. State of Bihar [l995 Supp(3) SCC 357], it has further been held that from the evidence it may appear that in all probability the accused may be the culprit but probabilities and moral convictions have no place or any role to play to convict a person in the absence of legal evidence. There is a long distance to be travelled between the expression "may be" and "must be". However strong the emotional considerations may be, but the same cannot take the place of proof. 16. In the present case, while convicting and sentencing the accused of the offences charged against him, the learned trial court has placed reliance on the following circumstances:- 1, Accused last seen with the deceased at about 12.45 P.M. near his residence; 2. However strong the emotional considerations may be, but the same cannot take the place of proof. 16. In the present case, while convicting and sentencing the accused of the offences charged against him, the learned trial court has placed reliance on the following circumstances:- 1, Accused last seen with the deceased at about 12.45 P.M. near his residence; 2. Absence of the accused from duty of the Mess since after the afternoon of 10.6.1996 till his arrest on 12.6.1996 at 5 A.M.; 3. Finding of the dead body of the deceased in a naked position on 11.6.1996 near the path in the bushes behind the house of PW 2 Varinder Mankotia with signs of having been raped and strangulated to death; 4. Recovery of blood stained shirt Ex. P-9 from the person of the accused; 5. Recovery of clothes Ex. P-l to P-4 and Chappals, blood-stained mattress, blanket etc. from the residential quarter of the accused in pursuance of the disclosure statement made by him; 6. Presence of marks of violence on the person of the accused; 7. Presence of stains of human blood of group-B on the shirt, Ex. P-9, belonging to the accused and the clothes Ex.P-1 to P-4 belonging to the deceased, which blood group was of the deceased. 17. Before we proceed to examine the above circumstances relied upon by the learned trial court, it will not be out of place to detail here some of the important admissions coming in the statement of the accused recorded under Section 313, Code of Criminal Procedure. The accused has admitted to the following facts: (1) At the relevant time he was working as a cook in the Tibetan Staff Mass; (2) The deceased alongwith her aunt (PW3) was residing in a residential quarter just opposite to his residential quarter. (3) On 10.6.1996, before 1 P.M. he had gone to his residential quarter; and (4) Clothes, Ex. P-l to P-4 belonging to the deceased were recovered from his residential quarter at his instance; (5) Injuries on his person. 18. Thevidence coming on record proves that the deceased was last seen alive in the company of the accused at about 12.45 P.M. on 10.6.1996 near his residential quarter. The accused, as pointed out above, has admitted that on 10.6.1996, he had gone to his residential quarter from the Mess. 18. Thevidence coming on record proves that the deceased was last seen alive in the company of the accused at about 12.45 P.M. on 10.6.1996 near his residential quarter. The accused, as pointed out above, has admitted that on 10.6.1996, he had gone to his residential quarter from the Mess. PW 6 Phentsok Dolma, a girl of about 13 years of age and neighbourer of the deceased, had seen the accused talking to the deceased at about 12.45 P.M. To the similar effect is the statement of PW 7, Bir Singh, who at the relevant time was also working as a cook in the same Mess where the accused was working. PW 8, Ishwar Das, another cook of the Mess has deposed about the accused having gone to his residential quarter at about 1.30 P.M. and thereafter having remained on leave for rest of the day. 19. The testimoney of PWs 6 to 8 has not been impeached during the course of cross-examination by the accused. Nothing could be brought on record to cast a shadow of doubt on the version given by these witnesses. In fact the stand taken by the accused in his own statement under Section 313, Code of Criminal Procedure and the one taken during cross-examination of PW 7 and PW 8, is self contradictory. While in his statement in answer to question No. 10 he has stated that he had gone to his residential quarter before 1 P.M. and had returned to the Mess after about half and hour, it has been suggested to PW 7 and PW 8 during cross- examination that he was on leave after 1.30 P.M. on 10.6.1996,. 20. The learned trial court on the basis of evidence coming on record has rightly held the circumstance to have been proved against the accused and in placing reliance thereon. 21. In order to prove the second circumstance that the accused was absent from duty after the afternoon of 10.6.1996 and the following day and that he was also not present and available in his residential quarter during this period, the prosecution has examined PW 7, Bir Singh, PW 8, Ishwar Dass and PW 19, Hire Singh, the Investigation Officer of the case. PW 7 and PW 8 have categorically stated that on 11.6.1996 when the police came to the Mess, all the cooks except the accused were present. PW 7 and PW 8 have categorically stated that on 11.6.1996 when the police came to the Mess, all the cooks except the accused were present. PW 19 has stated that on a search having been carried out for the accused, he could not be found either in the Mess or in his residential quarter, which was found locked. It is the admitted case of the accused that he was-on leave after the afternoon of 10.6.1996. Though he has claimed that he was on duty at the Mess on 11.6.1996, nothing has come in evidence to show that he was in fact on duty. Even during the cross-examination of PW 7 and PW 8 it was never suggested that the accused was in fact on duty in the Mess on 11.6.1996. Similarly, though the accused has claimed that he was arrested by the police on 11.6.1996 at about 5 P.M. in the Mess, no such suggestion was made to PW 19, the Investigation Officer. In fact the statement made by PW 19 that he arrested the accused on 12.6.1996 at about 5 A.M. remained unchallenged during cross-examination by he accused. Failure on the part of the accused to cross-examine PW 19 on this aspect of the case leads to the only presumption that such part of the statement of P W19 is admitted by the accused. The learned trial court as such has rightly placed reliance on the second circumstance as well. 22. Insofar as the third circumstance is concerned, the accused has not disputed the same. In his statement under Section 313, Code of Criminal Procedure, he has admitted that he came to know about the dead body of a girl of about eleven years of age having been found in a naked position below the path near the house of PW 2 Varinder Mankotia. 23. The next circumstance appearing against the accused is the recovery of blood stained shirt Ex. P-9 from his person. As per the prosecution story on 12.6.1996 at about 5 A.M. at the time of arrest by PW 19, the accused was found wearing shirt Ex. P-9. Such shirt was taken into possession by PW 19 vide memo Ex. PW 5/B of the presence of PW 5 Lehmo Tsering and PW 9 Tsering Dorjee. Both the witnesses to the recovery of the shirt Ex. P-9. Such shirt was taken into possession by PW 19 vide memo Ex. PW 5/B of the presence of PW 5 Lehmo Tsering and PW 9 Tsering Dorjee. Both the witnesses to the recovery of the shirt Ex. P-9 have stated that the said shirt was taken into possession from the accused in their presence. None of these two witnesses was cross-examined on the aspect of the taking into possession of the shirt Ex. P-9 by PW 19 from the accused. Nor any suggestion was made that the shirt Ex. P-9 did not belong to the accused. Similarly, the statement of shirt Ex.P-9 from the accused has remained unchallenged. It, therefore, stand proved on the record that shirt Ex. P-9 belong to the accused and the same was taken into possession from him by PW 19 vide memo Ex.PW5/B. 24. The accused as stated above, in his statement recorded under Section 313, Code of Criminal Procedure, in answer to question No. 26 has admitted that clothes Ex. P-l to Ex P-4, belonging to the deceased was recovered from his residential quarter at his instance. While admitting the recovery of the clothes of the deceased, from his residential quarter at his instance, no further explanation has been offered by the accused as to how these clothes came to be found at his residential quarter. It is not the case of the accused that these clothes were planted in order to falsely implicate him in the case. In view of the categorical admission by the accused about the recovery of the clothes of the deceased from his residential quarter at his instance, the circumstance also stands proved and established against the accused. It is well settled that admission made by the accused in his statement under Section 313, Code of Criminal Procedure, can be acted upon and made the basis for his conviction [See: State of Maharashtra v. Sukhdco Singh and another, AIR 1992 SC 2100]. 25. During the course of investigation, the accused was subjected to medical examination. Such medical examination was carried out by PW14 Dr. Amarjit Singh on 12.5.1996 at about 12 Noon. The following injuries were found on his person:- (i) Three linear scatches on the right side of the face; (ii) Multiple scatches on the left side of the face; (iii) Multiple scartches on right upper arm; (iv) Linear scratches on the back of the chest. 26. Amarjit Singh on 12.5.1996 at about 12 Noon. The following injuries were found on his person:- (i) Three linear scatches on the right side of the face; (ii) Multiple scatches on the left side of the face; (iii) Multiple scartches on right upper arm; (iv) Linear scratches on the back of the chest. 26. The above scatches were elongated and reddish in colour varying from 1/2 cm to 6 cm in size. The injuries were opined to be simple in nature having been sustained by a blunt weapon within the probable duration of 48 hours. 27. The accused in his statement in answer to question No. 31 has admitted that he was medically examined and that injuries were found on his person. However, he has gone to state that these injuries were inflicted upon him by the police during the investigation as a result of police beatings. 28. The explanation offered by the accused as to the injuries found on his person, is on the face of it wrong and the same stands belied. The probable duration of the injuries was found to be 48 hours. The accused was arrested at about 5 A.M. on 12.6.1996. He was medically examined at about 12 Noon on the same day, that is, within seven hours of his arrest. Even if for the sake of arguments it be taken that the accused was arrested on 11.6.1996 at about 5 P.M., as claimed by him, he came to be medically examined within nineteen hours of his arrest. Therefore, the injuries could not have been sustained by him as a result of police beatings during investigation. Besides, no such case was set up by the accused during the course of cross-examination of any witness, of the prosecution, including PW 19, the Investigation Officer. This defence appears to have been raised as an afterthought. The injuries found on (he person of the accused stand connected to the probable time of occurrence. 29. Blood sample of the deceased, alongwith the clothes Ex. P-l to Ex. P-4 of the deceased as also shirt Ex. P-9 belonging to the accused was sent to Forensic Science Laboratory for chemical examination. Ex. PY is the report of such chemical examination. 29. Blood sample of the deceased, alongwith the clothes Ex. P-l to Ex. P-4 of the deceased as also shirt Ex. P-9 belonging to the accused was sent to Forensic Science Laboratory for chemical examination. Ex. PY is the report of such chemical examination. The sample of blood of the deceased was found to be of group-B. Stains of same human blood group were found on the clothes of the deceased as well as the shirt Ex. P-9 of the accused. Similarly, stains of the same blood group were found on mattress Ex. P-l3 and Blanket Ex. P-12 recovered from the residential quarter of the accused. 30. From the evidence coming on record, all the circumstances relied upon by the learned trial court stand cogently proved and established and these circumstances are of definite tendency pointing towards the guilt of the accused and in their totality unerringly lead to the only conclusion that within all human probability the offences of rape and murder were committed by the accused and none else. 31. Resultantly, we do not find any merit in the present appeal. The same is accordingly dismissed. The conviction and sentence imposed upon the accused by the learned trial court are maintained and affirmed. The accused is in jail. He would continue to remain in jail in order to serve out the sentences, imposed upon him. The case property shall be dealt with as per the orders of the learned trial court. 32. Let a copy of the judgment be sent to the accused through Superintendent, Model Central Jail, Nahan, for information. Petition dismissed