Judgment Tarlok Singh Chauhan, J. This appeal is directed against the judgment dated 29.11.2012 passed by learned Additional Sessions Judge, Fast Track Court, Una, District Una, H.P. in Sessions Case No. 5-VII-2011 and Session Trial No. 5/2011 whereby the appellant-accused was charged with and tried for the offences under Section 302 and 201 of the Indian Penal Code has been convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 25,000/-under Section 302 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. 2. The prosecution case in nutshell is that on 16.10.2010 Mohinder Kumar, owner of ‘Vishram Guest House’, Amb submitted an application Ex.PW-1/A qua missing of entry register of the Guest House which was received in Police Station, Amb. ASI Satpal went to the spot for investigation and after search of register noticed room No.101 to be locked and the person who had stayed in that room had left without telling any person. The lock of the room was broken in the presence of the witnesses and dead body of one lady in the toilet of this room was found. ASI Satpal accordingly informed the SHO, Police Station, Amb and Inspector Gurdeep Singh Dhillon along with police officials visited the spot. The statement of Mohinder Kumar was got recorded under Section 154 Cr.P.C. to the effect that he was running a Guest House at Bus Stand, Amb and had kept a register to enter the name of every visitor in the Guest House. On 16.10.2010, he had gone to Kailashwar temple to pay obeisance when at around 11.30 a.m. while he was coming from this temple he received a telephone call from his servant Ravinder regarding the entry register having gone missing. He accordingly came back in the Guest House at 12.00 noon and informed the police at about 2.30 p.m. The police officials found the register in the back side of the Guest House in the bushes and the persons who had stayed in room No. 101 were not found and the room was locked. The police broke open the lock of room No. 101 and found the dead body of one lady in the toilet. The dupatta had been tied around the neck of the lady. The police broke open the lock of room No. 101 and found the dead body of one lady in the toilet. The dupatta had been tied around the neck of the lady. The complainant in his statement had alleged that one Sikh with one lady had stayed in this room on 13.10.2010 and this very person had also stayed on 23.9.2009 in this room with the same lady who had disclosed that lady to be his wife. It was further claimed that this Sikh had disclosed that on 12.10.2010 he had come to stay in the Guest House but due to non-availability of the room, had stayed in Amb Rest House. He further claimed that he could identify the person. As per the entry in the register, this person had disclosed his name as Mohinder Singh son of Gurbachan Singh, Amritsar Meet Singh Wala, Gali No.5, House No. 755 and had given his telephone number as 9780550123 and 9780850087. On 23.9.2009 he had got written his name as Major Singh son of Bachan Singh, Village Patti, District Amritsar and at that time had given his telephone number to be 09780550123. The complainant had raised suspicion on this person, who had committed murder of the lady by strangulation and thereafter had fled away. 3. On the basis of the statement of the complainant, case under Sections 302 and 201 of IPC was registered against the accused and the investigation was conducted by Inspector/SHO Gurdeep Singh. During investigation, the Investigating Officer prepared the site plan of the place of occurrence and one lady purse of black colour was taken into possession. ASI Satpal had produced an iron rod and lock which were taken into possession. The register of ‘Vishram Guest House’ was taken into possession and photographs of the dead body were got clicked from Sunil Kumar. The inquest reports were got prepared and the postmortem was got conducted. After postmortem sealed packets containing clothes, viscera, vaginal swab etc. were sent to the laboratory. As per the opinion of the doctor, the cause of death was asphyxia due to strangulation. The inquest reports were got prepared and the postmortem was got conducted. After postmortem sealed packets containing clothes, viscera, vaginal swab etc. were sent to the laboratory. As per the opinion of the doctor, the cause of death was asphyxia due to strangulation. I.D. of mobile No. 9780850057 which had been got recharged by the accused at Amb was also obtained and the same was found to be that of Jagdeep Singh son of Gajja Singh, resident of Plot No. 75, Khalsa Colony, Amritsar and Jagdeep Singh was contacted who disclosed that Jagir Kaur on 12.10.2010 had gone to Ludhiana for attending meeting and had not come back. The dead body was got identified through Jagdeep Singh at R.H., Una, who identified the dead body to be of Jagir Kaur his mother and accordingly the dead body was handed over to him in the presence of witnesses. 4. On checking of the entries in the register of ‘Vishram Guest House’, it was revealed that the person who was coming to Amb with Jagir Kaur deceased had stayed three times in ‘Vishram Guest House’ and had got entered his name as Major Singh son of Bachan Singh, resident of Village Patti and on further inquiry it was revealed that Major Singh was serving in the Army. On 4.11.2010 accused was produced by Army officials in the Court of learned Judicial Magistrate 1st Class, Court No.1, Amb and was sent on seven days judicial remand. The accused had refused for identification parade and on his further remand, the accused had been identified by all the witnesses. During investigation, it is claimed that the accused disclosed that he was having illicit relations with Jagir Kaur and used to come to Amb with her, but now Jagir Kaur had been demanding Rs. 10 lacs from him. On 12.10.2010 he came to Amritsar from Delhi and on the way called Jagir Kaur through mobile No. 998830214 belonging to his wife Lavpreet Kaur which was with him. They both met at Amritsar and call details of both the mobiles were procured by the police. Jagir Kaur and accused came to Amb by bus and stayed in PWD Rest House, Amb during night and on the next day, i.e. 13.10.2010 they stayed in room No. 101 of ‘Vishram Guest House’. They both met at Amritsar and call details of both the mobiles were procured by the police. Jagir Kaur and accused came to Amb by bus and stayed in PWD Rest House, Amb during night and on the next day, i.e. 13.10.2010 they stayed in room No. 101 of ‘Vishram Guest House’. The accused had withdrawn money from ATM of State Bank of India, Amb and had also got recharged mobile No.9780850057 of Jagir Kaur. During night of 15/16.10.2010 the accused committed murder of Jagir Kaur by strangulating her neck with dupatta and put dead body on the seat of toilet. He had locked the room from outside and thrown the entry register of the Guest House in the bushes with a view to conceal his whereabouts. He had thrown the mobile of Jagir Kaur and keys of the room while travelling in the train to Meerut. The specimen signatures of the accused were taken before learned Chief Judicial Magistrate, Una and thereafter sent for comparison to RFSL, Dharamshala. As per the report, it was found that specimen of the signatures appearing in the register were of the person whose specimen signatures had been obtained. The Investigating Officer also collected Video footage of SBI, Amb regarding withdrawal of Rs. 1000/-. The Investigating Officer during investigation, recorded the statements of the witnesses under Section 161 Cr.P.C. and on completion of the investigation and on receipt of the reports from RFSL, Dharamshala and FSL, Junga, the challan was presented in the trial Court on 29.11.2012 against the accused for offences under Sections 302, 201 IPC. 5. The prosecution submitted list of 34 witnesses in order to prove its case against the accused, out of which, 31 witnesses were examined and others were given up. 6. The accused was examined under Section 313 Cr.P.C., who stated that he was innocent and the witnesses had deposed falsely against him. 7. The learned Additional Sessions Judge convicted the accused as noticed hereinabove. 8. Mr. Anoop Chitkara, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case against the accused. While Mr. Shrawan Dogra, learned Advocate General assisted by Mr. Ashok Chaudhary, learned Additional Advocate General for the respondent-State have supported the judgment dated 29.11.2012. 9. We have heard learned counsel for the parties and have perused the record carefully. 10. While Mr. Shrawan Dogra, learned Advocate General assisted by Mr. Ashok Chaudhary, learned Additional Advocate General for the respondent-State have supported the judgment dated 29.11.2012. 9. We have heard learned counsel for the parties and have perused the record carefully. 10. PW-1 Mohinder Kumar has deposed that he is owner of ‘Vishram Guest House’, Amb which has four suites. He had employed one Ravinder Kumar as his servant in the said Guest House. He was maintaining the register to enter the guests who stayed in the Guest House. On 16.10.2010 he had gone to Kailashwar temple to pay obeisance and at about 10.30/11.00 a.m. he had received a telephonic message on his cell phone that register being maintained in the Guest House was missing. He reached Guest House immediately where Ravinder told him that a customer had arrived for stay and when he tried to locate the register to make entry, he found that the register was missing. He alongwith Ravinder tried to search the said register, however, the register could not be located. After inquiry, he found room No. 1 of the Guest House to be locked, while the guests in room No. 103 were present in their room. The persons who had been staying in room No. 101 had not handed over the keys of the said room at the counter nor those persons informed Ravinder or any other person about their departure. He went to the Police Station, Amb and handed over application Ex.PW-1/A to the SHO regarding the missing of the register. The police officials arrived in the hotel and made search to locate the register and after one and half hour the police found the register in the bushes behind the Guest House. The police verified the entries made in the register. He had told the police that the guests who had stayed in room No. 101 had put lock in the said room and had left the Guest House without intimation. The police thereafter had broken the lock with an iron rod in the presence of ASI Satpal and other police officials and Ravinder and Mohinder Pal were also present. On opening of the room No. 101, the dead body of one lady was found on the seat of the toilet. The neck of the lady was having a chunni with knot on the back side. Her tongue was protruding out. On opening of the room No. 101, the dead body of one lady was found on the seat of the toilet. The neck of the lady was having a chunni with knot on the back side. Her tongue was protruding out. This lady had stayed with the Sikh gentleman and they used to disclose that they are husband and wife. This couple had stayed in the Guest House in the year 2009, January 2010, April 2010 and lastly on 13.10.2010. The person who stayed in the Guest House on 13.10.2010 had mentioned his name as Mohinder Singh son of Gurbachan Singh R/o Mitha Singh Wala, Gali No.5, House No. 755, telephone No. 9780850087 at serial No. 340 of the register. The said person had told that he had visited the Guest House on 12.10.2010, however, at that time the gate of the Guest House was found locked. He further told that on that date he had stayed in PWD Rest House. He identified the accused present in the court, who was the same person who had stayed in the Guest House alongwith deceased lady on 13.10.2010 to 15.10.2010. ASI informed the SHO, who reached the spot and recorded his statement Ex.PW-1/B. The police also recovered a lady purse from the room which was taken into possession vide memo Ex.PW- 1/C. The broken lock and an iron rod had been taken into possession vide memo Ex.PW-1/D and wrapped in cloth parcel. The parcels had been sealed with seal and seal after use had been handed over to witness Mohinder Pal. The register was taken into possession vide memo Ex. PW-1/E. He had asked the accused for making payment and accused had assured to make payment after withdrawing money from ATM. He had informed him about the location of ATMs of Punjab National Bank and State Bank of India and on the next day the accused had made part payment. On 14 and 15.10.2010 the accused had made inquiry where he could recharge his cell phone and he accordingly disclosed the location of the shop in which the mobile was recharged. Earlier on 23.9.2009 the accused had stayed in the Guest House and had made entry at serial No. 277 with his own hand Ex.PA and the signature of the accused on the register is Ex.PB. Earlier on 23.9.2009 the accused had stayed in the Guest House and had made entry at serial No. 277 with his own hand Ex.PA and the signature of the accused on the register is Ex.PB. At that time, the deceased lady was also accompanying the accused and the accused has entered his name as Major Singh son of Bachan Singh, R/o Village Patti alongwith mobile No. 09780550102. On 15.1.2010 the accused again visited Guest House and made entry in the register at serial No. 295 with his own hand and again mentioned his name as Major Singh son of Bachan Singh alongwith telephone No. 09914102994 and entry to this effect is Ex.PC and his signatures are Ex.PD. The accused on 3.4.2010 again stayed in the Guest House with the deceased and had made entry at serial No. 307 and had mentioned the same address, however, with different mobile No. 09780850057 and the entry is Ex.PE and signatures of the accused are Ex.PF. Lastly on 13.10.2010 the accused had mentioned his name as Mohinder Singh and entry to this effect is Ex.PG. The register Ex.PH maintained in the Guest House was verified by Tourism department. In the month of November after about one month from the date of occurrence, he identified the accused in the Police Station. The Investigating Officer had recorded his statement and had also prepared the site plan. The photographs of the spot had also been taken. He identified the purse Ex.P-1 which had been recovered from the room alongwith the lock and iron rod Ex.P-2 and Ex. P-3. He identified the clothes of the deceased. 11. During cross-examination, he has stated that he had disclosed to the police that accused on 12.10.2010 had come to stay in his Guest House, the gate of which was found locked by the accused. He had also disclosed that due to non-availability of the room, the accused had stayed in Amb Rest House. He admitted that on 12.10.2010 the accused had not met him as he had locked the Guest House. He had been confronted with his statement Ex.PW-1/B wherein the fact of disclosing of location of ATMs and that the accused had stayed at Rest House Amb due to non-availability of the room in ‘Vishram Guest House’, have not been recorded. He admitted that on 12.10.2010 the accused had not met him as he had locked the Guest House. He had been confronted with his statement Ex.PW-1/B wherein the fact of disclosing of location of ATMs and that the accused had stayed at Rest House Amb due to non-availability of the room in ‘Vishram Guest House’, have not been recorded. The entry at serial No. 340 Ex.PG was made by the accused in his own hand in his presence and all the entries previously had also been made by the accused in his presence. On 15.10.2010 during night hours, only accused and deceased stayed in room No. 101 and he had gone to bed on 15.10.2010 at around 11.00 p.m. and woke up on 16.10.2010 at around 4.00 a.m. He showed his ignorance about the time when room No. 101 was locked. He further denied that on 13.10.2010 the accused alongwith the deceased came to his hotel and on the request of the deceased the accused booked room No. 101 for Mohinder Singh as mentioned in entry Ex.PG and after making the entry the accused left the hotel. He further denied the suggestion from 13.10.2010 to 15.10.2010 only said Mohinder Singh and the deceased stayed in the said room. He further denied the suggestion regarding the name, parentage and address of Mohinder Singh have been disclosed by the deceased to the accused and at her instance the accused had made entry Ex.PG. He has voluntarily stated that only the accused and deceased visited and stayed in the Guest House. 12. PW-2 C. Rajeev Thakur had deposed regarding his being part of the police party headed by ASI Satpal, who on 16.10.2010 had visited the Guest House. He has stated that the police party had found the register in the bushes behind the Guest House and has further deposed regarding the lock of room No.101 being broken and the dead body of a lady being found in a sitting condition on the English toilet seat in the bathroom. He also deposed about regarding the chunni around the neck of the deceased lady having a knot on the back. 13. PW-3 Mohinder Pal had visited ‘Vishram Guest House’ on 16.10.2010 at around 2.30 p.m. and at that time the owner of the Guest House as well as Ravinder Kumar were present there. He also deposed about regarding the chunni around the neck of the deceased lady having a knot on the back. 13. PW-3 Mohinder Pal had visited ‘Vishram Guest House’ on 16.10.2010 at around 2.30 p.m. and at that time the owner of the Guest House as well as Ravinder Kumar were present there. ASI along with two constables was also present on the spot and after one hour, register was located. Room No. 101 was found locked and ASI broke open the lock with the help of the rod and thereafter all entered the room and found a lady in a sitting position on English seat in the bath room whose neck was tied with chunni with knot on the back. ‘Salwar’ was opened and lying on the knees. ASI informed SHO, who came to the spot and inspected the spot and body was taken out from the said room. The site plan was prepared and photographs had also been taken. Inquest forms were filled in by the SHO and the purse had been taken into possession vide memo Ex. PW-1/C in his presence and broken lock and iron rod were also taken into possession vide memo Ex.PW-1/D after sealing the same in cloth parcels. Register Ex.PH was taken into possession vide memo Ex.PW-1/E. During cross-examination, the witness admitted that the register Ex.PH was not sealed by the police. 14. PW-4 Ravinder Kumar an employee of Mohinder Kumar has stated that on 13.10.2010, one Sikh gentleman along with one lady came to ‘Vishram Guest House’ and made entry in the guests register in his own hand. At that time, the owner of the Guest House and one more customer were also present. The said customer stayed in room No.103 while the accused and the lady stayed in room No.101 up to 15.10.2010. He had served water to the accused and the lady on 14.10.2010 and 15.10.2010 in the evening. On 16.10.2010, he had reached the Guest House at around 7 a.m. and the owner of the Guest House thereafter went to Kailashwar temple. At about 10 a.m., a customer arrived at the Guest House, he looked for register to make an entry and found the register missing. He tried to contact the owner of the Guest House on cell phone, however, the cell could not be matured due to non-availability of signal. At about 10 a.m., a customer arrived at the Guest House, he looked for register to make an entry and found the register missing. He tried to contact the owner of the Guest House on cell phone, however, the cell could not be matured due to non-availability of signal. The owner arrived at about 11.30 a.m./ 12 noon and he along with the owner tried to locate the register, but could not locate the same. The matter was then reported to the police and the police came to the spot after about two hours at around 2.30 p.m. The register was traced by the police from the bushes behind the Guest House in his presence and in presence of Mohinder Kumar, the owner of the Guest House. The police also checked room No.101 which was found to be locked. The lock was broken with the help of an iron rod in his presence and in the presence of Mohinder Kumar, Mohinder Pal Singh. When Mohinder Kumar, Mohinder Pal Singh and Kapil Kumar were also present, one lady’s purse black in colour was found lying in the room. Police opened the bathroom of room No.101 and a lady was found in a sitting posture on an English seat and her ‘Salwar’ was open up to knee and her neck was found strangulated with ‘dupatta’ having knot on the backside of neck. Her tongue was protruding. The lady was found dead. This lady was supposed to be the wife of the accused as the accused used to tell that the lady is his wife, whenever he visited the Guest House. The accused had visited the ‘Vishram Guest House’ 2/3 times earlier along with deceased and had made entries in the register at serial numbers 227, 295 and 307 on 15.01.2010 and 03.04.2010. On 13.10.2010 the accused made entry Ex.PG in the register in his own hand in his presence and in presence of Mohinder Kumar. Lady’s purse, an iron rod and lock had been taken in possession vide memos Ex.PW1/C and Ex.PW1/D. This witness also identified ‘Chuni’, shirt and ‘Salwar’ of the deceased Ex. P-4 to P-6. The police had prepared the inquest report and he suspects that the deceased was strangulated to death by the accused with the help of ‘Chuni’ as she was staying with the accused in room No.101. P-4 to P-6. The police had prepared the inquest report and he suspects that the deceased was strangulated to death by the accused with the help of ‘Chuni’ as she was staying with the accused in room No.101. He had seen the accused in the Police Station after one month of the occurrence. 15. During cross-examination, he admitted that on 15.10.2010, he had left the Guest House at about 7.30 p.m. and cannot tell about the persons, who visited the Guest House on 15.10.2010 between 7.00 p.m. to 6.00 a.m. on 16.10.2010 and denied that the accused had been falsely implicated in this case. 16. PW-5 is lady constable Sunita Devi, who like PW-2, was one of the members of the investigating team headed by ASI Satpal and her statement is similar to that of PW-2. 17. PW-6 Vipan Kumar is working as ‘Beldar’ in P.W.D. Rest House at Amb since 1998. As per him, on 12.10.2010 he was on duty in Amb Rest House and at about 10.00 p.m., the accused along with one lady had come to the Rest House and the accused had disclosed the lady to be his wife. The accused had made entry in the register Ex.PJ at serial number 3 Ex.PW6/A. The accused left the Rest House at 10.00 a.m. on 13.10.2010 after taking tea and accused had put his signatures Ex.PW6/B. The accused had made payment of Rs. 255/-. The police visited the Rest House on 20.10.2010 and had taken in possession register vide memo Ex.PW6/C in the presence of witnesses Som Dutt and Rajinder Kumar. He identified the accused in the Police Station. In cross-examination, he admitted that whoever stays in the Rest House has to obtain the permission from the Office, volunteered that the Chowkidar is competent to allow any person in the Rest House if he visits the Rest House in odd hours. He further states that he has no knowledge if it was the same lady who stayed in the Rest House whose dead body had been recovered from the ‘Vishram Guest House’. 18. PW-7 Jagjit Singh is the son of the deceased Jagir Kaur, who as per him was serving as a nurse in ‘Guru Ram Dass’ hospital, Amritsar and had gone there on 12.10.2011 and thereafter never returned back. He had given his cell phone to her bearing No.97808 50057. 18. PW-7 Jagjit Singh is the son of the deceased Jagir Kaur, who as per him was serving as a nurse in ‘Guru Ram Dass’ hospital, Amritsar and had gone there on 12.10.2011 and thereafter never returned back. He had given his cell phone to her bearing No.97808 50057. This phone used to remain with the deceased. On 18/19.10.2010 Himachal Police met him in Police Station, Kot Preet Singh where he had gone to lodge missing report of Jagir Kaur. He had seen the photograph Mark B and came to know that his mother had been murdered in Amb town. In cross-examination, he has stated that he did not accompany the police to Amb and his statement under Section 161 Cr.P.C. was recorded by the police in this case on 11.01.2011. He further admits that he had not disclosed to the police that cell phone used to remain with his mother Jagir Kaur. 19. PW-8 Joginder Lal was running a Dhaba under the name and style of ‘Pandit Dhaba’ at Amb. As per him, the accused had purchased from his Dhaba packed dinner from 13.10.2010 to 15.10.2010 which he had taken to ‘Vishram Guest House’. The police had called him on 16.10.2010 in the Guest House and enquired the matter from him. He had identified the accused in the Police Station and stated that he was called after 5-7 days of the said date to identify the accused. He was declared hostile and during cross-examination conducted by the learned P.P. for the State, he has stated that about one month after the incident, he had been called by the police in the Police Station, Amb, whereas, his statement was recorded on 13.11.2010. During cross-examination by the learned defence counsel, he stated that many people come to his Dhaba to take food and he cannot recognize each and everybody and denied that the accused never came to his Dhaba on 13,14, 15.10.2010 for taking food. 20. PW-9 Gulshan Kumar is working as a salesman in ‘Krishna Wine Shop’ at Amb and as per him on 13.10.2010 to 15.10.2010, the accused had purchased liquor bagpiper and beer in the evening hours of each dates. The accused had disclosed that he is staying in ‘Vishram Guest House’. After one month of the occurrence, the police had called him to the Police Station where he identified the accused. The accused had disclosed that he is staying in ‘Vishram Guest House’. After one month of the occurrence, the police had called him to the Police Station where he identified the accused. During cross-examination, he has denied that the accused never visited the wine shop and further stated that prior to 13.11.2010, he had never disclosed to the police that the accused had come to his shop to take liquor and beer nor the police had come to him to enquire this fact prior to 13.11.2010. 21. PW-10 Mohammad Ashraf is running a PCO at Amb and as per him on 14.10.2010 and 15.10.2010, the accused had got his cell phone recharged at his shop, however, he could not name all the said persons nor telephone numbers which were recharged at his shop and was declared hostile. During cross-examination conducted by the State, he admitted that on 14.10.2010 accused got recharged his mobile No.9656065603 and on 15.10.2010 recharged mobile No.9780850057. The police had called him in the Police Station on 10.11.2010 and he had informed the police about recharge of the mobile phones. He denied the suggestion that he had told the police that accused had been wandering in the area of Amb town for about 2-3 days. He further denied the suggestion that the accused had told him that he had come to Amb with his wife and was serving in the Army. During cross-examination by the learned defence counsel, he has admitted that cell phone from which he had recharged phones was not taken in possession by the police during the investigation of the case. 22. PW-11 Rajinder Kumar is a witness to the memo Ex.PW6/C vide which register Ex.PJ had been taken in possession on 20.10.2010. The register was produced by Vipan Kumar, who was also working in the Rest House. 23. PW-12 constable Vipan Kumar had carried one sealed parcel containing vaginal swab of deceased and one envelope to FSL, Junga. Both these items were sealed with seal impression of Una Mortuary and on return he had handed over RC to MHC. He had also carried two registers and hand writings as well as signatures of the accused Major Singh to RFSL, Dharamshala. 24. Both these items were sealed with seal impression of Una Mortuary and on return he had handed over RC to MHC. He had also carried two registers and hand writings as well as signatures of the accused Major Singh to RFSL, Dharamshala. 24. PW-13 Sada Shiv is posted as MHC at Police Station, Amb from the year 2007 and on 17.11.2010 he had received one CD from photographer Sunil Kumar containing pictures of the accused CD had been wrapped in a paper and sealed in a cloth parcel with impression ‘T’ and CD had been taken into possession vide memo Ex.PW13/A which bore his signatures. He has also proved rapats Ex.PW13/B and Ex.PW13/C. 25. PW-14 doctor A.K. Sharma, Medical Officer, has conducted the post mortem of the deceased on 17.10.2010 and has opined that the cause of death was asphyxia due to strangulation and the probable duration between injury and death was few minutes while between death and post mortem it was 24 to 40 hours. After the report of RFSL, Dharamshala, the final opinion was given to the effect that the cause of death was asphyxia due to strangulation. In his cross-examination, he did not deny that the deceased might have consumed meals 5-6 hours prior to her death as there was semi-digested liquid present in her stomach and stated that there was a possibility that the deceased might have died on 16.10.2010 between 12 to 1.00 p.m. He further admits that ordinarily a conscious person of ordinary prudence will offer resistance while being strangulated and in that process he will try to escape and use excessive force to save himself and in this process he would irritate the assailants, who will then use more force than the optimum. In this process, there is a possibility of injuries on the assailants as well as on the deceased and such injuries can be in the form of scratches and nailing etc. He admitted that no such injuries except ligature mark was present on the dead body. He admitted that from the FSL report Ex. PW14/E, there was no semen detected from the samples taken from the vagina and the presence of blood may be due to menstruation or otherwise. On re-examination by the State, this witness stated that there was possibility that the deceased might have got chance to save herself and in that eventuality nailing, scratches etc. PW14/E, there was no semen detected from the samples taken from the vagina and the presence of blood may be due to menstruation or otherwise. On re-examination by the State, this witness stated that there was possibility that the deceased might have got chance to save herself and in that eventuality nailing, scratches etc. may not be possible since the time between the injury and death was few minutes. 26. PW-15 constable Joginder Singh on 26.10.2010 had received sealed parcel having seal of Una Mortuary and an envelope from MHC, Police Station, Amb and deposited the same at RFSL, Dharamshala. 27. PW-16 C-Ashwani Kumar had carried three parcels containing CDs to FSL, Junga on 25.11.2010 and on return handed over RC to MHC. 28. PW-17 Lal Chand, Patwari, on the request of the police had visited the spot and prepared tatima of Khasra Nos. 1713/1 and 1713/2 Ex.PW17/A. 29. PW-18 HC Puran Bhagat stated that he was posted as MHC, Police Station, Amb, since December, 2008 and remained associated in the investigation of the case. On 16.10.2010, the Investigating Officer deposited with him one broken lock and rod in a sealed condition having seal impression ‘H’ and sealed parcel stated to be containing ladies purse having three seals bearing seal impression ‘P’ and he in turn deposited the same in the Malkhana register No.19 at Sr.No.785/2010. He further stated that on 17.10.2010, ASI Satpal had deposited with him four parcels containing viscera, one envelope containing documents, clothes and articles of unknown deceased and vaginal swab of said unknown lady sealed with seal PMR/208/10 and these were entered by him in register No.19 at Sr.No. 786/10. He further stated that out of these parcels on 20.10.2010 one parcel containing viscera of the deceased was sent to RFL, Dharmshala through C-Joginder Singh vide R.C. No. 205/2010 dated 20.10.2010 for chemical examination. The parcel containing the vaginal swab and envelopes were sent to Director, FSL, Junga through C-Vipan Kumar 209 vide R.C. No. 206/10 dated 20.10.2010. On 15.11.2010 the Investigating Officer deposited with him one parcel having six seals of letter ‘M’ stated to be containing five CDs along with sample seal and he made entry in register No.19 at Sr.No.809/10. On 16.11.2010, the Investigating Officer deposited with him one parcel having three seals of letter ‘M’ stated to be containing one CD and he made entry at Sr.No.810/10. On 16.11.2010, the Investigating Officer deposited with him one parcel having three seals of letter ‘M’ stated to be containing one CD and he made entry at Sr.No.810/10. On 17.11.2010, the Investigating Officer deposited one CD sealed with seal impression ‘T’ along with one sample seal ‘T’ and he made its entry in register No.19 vide Sr.No.811/10. He further stated that above said three parcels were sent to FSL, Junga for chemical examination through C-Ashwani Kumar No. 379 vide RC No.238/10 on 25.11.2010. On 19.11.2010, two registers stated to be having signatures of accused Major Singh along with specimen signatures of the accused were sent to RFL, Dharamshala vide RC No. 232/10 through C-Vipan Kumar No. 209. He further deposed that so long the above said articles remained with him, the same were not tampered with by anybody. He further stated that he has brought the original Malkhana register No. 19 Ex.PW18/A, copies of RCs are Ex.PW18/B to Ex.PW18/D. As per him, he had received FSL report Ex.PW18/E and the same was handed over to investigator. In cross-examination, he deposed that except the articles mentioned above, no other article was deposited with him by the Investigating Officer ASI Satpal. 30. PW-19 Raj Kumar stated that he was posted at Amb Branch of Punjab National Bank. On 16.11.2010, a CD containing C.C.T.V. footage of ATM installed outside PNB, Amb for the period 15.10.2010 from 12.16 p.m. to 12.25 p.m. was prepared by Kashmir Singh, Sr.Manager, PNB and same was put in cloth parcel sealed with ‘M’ seal and after taking seal sample on a piece of cloth, seal was handed over to ASI Babu Ram and was taken into possession vide memo Ex.PW19/A. He further stated that he and Babu Ram had signed as witnesses and Kashmir Singh, Sr. Manager of PNB had signed as being producer. This witness identified his signatures and that of Kashmir Singh on memo Ex.PW19/A. 31. PW-20 Sunil Kumar was running a photographer shop at Amb for the last ten years under the name and style of M/s Sunil Photo Studio, Amb. On 15.11.2010, he joined the investigation of the case and on the very said date made video film of accused Major Singh and thereafter prepared its CD and the same was packed in a cloth parcel sealed with seal impression ‘T’. On 15.11.2010, he joined the investigation of the case and on the very said date made video film of accused Major Singh and thereafter prepared its CD and the same was packed in a cloth parcel sealed with seal impression ‘T’. He further deposed that after taking the seal sample, seal was handed over to PW Susheel Kumar. The parcel was taken into possession by the police vide memo Ex.PW13/A which bore his signatures. In his cross-examination, he has stated that ‘Vishram Guest House’ having three storeyed is situated on main G.T. Road and opposite to Bus-stand, Amb. He has admitted that in the said hotel there is no residential accommodation and it is only meant for tourists and further admitted that the fact of murder had come to his knowledge and the residents of whole Amb town early in the morning. He further deposed that he took photographs in the evening time. 32. PW-21 Kashmir Singh stated that in the year 2010, he was posted as a Branch Manager, Punjab National Bank, Amb. On 12.11.2010, the police had moved an application Ex.PW21/A for providing ATM footage installed in the branch of the bank for the period 15.10.2010 for 11.00 a.m. onwards up to 12.00 p.m., which he provided by preparing CD. Rest of the statement is similar to that of PW-19. In cross-examination, he has deposed that they issue ATM cards generally to the account holder, if demanded. He denied that he never prepared any CD nor produced the same to the police. 33. PW-22 Rakesh Gautam stated that in the year 2010, he was posted as Accountant in State Bank of India, Amb. On 15.11.2010, on application Ex.PW22/A, he prepared video recording of ATM installed outside of SBI branch, Amb for the period from 13.10.2010 to 15.10.2010. He stated that he had prepared five CDs of said ATM footage video recording. He further deposed that the CDs were put in a cloth parcel and then were sealed with seal impression ‘M’ and separate seal impression of the seal was taken on cloth piece and this seal was given to PW Yash Pal which bore his signatures. As per record ATM out dated 13.10.2010, a sum of Rs. 1000/- were withdrawn from A/c No. 20047453470 from ATM, Amb and the name of the account holder was Major Singh, 5 Sikh Li C/o 56 APO. As per record ATM out dated 13.10.2010, a sum of Rs. 1000/- were withdrawn from A/c No. 20047453470 from ATM, Amb and the name of the account holder was Major Singh, 5 Sikh Li C/o 56 APO. He had issued certificate Ex.PW22/C to the police which was in his hand and forwarding letter Ex.PW22/D was given to the police which bore signatures of Bank Manager, Atul Garg. On the basis of request Ex.PW22/E, the details of ATM withdrawal were provided to the police vide which withdrawal of Rs. 1000/- dated 13.10.2010 was made from the above said account number and the entry to this effect at page No. 119 is Ex.PW22/F. In his cross-examination, he denied that he never prepared any CD nor produced the same to the police. 34. PW-23 Yash Pal Singh stated that on 15.11.2010, he was working as Security Guard in State Bank of India’s branch at Amb. He stated that on that day, PW Rakesh Gautam had produced five CDs of ATM footage for the period from 13.10.2010 to 15.10.2010 which were put in a cloth parcel, sealed with seal impression ‘M’ and the same were given to the police in his presence and memo Ex.PW22/B was prepared. This witness was declared hostile by the learned P.P. and in his cross-examination, he denied that the seal after use was handed over to him. 35. PW-24 constable Susheel Kumar stated that from September 2010, he was posted at Police Station, Amb. On 15.11.2010, Rakesh Gautam handed over five CDs containing ATM footage from 13.10.2010 to 15.10.2010 in his presence which were put in a cloth parcel having seal impression ‘M’ and seal after use was handed over to Yash Pal. On 15.11.2010, Rakesh Gautam handed over print out of ATM Ex.PW22/G which was taken in possession vide memo Exx.PW22/B which bore his signatures. On 17.11.2010, photographer Sunil Kumar produced one CD before the Investigating Officer which after sealing with seal impression ‘T’ was put in a parcel and taken into possession vide memo Ex.PW22/B and the seal was handed over to him. He also stated that CD was taken into possession vide memo Ex.PW13/A. In his cross-examination, he has admitted that he has not brought the seal today in the Court. He denied that the CDs were not produced in his presence nor were sealed in his presence. 36. He also stated that CD was taken into possession vide memo Ex.PW13/A. In his cross-examination, he has admitted that he has not brought the seal today in the Court. He denied that the CDs were not produced in his presence nor were sealed in his presence. 36. PW-25 L-Nk Sukhwinder Singh stated that he has brought the summoned record pertaining to accused Major Singh present in the Court, who was serving in their Battalion as Havildar. As per record, i.e. movement order, Major Singh was admitted in Military Hospital, Meerut and was discharged from hospital on 28.09.2010. He has stated that he has seen the attested copy of the order photocopy of which is Ex.PW25/A which is correct as per record brought by him today in the Court. The relevant entry is Ex.PW25/B at Sr.No.14. As per movement order Ex.PW25/C, accused Major Singh was admitted in Military Hospital, Delhi on 18.10.2010 at 11.00 p.m. and the entry in this regard is Ex.PW25/D which is correct as per original record brought by him today. He further stated that when accused joined in the Unit on 18.10.2010, he produced movement order copy of which is Ex.PW25/E as per which he was discharged from the hospital on 18.10.2010. However, on verification, it was found by military authorities that he had left the hospital at Delhi on 28.09.2010 and as such the date mentioned as 18.10.2010 was found incorrect. The accused was found absent from Unit and Hospital from 28.09.2010 to 19.10.2010. He has stated that information letter about admission of accused in the hospital is Ex.PW25/F. The letter Ex.PW25/G was written to Base Hospital, Delhi Cantt. by Sh. Shakti Rajan Captain to take details of patient’s (Major Singh) admission and discharge. The letter, photocopy of which is Ex.PW25/H was received in the Unit from Sainik Hospital, Pin No. 900468 C/o 56 A.P.O. seeking detailed information of accused of his admission. This witness produced original pass book issued by the State Bank of India, Meerut Cantt. bearing A/c No.20047453470 issued to the accused by the Bank and this pass book showed that on 13.10.2010 a sum of Rs. 1000/- was withdrawn through the ATM installed at State Bank of India Branch, Amb, District Una by the accused. The photocopy of warrant of arrest of accused is Ex.PW25/I which is correct as per original. 37. bearing A/c No.20047453470 issued to the accused by the Bank and this pass book showed that on 13.10.2010 a sum of Rs. 1000/- was withdrawn through the ATM installed at State Bank of India Branch, Amb, District Una by the accused. The photocopy of warrant of arrest of accused is Ex.PW25/I which is correct as per original. 37. In cross-examination by the State, this witness admitted that none of the documents he had brought today was prepared in his presence nor he prepared them and further admitted that in this record there is no entry about admission and discharge of the accused from the hospital. He has stated that documents Ex.PW25/A and Ex.PW25/E bear signatures of doctor C.N. Trivedi and both these documents have been attested by the army authorities. He was associated in the inquiry when the inquiry about the above said movement orders of Major Singh was conducted. The document Ex.PW25/E also bears round stamp of Military hospital Delhi Cantt. He admitted that it was found in the inquiry that due to inadvertence the date about discharge from the hospital was recorded as 18.10.2010 instead of actual date 28.09.2010 and further admitted that as per movement order Ex.PW25/C, accused Major Singh was admitted in Military Hospital, Delhi on 18.10.2010 and was discharged on 21.10.2010. He also admitted that as per record, accused Major Singh joined the Unit on 22.10.2010 and after that he had joined his duty and was handed over to the police on 04.11.2010 in this case. 38. PW-26 Dharam Pal stated that in the year 2010, he was posted as Nodal Officer in the Office of Superintendent of Police at Una. On 28.01.2011 he handed over call details in respect of Phone No.9780850057 and 998830214 to the Investigating Officer of this case containing 15 leaves printed on both sides and this document is Ex.PW26/A. 39. PW-27 SI Ashok Dogra stated that he was posted Additional S.H.O., Police Station, Amb, from 02.07.2009. On 16.10.2010, he received a statement under Section 154 Cr.P.C. of Mohinder Kumar sent through C. Rajib Kumar by SHO, Gurdeep Singh Ex.PW1/A on the basis of which he recorded Ex.PW27/A which bears his signatures. 40. PW-28 Rajesh Tomar, Chief Judicial Magistrate, Una stated that he is posted as Chief Judicial Magistrate, Una since 25th October, 2010. On 16.10.2010, he received a statement under Section 154 Cr.P.C. of Mohinder Kumar sent through C. Rajib Kumar by SHO, Gurdeep Singh Ex.PW1/A on the basis of which he recorded Ex.PW27/A which bears his signatures. 40. PW-28 Rajesh Tomar, Chief Judicial Magistrate, Una stated that he is posted as Chief Judicial Magistrate, Una since 25th October, 2010. He stated that on 12.11.2010 an application Ex.PW28/A was moved before him by Shri G.S. Dhillon, SHO, Police Station, Amb for obtaining specimen signatures and handwriting of accused Major Singh. He recorded statement of Major Singh Ex.PW28/B, who had stated that he was giving his specimen signatures and handwriting out of his free will and consent and accused Major Singh was identified before him by SHO, G.S. Dhillon, Police Station, Amb. The specimen signatures of Major Singh were obtained on as many as 24 pages, out of which 20 pages were supplied to SHO, G.S. Dhillon against proper receipt and identification. The samples of specimen signatures and handwritings are Ex.PW28/D-1 to Ex.PW28/D-4. The specimen signatures and handwriting supplied to G.S. Dhillon are Ex.PW28/D-5 to Ex.PW28/D-24. On 08.11.2010, an application Ex.PW28/F for conducting test identification parade was moved by G.S. Dhillon, SHO. Police Station, Amb wherein it was prayed that Major Singh was required to be identified by Shri Mohinder Kumar owner of ‘Vishram Guest House’, Amb, Vipan Kumar labour PWD and Mohammad Ashraf owner Naaj STD PCO, Amb. On this, he recorded statements of Vipan Kumar Ex.PW28/G, Mohinder Kumar Ex.PW28/H and Mohammad Ex.PW28/J. After satisfying himself, he ordered to conduct test identification parade and directions were issued to Superintendent, Sub Jail, Una as accused Major Singh was in judicial custody at that time. He along with Superintendent Subhash Chand, Steno-typist, Gurbax Singh, peon-cum-process server Pawan Kumar went to Sub Jail, Una at about 4.00 p.m. There were as many twelve persons along with accused standing in queue who had muffled themselves with the blankets and he asked Major Singh whether he was ready and willing to participate in the test identification parade. Major Singh objected and denied for the same and he recorded his statement to this effect Ex.PW28/K. The letter written to Superintendent, Sub Jail, Una for making arrangements is Ex.PW28/L and thereafter he passed order Ex.PW28/M. 41. In his cross-examination, PW-28 admitted that accused Major Singh when produced before him was involved in case FIR under Section 302 IPC. Major Singh objected and denied for the same and he recorded his statement to this effect Ex.PW28/K. The letter written to Superintendent, Sub Jail, Una for making arrangements is Ex.PW28/L and thereafter he passed order Ex.PW28/M. 41. In his cross-examination, PW-28 admitted that accused Major Singh when produced before him was involved in case FIR under Section 302 IPC. He could not say that at the time of production before him the accused was on police remand, volunteered that the accused was lodged in Sub Jail, Una. The accused was arrested on 04.11.2010. It was admitted that prior to production of accused Major Singh before him, he might have been produced before JMIC, Amb. He had apprised the accused that he was not bound to give specimen signatures and handwriting and stated that he recorded the statement of accused Ex.PW28/B and admitted that he had not recorded in this statement that it will be used against him, however, the accused had stated that he was giving his specimen signatures and handwriting at his free will. 42. PW-29 ASI Sat Pal Thakur stated that from year 2010 he was posted as I.O. at P.S., Amb. On 16.10.2010, one Shri Mohinder Kumar had moved application Ex.PW1/A in the Police Station, Amb. On receiving this application, he recorded rapat No.35 Ex.PW13/C and left to enquire the matter. He reached in Sood Guest House, Amb along with C-Rajib Kumar 115 on government motorcycle and enquired matter from Mohinder Kumar owner of the Guest House. He tried to search the guest register which was located from the bushes outside the hotel and he enquired from Mohinder Kumar as to how this register was lying in the bushes, who told that he had kept the register on the counter and in his absence, register was thrown in the bushes by someone. Mohinder also could not trace key of room No. 101 where guests were staying and this room was found locked from outside. He knocked at the door but in vain, then called witnesses Mohinder Pal Singh and then Mohinder Kumar with the help of iron rod broke the lock of room No.101 where one double bed was lying on which a lady purse was found. He knocked at the door but in vain, then called witnesses Mohinder Pal Singh and then Mohinder Kumar with the help of iron rod broke the lock of room No.101 where one double bed was lying on which a lady purse was found. Thereafter, he opened attached toilet-cum-bath room and found that on English toilet seat one middle aged lady was found in sitting posture whose ‘Salwar’ was lying below the knees and with a dupatta her neck was tied. Seeing so, he informed SHO Gurdeep Singh Dhillon telephonically and SHO alongwith other police officials came on the spot. Mohinder Kumar got recorded his statement Ex.PW1/B. This witness produced an iron rod Ex.P3 and broken lock Ex.P2 to SHO, who took the same into possession vide memo Ex.PW1/D which was signed by him and witness Mohinder. On 17.10.2010, he along with L.C. Sunita Kumari got conducted post mortem of deceased whose name later on was known to be Jagir Kaur, widow of Mukhtiar Singh. The Medical Officer after post mortem had handed over four sealed parcels sealed with mortuary seal which he handed over to MHC, Police Station, Amb on the same day. On 19.10.2010, one boy named Jagdeep Singh, son of Sh. Mukhtiar Singh came and met him at R.H., Una, who in the mortuary identified dead body of Jagir Kaur to be of his mother and to this effect memo Ex.PW29/A was prepared which bears his signatures and that of the witnesses. Thereafter, after completing the police formalities, the dead body was handed over to said Jagdeep Singh son of deceased for cremation and to this effect memo Ex.PW29/B was prepared. 43. In his cross-examination, he has stated that Mohinder Pal had reached at Police Station with application at about 2.25 p.m. on 16.10.2010 and he reached at the spot within five minutes. The distance between spot and police station is about 300 metres. ‘Vishram Guest House’ is situated on main highway and there is no habitation near the said guest house. He denied that there is bus stand opposite the said guest house. The bus stand, Amb from the guest house is at a distance of 30 metres. He denied that there is Court complex near bus stand. He admitted that there are shops on both sides of the main road. He called the SHO on his mobile No.98163 35575. He denied that there is bus stand opposite the said guest house. The bus stand, Amb from the guest house is at a distance of 30 metres. He denied that there is Court complex near bus stand. He admitted that there are shops on both sides of the main road. He called the SHO on his mobile No.98163 35575. He denied that Mohinder Singh did not come with application to Police Station and that he had collected his application by way of manipulation. He also denied that he did not hand over iron rod and lock to SHO. SHO had reached on the spot at about 3.10 p.m. 44. PW-30 Gurdeep Singh Dhillon, stated that from 12.05.2010, he is posted as SHO/Inspector, Police Station, Amb. On 16.10.2010 on the basis of rapat No.26 Ex.PW13/B, he was on police patrolling in his area. At about 3.00 p.m., he received telephonic call on his mobile from ASI Sat Pal Thakur informing that in ‘Vishram Guest House’, Amb, in room No. 101, one dead body of a lady was lying and he along with other police officials rushed to the spot. In room No. 101, on the English toilet seat, a dead body of a lady was lying in sitting posture where ASI Sat Pal and some other persons were present. He recorded statement of Mohinder Kumar Ex.PW1/B which was sent to Police Station, Amb through C-Rajib Kumar on the basis of which FIR Ex.PW27/A was registered and got clicked the photographs of dead body on the spot from private photographer Sunil Kumar in his personal supervision which are Ex.PW30/A to Ex.PW30/C. He prepared inquest report Ex.PW14/B to Ex.PW14/D and took into possession lady purse of black colour Ex.P1 vide memo Ex.PW1/C which bears his signatures and that of the witnesses. The parcel produced was the same which was recovered from the spot. The said parcel was sealed with seal impression ‘P’. ASI Sat Pal had produced one rod Ex.P3 and lock Ex.P2 which were taken into possession by me vide memo Ex.PW1/D and also took into possession guest house register Ex.PH vide memo Ex.PW1/E. As per him, when he saw the dead body, it was found in sitting posture on English seat, dupatta was found tied around her neck and her ‘Salwar’ was open and was lying below her knees and her neck was tilted downward. Thereafter, the dead body was taken to R.H., Una by a private vehicle through ASI Sat Pal and L.C. Sunita Kumari and he handed over to them application Ex.PW14/B for post mortem. 45. During investigation, owner of ‘Vishram Guest House’, Amb, Mohinder Kumar told him that accused present in the Court today used to stay in his hotel 3-4 times before the incident. Thereafter, as per register No.307 Ex.PE, he got traced ID of telephone No. 9780850057. The accused on 13.10.2010 made an entry at Sr.No.340 Ex.PG of the same hotel register mentioning his name as Gurbhajan Singh, resident of Meet Singhwala, Gali No.5, Amritsar with telephone No. 9780850057 which telephone number during investigation was found to be wrong whereas actual mobile number of accused Major Singh came to be 9780850057. As per this witness, it was revealed during investigation that accused had also stayed in this hotel on 23.09.2009 vide entry No. 277 Ex.PA disclosing his address as Major Singh son of Shri Bachan Singh, Village Patti, District Amritsar with mobile No. 09780550123 and had also put his signatures Ex.PB. 46. On 15.01.2010 as per entry No. 295 Ex.PC, accused Major Singh had disclosed his father’s name as Bachan Singh, VPO Patti, House No. 275/5, tehsil Patti, District Tarantaran phone No. 09914102994 putting his signatures Ex.PD. Similarly, on 03.04.2010 as per entry No. 307 Ex.PE of the same hotel register, accused Major Singh had written his father’s name as Bachan Singh, V &PO Amritsar, House No.235/5, Khalsa Nagar, Amritsar, telephone No.09780850057 and his signatures Ex.PF. As per mobile No. 09780850057, he inquired the matter from telephone authorities vide call details Ex.PW26/A and came to know that this number was issued in the name of Jagjit Singh, son of Baaj Singh, House no. 560, Abadi Khalsa Colony, Khalsa Nagar, near Ravi P.C.O. Amritsar. He visited Amritsar on 18.10.2010 and met Jagjit Singh and asked him about missing of any of their family members and on this he disclosed that his mother Smt. Jagir Kaur had not returned to her house after 12.10.2010 telling him having gone to attend some meeting. He asked Jagjit Singh to show photograph of his mother and he showed him an album and on seeing it, he told Jagjit Singh that dead body of his mother was lying in Una mortuary. He requested Jagjit Singh to accompany him to R.H., Una to identify dead body. He asked Jagjit Singh to show photograph of his mother and he showed him an album and on seeing it, he told Jagjit Singh that dead body of his mother was lying in Una mortuary. He requested Jagjit Singh to accompany him to R.H., Una to identify dead body. On asking about Major Singh, Jagjit Singh told him that Major Singh son of Bachan Singh, resident of Patti is brother of his aunt (taai). Thereafter, he along with Jagjit Singh visited village Patti where the family of accused Major Singh had told him that Major Singh had gone after availing leave to join his duty in the Army at Meerut and disclosed complete address of Major Singh. 47. On 22.10.2010, he applied for issuance of arrest warrant of Major Singh in the Court of learned Judicial Magistrate, Court No.2, Amb. On 25.10.2010, he visited Meerut Unit 15 Sikh LI C/o 56 A.P.O. The Adjudicant refused to hand over custody of accused Major Singh with an assurance to produce him in the Court at Amb on 04.11.2010. He had requested the army authorities to produce the accused in the Court in muffled face as he intended to get test identification parade of the accused. He handed over court warrant to army authorities and the accused was produced in Court No.2, Amb, on 04.11.2010. He moved application Ex.PW30/D seeking judicial remand of the accused with further request to give directions to Jail Superintendent, Una to keep the accused in muffled face in the jail. Thereafter, on 08.11.2010, he moved application Ex.PW28/F before the learned Chief Judicial Magistrate, Una to conduct identification parade from witnesses Mohinder Kumar, Vipan Kumar and Mohammad Ashraf. 48. On 12.11.2010, he moved application before the learned Chief Judicial Magistrate, Una, Ex.PW28/A with the request to obtain and attest specimen signatures and handwriting of accused which was allowed by the Court. He identified the accused before the Court and thereafter obtained police remand of accused from learned JMIC-I, Amb for six days on 10.10.2010 and the accused was interrogated. During investigation, he collected video footage of ATM of State Bank of India, Amb, on application Ex.PW21/A about withdrawal of Rs. 1,000/- from the account No.20047453470 of Major Singh. He identified the accused before the Court and thereafter obtained police remand of accused from learned JMIC-I, Amb for six days on 10.10.2010 and the accused was interrogated. During investigation, he collected video footage of ATM of State Bank of India, Amb, on application Ex.PW21/A about withdrawal of Rs. 1,000/- from the account No.20047453470 of Major Singh. On inquiry, this account number was found to be that of accused Major Singh and the bank issued certificate Ex.PW22/C. The video footage was taken into possession by him vide memo Ex.PW22/B. During investigation, Sunil Kumar had prepared video film for the purpose of comparison of features of the accused with the video footage of ATM from where accused had withdrawn amount. One CD containing videography of accused was given to him which he took into possession vide memo Ex.PW13/A and said CD is Ex.P8. 49. This witness deposed that specimen signatures of accused as well as viscera of the deceased were sent to RFSL, Dharamshala whereas CDs were sent to FSL, Junga for comparison and reports. Reports of the CD from FSL, Junga is Ex.PW18/E and that of RFSL, Dharamshala of handwriting and signatures expert is Ex.PW30/E. The report of viscera is Ex.PW30/F and report of human blood and vaginal swab of deceased is Ex.PW14/E. During investigation on 16.10.2010 when he firstly visited ‘Vishram Guest House’, Amb, he prepared site plan of the spot Ex.PW30/G. He had collected record of attendance of accused from his Battalion Ex.PW25/A to Ex.PW25/H. 50. On 20.10.2010, he had obtained register Ex.PJ of PWD rest house vide memo Ex.PW6/C in which in entry No.3 dated 12/13.10.2010, the accused had mentioned his name as Joginder Singh, resident of Amritsar Punjab with family and put his signatures Ex.PW6/B against this entry Ex.PW6/A. On 12.11.2010, he moved application to Punjab National Bank, Amb, Ex.PW21/A and collected one CD Ex.P8 which was taken into possession vide memo Ex.PW13/A. He recorded the statements of the witnesses under Section 161 Cr.P.C. Ex.PW30/H to Ex.PW30/I. As per him, the case property is the same which was recovered during investigation. 51. In cross-examination, he stated that he correctly recorded statement mark D of Vipan Kumar, Mark D1 of PW Ravinder Kumar and Mark D2 of PW Gulshan Kumar without any addition or alteration on his part. 51. In cross-examination, he stated that he correctly recorded statement mark D of Vipan Kumar, Mark D1 of PW Ravinder Kumar and Mark D2 of PW Gulshan Kumar without any addition or alteration on his part. He reached at ‘Vishram Guest House’, Amb at about 3.10 p.m. The guest house is situated on Una Mubarakpur road, Amb, surrounded by many shops and residences and had personally checked the register of guest house. He admitted that the said register was not sealed when it was taken into possession, self stated that on that day, he had only checked entry dated 13.10.2010. He admitted that Mohinder Kumar had told him that the accused had stayed in PWD Rest House, Amb, on 12.10.2010 and he further admitted that on 16.10.2010 the register which was produced by Mohinder Kumar was not deposited by him with the MHC, self stated that it was not necessary. He did not visit PWD Rest House, Amb, on 16.10.2010 and visited PWD Rest House, Amb for the first time on 20.10.2010. He did not seal register of PWD Rest House, Amb, nor it was deposited with the MHC. The police had tried to pick up finger prints from the spot but were not traceable. He admitted that except entry dated 13.10.2010 in ‘Vishram Guest House’ register, name and father’s name of the accused was found correct, self stated that different addresses were given at different times/dates. He admitted that he did not record statement of mobile company about non-existence of mobile numbers which were written on the register on different dates. He had recorded statement of Ravinder Kumar under Section 161 Cr.P.C. in which he had disclosed that he had left guest house on 15.10.2010 at 7.30 p.m. and on next day i.e. 16.10.2010 he returned to guest house at 8.15 a.m. He admitted that when he visited at Chowki Meet Singhwala, Amritsar, he did not get entered DDR, self stated that he visited that police Chowki and took head constable with him. When he visited house of accused in presence of his wife, he did not take photograph of accused. He denied that he had obtained photographs of the accused from his wife on that day. He did not record statement of wife of accused qua the fact that he was on leave and had left for duty on 18.10.2010. When he visited house of accused in presence of his wife, he did not take photograph of accused. He denied that he had obtained photographs of the accused from his wife on that day. He did not record statement of wife of accused qua the fact that he was on leave and had left for duty on 18.10.2010. He admitted that registers Ex.PJ and PH were sent to RFSL after arrest of accused. He denied that entries in the register were manipulated by exercising pressure on the accused just to create evidence against him and that is why the registers were not sealed by him while taking into possession. He did not know why the accused had denied his test identification parade and what was the reason. He admitted that that sons of deceased, Jagjit Singh and Jagdeep Singh did not raise any suspicion against the accused. He had not recorded any statement of Mohinder Kumar under Section 161 Cr.P.C. to the effect as to whether he was present in the ‘Vishram Guest House’ on that day or not. During investigation, no recovery of any key was effected from the accused because the accused had told to have thrown the key after he travelled from Ambala onwards. He denied that he gave wrong explanation in his volunteered explanation and it is nowhere mentioned in the report prepared by him under Section 173 Cr.P.C. to this effect. He denied that there was no role of the accused in the murder of Smt. Jagir Kaur and he also denied that the accused never resided with the deceased in ‘Vishram Guest House’ as well as PWD Rest House, Amb, on the above said dates. He denied that the accused never withdrew the amount of Rs. 1,000/- from the ATM, SBI, Amb. He denied that on 13.10.2010 Gurbhajan Singh as stated by him in his examination-in-chief resided with the deceased and committed her murder and accused had been falsely roped in the present case because identity of Gurbhajan Singh could not be established. He denied that false evidence had been created by him against the accused. He also denied that the photographs of the accused were shown to the witnesses and due to this reason the accused refused to join identification parade. 52. He denied that false evidence had been created by him against the accused. He also denied that the photographs of the accused were shown to the witnesses and due to this reason the accused refused to join identification parade. 52. PW-31 Visheshwar Sharma, Assistant Director, Documents and Photography, State Forensic Science Laboratory, Junga, District Shimla, had received one sealed parcel on 20.11.2010 at RFSL, Dharamshala through C-Vipan Kumar for examination of documents. The parcel was sealed with impressions seal ‘T’ which were intact and tallied with the sample seal impression. In the laboratory, the original documents i.e. two visitors registers Ex. PH and Ex. PJ containing questioned items Q-1 to Q-3 were examined by applying scientific techniques and questioned items were compared with the specimen items S-1 to S-20, Ex.PW28/D-14 to Ex.PW28/D-24 and admitted documents A-1 to A-6 Ex.PA, Ex.PB, Ex.PC, Ex.PD, Ex.PE and Ex.PF of register Ex.PH. After examination, the report was prepared and sent vide Ex.PW30/E and it was concluded that the blue enclosed signatures and handwritings stamped and marked as S-1 to S-20, A-1 to A-6 and the red enclosed writings and signatures similarly stamped and marked as Q-1 to Q-3 have been written by one and the same person. This witness was cross-examined at length but nothing significant in favour of the accused has emerged from his statement. 53. There is no eye witness in the present case and, therefore, the entire case of the prosecution is based upon circumstantial evidence. It is settled by now that in order to prove the case on the basis of the circumstantial evidence, the chain must be complete and all the circumstances must point out exclusively towards the guilt of the accused. This Court in State of H.P. versus Jagjit Singh Parihar and others 2014 (1) Him. L.R.(DB) 439, in which one of us (Justice Tarlok Singh Chauhan, J.) was a member, the law on the subject was summoned up in the following manner:- “10. From the facts of the case as unfolded during investigation and material so collected during investigation, it is a case which is based upon the circumstantial evidence. It is settled law that the conviction can be based solely on circumstantial evidence, the prosecution case must stand on its own leg and cannot derive any strength from the weakness of the defence put up by the accused. It is settled law that the conviction can be based solely on circumstantial evidence, the prosecution case must stand on its own leg and cannot derive any strength from the weakness of the defence put up by the accused. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency. In Majenderan Langeswaran vs. State (NCT of Delhi) and another (2013) 7 SCC 192 , the Hon’ble Supreme Court has held as under:- “16. Now, we have to consider whether the judgment of conviction passed by the trial Court and affirmed by the High Court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the court. 17. In Hanumant Govind Nagrundkar v. State of H.P. AIR 1952 SC 343 , this Court observed as under: (AIR pp.345-46, para 10) “10……It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused/” 18. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused/” 18. In Padala Veera Reddy v. State of A.P. 1989 Supp (2)SCC 706, this Court opined as under: (SCC pp. 710-11, para 10) “10. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence See Gambhir v. State of Maharashtra (1982) 2 SCC 351 . 19. In C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193 , this Court while considering a case of conviction based on the circumstantial evidence, held as under: (See pp.206-07, para 21) “21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.” 20. In Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172 , this Court again considered the case of conviction based on circumstantial evidence and held as under: (SCC p.181, para 26) “26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603 .)” 21. In Sattatiya vs. State of Maharashtra, (2008) 3 SCC 210 , this Court held as under: (SCC pp. 214-15, para 10) “10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.” This Court further observed in the aforesaid decision that: (Sattatiya v. State of Maharashtra, (2008) 3 SCC 210 SCC p.217, para 17) “17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court—Bharat v. State of M.P., (2003) 3 SCC 106 . In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime.” 22. In State of Goa vs. Pandurang Mohite, (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593 , this Court elaborately dealt with the subject and held as under: (SCC pp. 602-603, paras 23-24) “23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.” 24. In Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37 , while dealing with the case based on circumstantial evidence, this Court observed as under: (SCC pp.41-42, paras 12-13) “12. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime. 13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.” 25. Last but not least, in the case of Brajendrasingh vs. State of M.P., (2012) 4 SCC 289 , this Court while reiterating the above principles further added that: (SCC pp.299-300, para 28) “28. Last but not least, in the case of Brajendrasingh vs. State of M.P., (2012) 4 SCC 289 , this Court while reiterating the above principles further added that: (SCC pp.299-300, para 28) “28. Furthermore, the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial.(Ref. Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220 ; Shivu v. High Court of Karnataka, (2007) 4 SCC 713 and Shivaji v. State of Maharashtra, (2008) 15 SCC 269 )” 26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else”. 54. The matter was considered yet again by this Court in Pankaj Kumar versus State of H.P. 2014 (2) Him. L.R. (DB) 1306 in which one of us (Justice Rajiv Sharma, J.) was a member and this Court held as under:- “94. Their Lordships of Hon’ble Supreme Court in Shanmughan vs. State of Kerala, (2012) 2 Supreme Court Cases 788 have held that when a case is sought to be proved by prosecution on the basis of circumstantial evidence, burden on prosecution is that it must prove each circumstance in such a way as to complete the chain and at the same time it should be consistent with guilt of accused. Their Lordships have held as under:- “7. We take up for consideration the last submission made by the learned counsel for the appellant. Their Lordships have held as under:- “7. We take up for consideration the last submission made by the learned counsel for the appellant. We are inclined to agree that when a case is sought to be proved by the prosecution on the basis of circumstantial evidence, the burden on the prosecution is that it must prove each circumstance in such a way as to complete the chain and at the same time it should be consistent with the guilt of the accused. Any reasonable doubt in proving the circumstances must be resolved in favour of the accused. The accused must be given the benefit of any fact or circumstance which is consisted with his innocence, which is to be presumed, unless the contrary is proved by chain of circumstances.” 95. Their Lordships of Hon’ble Supreme Court in Bruesh Mavi vs. State (NCT of Delhi), (2012) 7 Supreme Court Cases 45 have held that in order to sustain conviction, the prosecution is required to prove beyond reasonable doubt with clear inference that it was accused and accused only who committed the crime. Their Lordships have held as under:- 26. The brief conspectus of facts set out above demonstrates that there is no direct evidence to connect the accused appellant with the firing incident involving the deceased. The only eye-witness examined by the prosecution, namely, PW 1 has categorically deposed that the accused-appellant Brijesh was not present at the place of the crime on the date of occurrence and, in fact, he had seen the accused-appellant for the first time in court. The second person accompanying the deceased accused Satish to the STD booth along with the firearm therefore remained unidentified. The prosecution, in the absence of any direct evidence, has sought to build up its case on the basis of circumstantial evidence. 27. The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of this court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is accused and nobody else who had committed the crime. The above principle is deducible from the five propositions laid down by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra [ (1984) 4 SCC 116 (para 153)] which principles have been consistenly followed in Tanviben Pankajkumar Divetia vs. State of Gujarat [ (1997) 7 SCC 156 ], Vikram Singh vs. State of Punjab [ (2010) 3 SCC 56 ], Aftab Ahmad Anasari vs. State of Uttaranchal [ (2010) 2 SCC 583 ], Sanatan Naskar and anr. vs. State of West Bengal [ (2010) 8 SCC 249 ] and Mohd. Arif alias ASshfaq vs. State (NCT of Delhi) [ (2011) 13 SCC 621 ]. 96. Their Lordships of Hon’ble Supreme Court in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 Supreme Court Cases 205 have held that while dealing with a case of circumstantial evidence, court must take utmost precaution whilst finding an accused guilty solely on the basis of circumstances proved before it. The prosecution must establish each instance of incriminating circumstances by way of reliable and clinching evidence. Circumstances so proved must form a complete chain of events so that no conclusion other than one of guilt of accused can be reached. Their Lordships have held as under:- “28. The instant case is a case of blind murder and is based entirely on circumstantial evidence, as there is no eye-witness to the said incident. 29. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , it was held by this court that, the onus is on the prosecution to prove, that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused”. Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.” 97. Their Lordships of Hon’ble Supreme Court in Vadlakonda Lenin vs. State of Andhra Pradesh, (2012) 12 Supreme Court Cases 260 have held that in order to base conviction solely on circumstantial evidence, circumstances on which prosecution rely must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to inference which is inconsistent with any other hypothesis except guilt of accused. Their Lordships have held as under:- “12. The culpability of the accused-appellant, in the absence of any direct evidence, has to be judged on the basis of the circumstances enumerated above. Their Lordships have held as under:- “12. The culpability of the accused-appellant, in the absence of any direct evidence, has to be judged on the basis of the circumstances enumerated above. The principles of law governing proof of a criminal charge by circumstantial evidence would hardly require any reiteration save and except that the circumstances on which the prosecution relies must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to an inference which is inconsistent with any other hypothesis except the guilt of the accused. It is only in such an event that the conviction of the accused, on the basis of the circumstantial evidence brought by the prosecution, would be permissible in law. In this regard a reference to the “five golden principles” enunciated by this Court in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 may be recapitulated for which purpose para 153 of the judgment in the above case may be usefully extracted below: “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra : (1973) 2 SCC 793 where the following observations were made: certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 98. Their Lordships of Hon’ble Supreme Court in Madala Venkata Narismha Rao vs. State of Andhra Pradesh, (2012) 13 Supreme Court Cases 679 have held that in order to secure a conviction on circumstantial evidence, prosecution must prove its case by cogent, reliable and admissible evidence. Each relevant circumstance must be proved like any other fact and upon a composite reading thereof, it must lead to a high degree of probability that it is only the accused and none other who has committed the alleged offence. Their Lordships have held as under:- “17. The law on appreciation of circumstantial evidence is now too well settled to bear any repetition. Suffice it to say that to secure a conviction on circumstantial evidence, the prosecution must prove its case by cogent, reliable and admissible evidence. Each relevant circumstance must be proved like any other fact and upon a composite reading thereof it must lead to a high degree of probability that it is only the accused and none other who has committed the alleged offence. In this regard, reference may be made to Munna Kumar Upadhyay v. State of A.P., (2012) 6 SCC 174 (authored by one of us, Swatanter Kumar, J).” 99. Their Lordships of Hon’ble Supreme Court in Majenderan Langeswaran vs. State (NCT of Delhi) and another, (2013) 7 Supreme Court Cases 192 have held that while dealing with conviction based on circumstantial evidence, circumstances from which conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis, i.e. the guilt of the accused. Onus lies on prosecution to prove that chain of event is complete and not to leave any doubt in the mind of Court. “3. On 30th November, 1996, an altercation is stated to have taken place between the accused and the deceased L. Shivaraman. As the accused had sustained some cut injuries on his hands, he reported the matter to the officials. On 1st December, 1996 when the ship was on high seas, the appellant took off from his duty as helmsman on the ground of pain in his hands due to cut injuries and another helmsman Baria was asked to do the duty as replacement. As the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault. At about 1510 hours, the accused allegedly approached IInd Officer Kalyan Singh (PW-6) with a blood- stained knife in his hand and his hands smearing in blood and is alleged to have confessed before him that he had killed L. Shivaraman. On being asked by Kalyan Singh (PW-6), the appellant handed over the bloodstained knife to him which he placed in a cloth piece without touching the same. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. On being so directed by the Captain of the ship (PW-5), Kalyan Singh (PW- 6) got the body of the deceased cleaned up for being preserved in the fish room with the help of Manjeet Singh Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18) took photographs. The blood-stained knife was kept in the safe custody of PW-5. The accused was then apprehended, tied and disarmed before being shifted to the hospital on board. Since the ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996. 16. 11. Since the ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996. 16. 11. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court. 26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else.” 55. Before we proceed any further, it may be noticed that the prosecution has not been able to establish any motive in this case. It is established law that the motive does not have a major role to play in cases based on account of eye witness incident, it assumes importance in cases that rest entirely on circumstantial evidence. Reference in this regard can conveniently be made to a recent judgment of the Hon’ble Supreme Court in Rishipal versus State of Uttarakhand (2013) 12 SCC 551 wherein it was held as under:- “15. 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. Reference in this regard can conveniently be made to a recent judgment of the Hon’ble Supreme Court in Rishipal versus State of Uttarakhand (2013) 12 SCC 551 wherein it was held as under:- “15. 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 the 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 eyewitness 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 v. State of Punjab (2012) 11 SCC 205 and Pannayar v. State of T.N. (2009) 9 SCC 152 ). (See Sukhram v. State of Maharashtra (2007) 7 SCC 502 , Sunil Clifford Daniel v. State of Punjab (2012) 11 SCC 205 and Pannayar v. State of T.N. (2009) 9 SCC 152 ). Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.” 56. The learned Additional Sessions Judge, Fast Track Court, Una has taken into consideration the following circumstances to convict the appellant:- “46. A close scrutiny of the evidence led by the prosecution reveals that the circumstances detailed below have been fully proved on record:- 1. First of all, deceased and the accused at around 10 p.m. had come to the rest house Amb and left the rest house on 13.10.2010 at 10 a.m.; 2. The accused and deceased thereafter went to Bishram Guest House, Amb and booked room No.101 by making entry in the register Ex.PH; 3. The accused during stay in Bishram Guest House purchased packed dinner from Joginder Lal PW8 from 13.10.2010 to 15.10.2010; 4. The accused purchased liquor and beer from 13.10.2010 to 15.10.2010 from wine Shop, Amb and as per PW9, the accused was staying in Bishram Guest House; 5. The accused got charged mobile Nos. 9654065603 and 9780850057 from PW10; 6. PW4 served water to the accused and deceased on 14, 15.10.2014 at about 7 p.m.; 7. Presence of accused was noticed in CCTV footage of Punjab National Bank, Amb and State Bank of India, Amb; 8. Dr. who conducted postmortem opined that death of deceased can be caused by strangulation with dupatta Ex.P4; 9. Presence of ante-mortem injuries on the dead body.” We now proceed to deal with each of these circumstances. 57. The first circumstance taken against the accused is that the accused and deceased at around 10 p.m. had come to the rest house, Amb and left the rest house on 13.10.2010 at 10.00 a.m. This circumstance in itself does not in any manner even remotely connect the appellant with the offence. 58. The second circumstance is based upon the theory “last seen together” wherein it is alleged that accused and deceased had gone to ‘Vishram Guest House’ and took room No.101 by making entry in the register Ex.PH. 58. The second circumstance is based upon the theory “last seen together” wherein it is alleged that accused and deceased had gone to ‘Vishram Guest House’ and took room No.101 by making entry in the register Ex.PH. At the outset, it may be observed that the accused has not denied his presence at Amb on 13.10.2010 because in his statement under Section 313 Cr.P.C., he stated that he had come on 13.10.2010 to Amb along with his wife and the deceased Jagir Kaur being his relative met him and his wife at Amb bazaar along with one person and requested him to arrange room for them. He had introduced both of them to the owner of ‘Vishram Guest House’ and stated that thereafter he left ‘Vishram Guest House’ and never stayed with Jagir Kaur in ‘Vishram Guest House’ or the PWD Rest House at Amb. It is in this background that the evidence of the prosecution is required to be appreciated. 59. Prosecution has tried to prove the presence of the appellant on the basis that the missing register which is stated to have been found at the backside of the guest house in the bushes which fact otherwise has been considered to be one of the circumstances whereby the accused had attempted to conceal his identity. But, here one question definitely comes in the mind that in case the appellant intended to conceal his identity, then why did he not completely do away with the register rather than throwing it away near the guest house where it could be easily traced or then he could have conveniently destroyed the relevant pages. Both PW-1 Mohinder Kumar and PW-4 Ravinder Kumar have stated that the accused along with the same lady had stayed at the guest house earlier at two instances and that both of them recognize him, then why on 13.10.2010 when the accused, who is alleged to have entered his wrong name in the register, neither of them became suspicious or objected to the same or reported the matter to the police. 60. 60. PW-4 Ravinder Kumar, who is supposed to be an employee of PW-1 Mohinder Kumar has stated that on 13.10.2010 when the accused had come to the Guest House and made an entry in the guests register in his own hand, at that time apart from the owner of the Guest House, there was one more customer, who had stayed in room No.103. Why then this customer was not examined when he alone was the best witness, who could have deposed about this incident and identified the accused? Therefore, in such circumstances, an adverse inference has to be drawn against the respondent for not examining the occupant of room No. 103. 61. Now, we proceed to deal with the third circumstance that during the stay at ‘Vishram Guest House’, the accused had purchased dinner from Joginder Lal (PW-8) from 13.10.2010 to 15.10.2010. The statement of this witness was recorded by the police for the first time on 13.11.2010 wherein he has tried to prove that the accused had taken packed dinner from him from 13.10.2010 to 15.10.2010. In case the dinner was packed, then the same must have been packed in some container, bag or packet or some aluminium foil. None of the witnesses has deposed regarding this fact. This witness has stated that a number of persons come to take food from his Dhaba, then how and under what circumstances would he specifically recollect about the accused alone having purchased packed food from him. Therefore, the statement of this witness is not trustworthy and cannot be relied upon. 62. It is the prosecution case that none of the witnesses either at the Rest House or at the ‘Vishram Guest House’ had found anything unusual about the behaviour of the alleged accused and the lady, who had informed them that they were husband and wife. If that be so, then what necessitated them to have the dinner packed on all the aforesaid dates? Further, it has come in the statement of this witness that S.P. had called him in the ‘Vishram Guest House’ on 16.10.2010 when the dead body was recovered and he had narrated this fact to the S.P. If that be so, then why his statement on 16.10.2010 itself was not recorded and why the same was recorded on 13.11.2010 is not forthcoming. 63. 63. The fourth circumstance taken against the accused to prove his presence is that he had purchased liquor and beer on 13.10.2010 to 15.10.2010 from the wine shop at Amb from PW-9 Gulshan Kumar. This witness has stated that accused had purchased liquor bagpiper and beer on each day i.e. 13.10.2010 to 15.10.2010 in the evening hours of the dates and had told him that he was staying in the ‘Vishram Guest House’. The version of this witness is falsified from the fact that in case the accused had purchased liquor and beer bottles on each date, then why these bottles were not taken in possession, why finger prints on these bottles were not taken. The story is otherwise improbable and contrary to normal behaviour as no stranger would chat with the salesman that too in front of a Wine Shop. Even, the story of accused having purchased both liquor bagpiper and at the same time beer also seems highly improbable because admittedly there was no alcohol found in the body of the deceased, then why on each and every day was the accused buying liquor bagpiper and at the same time beer also. The statement of PW-9 otherwise does not inspire confidence as in his statement he has stated that his shop is situated at a distance of 6-7 shops from the ‘Vishram Guest House’, but yet he states that he came to know about the murder of the lady in the said Guest House only through the newspaper which is unbelievable. 64. The fifth and seventh circumstances are taken together. The accused has not denied his presence at Amb. Therefore, the mere fact that he got charged mobile Nos. 9654065603 and 9780850057 or that he withdrew amount from the banks would not in any way take the case of the prosecution any further. 65. The sixth circumstance taken against the accused is that PW-4 served water to the accused and deceased on 14, 15.10.2010 at about 7.00 p.m. If that be so, then why were the glasses used for serving water not taken into possession, why the finger prints were not lifted from these glasses. After all, it was a blind murder case which could have only been solved on the basis of such traces as were left behind by the culprit. 66. After all, it was a blind murder case which could have only been solved on the basis of such traces as were left behind by the culprit. 66. The next circumstance taken against the accused is that the doctor, who had conducted post mortem, had opined that the death of the deceased was caused by strangulation with dupatta Ex.P4. This does not in any way advance the case of the prosecution because it was not denied that death of the deceased infact was caused by strangulation with the dupatta, but the question is who had strangulated her? In case the statement of doctor A.K. Sharma (PW-14) is minutely scrutinized, then as per this witness, on 17.10.2010 a dead body had been brought by the police officials at about 1.00 p.m. for conducting post mortem. He has clearly stated in his cross-examination that there was possibility that the deceased might have died on 16.10.2010 between 12.00 to 1.00 p.m. If that be so, then it has come in the statement of PW-4 that he had reached the Guest House in the morning hours at about 7.00 a.m. and as per Ex.PW1/A which is complaint lodged by PW-1 regarding the missing register, he has clearly stated that on 16.10.2010 at about 9.00 a.m., he had noticed that the room where one Sikh gentleman and his wife had been staying had locked the door from outside and left without informing anybody. Now in case the deceased died between 12.00 to 1.00 p.m. on 16.10.2010 as stated by PW-14, then this is roughly the same time when PW-1 lodged his report Ex.PW1/A regarding missing of the register. 67. The mere fact that there were ante mortem injuries on the dead body of the deceased would not in themselves speak about the culprit, who caused such injuries and has to be established by the prosecution by leading clear, cogent and convincing evidence where the guilt of the accused shall have to be proved beyond all reasonable doubt. 68. Apart from above, it would be seen that PW-7 Jagjit Singh, who is the son of the deceased despite his mother having gone missing on 12.10.2010 has not lodged a missing report or even contacted her despite the deceased having his mobile No.9780850057. 68. Apart from above, it would be seen that PW-7 Jagjit Singh, who is the son of the deceased despite his mother having gone missing on 12.10.2010 has not lodged a missing report or even contacted her despite the deceased having his mobile No.9780850057. Even on 18/19.10.2010, it was the Himachal police which had met him at Police Station Kot Preet Singh where he is alleged to have gone to lodge a missing report. This silence cannot be termed as normal. 69. Now, insofar as the electronic records placed on record is concerned, suffice it to say, that the same has not been proved in accordance with the provisions of law and, therefore, is inadmissible as not being in conformity and compliance of Sections 65-A and 65-B of the Indian Evidence Act. What is the evidentiary value of the electronic records, that has been dealt with in detail by the Division Bench of the Delhi High Court in State versus Mohd.Afzal and others, 107 (2003) Delhi Law Times 385 (DB) which in turn has been relied upon in Pankaj Kumar’s case (supra) in the following manner:- “100. According to Section 65-B (1) of the Indian Evidence Act, 1972, notwithstanding anything contained in the Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. 101. 101. As per Section 65-B (2), following conditions are required to be complied with in respect of a computer output:- (a) The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) Throughout the material part of the said period, the computer was operating properly or, if not; then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. As per Section 65-B(3), where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) By a combination of computers operating over that period; or (b) By different computers operating in succession over that period; or (c) By different combinations of computers operating in succession over that period; or (d) In any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, All the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. 102. 102. As per Section 65-B (4), In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say- (a) Identifying the electronic record containing the statement and describing the manner in which it was produced; (b) Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, And purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. 103. As per Section 65-B(5)- (a) Information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) Whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) A computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. 104. 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. 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 Subsection 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 Subsection 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 casts 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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". 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. 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 where the 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. 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. 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 smoke-screen." 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 as 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. 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.” 70. It may further be noted that there are major contradictions in the statement of PW-1 Mohinder Kumar and PW-4 Ravinder Kumar, an employee of PW-1. PW-1 in his examination-in-chief has stated that on 16.10.2010, he had gone to Kailashwar temple to pay obeisance, then at about 10.30/11.00 a.m., he received a telephonic message on his cell phone that the register of the Guest House was missing. While PW-4 states that he had tried to contact the owner i.e. PW-1 on cell phone, however, the call could not be matured due to non-availability of signal. Then how and why the owner returned to the Guest House when he had specially gone to Kailashwar temple. Above all, there is no evidence led by the prosecution that the room No.101 had been cleaned between 13.10.2010 to 16.10.2010, then why the so called glasses, bottles of whisky, beer, wrappers and residue of the packet dinner material, the utensils and crockery in which food may have been served/eaten were not taken in possession and sent for chemical examination and why finger prints from the same were not lifted. 71. Though the prosecution has tried to prove that the accused pretended to be some other person and an imaginary person, but then he was never charged under Section 419 of the IPC. 72. In view of the discussion and analysis made hereinabove, the prosecution has miserably failed to prove its case and accordingly the appeal is allowed. 71. Though the prosecution has tried to prove that the accused pretended to be some other person and an imaginary person, but then he was never charged under Section 419 of the IPC. 72. In view of the discussion and analysis made hereinabove, the prosecution has miserably failed to prove its case and accordingly the appeal is allowed. The judgment dated 29.11.2012 passed by learned Additional Sessions Judge, Fast Track Court, Una, District Una, H.P. in Sessions Case No. 5-VII-2011 and Session Trial No. 5/2011, is set aside. The accused is acquitted of the charge framed against him. Fine amount, if any, already deposited be released to the accused. The Registry is directed to prepare release warrants of the accused and send the same to the concerned Superintendent of Jail in conformity with the judgment forthwith, if not required in any other case.