JUDGMENT Per Justice Rajiv Sharma, Judge. This appeal is directed against the judgment dated 7.8.2009 passed by the leaned Sessions Judge, Hamirpur in Sessions Trial No. 19 of 2008 whereby the appellants-accused, who were charged with and tried for offences punishable under section 364-A, 302, 201 and 212 read with section 34 of the Indian Penal Code have been convicted and sentenced as under: Sr.No. Offence Substantive sentence Sentence in default of payment of fine. 1. 364-A IPC Rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each. To undergo rigorous imprisonment for two years. 2. 302 IPC Rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each To under Rigorous Imprisonment for two years. 3. 201 IPC Rigorous Imprisonment for 7 years and to pay a fine of Rs.500/- each To undergo Rigorous Imprisonment for one year. Accused Kanahiya has been declared proclaimed offender. 2. Case of the prosecution, in a nutshell, is that PW-2 Duni Chand lodged FIR Ex.PW-2/A on 17.4.2008 at Police Station, Nadaun to the effect that he was resident of village Jasal, Tehsil Nadaun. He has retired as Central head Teacher from Education Department. He has three sons, namely, Yashwant Singh, Kuldip Singh and Pradeep Kumar. All of them were married. Yashwant Singh had two sons, namely, Munish Kumar alias Mintu (deceased) and Ashish Kumar. Munish Kumar was student of 10th standard in Government Senior Secondary School, Kashmir, Tehsil Nadaun. On 17.4.2008, Munish Kumar alias Mintu had left for the school at 7.15 A.M. He did not come back by 4.00 P.M. Duni Chand and his family members started searching the deceased. They inquired from the school. They came to know that Munish Kumar has not attended the school on that day. PW-6 Bahadur Singh son of Diwan Chand of the same village told PW-2 Duni Chand that Ranjit Singh, Biru and Kanahiya Ram, residents of Bareili (Uttar Pradesh) had been working with him as agriculture labourers alongwith their families. Kanahiya Ram has left a few days beck alongwith his family to his native place. However, accused have left for their native place in the morning of 17.4.2008. Bahadur Singh had also told PW-2 Duni Chand that at about 4.30 P.M. on 17.4.2008 Biru and Ranjit Singh telephoned him from mobile telephone No. 98174-57647 on mobile telephone No. 98174-05363. Kanahiya Ram has left a few days beck alongwith his family to his native place. However, accused have left for their native place in the morning of 17.4.2008. Bahadur Singh had also told PW-2 Duni Chand that at about 4.30 P.M. on 17.4.2008 Biru and Ranjit Singh telephoned him from mobile telephone No. 98174-57647 on mobile telephone No. 98174-05363. They were inquiring the telephone number of Duni Chand from him. Duni Chand became suspicious and he asked his son Pradeep Kumar to ring up the accused. Pradeep Kumar telephoned the accused from his mobile telephone No. 98173-58098 on mobile telephone No. 98174-57647 at 8.10 P.M. On 17.4.2008, accused Biru told Pradeep Kumar that they were present in Anand Vihar, Delhi and that Munish Kumar was with them. He should come with Rs. twenty two lakhs as ransom money by 12 O’ clock next day, otherwise they would kill Munish Kumar. Pradeep Kumar again had a talk with the accused, who told him that they require minimum Rs. five lakhs as ransom money and then disconnected the phone. During investigation, police started searching for Munish Kumar on 18.4.2008. ASI Jasbir Singh accompanied the Deputy Superintendent of Police, Hamirpur, District Headquarters, in search of accused and Munish Kumar towards Delohi, Uttar Pradesh. They went in that direction because according to the statements of Kuldip Singh and Bahadur Singh, accused had been calling the family members of Munish Kumar from Uttar Pradesh. The search continued till 5.00 P.M. on 18.4.2008. Thereafter, accused switched off their mobile telephone No. 98174-57647. Police went to Brijghat and searched for the accused and Munish Kumar. However, nobody was available. Police party went to village Sikanderpur, to which accused belonged. They were searched with their relatives also. On 18.4.2008, search party at village Jasal noticed something covered with a tarpaulin of gunny bags and it was further covered with stones and grass. When search party removed the grass, then shoes were noticed. Thereafter, tarpaulin was removed and it was found that dead body of Munish Kumar alias Mintu was concealed under the bushes. Dead body was taken into possession. It was photographed. It was noticed that mouth of Munish Kumar was gagged with a red coloured piece of cloth. Inquest forms Ex.PW-1/B and Ex.PW-1/C were prepared and post mortem examination on the body of Munish Kumar alias Mintu was conducted by Dr. K.S. Dogra, Dr. Dead body was taken into possession. It was photographed. It was noticed that mouth of Munish Kumar was gagged with a red coloured piece of cloth. Inquest forms Ex.PW-1/B and Ex.PW-1/C were prepared and post mortem examination on the body of Munish Kumar alias Mintu was conducted by Dr. K.S. Dogra, Dr. P.K. Sharma and Dr. D.P. Swami vide report Ex.PW-1/D. According to the post-mortem report, boy died of asphyxia due to suffocation caused with the compression (blockage) of mouth and nose (smothering) by application of cloth piece. Site plan was prepared. Tarpaulin Ex.P-17 was taken into possession vide memo Ex.PW-3/A. Accused were arrested from village Bouhan, Tehsil and District Hoshiarpur. They were working in the farm of Sadhu Ram Saini, former Sarpanch. 3. Prosecution examined as many as 33 witnesses in all to prove its case against the accused. Statements of accused were also recorded under section 313 of the Code of Criminal Procedure. They have denied the case of prosecution. They claimed themselves to be innocent. According to them, they have been falsely implicated in this case. Learned Sessions Judge, Hamirpur convicted and sentenced the accused, as noticed hereinabove. 4. Mr. N.K. Thakur, learned Senior Advocate has vehemently argued that the prosecution has failed to prove its case against accused. 5. Mr. Ramesh Thakur, learned Assistant Advocate General has supported the judgment passed by the learned Sessions Judge, Hamirpur. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. PW-1 Dr. K.S. Dogra has deposed that on the basis of application Ex.PW-1/A, post mortem of deceased Munish Kumar was conducted by a team of doctors comprising of him, Dr. P. K. Sharma and Dr. D.P. Swami, Associate Professor, R.P.M.C., Tanda on 21.4.2008. They issued post-mortem report Ex.PW-1/D. In their opinion, boy died of asphyxia due to suffocation caused by the compression (blockage) of mouth and nose (smothering) by application of a cloth piece. The probable time between injuries and death was 3 to 8 minutes and the probable time between death and post-mortem was 24 to 96 hours. 8. PW-2 Duni Chand is the grand-father of Munish Kumar. He has deposed that on 17.4.2008, his grandson Munish left the house for his school at about 7.15 A.M. When Munish Kumar did not come back upto 3.30 P.M., they started searching him. 8. PW-2 Duni Chand is the grand-father of Munish Kumar. He has deposed that on 17.4.2008, his grandson Munish left the house for his school at about 7.15 A.M. When Munish Kumar did not come back upto 3.30 P.M., they started searching him. The school used to close at 2.00 P.M. He was not traceable. He telephoned relatives, students and teachers to know about his whereabouts, but the teachers and students told that Munish Kumar has not attended the school on that day. Wife of PW-6 Bahadur Singh received a telephone call from the accused. She informed the mother of Munish Kumar. Accused were working as labourers in the house of Promodh Kumar and Bahadur Singh. They were inquiring his telephone number from the wife of Bahadur Singh. They came to know that Munish Kumar has been abducted. They received a telephone call from the accused from mobile No. 98174- 56647 on telephone No.98174-05363 that his telephone number should be conveyed to them. They sent Pradeep Kumar and his nephew Vikram to look for the accused at Railway Station, Una. Pradeep Kumar telephoned accused. Thereafter, Pradeep Kumar informed them that accused has told him that Munish was in Anand Vihar in their custody and that they can take back his custody by paying a ransom of rupees twenty two lakhs and then they reduced it to Rs. five lakhs. He went to the Police Station, Nadaun with some villagers and lodged FIR Ex.PW-2/A. According to him, there was a dispute about payment of money between the accused and Bahadur Singh and Bahadur Singh was related to him. It was also rumour in the area that Bahadur Singh and Parmodh Singh were having illicit relations with the wife of accused Ranjit Singh. Because of this reason only, accused killed his grandson and they wanted to have ransom from them. They had asked Parmodh and him to come with ransom money to Delhi. In his crossexamination, he has admitted that Bahadur Singh informed him at about 8.30 P.M. on telephone that accused had been inquiring about his telephone number. Bahadur Singh telephoned accused Biru also in his presence when they were going in a vehicle towards Delhi on the asking of the accused. He has also admitted that accused had no enmity against him or his family. Volunteered that they had enmity against Bahadur Singh and Parmodh Singh, his brother. Bahadur Singh telephoned accused Biru also in his presence when they were going in a vehicle towards Delhi on the asking of the accused. He has also admitted that accused had no enmity against him or his family. Volunteered that they had enmity against Bahadur Singh and Parmodh Singh, his brother. The school of Munish Kumar was about 2- 2½ KMs from their house. The path to the school passes through a Nullah. All school children from that area used to go through the same path to the school. There was a separate path to their village school from their house. Their school was only upto 8th standard. His grandson had taken admission in 10th class and students of 9th, 11th and 12th classes were yet to take admission. His grandson was going to school on that day all alone. Accused had never worked with him at his house. 9. PW-3 Bhagi Rath has deposed that in the process of search, one gunny bag type was noticed in the bushes of a Kuhal of a dilapidated Gharat. It was covered with tarpaulin. When tarpaulin was lifted, shoes were noticed. Police took photographs of the spot and the gunny bag was removed from the bushes. Dead body of Munish Kumar was in the gunny bag. It was visible from outside. The police took it out. His mouth was gagged with red coloured cloth and orange coloured piece of cloth was tied around neck and nose. His hands and feet were tied with a green coloured cloth on back side. The police took into possession tarpaulin Ex.P-17 vide memo Ex.PW-3/A. Inquest forms Ex.PW-1/B and Ex.PW-1/C were also filled in his presence and also signed by him. 10. PW-4 Ramesh Chand has deposed that dead body of Munish Kumar was recovered and was taken into possession. 11. PW-5 Madhu Bala has deposed that accused Biru, Ranjit and Kanahiya and the wives of Kanihiya and Ranjit were working in their fields for growing vegetables at Bali situated near Man Khad, which was at a distance of one kilometer from their house. Her husband was Lecturer at Government Senior Secondary School, Kashmir. She had a mobile No. 98174-57647. SIM of the same was issued by the Reliance Company. Her husband was Lecturer at Government Senior Secondary School, Kashmir. She had a mobile No. 98174-57647. SIM of the same was issued by the Reliance Company. On the request of accused, she gave the SIM to them as they had told that sometimes they have to consult with her or any family member with regard to selling of vegetables. She had another SIM No. 98173-05363. Accused used to talk with her from said mobile and she was familiar with their voice. She received a telephone call from phone No. 98174-57647 on her mobile No. 98173-05363 at 4.00/4.30 P.M. on 17.4.2008. She identified the voice of accused Biru. In her cross-examination, she has deposed that her husband had purchased the SIM from Dhaneta. She did not know from whom the SIM was purchased. She did not remember the date, month and year. However, it was prior to the arrival of accused in their fields. She had told the police that her husband has purchased the mobile. (Confronted with her statement mark ‘D’, wherein it was not so recorded). She had told the police that she had purchased the SIM in the month of April, 2008. She did not remember the date of purchase of SIM. The SIM was handed over to the accused by her husband. She could not say to which accused the SIM was handed over. However, all of them were using it. She has also admitted that the distance between Dera of accused upto the local bus stand, named as Jasal Tank was 1½ - 2 KMs. The SIM was in her name. The SIM, which was retained by her its number was 98174-05363. Biru had talked to her husband on telephone for about 2-3 minutes. She has also admitted categorically that there was no enmity between the accused and family of deceased. There was no discord between Parmodh and the accused persons also. She has also admitted that she was not the first person to tell Duni Chand about telephone call of accused Biru. However, she told him about it when the villagers had gathered. 12. PW-6 Bahadur Singh has deposed that he had kept accused, Kanahiya Lal, Biru and Ranjit and the wives of Kanahiya and Ranjit Singh and their children for the farming work. On 13.4.2008, Kanahiya Lal came to him and told that they wanted to go home for their work. He took Rs. 12. PW-6 Bahadur Singh has deposed that he had kept accused, Kanahiya Lal, Biru and Ranjit and the wives of Kanahiya and Ranjit Singh and their children for the farming work. On 13.4.2008, Kanahiya Lal came to him and told that they wanted to go home for their work. He took Rs. 6,000/- from him as advance money. On 14.4.2008, accused Kanahiya, his wife, his children and the wife of accused Ranjit left for their home. Accused Ranjit Singh and Biru stayed back. On 16.4.2008, accused Ranjit told him to send Parmodh to the fields because he was all alone on that day. However, Parmodh Singh did not go because he told that he was tired and unwell. He left his residence for the school at about 8.30 A.M. on 17.4.2008. He did not see accused on the way. He returned at about 3.00 P.M. Parmodh told him that accused have not come on the work. He thought that they might have gone somewhere as usual. When he reached home, his wife PW-5 Madhu Bala was attending a telephone call. He took over the telephone from her. Biru was talking from other side. He asked him where they were. Biru asked him to intimate telephone number of PW-2 Duni Chand. In the meanwhile, they disconnected the call. Thereafter, mother of Munish Kumar and others told that Munish Kumar has not returned from the school. He told them that he might be playing cricket with other children and would have been late due to this reason. He also told mother of deceased that accused Biru was inquiring about their telephone number. Thereafter, search for deceased was commenced. At about 8.30 P.M., he was told by PW-2 Duni Chand that there was a telephone call from the accused and they were demanding Rs. twenty two lakhs and then Rs. five lakhs to return the custody of Munish Kumar. He went on his motorbike to Police Station, Nadaun. On 18.4.2008, he telephoned accused Biru from mobile No. 98173-31667 on mobile No. 98174- 57647 and asked them as to where they were and as to why they had gone without permission. He was knowing that they were already missing from the village and were demanding ransom for return of Munish Kumar. SIM No. 98174-57647 was in the name of his wife Madhu Bala and had been handed over to accused Biru. He was knowing that they were already missing from the village and were demanding ransom for return of Munish Kumar. SIM No. 98174-57647 was in the name of his wife Madhu Bala and had been handed over to accused Biru. In his cross-examination, he has admitted that accused had no dispute or enmity against him and his family. He told Duni Chand about the telephone message at about 7.30/8.00 P.M. However, he had told the mother of deceased at about 4.00 P.M. He has also admitted that school children from the village Jasal adopt the same path to the school at Kashmir, which he used. Other villagers also used the same path. When he went to the school, he did not meet anybody on the way. He did not verify on 17.4.2008 about the presence of Munish Kumar in the school. About 4-5 children from Jasal used to go to the Kashmir school. Volunteered that during those days admission to other classes had not taken place except for 10th class. Munish Kumar was the only student from village Jasal to go to Kashmir school. He has also admitted that there was no enmity of accused persons with Parmodh Singh. However, Parmodh Singh was having illicit relations with the wife of accused Ranjit and they had been proclaiming that poor people also have their own dignity. He did not tell the police about this rumour. The distance between bus stand, Jasal Tank to Dera of the accused was about 2 KMs. Police did not search the residence/Dera of accused in his presence. SIM No. 98174-57647 had been purchased by him in the name of his wife from the shopkeeper at Dhaneta. He had purchased the SIM only in the month of April, 2008. However, he did not remember the exact date. He had filled in the form for purchase of the SIM in favour of Madhu Bala and she had signed it. He did not tell the police that he had brought the form to home where it was signed by Madhu Bala. Accused Biru had demanded the SIM from him. He had come to his house for this purpose. He did not remember the exact date of handing over the SIM. Accused never talked from that SIM card to him earlier. His statement was recorded by the police twice. 13. Accused Biru had demanded the SIM from him. He had come to his house for this purpose. He did not remember the exact date of handing over the SIM. Accused never talked from that SIM card to him earlier. His statement was recorded by the police twice. 13. PW-7 Parmodh Singh has deposed that on 13.4.2008 accused Kanahiya Lal had come to him for taking advance money since he wanted to go to his home. The amount was given to him by his brother. Ranjit Singh and Biru accused stayed back and Kanahiya Lal and others left on 14.4.2008. On 16.4.2008 accused Ranjit and Biru called him to the fields through his brother Bahadur Singh when he was returning from school. He did not go there since he was attending some house repair work and he was also not well. On 17.4.2008, he went to the fields at about 11.00 A.M. However, accused Ranjit Singh and Biru were not working in the fields. He thought that they might have gone to the shop etc. At about 3.00 P.M. Bahadur Singh returned from the school. He told him about the missing of accused persons. Bahadur Singh went home and returned about 4.00/5.00 P.M. to the fields. He told him that there was a telephone call from Biru accused and that they have run away from the village. On 17.4.2008 at about 6.00 P.M., there was a talk in the village that Munish Kumar was not available any where. He came to know at about 8.30 P.M. that Duni Chand has received a telephone from the accused asking to come to Delhi in Anand Vihar with ransom money. He went with the police to Uttar Pradesh in search of the boy on 18.6.2008. They came to know about the death of Munish Kumar on 20.4.2008. On 20.4.2008, Deputy Superintendent of Police had inquired from him about the digging of pit near the Dera of accused. He told the Deputy Superintendent of Police that they had not dug out any pit. He noticed that the pit was about 4-5 feet deep. The accused might have dug out the pit to bury him because they were suspecting that he might be having illicit relations with their wives. In his cross-examination, he has admitted that accused had no enmity with Duni Chand. He noticed that the pit was about 4-5 feet deep. The accused might have dug out the pit to bury him because they were suspecting that he might be having illicit relations with their wives. In his cross-examination, he has admitted that accused had no enmity with Duni Chand. The spot from where the dead body was found was about 15-20 feet away from the pit. The spot was also a Nullah type. He told the police that accused were suspecting him, so they have killed Munish Kumar. (The witness was confronted with Ex.DD statement under section 161 Code of Criminal Procedure, where it was not so recorded). He could not say with certainty that accused took away and killed Munish Kumar on account of suspicion against him. 14. PW-8 Vinod Kumar has deposed that on 17.4.2008 he received a telephone call from accused Biru to the effect that he wanted to speak to Ram Gopal. Ram Gopal told him that Biru was calling him but was not disclosing the reason. He was being called to Brijghat. Ram Gopal left for Brijghat on 18.4.2008. In his cross-examination, he has admitted that he did not hear the talk between Biru and Ram Gopal. 15. PW-9 Ram Gopal has deposed that PW-8 Vinod Kumar has received a telephone call from accused Biru for him. He asked him to come to Brijghat. He went to Brijghat and reached there at 3.00 P.M. on 18.4.2008. 16. PW-10 Ravinder Paul has deposed that on 17.4.2008, at about 8.15 A.M., he was present at Jasal Tank with his tractor. Accused were standing at some distance from the bus stop, Jasal Tank. He asked them as to where they were going. They did not answer his query. In the meanwhile a private bus came there. Accused boarded the bus. In his cross-examination, he has deposed that departure time of Luxmi Bus from Jasal Tank is 8.30 A.M. He came to know about missing of Munish Kumar at 8.00 P.M. when he returned home with his tractor. He did not tell anyone about the accused persons being at Jasal Tank or to any villager and also before disclosing it to Police upto 21.4.2008. He has admitted that the way to Jasal Tank passed through Jasal to the dera of accused persons. 17. He did not tell anyone about the accused persons being at Jasal Tank or to any villager and also before disclosing it to Police upto 21.4.2008. He has admitted that the way to Jasal Tank passed through Jasal to the dera of accused persons. 17. PW-11 Vikram Singh has deposed that on 17.4.2008, he received a telephone call from his cousin Pardeep that Munish Kumar has been kidnapped by accused persons. He asked him to come over to Dhaneta so that they could go to Una Railway Station to look for the accused persons. They reached railway station Una at 8.00 P.M. Pardeep Kumar had given him the mobile telephone number of Biru and he tried to contact him. Accused Biru told him that he was speaking on the telephone. He told him that the thing for which they were looking for was with him. He told him that he should not disclose about it to anyone and that they should send Duni Chand and Parmod Singh with Rs. 22.00 Lakh and then reduced to Rs. 5.00 Lakh to Anand Vihar. 18. PW-12 Kuldip Chand has deposed that he was working as Panchayat Sahayak in 2008 in Gram Panchayat, Jasal. On 17.4.2008 at about 8.15 A.M. he was present with Hoshiar Singh in the house of Pawan in village Jasal. Accused Biru and Ranjit Singh came through the village path. Hoshiar Singh shook his hand with the wrist of accused Biru because his hand was smeared with earth and both of them were in a hurry. He asked Biru as to where they were going. Biru told that he was not feeling well and was going to the hospital. Then he went to Nadaun. In the evening at about 4.00 P.M. he came to know that Munish Kumar has not returned home from the school. Later on, he came to know that Biru has telephoned Madhu Bala as he was inquiring the telephone number of his father. He advised Pradeep Kumar, his brother to search for accused persons at Railway Station, Una. Pradeep Kumar went there. Narain was working on Delhi-Boarder and he was married in their village. He telephoned him and gave him the telephone number of Biru, which was 98174-57647. He told Narain that accused persons have abducted his nephew. He left with the police team to Delhi on 18.4.2008. Pradeep Kumar went there. Narain was working on Delhi-Boarder and he was married in their village. He telephoned him and gave him the telephone number of Biru, which was 98174-57647. He told Narain that accused persons have abducted his nephew. He left with the police team to Delhi on 18.4.2008. At 12.45 P.M., S.I. Jasbir Thakur asked him to telephone Biru. He telephoned from his mobile No. 98170-53002. Biru picked up his phone on his call. He inquired about his identity and he inquired about his identity. 19. PW-13 Narain Singh has deposed that on 17.4.2008 Kuldip telephonically informed him that accused have kidnapped Munish Kumar and the accused have asked them to come over to Anand Vihar Bus Stand. Kuldip gave him one telephone number. He did not remember that number. He dialed that telephone number from his telephone No. 98170-79510 on 18.4.2008 in the morning. He talked to accused Biru. Biru told him not to talk much and told that they were having Munish Kumar with them and they should come to Brijghat Garhganga to take Munish Kumar on paying ransom of Rs. five lakhs. In his cross-examination, he has admitted that he did not know accused Biru personally. 20. Statements of PW-14 Rajeev Kumar, PW-15 Head Constable Gulshan Kumar and PW-16 Anil Kumar are formal in nature. 21. PW-17 Bal Krishan has deposed that accused Biru and Ranjit were in police lock up. Accused Ranjit made a disclosure statement Ex.PW-17/A to the effect that he has concealed half portion of his green shirt in a Nullah on the side of Maankhad and that he could get the same recovered. Thereafter, accused led the police party and the witnesses in the police vehicle to Dhaneta. At a distance of 2-3 meters from the path, accused showed them a portion of his green shirt concealed under a stone in the Nullah. Accused took it out and it was found that it was carrying the label of Liza super shirt. In his cross-examination, he has deposed that he had gone to the Police Station in connection with this case being a local villager. Vinod Kumar was Up-Pradhan of Gram Panchayat, Jasal. He had also gone with him. When they went to the Police Station, Ranjit Singh was already being interrogated by the police. Accused made disclosure statement within 20 minutes of interrogation. 22. Vinod Kumar was Up-Pradhan of Gram Panchayat, Jasal. He had also gone with him. When they went to the Police Station, Ranjit Singh was already being interrogated by the police. Accused made disclosure statement within 20 minutes of interrogation. 22. PW-18 Parkash Chand, Field Kanungo has prepared tatima Ex.PW18/A. 23. PW-18 Hardeep Singh has deposed that accused took them to the tube-well of Sadhu Ram Saini where fuel wood was lying. Accused Biru took out a mobile telephone from the heap of fuel wood and handed it over to the police. It was opened and found that there was no chip/SIM in it. It was black coloured set of Soni Ericsson. Police sealed it in a parcel with seal ‘S’. Thereafter, accused Biru went to the electricity pole near the tube-well. He dug out the earth and took out polythene wallet from there. The envelope contained a Deshi Katta type pistol and two cartridges. These were also sealed in a different parcel with the same seal. All these articles were taken into possession vide memo Ex.PW-19/A. Photographs were also taken. In his cross-examination, he has deposed that accused Biru was earlier working under Sadhu Ram Saini in his fields for 2-3 weeks and earlier also he had been working there as a labourer. So he knew him. 24. PW-20 Inspector Bakshi Ram has deposed that he reached the place of recovery of dead body in village Jasal at about 4.00 P.M. An iron net (Jali) was found beneath the earth and below was a pit of 4-5 feet depth. They suspected that dead body may be there. Beyond the Dera of accused there was a Gharat in the Maankhad. There were many bushes and a mango tree was also there. One tarpaulin was noticed in the bushes and it appeared that something had been concealed there with grass etc. When the tarpaulin was checked, one dead body was found in a gunny bag, of which the feet were visible. The body was taken out 25. PW-21 Dharam Singh has deposed that on 17.4.2008 he was going with his mules towards his village. Munish Kumar called him ‘Tau’, who met him on the way and told him that he was going to school. Accused Biru called him towards his Dera side where he went in his presence and he went away to his work. PW-21 Dharam Singh has deposed that on 17.4.2008 he was going with his mules towards his village. Munish Kumar called him ‘Tau’, who met him on the way and told him that he was going to school. Accused Biru called him towards his Dera side where he went in his presence and he went away to his work. In his cross-examination, he has deposed that he told the villagers in the evening that Munish Kumar had met him. Deceased met him on one side of the Nullah and accused Biru called him to his Dera which was on the other side of the Nullah. He did not go to the Police Station to make statement. He was bringing sand etc. for his own purpose. The path is thoroughfare. 26. PW-22 ASI Parveen Kumar has proved office orders Ex.PW-22/A, Ex.PW-22/B, letter Ex.PW-22/C, printout of E-mails Ex.PW-22/D-1 to Ex.PW-22/D-9 and print outs of E-mail Ex.PW-22/D-9 to Ex.PW-22/D-14. The printouts were down loaded by him. He was operating the office computer. He had sent the E-mails from the official I.D. of S.P. Office. 27. PW-23 Devinder Verma has worked as Nodal Officer of Airtel. On the application Ex.PW-22/C regarding the call details and tower location of Airtel Mobile No. 098763-95284, he sent the call details through E-mail to S.P. Hamirpur vide Ex.PW-22/D-1. The call details with effect from April 17 to April 28, 2008 were Ex.PW-22/D-2 to Ex.PW-22/D-5. 28. PW-24 Vijay Kumar has deposed that he had gone to Police Station in connection with his personal work. Police was interrogating the accused Birpal. Birpal told the police that he has concealed a mobile of Soni Ericsson black coloured in the campus of Tube-well of Sadhu Ram Saini in village Bohan, District Hoshiarpur under the heap of fuel wood. In his cross-examination, he has deposed that he had gone to the Police Station for the first time. Verification of his character certificate was done in the room of MHC. 29. PW-25 Satish Kumar has taken the photographs Ex.PW-20/A-1 to A-18. 30. PW-26 has proved photographs Ex.PW-26/A and Ex.PW-26/B and C.D. Ex.PW-26/C. 31. PW-27 Nistha Trehan has deposed that on the E-mail of S.P. Hamirpur, she gave the call details/records and billing address in respect of SIM No. 98174-57647, which was in the name of Madhu wife of Bahadur Singh from her I.D. vide Ex.PW-22/D-6, Ex.PW- 22/D-7 and Ex.PW-22/D-8. 30. PW-26 has proved photographs Ex.PW-26/A and Ex.PW-26/B and C.D. Ex.PW-26/C. 31. PW-27 Nistha Trehan has deposed that on the E-mail of S.P. Hamirpur, she gave the call details/records and billing address in respect of SIM No. 98174-57647, which was in the name of Madhu wife of Bahadur Singh from her I.D. vide Ex.PW-22/D-6, Ex.PW- 22/D-7 and Ex.PW-22/D-8. She also gave call detail record for roaming Ex.PW-22/D-9, Ex.PW-22/D-10 and Ex.PW-22/D-11. She also supplied call detail record of mobile No. 98174-05363 to S.P. Hamirpur from her Email I.D. vide Ex.PW-22/D-12 and Ex.PW-22/D-13 and D-14. She also supplied call detail record of mobile No. 98174-05363 and 98173-58098 from her E-mail address to S.P. Hamirpur vide Ex.PW-27/A and call details vide Ex.PW-27/A-1 to A-4. 32. PW-28 Sunil Dutt has deposed that on 18.4.2008 he went to the house of Duni Chand. At that time, many villagers alongwith grand-mother and mother of Munish Kumar were present there. Bahadur Singh rang up on the mobile phone of accused, which they were holding. But they did not receive the telephone of Duni Chand. Thereafter, he made a telephone call from mobile No. 94181-30328 on the request of family members of Munish. Accused Biru attended his call and said that he was speaking. He asked that he has taken away Munish Kumar and asked the reason. He said he could not hear the voice due to insufficient money and asked to recharge his number and then he would be able to attend the call. On the request of grand-mother and mother of Munish Kumar, he recharged his mobile and then he rang up from his mobile No. 94180-93948. He switched on the speaker of his mobile set and he found that Biru was saying that “Garib Ki Bhi Izat Hoti Hai”. He told that he has already disclosed regarding demand of ransom to Bahadur Singh. 33. PW-29 Dhani Ram has proved abstract of attendance register Ex.PW-29/A. According to Ex.PW-29/A, Munish Kumar was not present in the school. 34. PW-30 Ashish Sharma has taken photographs of the spot. Inquest papers Ex.PW-1/B and Ex.PW-1/C were filled in. Site plan Ex.PW-30/A was prepared. On 29.6.2008, he moved an application Ex.PW-1/E to the Medical Officer, R.H. Hamirpur regarding clarification in post mortem report Ex.PW-1/D and the Medical Officer referred the matter to Dr. D.P. Swami for his forensic expert opinion. 34. PW-30 Ashish Sharma has taken photographs of the spot. Inquest papers Ex.PW-1/B and Ex.PW-1/C were filled in. Site plan Ex.PW-30/A was prepared. On 29.6.2008, he moved an application Ex.PW-1/E to the Medical Officer, R.H. Hamirpur regarding clarification in post mortem report Ex.PW-1/D and the Medical Officer referred the matter to Dr. D.P. Swami for his forensic expert opinion. He has given final report after the receipt of forensic reports Ex.PW-30/B and Ex.PW-30/C. 35. PW-31 Dr. D.P. Swami has deposed that he was present on 21.4.2008 during post-mortem examination of the body of Munish Kumar. The postmortem was conducted by a team of doctors under his supervision. On 2.7.2008, Dr. Kultar Dogra who was one of the members of the post-mortem team referred the case regarding clarification of time since death, in reference to the application Ext. PW-1/B. He gave the details of the opinion after examination of the PMR and other relevant record of the police file. He has admitted that on 21.4.2008, the duration of time since death was probably given between 24 to 96 hours. 36. PW-32 SI Jasbir Singh has deposed that on 18.4.2008, he accompanied the Deputy Superintendent of Police Diwakar Sharma, State of U.P., in search of accused persons. On 28.4.2008 at about 9.00 P.M., when they were present at the police station Bagwara, District Moradabad, there was a telephone call from accused Biru from telephone No. 98763-95284 to Vinod on the telephone of Phool Chand. It was conveyed that accused persons were present at Kurukshetra and they wanted to speak to the father-in-law of Ranjit. The location of the telephone on the basis of tower was found at Bohan Patti village in Hoshiarpur. So they went there. On 4.5.2008, accused Ranjit made a disclosure statement Ext. PW-17/A that he has concealed one portion of a shirt wrapped in a green coloured wallet on way side in a Nullah in beneath stones. On 3.5.2008, accused Biru made a disclosure statement Ext. PW-24/A to the effect that he has concealed a mobile set in village Bohan Patti near the tube well of Sadhu Ram and that he can get the same recovered. He also disclosed about a country made pistol near the electricity pole at the tube well of Sadhu Ram and he could get it recovered. Thereafter, recovery of telephone set Ext. P-20 and pistol Ext. P-21 took into possession vide recovery memo Ext. He also disclosed about a country made pistol near the electricity pole at the tube well of Sadhu Ram and he could get it recovered. Thereafter, recovery of telephone set Ext. P-20 and pistol Ext. P-21 took into possession vide recovery memo Ext. PW-19/A in the presence of Sadhu Ram and Hardeep Singh alongwith two cartridges Ext. P-22 and Ext. P-23. 37. PW-33 Deepak Gupta has deposed that on the request of Superintendent of Police, Hamirpur vide letter dated 6.9.2008, Ext. PW-33/B, he provided the call details/ records in respect of Mobile No. 98174 57647 for the period 10.4.2008 to 20.4.2008 vide Ext. PW-33/C. Ext. PW-33/C and Ext. PW-33/D were attested under the signatures of Rajesh Kumar. These were system generated. He has admitted in his cross-examination that Ext. PW-33/C and Ext. PW-33/D were not issued by him. He has also admitted that there was no certificate on Ext. PW-33/C and Ext. PE-33/D that the system was virus free. According to him, call details Ext. PW-33/C and Ext. PW-33/D were supplied physically. He could not tell to whom they were handed over. 38. Case of the prosecution is entirely based on circumstantial evidence. According to the trial court, accused were last seen in the company of deceased. According to the trial court the motive was to kill Parmod Singh. However, deceased was found an easy prey to take a revenge of the illicit relations between PW-7 Parmod Singh and the wife of the accused Ranjit Singh. Telephone calls were made by the accused persons for ransom money. In case of circumstantial evidence, motive is also one of the main considerations. 39. We will advert to the statements of the material witnesses to ascertain what could be the motive of the accused to kill Munish Kumar. According to PW-2 Duni Chand, there was rumour in the area that PW-6 Bahadur Singh and PW-7 Parmod Singh were having illicit relations with the wife of the accused Ranjit Singh and because of that reason they killed his grandson and they wanted ransom from them. PW-2 Duni Chand in his cross-examination has admitted that accused had no enmity against him or against his family. Volunteered that they had enmity against Bahadur Singh and Parmod Singh. PW-5 Madhu Bala has admitted in her cross - examination that there was no enmity between the accused and the family of the deceased. PW-2 Duni Chand in his cross-examination has admitted that accused had no enmity against him or against his family. Volunteered that they had enmity against Bahadur Singh and Parmod Singh. PW-5 Madhu Bala has admitted in her cross - examination that there was no enmity between the accused and the family of the deceased. PW-6 Bahadur Singh has also admitted in his cross-examination that accused had no dispute or enmity against him and his family. He has also admitted that there was no enmity with Parmod Singh but there was a rumour afloat in the area that Parmod Singh was having illicit relations with the wife of accused Ranjit and they have been proclaiming that poor people have also their own dignity. However, he has not disclosed this rumour to the police. PW-7 Parmod has deposed that accused had no enmity with PW-2 Duni Chand. PW-2 Duni Chand is the grand father of deceased Munish Kumar. 40. PW-28 Sunil Dutt has deposed that he had gone to the house of Duni Chand on 18.4.2008. Many villagers had gathered there. He made a telephone call from mobile No. 94181-30328 on the request of family members of Munish Kumar. Accused picked up the phone. He told that he was speaking. He asked that he has taken away Munish Kumar and also asked the reason. He told that he could not hear the call due to insufficient money and asked to recharge his number and then he would be able to attend the call. He recharged his mobile on the request of grand mother and mother of Munish Kumar. He rang up from his mobile No. 94180-93948. He switched on the speaker of his mobile set and he found that Biru was saying “Garib Ki Bhi Izat Hoti Hai”. 41. What emerges from the statements of these witnesses is that there was no enmity between the family of the deceased and accused. PW-2 Duni Chand has only stated that he has heard in the area that Bahadur Singh and Parmod Singh were having illicit relations with the wife of accused Ranjit Singh. PW-6 Bahadur Singh has also deposed that there was no enmity of accused persons with Parmodh Singh, but there was a rumour afloat in the area that Parmodh Singh was having illicit relations with the wife of accused Ranjit. PW-7 Parmodh Singh is real brother of PW-6 Bahadur Singh. PW-6 Bahadur Singh has also deposed that there was no enmity of accused persons with Parmodh Singh, but there was a rumour afloat in the area that Parmodh Singh was having illicit relations with the wife of accused Ranjit. PW-7 Parmodh Singh is real brother of PW-6 Bahadur Singh. According to PW-7 Parmod Singh, accused might have dug out a pit to bury him because they were suspecting that he might be having illicit relations with their wives and they used to talk to those ladies while on work. Thus, there was no occasion for the accused to kill Munish Kumar to take revenge from PW-7 Parmod Singh for keeping illicit relations with wife of one of the accused Ranjit Singh. 42. As per the disclosure statement made by the accused one Deshi Katta (pistol) was also recovered at the instance of accused Biru from field of Sadhu Ram Saini alongwith two live cartridges. Learned Sessions Judge has come to a conclusion that since they could not kill PW-7 Parmod Singh, deceased was easy prey for them. However, if the accused were carrying Katta (pistol), it was not difficult for them to kill PW-7 Parmod Singh with Katta when two live cartridges were also recovered at their instance. 43. Now, as far as the circumstance of last seen together is concerned, we will advert to the statements of material witnesses on this aspect. PW-2 Duni Chand has deposed that his grand-son left his house at about 7.15 A.M. He had taken only tea at home and was carrying his food, i.e. two Paranthas with him. When Munish Kumar did not come back upto 3.30 P.M., then they started searching him. The school used to close at 2.00 P.M., but he was not traceable. Then the wife of Bahadur Singh, his cousin, received a telephone call from the accused persons, about which wife of Bahadur Singh told the mother of Munish Kumar. In his cross-examination, he has deposed that school of Munish Kumar was 2 - 2½ KMs from their house. The path to the school was passing through a Nullah. All the children from that area used to go through the same path to the school. There was a separate path to their village school from their house. Their school was only upto 8th standard. The path to the school was passing through a Nullah. All the children from that area used to go through the same path to the school. There was a separate path to their village school from their house. Their school was only upto 8th standard. His grandson was admitted in 10th standard and students of 9th, 11th and 12th classes were yet to take admission. So, his grandson was going on that date to the school all alone. According to him, only Munish Kumar was studying in 10th class in Kashmir school. According to PW-5 Madhu Bala, her husband PW-6 Bahadur Singh left for school on 17.4.2008 at 9.00/ 9.30 A.M. She also admitted that there was only one passage to go the school and the same passage was used by her husband, villagers and school children. She has also admitted that the passage was busy and thorough passage in the morning and during day time. 44. PW-6 Bahadur Singh was also Lecturer in Government Senior Secondary School, Kashmir. He had left for the school on 8.30 A.M. on 17.4.2008. He did not see the accused persons on the way. He came back at about 3.30 P.M. In his cross-examination, he has deposed that during those days school time was from 8.00 A.M. to 2.00 P.M. He was late to the school on that day. He had not taken half day’s casual leave on that day. He has also admitted that the school children from village Jasal adopt the same path to the school at Kashmir, which he used. Other villagers also used the same path. There was one more passage also, but the people generally used the same path. When he went to the school, he met none on the way. There was a Nullah by the side of the path and then there were their fields and the Dera of the accused persons was also in those fields. He has also admitted that about 4-5 children from village Jasal used to go to the Kashmir school. He has deposed that during those days admission to other classes had not taken place except for 10th class. Munsih Kumar was the only student from village Jasal to go to the Kashmir school. 45. PW-21 Dharam Singh has deposed that on 17.4.2008, he was going with his mules towards his village. He has deposed that during those days admission to other classes had not taken place except for 10th class. Munsih Kumar was the only student from village Jasal to go to the Kashmir school. 45. PW-21 Dharam Singh has deposed that on 17.4.2008, he was going with his mules towards his village. Munish Kumar called him ‘Tau”, who met him on the way and told him that he was going to the school. Then accused Biru called him towards his Dera side where he went in his presence and he went away to his own work. In his cross-examination he has admitted that Katha factory was burnt after 4-5 days of the incident. His mules were also burnt. Munish Kumar had met him at about 7.15/7.30 A.M. 46. What emerges from the statements of these witnesses is that the path used by the deceased was a thorough fare. It was frequented by the students and other villagers. PW-6 Bahadur Singh himself being a teacher in the same school was also using the same path. He was working as a teacher in the Government Senior Secondary School, Kashmir. According to him, he had left to the school at 8.30 A.M., though school time was with effect from 8.00 A.M. to 2.00 P.M. He had not taken half day’s casual leave on that day. It is not believable that presence of deceased and accused could have gone unnoticed being thorough fare. Presence of PW-21 Dharam Singh on the spot is doubtful. The prosecution has tried to project that deceased was the only student of 10th class and other classes were not started. But no evidence to this effect has been produced by the prosecution. Learned trial court has wrongly come to the conclusion that accused were seen in the company of deceased Munish Kumar. 47. The most important circumstance which has been relied upon by the prosecution to prove its case against the accused is that PW-5 Madhu Bala had handed over her SIM No. 98174-57647 to the accused. The purpose of giving this SIM to the accused was to remain in touch with the family as they were engaged in growing vegetables. PW-5 Madhu Bala could not tell to whom the SIM card was given. According to her, on 17.4.2008 at 4.00/4.30 P.M., she received a telephone call from phone No. 98174-57647 on her mobile No. 98173-05363. The purpose of giving this SIM to the accused was to remain in touch with the family as they were engaged in growing vegetables. PW-5 Madhu Bala could not tell to whom the SIM card was given. According to her, on 17.4.2008 at 4.00/4.30 P.M., she received a telephone call from phone No. 98174-57647 on her mobile No. 98173-05363. In the meantime, her husband PW-6 Bahadur Singh came. One of the accused asked the telephone number of PW-2 Duni Chand. PW-6 Bahadur Singh has deposed that when he came home, his wife Madhu Bala was attending a telephone call. He took over the telephone from her. Accused Biru was on the line. He asked him where they were. Accused Biru asked him to intimate the telephone of PW-2 Duni Chand. Thereafter, mother of Munish Kumar and others told that Munish Kumar has not returned from the school. He told them that he might be playing cricket with other children and might be late due to this reason. He also told the mother of deceased that accused Biru was inquiring about their telephone number. Then there was a search for the deceased. PW-2 Duni Chand in his cross-examination has admitted that PW-6 Bahadur Singh informed him at 8.30 P.M. that accused persons had been inquiring about his telephone number. The conduct of PW-5 Madhu Bala and PW-6 Bahadur Singh was unusual. If PW-6 Bahadur Singh knew that accused persons were demanding ransom money from hem, he should have informed the family that the deceased has been abducted instead of telling that Munish Kumar might be playing cricket and he simultaneously told the mother of deceased that accused was inquiring about their telephone number. The immediate reaction of PW-6 Bahadur Singh should have been to contact the father of deceased also. The prosecution has not examined the father of deceased at all. According to PW-6 Bahadur Singh, mother of deceased Munish Kumar was contacted. However, mother of deceased has also not been produced to prove that she received a telephone call from PW-6 Bahadur Singh. In case the version of PW-6 Bahadur Singh that he has informed the mother about the abduction of the deceased, there was no occasion for him to call PW-2 Duni Chand at 8.30 P.M. 48. However, mother of deceased has also not been produced to prove that she received a telephone call from PW-6 Bahadur Singh. In case the version of PW-6 Bahadur Singh that he has informed the mother about the abduction of the deceased, there was no occasion for him to call PW-2 Duni Chand at 8.30 P.M. 48. Their Lordships of the Hon’ble Supreme Court in Habeeb Mohammad vs. State of Hyderabad, AIR 1954 SC 51 have held that it is bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to section 114 of the Evidence Act, but the circumstances of his being withheld from the court casts a serious reflection on the fairness of the trial. Their Lordships have held as under: “In this situation it seems to us that Biabani who was a top ranking police officer present at the scene was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, he would not speak the truth; and, in any case, the court would have been well advised to exercise its discretionary powers to examine that witness. The witness was at the time of the trial in charge of the Police Training School and was certainly available. In our opinion, not only does an adverse inference arise against the prosecution case from his non- production as a witness in view of illustration (g) to section 114 of the Indian Evidence Act, but the circumstance of his being withheld from the court casts a serious reflection on the fairness of the trial. It seems to us that the appellant was considerably prejudiced in his defence by reason of this omission on the part of the prosecution and on the part of the court.” 49. Now, there is another intriguing point to be noted. PW-2 Duni Chand, as noticed above, has deposed that PW-6 Bahadur Singh informed him at 8.30 P.M. that accused were inquiring about his telephone number. Now, there is another intriguing point to be noted. PW-2 Duni Chand, as noticed above, has deposed that PW-6 Bahadur Singh informed him at 8.30 P.M. that accused were inquiring about his telephone number. PW-6 Bahadur Singh in his examination-in-chief has deposed that at about 8.30 P.M. he was told by PW-2 Duni Chand that there was a telephone call from the accused persons and they were demanding ransom of Rs. twenty two lakhs and then Rs. five lakhs to return the custody of Munish Kumar. Thereafter, he went to the Police Station, Nadaun. According to PW-6 Bahadur Singh SIM No.98174-57647 was purchased in the name of his wife from the shopkeeper at Dhaneta. He had purchased the SIM only in the month of April, 2008. However, he did not remember the exact date. He had filled in the form for purchase of the SIM in favour of Madhu Bala and she had signed it. He did not tell the police that he had brought the form to home where it was signed by Madhu Bala. According to him, accused Biru had demanded the SIM from him. He handed over the SIM to accused Biru. He had come to his house for this purpose. He did not remember the exact date of handing over the SIM. He has admitted that he did not remember whether the SIM was activated when he handed over it to Biru. However, he had also not used that SIM earlier. It casts serious doubt on the prosecution version that accused was in possession of SIM and they have called PW-5 Madhu Bala to give telephone number of PW-2 Duni Chand. 50. The prosecution has placed on record the details of various telephone numbers. These have not been proved as per section 65-B of the Indian Evidence Act. These were only E-mails not certified by any Nodal Officer. PW-33 Deepak Gupta has admitted in his cross-examination that Ex.PW-33/C and Ex.PW-33/D have not been issued by him and there was no certificate on Ex.PW-33/C and Ex.PW-33/D to the effect that the system was virus free. There is a detailed procedure under section 65-B of the Indian Evidence, the manner in which the electronic record is required to be proved. PW-27 Nistha Trehan has only deposed that call details supplied by her alongwith billing address in respect of telephone No. 98174-57647 were system generated. There is a detailed procedure under section 65-B of the Indian Evidence, the manner in which the electronic record is required to be proved. PW-27 Nistha Trehan has only deposed that call details supplied by her alongwith billing address in respect of telephone No. 98174-57647 were system generated. All the call details did not bear certificates. 51. What is evidentiary value of electronic records has been succinctly dealt with by the Division Bench of Delhi High Court in State vs. Mohd. Afzal and ors., 107 (2003) Delhi Law Times 385 (DB) as under:- “276. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Sub-section (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub-section (2). Thus compliance with Sub-section (1) and (2) of Section 65B is enough to make admissible and prove electronic records. This conclusion flows out, even from the language of Sub-section (4). Sub-section (4) allows the proof of the conditions set out in Sub-section (2) by means of a certificate issued by the person described in Sub-section 4 and certifying contents in the manner set out in the sub-section. The sub-section makes admissible an electronic record when certified that the contents of a computer print out are generated by a computer satisfying the conditions of Sub-section 1, the certificate being signed by the person described therein. Thus, Sub-section (4) provides for an alternative method to prove electronic record and not the only method to prove electronic record. 277. The sub-section makes admissible an electronic record when certified that the contents of a computer print out are generated by a computer satisfying the conditions of Sub-section 1, the certificate being signed by the person described therein. Thus, Sub-section (4) provides for an alternative method to prove electronic record and not the only method to prove electronic record. 277. Whether Section 65B cast s a positive mandate on the person relying upon electronic record, to adduce affirmative evidence that at all material time the computer was working properly when information was being fed in it, and whether on facts, the computer generated call details have to be ignored due to alleged malfunctioning? 278. The last few years of the 20th Century saw rapid strides in the field of information and technology. The expanding horizon of science and technology threw new challenges for the ones who had to deal with proof of facts in disputes where advanced techniques in technology was used and brought in aid. Storage, processing and transmission of date on magnetic and silicon medium became cost effective and easy to handle. Conventional means of records and data processing became out dated. Law had to respond and gallop with the technical advancement. He who sleeps when the sun rises, misses the beauty of the dawn. Law did not sleep when the dawn of Information and Technology broke on the horizon. World over, statutes were enacted. Rules relating to admissibility of electronic evidence and it's proof were incorporated. 279. Did the law relating to admissibility and proof of electronic record have a positive mandate to be satisfied by the one who relies upon electronic record? The positive mandate being to establish positively that there was no malfunctioning of the equipment processing the operations at the relevant time, to which the record relates. 280. In England this positive mandate was statutorily enacted and the prosecution had to show by positive and affirmative evidence that it was safe to rely upon the document produced by a computer from out of its memory. The Police & Criminal Evidence Act, 1984 was enacted. 280. In England this positive mandate was statutorily enacted and the prosecution had to show by positive and affirmative evidence that it was safe to rely upon the document produced by a computer from out of its memory. The Police & Criminal Evidence Act, 1984 was enacted. But, while interpreting Section 69 of the said Act, the courts took a practical approach and gave an interpretation where computer generated record could be proved by a statement, made by an employee unfamiliar with the precise details of the operation of the computer, that the print out was retrieved from the computer memory and the computer was not malfunctioning. Section 69 reads as under: "(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown – (a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer. (b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of it contents; and [c] that any relevant conditions specified in rules of Court under Sub-section (2) below are satisfied. (2) Provision may be made by the rules of Court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required." 281. In R.V. Shepherd, 1993 A. C. 380. Lord Griffiths, dealing with the defense argument held:- "The principal argument for the defendant starts with the proposition that the store detective was not a person occupying a responsible position in relation to the operation of the computer within the meaning of paragraph 8(d) of Schedule 3 to the Act and, therefore, was not qualified to sign a certificate for the purpose of providing proof of the matters contained in Section 69(a). This I accept. Although the store detective understood the operation of the computer and cold speak of its reliability she had no responsibility for its operation. This I accept. Although the store detective understood the operation of the computer and cold speak of its reliability she had no responsibility for its operation. I cannot however, accept the next step in the defendant's argument which is that oral evidence is only acceptable if given by a person who is qualified to sign the certificate. The defendant does not go so far as to submit that evidence must be given by a computer expert but insists that it must be someone who has responsibility for the operation of the computer; either the operator or someone with managerial responsibility for the operation of the computer. Documents produced by computers are an increasingly common feature of all business and more and more people are becoming familiar with their uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly." 282. Statement by the witness that when the computer was working they had no trouble with operation of central computer was held sufficient in discharge of the affirmative burden. 283. In R v. Ana Marcolino,(CA "Crim.Div"), following the dictum of Lord Griffiths in R.V. Shepherd the evidence of the witness proving electronic record was analysed step wise which analyses is illuminative as to how the issue was dealt with. Lord Justice Henry posed the question: Does the evidence given by Mr. Slade satisfy the test in Shepherd, 1993 AC 380? The answer came as follows: 1). he had been employed by Vodaphone for over four years as the risk supervisor and his duties included identifying fraudulently used accounts and liaising with the police. This account had been used fraudulently. Lord Justice Henry posed the question: Does the evidence given by Mr. Slade satisfy the test in Shepherd, 1993 AC 380? The answer came as follows: 1). he had been employed by Vodaphone for over four years as the risk supervisor and his duties included identifying fraudulently used accounts and liaising with the police. This account had been used fraudulently. 2) He had retrieved from the computer the records relating to this mobile telephone and produced from those records the itemized account for the relevant period. To do so, he had accessed the billing records for that period. 3) he was not familiar with the precise details of the operations of the computer because he had not designed it. However, he had general knowledge of the system. He had no reason to believe that the computer records were inaccurate because of improper use. 4) Vodaphone is continuously audited by the DTI. No complaint has been made as to the accuracy of their records. Vodaphone has their own quality assurance department which instantly monitored the system. 5) he asserted that the computer was working properly at the relevant time. In support of that assertion he relied upon the following facts : a) There was no record of any malfunction. Had their been, it would have been drawn to his attention by the billing department. In any event, the computer had ancillary equipment which would have taken over, had there been any failure or malfunction of the primary systems. b) If there had been any malfunction, the billing records would be classed as 'in suspension'; those records were not. c) The billing record itself is made without human intervention, although it is triggered by the use of a mobile phone. The system runs a series of internal checks as to accuracy and function before the call is made and the subsequent detail recorded. If there is any malfunction the records are put into suspension. The records of these calls had not been suspended. d) The records in relation to malfunction were kept by persons who could not reasonably be expected to have any personal recollection of them. These persons had a duty to report any malfunction. None had been reported. Miss Calder submitted that the evidence of external audit is irrelevant. The records of these calls had not been suspended. d) The records in relation to malfunction were kept by persons who could not reasonably be expected to have any personal recollection of them. These persons had a duty to report any malfunction. None had been reported. Miss Calder submitted that the evidence of external audit is irrelevant. In our judgment, the jury was entitled to take into account that these records were produced by a large company providing a substantial public service the subject of licensing and external audit by the DTI. Such evidence goes directly as to whether there has been improper use. It is the view of this Court that the totality of the evidence as set out above satisfies the test propounded by Lord Griffiths. Mr. Slade was sufficiently familiar with the workings of the computer. The records are designed to reveal malfunction. None was revealed. 284. The conviction was found to be safe and the appeal was dismissed. 285. In DPP v. Me. Kewon, (1997) 1 Criminal Appeal 155, Lord Hoffman, applying Section 69 of the Police and Criminal Evidence Act, 1984 in relation to the inaccuracy in the time display in the computer print out, held:- "I shall for the moment assume that the inaccuracy in the time display meant that "the computer not operating properly". The question is therefore whether that was "such as to affect the production of the document or the accuracy of its contents". If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to the way in which the time was expressed. 23.00 GMT is the same time as 00.00 BST. But the remaining 13 minutes cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document. In my view, however, the paragraph was not intended to be read in such a literal fashion. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule. The first thing to notice is that Section 69 is concerned solely with the roper operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for Chemical analysis of gas, and it stores and processes that information. If the information received by the computer was inaccurate (for example, if the operator keyed in the wrong name) then the information retrieved from the computer in the form of a statement will likewise be inaccurate. Computer experts have colourful phrases in which to express this axiom. But Section 69 is not in the least concerned with the accuracy of the information supplied to the computer. If the gas analyser of the Intoximeter is not functioning properly and gives an inaccurate signal which the computer faithfully reproduces, Section 69 does not affect the admissibility of the statement. The same is true if the operator keys in the wrong name. Neither of these errors is concerned with the proper operation or functioning of the computer. The purpose of Section 69, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the justices or jury. All that Section 69 requires as a condition of the admissibility of a computer-generated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. The language of Section 69(1) recognises that a computer may be malfunctioning in a way which is not relevant to the purpose of the exclusionary rule. It cannot therefore be argued that any malfunction is sufficient to cast doubt upon the capacity of the computer to process information correctly. The legislature clearly refused to accept so extreme a proposition. What, then, was contemplated as the distinction between a relevant and an irrelevant malfunction? It seems to me that there is only one possible answer to that question. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter. It follows that the words "not such as to affect the production of the document or the accuracy of its contents" must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence." 286. The Law Commission in England reviewed the law relating to computer generated evidence. It summed up the major problem posed for the rules of evidence by computer output in the words of Steyn, J.:- "Often the only record of the transaction, which nobody can be expected to remember, will be in the memory of a computer. ... if computer output cannot relatively readily be used as evidence in criminal case, much crime (and notably offences involving dishonesty) would in practice be immune from prosecution. On the other hand, computers are not infallible. They do occasionally malfunction. Software systems often have "bugs". --- Realistically, therefore, computers must be regarded as imperfect devices." 287. It noted that given the extensive use of computers, computer evidence could not be unnecessarily imp leaded, while giving due weight to the fallibility of computers. The Law Commission noted that Section 69 had enacted a law which was unsatisfactory for 5 reasons:- First, Section 69 fails to address the major causes of inaccuracy in computer evidence. As Professor Tapper has pointed out, "most computer error is either immediately detectable or results from error in the data entered into the machine". The Law Commission noted that Section 69 had enacted a law which was unsatisfactory for 5 reasons:- First, Section 69 fails to address the major causes of inaccuracy in computer evidence. As Professor Tapper has pointed out, "most computer error is either immediately detectable or results from error in the data entered into the machine". Secondly, advances in computer technology make it increasingly difficult to comply with Section 69: it is becoming "increasingly impractical to examine (and therefore certify) all the intricacies of computer operation". These problems existed even before networking became common. A third problem lies in the difficulties confronting the recipient of a computer-produced document who wishes to tender it in evidence: the recipient may be in no position to satisfy the court about the operation of the computer. It may well be that the recipient's opponent is better placed to do this. Fourthly, it is illogical that Section 69 applies wherethe document is tendered in evidence, but not where it is used by an expert in arriving at his or her conclusions, nor where a witness uses it to refresh his or her memory. If it is safe to admit evidence which relies on and incorporates the output from the computer, it is hard to see why that output should not itself be admissible; and conversely, if it is not safe to admit the output, it can hardly be safe for a witness to rely on it." 288. The Commission recommended deletion of Section 69, the opinion was: "Where a party sought to rely on the presumption, it would not need to lead evidence that the computer was working properly on the occasion in question unless there was evidence that it may not have been - in which case the party would have to prove that it was (beyond reasonable doubt in the case of the prosecution, and on the balance of probabilities in the case of the defense), The principal has been applied o such devices as speedometers and traffic lights, and in the consultation paper we saw no reason why it should not apply to computers. 289. 289. We may note that Section 69 of the Police and Criminal Evidence Act, 1984 has since been repealed and the common law presumption: - "in the absence of evidence to the contrary the courts will presume that mechanical instruments were in order at the material time", operates with full force. 290. Experience has shown to us that development in computer networking, access, control, monitoring and systems security are increasingly making it difficult for computer errors to go undetected. Most computer errors are immediately detected or resultant error in the date is immediately recorded. In a court of law it would be impractical to examine the intricacies of computer functioning and operations. To put it in the words of the Law Commission report in England:- "Determined defense lawyers can and do cross-examine the prosecution's computer expert at great length. The complexity of modern systems makes it relatively easy to establish a reasonable doubt in a juror's mind as to whether the computer was operating properly. Bearing in mind the very technical nature of computers, the chances of this happening with greater frequency in future are fairly high. We are concerned about smoke-screens being raised by cross-examination which focuses in general terms on the fallibility of computers rather than the reliability of the particular evidence. The absence of a presumption that the computer is working means that it is relatively easy to raise a smokescreen." 291. The law as it stands enacted in India does not have a provision analogous to Section 69 of the Police and Criminal Evidence Act, 1984 in England. The conditions which require to be satisfied are the ones set out in Sub-section (2) of Section 65B. The conditions, as noted above are:- a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used; b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer; c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy; d) Information reproduced is such is fed into the computer in the ordinary course of activity." 292. In effect, substantially, Section 65B of the Indian Evidence Act and Section 69 of the Act in England have same effect. 293. Thus, in the context of Section 65B(2)(c) the condition that throughout the material part of the period to which the computer operations related, the computer was operating properly has to be complied with. However, this compliance would be on the principle laid down in Shepherd (supra) and as applied in Ana Marcolino (supra) and Me. Kewon (supra). Thus in our opinion, is the only practical way to deal with computer generated evidence unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of system or operating failure or interpolation. Such challenge has to be established by the challenger. Generic and theoretical doubts by way of smoke screen have to be ignored.” 52. Now, we will advert to the medical evidence. PW-1 Dr. K.S. Dogra has deposed that the police moved an application on 21.4.2008 Ex.PW-1/A for conducting post-mortem examination of deceased Munish Kumar. A team was constituted consisting of him, Dr. P.K. Sharma and Dr. D.P. Swami, Associate Professor, R.P.M.C., Tanda. In their opinion, boy died of asphyxia due to suffocation caused with the compression (blockage) of mouth and nose (smothering) by application of cloth piece. According to him, the probable time between injuries and death was 3 to 8 minutes and the probable time between death and post-mortem was 24-96 hours. The post-mortem report is Ex.PW-1/D. On 29.6.2008, S.H.O., Police Station, Nadaun moved an application Ex.PW-1/E for clarification in post-mortem report Ex.PW-1/D and since Dr. D.P. Swami, who was member of the team and was professor of forensic medicines, R.P. Medical College, Tanda, the matter was referred by him for his expert opinion vide endorsement Ex.PW-1/F. In his cross-examination, he has admitted that the factum of post-mortem examination being conducted under the supervision of Dr. D.P. Swami was not mentioned in the post mortem report Ex.PW-1/D. However, volunteered that it was mentioned by him on the application of police by referring the application to Dr. D.P. Swami, who gave his opinion. We have gone through the PMR Ex.PW-1/D minutely. The duration between injury and death is stated to be 3-8 minutes. The time lapsed between death and post-mortem initially was 1-2 days and then it was changed to 1-4 days. D.P. Swami, who gave his opinion. We have gone through the PMR Ex.PW-1/D minutely. The duration between injury and death is stated to be 3-8 minutes. The time lapsed between death and post-mortem initially was 1-2 days and then it was changed to 1-4 days. The figures 1-2 days have been changed to 1-4 days by over-writing in figure ‘2’ by writing it as ‘4’ and figures 24-48 hours have been changed to 24-96 hours. It is stated to have been initialed by Dr. P.K. Sharma. If the original figures of 1- 2 hours and 24-48 are taken into consideration by ignoring the over-writing in the PMR Ex.PW-1/D, the period lapsed between death and post-mortem, which was conducted on 21.4.2008 would be 19.4.2008 and not 17.4.2008. The earlier report was true and there was no occasion to change figures 1-2 days to 1-4 days and 24- 48 hours to 24-96 hours. The police confronted with the situation tried to wriggle out from the same by moving application Ex.PW-1/E on 29.6.2008 before the Medical Officer, Regional Hospital, Hamirpur. Firstly, the police has tried to enlarge the period from 24-48 hours to 24-96 hours and thereafter 100 hours by moving application again before the Medical Officer, Regional Hospital, Hamirpur. 53. PW-1 Dr. K. S. Dogra in Ex.PW-1/F stated that since Dr. D.P. Swami, who is Professor of Forensic Science at R.P.M.C. Tanda, was also member of team of post-mortem on that day, he be requested to give his opinion. His opinion be sought from him, he being team leader. PW-1 Dr. K.S. Dogra has admitted in his cross-examination that the factum of post-mortem examination being conducted under the supervision of Dr. D.P. Swami was not mentioned in the post-mortem report Ex.PW- 1/D. PW-31 Dr. D. P. Swami has deposed that on 2.7.2008, Doctor Kultar Dogra, who was one of the members of the post-mortem team, referred the case regarding clarification of time since death in reference to the application Ex.PW-1/B. He gave the opinion after examination of PMR and other relevant record of the police file. His opinion is Ex.PW-31/A. According to him, the time between death and post-mortem examination could be safely extended between 1 to 5 days. His opinion is Ex.PW-31/A. According to him, the time between death and post-mortem examination could be safely extended between 1 to 5 days. Strangely enough that PW-31 in his cross-examination has deposed that probable time in this case keeping in view the condition of the body and place where it was kept could be extended even upto two weeks from the opinion earlier given on 21.4.2008. The prosecution has over jealously tried to create record even by manipulating the post-mortem report by changing the figures to prove that the death was caused on 17.4.2008. The conduct of PW-1 Dr. K. S.Dogra and PW-31 Dr. D.P. Swami is not of thorough professionals. In post -mortem report Ex.PW-1/D words “the deceased was kept in ice packs after the recovery of dead by the police” are in altogether in different ink. Thus, the PMR, in these circumstances, cannot be relied upon. 54. There is another angle which is required to be considered by us : whether the accused could have killed the boy or not within short duration. According to PW-2 Duni Chand, distance between school of Munish Kumar and their house was 2 -2½ KMs. According to PW-6 Bahadur Singh, distance between Dera of accused and Bus Stand Jasal Tank is 2 KMs. PW-5 Madhu Bala has also disclosed that the distance between Dera upto Local Bus Stand, Jasal Tank was 1½ - 2 KMs. According to the application Ex.PW-1/E submitted by the Station House Officer before the Medical Officer seeking fresh opinion whether the time of death of deceased Munish Kumar was 100 hours before the time of post mortem at 8.00 A.M. The accused, as per PW-10 Ravinder Pal, were seen at about 8.15 A.M. They could not travel the distance of more than 2 KMs within 15 minutes after killing boy and taking him in a gunny bag to reach the bus stand. The prosecution in order to show that accused were in a great hurry have examined PW-12 Kuldip Chand. He has deposed that he was present with Hoshiar Singh near the house of Pawan in village Jasal. Accused Biru and Ranjit came through the village Path. Hoshiar Singh shook his hand with the wrist of accused Biru because his hand was smeared with earth and both of them were in a hurry. He asked Biru as to where they were going. Accused Biru and Ranjit came through the village Path. Hoshiar Singh shook his hand with the wrist of accused Biru because his hand was smeared with earth and both of them were in a hurry. He asked Biru as to where they were going. Biru told that he was not feeling well and was going to the hospital and then he went to Nadaun. Hoshiar Singh has not been examined by the prosecution. Deceased has left the school at 7.15 A.M. and must have taken time to reach the Dera. Accused could not kill and conceal the body in such a short period and boarded the bus. 55. The case is entirely based on circumstantial evidence and the prosecution has failed to prove the entire chain. 56. Their Lordships of Hon’ble Supreme Court in Dandu Jaggaraju vs. State of Andhra Pradesh, (2011) 14 Supreme Court Cases 674 have held that in a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution. Their Lordships have held as under:- 9. It has to be noticed that the marriage between P.W. 1 and the deceased had been performed in the year 1996 and that it is the case of the prosecution that an earlier attempt to hurt the deceased had been made and a report to that effect had been lodged by the complainant. There is, however, no documentary evidence to that effect. We, therefore, find it somewhat strange that the family of the deceased had accepted the marriage for about six years more particularly, as even a child had been born to the couple. In this view of the matter, the motive is clearly suspect. In a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution and it is this circumstance which often forms the fulcrum of the prosecution story. 57. Their Lordships of Hon’ble Supreme Court in Pudha Raja and another vs. State, represented by Inspector of Police, (2012) 11 Supreme Court Cases 196 have held that the motive assumes great significance and importance in case of circumstantial evidence and absence of motive puts court on its guard and causes it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not taken the place of proof. Their Lordships have held as under:- 16. Furthermore, in such a case, motive assumes great significance and importance, as the absence of motive puts the court on its guard and causes it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof. The evidence regarding existence of motive which operates in the minds of assailants is very often, not known to any other person. The motive may not even be known, under certain circumstances, to the victim of the crime. It may be known only to the accused and to none other. It is therefore, only the perpetrator of the crime alone, who knows as to what circumstances prompted him to adopt a certain course of action, leading to the commission of the crime. 58. Their Lordships of Hon’ble Supreme Court in Rishi Pal vs. State of Uttarakhand, (2013) 12 Supreme Court Cases 551 have held that while motive does not have a major role to play in cases based on eye witness account of incident, it assumes importance in cases that rest entirely on circumstantial evidence. Their Lordships have further held that essence of requirements that must be satisfied in cases resting on circumstantial evidence is that not only should circumstances sought to be proved against the accused be established beyond reasonable doubt, but also that such circumstances form so complete a chain, as leaves no option for court, except to hold that accused is guilty of offences with which he is charged. Their Lordships have held as under:- “14. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him. That argument has not impressed us. All that was suggested by learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs.15,000/-. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram v. State of Maharashtra (2007) 7 SCC 502 , Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152 ]. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside. 19. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-Abdul Mabood. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered.” 59. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove its case beyond reasonable doubt that the accused have committed murder of deceased Munish Kumar. The circumstances noticed by us hereinabove creates reasonable doubt in the version of prosecution. 60. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 7.8.2009 rendered in Sessions Trial No.19 of 2008 is set aside. Accused are acquitted of the charge framed against them by giving them benefit of doubt. Since the accused are in jail, they be released forthwith, if not required in any other case. 61. 60. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 7.8.2009 rendered in Sessions Trial No.19 of 2008 is set aside. Accused are acquitted of the charge framed against them by giving them benefit of doubt. Since the accused are in jail, they be released forthwith, if not required in any other case. 61. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.