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2016 DIGILAW 230 (HP)

Harbans Lal v. State of H. P.

2016-03-11

P.S.RANA, RAJIV SHARMA

body2016
JUDGMENT : Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 17.10.2015, rendered by the learned Addl. Sessions Judge (I), Kangra at Dharamshala, H.P. in Sessions Case No. 1-N/VII/2013, whereby the appellant-accused (hereinafter referred to as accused), who was charged with and tried for offences punishable under Sections 302 & 201 IPC, has been convicted and sentenced to rigorous imprisonment for life and to pay fine of Rs. 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year under Section 302 IPC. He was also convicted and sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 201 IPC and to pay fine of Rs. 1000/-. In default of payment of fine he was further sentenced to undergo rigorous imprisonment for a period of three months. 2. The case of the prosecution, in a nut shell, is that on 30.10.2012 at about 7:30 AM, Mahinder Pal, Pradhan, Gram Panchayat, Panjahra, telephonically informed the police of PS Nurpur that a person was lying unconscious in a Nallah near the liquor vend, Ganoh. The police party headed by Insp. Brij Mohan Sharma rushed to the spot alongwith other police officials and found the dead body of Shashi Pal Sharma (deceased) lying in the Nallah near liquor vend Ganoh. The dead body was brought to Civil Hospital, Nurpur for post mortem. The brother of the deceased, Ram Pal Sharma (complainant) made statement under Section 154 Cr.P.C. that Shashi Pal Sharma (deceased) was his younger brother. The complainant received a telephonic message on 30.10.2012 at about 8:30 AM that dead body of his brother was lying at Ganoh. The complainant identified the dead body of his brother at Civil Hospital, Nurpur. There were injuries on his chest, private part and both legs. On 29.10.2012 at about 4:00-4:30 PM, the deceased left the house on his scooter on receiving a telephone call on his mobile. The complainant suspected that the person who called the deceased murdered his brother. On this statement of the complainant, FIR was registered. During investigation, the post mortem of the deceased was got conducted at Civil Hospital Nurpur and after expert opinion, it was opined by the Medical Officer that the deceased died due to blunt chest trauma. The complainant suspected that the person who called the deceased murdered his brother. On this statement of the complainant, FIR was registered. During investigation, the post mortem of the deceased was got conducted at Civil Hospital Nurpur and after expert opinion, it was opined by the Medical Officer that the deceased died due to blunt chest trauma. During the investigation, it also surfaced that on 29.10.2012, when the accused was consuming liquor with Kuldeep Singh, Shyam Kumar and Milkhi Ram in his quarter, he called the deceased, Vijay Kumar, Ajeet Singh and Onkar Singh to his quarter through his mobile phone. They came to the quarter of the accused on their scooters and consumed liquor. After consuming liquor, Ajeet Singh, Onkar Singh, Vijay Kumar and Kuldeep Singh left the quarter of the accused and went to Dhaba of Jaswinder Singh at Ganoh to consume liquor. Accused also came to the spot on his motorcycle. Kuldeep Singh asked as to where deceased had gone. The accused disclosed that he has dropped him at Ganoh bus stand. On 30.10.2012, the dead body of deceased was recovered. The accused telephonically asked Ashok Kumar, Onkar Singh and Milkhi Ram to conceal the scooter of the deceased. Even wife of the deceased Arpana Devi called the deceased on 29.10.2012 between 6 to 7:00 PM but the call went unanswered. The accused was arrested. On completion of the investigation, challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 25 witnesses. The accused was also examined under Section 313 Cr.P.C. He has denied the prosecution case and pleaded innocence. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Anup Chitkara, Advocate has vehemently argued that the prosecution has failed to prove the case against the accused beyond reasonable doubt. On the other hand, Mr. M.A.Khan, Addl. AG for the State has supported the judgment of the learned trial Court dated 17.10.2015. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 Ram Pal is the brother of the deceased. According to him, on 30.10.2012 he went to his office at Rurpur to perform his duties. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 Ram Pal is the brother of the deceased. According to him, on 30.10.2012 he went to his office at Rurpur to perform his duties. At about 8:30 AM, he received telephone call from someone informing that the dead body of his brother Shashi Pal was lying at Village Ganoh in a pit of dirty water. He came to know that the dead body was being brought to CH, Nurpur. He inspected the dead body of his brother which was naked and having injuries on his ribs and private parts. The dead body was brought to the hospital at about 8:45 AM. Thereafter, the dead body was referred to RPGMC, Tanda. His statement was recorded vide Ext. PW-1/A by the police. On the basis of his statement, FIR was recorded by the police. He came to know that his brother Shashi Pal was called by the accused on 29.10.2012 at about 4:00 PM. He also received the telephone call from the wife of Shashi Pal deceased to the effect that his brother Shashi Pal has not received at home. He also inquired from her regarding telephone call from deceased and she stated that his telephone was switched off. His brother was killed by accused person and thereafter thrown into dirty pit in a naked position. The scooter of his brother was also lying in front of the house of accused. In his cross-examination, he deposed that the murder of his brother was not committed in his presence. There were about 4-5 persons who killed his brother. He did not know as to who were those 4-5 persons. 7. PW-2 Pankaj Bhardwaj deposed that on 30.10.2012 at about 6-6:30 AM, he received a call from his sister that his brother-in-law has not reached at home since 4:00 PM yesterday and his mobile was switched off and that the deceased went on the scooter. He came to know at about 7:45/8 AM that the dead body of his brother-in-law was lying in a pit of dirty water at Ganoh. He visited the spot and saw the dead body sunk upto chest and only his face was visible. The police was also present on the spot. The clothes of deceased were also thrown in Chapper in bundle. He visited the spot and saw the dead body sunk upto chest and only his face was visible. The police was also present on the spot. The clothes of deceased were also thrown in Chapper in bundle. The articles were taken into possession vide memo Ext. PW-2/A by the police. The accused also remained absconded after registration of FIR for 4-5 days. There were about 4-5 persons alongwith the accused on the date of occurrence. When his sister telephoned to accused Harbans, he switched off his phone. In his cross-examination, he admitted that it has come in the investigation that there were 4 to 5 persons but he did not know them. This fact he came to know from the I.O. At the time of occurrence he was not present. His brother-in-law Shashi Pal was taking liquor occasionally. 8. PW-3 Purshotam Singh deposed that on 31.10.2012 the police recovered a scooter bearing No. HP-38-A-4270 from the courtyard of Harbans Lal accused from village Ganoh. It was taken into possession vide memo Ext. PW-3/A. 9. PW-4 Aparna Sharma is the wife of the deceased. According to her, on 29.10.2012, her husband was at home. At about 3/3:15 PM, a telephone call was received to him from accused Harbans Lal. He called her husband and her husband stated to her that accused Harbans was calling and he would come back after 10-15 minutes. Thereafter, her husband never came up to 4-5:00 PM on the same day. Thereafter, she tried to contact her husband on telephone and the ring was going up to 6:30 PM and then it went switched off. At about 12 midnight, she tried to contact accused Harbans Lal on his phone but he did not attend her call. On 30.10.2012, she rang her brother and Jeth (Ram Pal) and informed them about the incident. Her brother was informed by some one that dead body of her husband was lying in village Ganoh. Thereafter, she contacted accused Harbasn Lal 4/5 times on phone but he did not attend. Her brother and Jeth went to the spot. The personal belongings of her husband were missing. She knew accused person Harbans. He was friend of her husband for the last 4-5 years. She believed that her husband was killed by accused Harbans. The scooter was recovered from the courtyard of the accused. Her brother and Jeth went to the spot. The personal belongings of her husband were missing. She knew accused person Harbans. He was friend of her husband for the last 4-5 years. She believed that her husband was killed by accused Harbans. The scooter was recovered from the courtyard of the accused. In her cross-examination, she deposed that initially she had suspicion towards accused Harbans Lal Forest Guard of investigation. In the statement recorded on 6.11.2012 it was recorded that Vijay Kumar, Milkhi Ram, his son Shyam Kumar, Parvinder and Harbans Lal took liquor together and she suspected that it is they who must have murdered her husband. 10. PW-5 HC Tarsem Singh deposed that on 16.11.2012, the accused Harbans Lal presented his shoes to the I.O. which were used for beating deceased by the accused. 11. PW-8 Onkar Singh did not remember the date but deposed that at about 2- 2:30 PM, he was present at Brick kiln. Harbans called him at his quarter to meet him. After 15 minutes Kuldeep made call to him and also invited him in the quarter of accused. At about 3:00 PM, he reached in the quarter of Harbans where accused alongwith Shyam Kumar and Kuldeep were drinking wine. The accused demanded money from him for wine and on his demand he handed over Rs. 200/- to Shyam Kumar alias Bhola. Shyam Kumar went somewhere to bring the bottle of wine and came back with bottle of Rum after 15-20 minutes. They were already having half bottle of OC from which they were drinking. After some time Shashi Pal (deceased) came there who was in drunken condition. Shashi Pal and accused embraced each other. Thereafter, he went to his house and remained there during night. On the next day, at 8:00 AM he came to know that a man had died at Ganoh. In his cross-examination, he admitted that Shashi Pal and accused Harbans were on friendly terms for the last 4-5 years. He did not see any quarrel taking place between them. As per his knowledge, there was no enmity between accused and deceased. Deceased reached the quarter of accused at about 3:00 PM. He also admitted that he did not see any quarrel between accused and deceased during his presence at the residence of accused. 12. He did not see any quarrel taking place between them. As per his knowledge, there was no enmity between accused and deceased. Deceased reached the quarter of accused at about 3:00 PM. He also admitted that he did not see any quarrel between accused and deceased during his presence at the residence of accused. 12. PW-9 Ashok Kumar deposed that when he reached at Kutlahar, a call was made by Harbans accused on his mobile at about 10:00 AM. The accused asked him as to where he was. The accused again made a call to see whether any scooter was parked there or not. He went to the quarter of Harbans and found a scooter parked there. He did not remember the number of the scooter. He told to hide the scooter somewhere. He told the accused that it is not within his control to hide the same. Later on he came to know that the scooter belonged to deceased Shashi Pal. 13. PW-11 Ajeet Singh deposed that accused met him on the way when he was going to Jassore. Accused was known to him for the last 6-7 years. He visited the room of accused. At that time, Vijay Kumar Patwari, Kuldeep, Milkhi Ram, Shyam Kumar alias Bhola were sitting and consuming liquor. Half bottle was consumed and half was remaining. In the meantime deceased Shashi pal came in the room of accused. The remaining liquor was served in five glasses. Deceased Shashi Pal was not served wine at that time. Volunteered that it was appearing that he had already consumed liquor. The scooter of Shashi Pal was parked on the road and he was requesting Harbans Lal to park his scooter in the courtyard of his house. In the meantime, he went away to his home. In his cross-examination, he deposed that he did not see Onkar in the room of accused when Shashi Pal was requesting accused to park his scooter in his residence. He remained in the residence of the accused for about 10-15 minutes. No quarrel or arguments took place between the accused and deceased in his presence. 14. PW-13 Milkhi Ram deposed that he had rented out the house to accused Harbans Lal on monthly rent of Rs. 300/-. Accused Harbans remained in the house for about 6 years. Accused had vacated the house about six months ago. No quarrel or arguments took place between the accused and deceased in his presence. 14. PW-13 Milkhi Ram deposed that he had rented out the house to accused Harbans Lal on monthly rent of Rs. 300/-. Accused Harbans remained in the house for about 6 years. Accused had vacated the house about six months ago. On 29.10.2012, he visited the house of accused where Harbans, Vijay, Kuldeep and Shyam Kumar alias Bhola were standing and Shashi Pal was there in the courtyard of the house. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted that he visited the house of accused at 4:45 PM where Harbans, Vijay, Kuldeep and Shyam Kumar alias Bhola were taking liquor. He also consumed one peg of liquor. He admitted that when bottle of liquor was empty after consumption, he went to his house. He denied that accused and deceased remained there. Volunteered that all of them left the house of accused together. 15. PW- 16 Dr. Mukesh Bhardwaj conducted the post mortem examination. He could not give the opinion regarding the cause of death after going through the post mortem examination of the body and considering the injuries. Thus, the case was referred to Tanda for forensic opinion to ascertain the cause of death. Thereafter, the post mortem was conducted at RPGMC by PW-15 Dr. Rahul Gupta and PW-22 Dr. Vijay Arora. According to them, the deceased died due to blunt trauma of the chest. The probable time that elapsed between death and post mortem was around 36 to 48 hours prior to second post mortem examination. According to PW-22 Dr. Vijay Arora at the time of death urine (sic. blood) alcohol level was 172.50 mg% and according to PW-16 Dr. Mukesh Bhardwaj as per the chemical analysis report of viscera from RFSL, Dharamshala, the ethyl alcohol 43.42 mg% was observed. According to PW-22 Dr. Vijay Arora, the injuries mentioned in the post mortem report sustained with the kick of shoes shown to him in the court could not be ruled out. He admitted in his cross-examination that in the case of homicide, the injuries on private parts may be caused on account of sexual jealousy if the assailant believes or suspects that the deceased might be carrying on sexual relationship. 16. He admitted in his cross-examination that in the case of homicide, the injuries on private parts may be caused on account of sexual jealousy if the assailant believes or suspects that the deceased might be carrying on sexual relationship. 16. PW-24 SI Brij Mohan is the I.O. He recorded the statement of complainant Ram Pal Sharma under Section 154 Cr.P.C vide Ext. PW-1/A. He prepared rukka and sent the same to the Police Station Nurpur for registration of FIR on 30.10.2012 at 1:25 PM through HC Swaroop Singh, on the basis of which FIR Ext. PW-24/A was registered. He took into possession the case property including shoes. In his cross-examination, he admitted that five persons, namely, Harbans lal, Vijay Kumar, Kuldeep Singh, Milkhi Ram and Shyam Kumar alias Bhola were arrested by him on 6.11.2012. He further admitted that as per the prosecution story, deceased was enjoying drinks with the alleged accused and others in the afternoon on 29.10.2012 at about 3:30 to 4:00 PM and the body of the deceased was discovered in the morning at about 8:00 to 8:30 AM at Ganoh Chapper on 30.10.2012. He admitted that the time gap between the two events was too long. He admitted that no witness under Section 161 Cr.P.C or under Section 164 Cr.P.C. has said that he saw the deceased alone in the company of accused on 29.10.2012 in the evening. He also admitted that during investigation it was found that the relations between the alleged accused and deceased were not strained. He also admitted that no evidence was found in the investigation that the deceased had extra marital relations with the wife or girl friend of the accused. He further admitted that the place was surrounded by many shops and liquor vend. He also admitted that in his investigation no motive for committing the alleged crime was noticed. 17. PW-25 Vivek Panwar has proved call details of Harbans Lal's mobile No. 94595 75305, call details of mobile of Onkar Singh vide Ext. PW-25/C, the call details of mobile of Rohit son of Kuldeep Singh vide Ext. PW-25/D, call details of Shashi Pal vide Ext. PW-25/E, call details of Vijay Kumar Patwari vide Ext. PW-25/F and call details of Ajeet Singh vide Ext. PW-25/G. 18. The prosecution, in order to prove its case, as per the trial Court, has mainly relied upon the following circumstances: ? PW-25/D, call details of Shashi Pal vide Ext. PW-25/E, call details of Vijay Kumar Patwari vide Ext. PW-25/F and call details of Ajeet Singh vide Ext. PW-25/G. 18. The prosecution, in order to prove its case, as per the trial Court, has mainly relied upon the following circumstances: ? (i) The death of Shashi Pal Sharma was homicidal. (ii) On 29.10.2012 at about 3:15 PM the accused called Shashi Pal Sharma on his mobile phone to his quarter at Ganoh. (iii) Shashi Pal Sharma was last seen with the accused on the evening of the occurrence. (iv) Subsequent conduct of the accused. (v) Recovery of scooter of the deceased from the courtyard of the accused. (vi) Recovery of a pair of shoes of the accused.? 19. The Court will advert to the circumstances in the same sequence in which these have been discussed by the learned trial Court. The first circumstance is that the death of Shashi Pal Sharma was homicidal. The dead body was seen in the morning of 30.10.2012. PW-1 Ram Pal visited the spot and identified the body of his brother. The dead body was lying in village Ganoh in a pit of dirty water. He inspected the dead body of his brother. It was naked and having injuries on his lips and private parts. The post mortem was conducted by PW-16 Dr. Mukesh Bhardwaj. He could not give final opinion regarding the cause of death. He referred the matter to RPGMC for expert forensic opinion, however, in his statement it has come that as per the chemical analysis report of viscera the ethyl alcohol 43.42 mg was observed. Thereafter, post mortem examination was again conducted by PW-15 Dr. Rahul Gupta with PW-22 Dr. Vijay Arora. According to them, the deceased died due to blunt trauma of the chest. The probable time that elapsed between death and post mortem was around 36 to 48 hours prior to second post mortem examination. According to PW-22 Dr. Vijay Arora at the time of death urine (sic. blood) alcohol level was 172.50 mg% and according to PW-16 Dr. Mukesh Bhardwaj as per the chemical analysis report of viscera from RFSL, Dharamshala, the ethyl alcohol 43.42 mg% was observed. PW- 22 Dr. According to PW-22 Dr. Vijay Arora at the time of death urine (sic. blood) alcohol level was 172.50 mg% and according to PW-16 Dr. Mukesh Bhardwaj as per the chemical analysis report of viscera from RFSL, Dharamshala, the ethyl alcohol 43.42 mg% was observed. PW- 22 Dr. Vijay Arora, admitted in his cross-examination that in the case of homicide, the injuries on private parts could be caused on account of sexual jealousy if the assailant believes or suspects that the deceased might be carrying on sexual relationship. There is variance in the quantity of ethyl alcohol found in blood alcohol i.e. 172.50 mg% and 43.42 mg%. PW-16 Dr. Mukesh Bhardwaj deposed that ethyl alcohol was found in the viscera but as per reports Ext. PW-23/A and PW-23/C, ethyl alcohol was found in the blood of the deceased. 20. According to the chemical analysis report Ext. PW-23/A, the blood alcohol level was 172.50 mg%. It was on higher side. A person with blood alcohol concentration of 150-300 mg% would be intoxicated, as per Lyon's Medical Jurisprudence and Toxicology, 11th Edition, page 626. Similarly in Medical Jurisprudence and Toxicology by Dr. K.S.Narayan Reddy, Edition 2004 (Reprint), at page 590, a person who has consumed 150- 300 mg %, would be drunk. In Parikh's Text book of Medical Jurisprudence and Toxicology at page 855, it is stated that at a concentration of 0.15 per cent (150 mg %), some are under the influence of alcohol and others decidedly would be drunk. With increasing concentrations the symptoms become more intense. 21. It has come in the report that the injuries were noticed on the private parts of the deceased. It has also come on record that there was no enmity between the deceased and the accused. 22. Now, the Court will advert to second circumstance i.e. whether the accused called Shashi Pal Sharma on mobile on 29.10.2012 at 3:15 PM. According to PW-4 Aparna Sharma, on 29.10.2012 at about 3/3:15 PM, accused had called her husband and her husband stated to her that accused Harbans was calling and he would come back after 10- 15 minutes. Thereafter, her husband never came up to 4-5:00 PM on the same day. Thereafter, she tried to contact her husband on telephone and the ring was going up to 6:30 PM and then it went switched off. Thereafter, her husband never came up to 4-5:00 PM on the same day. Thereafter, she tried to contact her husband on telephone and the ring was going up to 6:30 PM and then it went switched off. At about 12 midnight, she tried to contact accused Harbans Lal on his phone but he did not attend her call. In the morning on 30.10.2012, she rang her brother and Jeth (Ram Pal) and informed them about the incident. Her conduct is unusual. In case her husband had not come home in the evening, she should have immediately contacted her brother and Jeth. She has contacted them only in the morning. 23. The prosecution has placed on record the call details of Harbans Lal's mobile No. 94595 75305, call details of mobile of Onkar Singh vide Ext. PW-25/C, the call details of mobile of Rohit son of Kuldeep Singh vide Ext. PW-25/D, call details of Shashi Pal vide Ext. PW-25/E, call details of Vijay Kumar Patwari vide Ext. PW-25/F and call details of Ajeet Singh vide Ext. PW-25/G. In order to duly prove the call detail records, the prosecution was required to prove that provisions of Section 65 B of the Indian Evidence Act, 1872 have been complied with in letter and spirit. It was required to be proved that the computer output containing the information was produced by the computer during the period over which the computer was used regularly and the information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of the said activities and the computer was operating properly. The certificate was also required to be given as per Section 65B (4) containing the statement and describing the manner in which it was produced, giving details of device involved in the production of that electronic record, as may be appropriate. It is to be signed by the person holding responsible position. 24. Their lordships of the Hon'ble Supreme Court in the case of Anvar P.V. vrs. P.K. Basheer and others, reported in (2014) 10 SCC 473 , have held that production of copy of statement pertaining to electronic record in evidence not being the original electronic record, such statement has to be accompanied by a certificate as specified in S. 65-B (4) and such certificate must accompany electronic record like CD, VCD, pen drive etc. P.K. Basheer and others, reported in (2014) 10 SCC 473 , have held that production of copy of statement pertaining to electronic record in evidence not being the original electronic record, such statement has to be accompanied by a certificate as specified in S. 65-B (4) and such certificate must accompany electronic record like CD, VCD, pen drive etc. Their lordships have further held that under Section 65-B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the conditions are satisfied. It has been held as follows: ?15. Under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. 16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. 17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic evidence. 18. 17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic evidence. 18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.? 25. The third circumstance relied upon by the learned trial Court is that Shashi Pal Sharma (deceased) was last seen together with the accused on the evening of 29.10.2012. The prosecution has relied upon the statements of PW-8 Onkar Singh, PW-11 Ajeet Singh and PW-13 Milkhi Ram. PW-8 Onkar Singh deposed that Harbans called him at his quarter to meet him. After 15 minutes Kuldeep made call to him and also invited him in the quarter of accused. At about 3:00 PM, he reached in the quarter of Harbans where accused alongwith Shyam Kumar and Kuldeep were drinking wine. The accused demanded money from him for wine and on his demand he handed over Rs. 200/- to Shyam Kumar alias Bhola. Shyam Kumar went somewhere to bring the bottle of wine and came back with bottle of Rum after 15-20 minutes. They were already having half bottle of OC from which they were drinking. After some time Shashi Pal came there who was in drunken condition. Shashi Pal and accused embraced and met each other. Thereafter, he went to his house and remained there during night. In his cross-examination, he admitted that Shashi Pal and accused Harbans were on friendly terms for the last 4-5 years. Even on that fateful day, he did not notice any quarrel taking place between them. PW-11 Ajeet Singh deposed that he reached village Ganoh. He visited the room of accused. At that time, Vijay Kumar Patwari, Kuldeep, Milkhi Ram, Shyam Kumar alias Bhola were sitting and consuming liquor. They had already consumed half bottle and half was remaining. In the meantime, deceased Shashi pal came in the room of accused. The remaining liquor was served in five glasses. Deceased Shashi Pal was not served wine at that time. Volunteered that it was appearing that he had already consumed liquor. They had already consumed half bottle and half was remaining. In the meantime, deceased Shashi pal came in the room of accused. The remaining liquor was served in five glasses. Deceased Shashi Pal was not served wine at that time. Volunteered that it was appearing that he had already consumed liquor. The scooter of Shashi Pal was parked on the road and he was requesting Harbans Lal to park his scooter in the courtyard of his house. No quarrel or arguments took place between the accused and deceased in his presence. PW-13 Milkhi Ram deposed that he had rented out the house to accused Harbans Lal on monthly rent of Rs. 300/-. Accused Harbans remained in the house for about 6 years. Accused had vacated the house about six months ago. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted that he visited the house of accused at 4:45 PM where Harbans, Vijay, Kuldeep and Shyam Kumar alias Bhola were taking liquor. He also consumed one peg of liquor. He denied that accused and deceased remained there. Volunteered that all of them left the house of accused together. He denied the suggestion that at about 9:00 PM, he received a telephonic call from Harbans Lal asking him to conceal the scooter of Shashi Pal deceased. 26. It has also come in the statement of PW-13 Milkhi Ram that all of them had left the house of accused Harbans Lal together. PW-8 Onkar Singh has stated that the deceased appeared to be in drunken condition. PW-11 Ajeet Singh deposed that the deceased was not served wine at that time and volunteered that it appeared that he had already consumed liquor. Thus, the deceased was in the company of PW-8 Onkar Singh, PW-11 Ajeet Singh and PW-13 Milkhi Ram and they had consumed liquor together. No witness has deposed that accused and deceased were left alone in the house. The dead body was recovered early in the morning on 30.10.2012. 27. I.O. PW-24 SI Brij Mohan denied the suggestion in his cross-examination that there was no evidence of last seen together of the deceased, being alone in the company of accused, in the evening on 29.10.2012 at Ganoh or any place around it. The dead body was recovered early in the morning on 30.10.2012. 27. I.O. PW-24 SI Brij Mohan denied the suggestion in his cross-examination that there was no evidence of last seen together of the deceased, being alone in the company of accused, in the evening on 29.10.2012 at Ganoh or any place around it. He further admitted that as per the prosecution story, deceased was enjoying drinks with the alleged accused and others in the afternoon on 29.10.2012 at about 3:30 to 4:00 PM and the body of the deceased was discovered in the morning at about 8:00 to 8:30 AM at Ganoh Chapper on 30.10.2012. He admitted that the time gap between the two events was too long. He also admitted that no witness under Section 161 Cr.P.C or under Section 164 Cr.P.C. has deposed that he saw the deceased alone in the company of accused on 29.10.2012 in the evening. He also admitted that during investigation it was found that the relations between the alleged accused and deceased were not strained. Thus, it cannot be said that the deceased was seen with the accused last time before the death. 28. In cases pertaining to circumstantial evidence, the prosecution has to prove the entire link. All the circumstances must point exclusively towards the guilt of the accused. In the cases based on circumstantial evidence, motive plays an important role. The prosecution, in the present case has not attributed any motive to the accused for killing the deceased. PW-24 SI Brij Mohan, in his cross-examination, has admitted that during investigation no motive for committing the alleged crime was noticed. The relations between the accused and deceased as per PW-8 Onkar Singh, PW-11 Ajeet Singh, PW-13 Milkhi Ram and PW-24 SI Brij Mohan were cordial. PW-24 SI Brij Mohan has also deposed that no evidence was found in the investigation that deceased had extra marital relations with the wife or girl friend of the accused. He also admitted that the rented house was on the State Highway. He also admitted that the place where the body was recovered was surrounded by many shops, including the liquor vend. 29. Their lordships of the Hon'ble Supreme Court in the case of Dandu Jaggaraju vrs. He also admitted that the rented house was on the State Highway. He also admitted that the place where the body was recovered was surrounded by many shops, including the liquor vend. 29. Their lordships of the Hon'ble Supreme Court in the case of Dandu Jaggaraju vrs. State of Andhra Pradesh, reported in (2011) 14 SCC 674 , have held that in a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution. It is this circumstance which often forms the fulcrum of prosecution story. It has been held as follows: ?9. It has to be noticed that the marriage between P.W. 1 and the deceased had been performed in the year 1996 and that it is the case of the prosecution that an earlier attempt to hurt the deceased had been made and a report to that effect had been lodged by the complainant. There is, however, no documentary evidence to that effect. We, therefore, find it somewhat strange that the family of the deceased had accepted the marriage for about six years more particularly, as even a child had been born to the couple. In this view of the matter, the motive is clearly suspect. In a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution and it is this circumstance which often forms the fulcrum of the prosecution story.? 30. Their lordships of the Hon'ble Supreme Court in the case of Sathya Narayan vrs. State rep. by Inspector of Police, reported in (2012) 12 SCC 627 , have held that in the case of circumstantial evidence, motive also assumes significance since absence of motive would put Court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omissions or conjectures do not take place of proof. It has been held as follows: ?42) In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjecture do not take the place of proof. It has been held as follows: ?42) In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjecture do not take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the said Trust.? 31. Their lordships of the Hon'ble Supreme Court in the case of Majenderan Langeswaran vrs. State (NCT of Delhi) and another, reported in (2013) 7 SCC 192 , have held that 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 and all the circumstances must lead to the conclusion that accused is the only one who has committed crime and none else. It has been held as follows: ?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 blood-stained knife to him which he placed in a cloth piece without touching the same. On being asked by Kalyan Singh (PW-6), the appellant handed over the blood-stained 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. 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. 17. In the case of Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343 , this Court observed as under: ?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 the case of Padala Veera Reddy vs. State of A.P., 1989 Supp (2) SCC 706, this Court opined as under: ?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 the case of C. Chenga Reddy & Ors. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351 )? 19. In the case of C. Chenga Reddy & Ors. vs. State of A.P., (1996) 10 SCC 193 , this Court while considering a case of conviction based on the circumstantial evidence, held as under: ?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. 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 the case of Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172 , this Court again considered the case of conviction based on circumstantial evidence and held as under: ?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 the case of Sattatiya vs. State of Maharashtra, (2008) 3 SCC 210 , this Court held as under: ?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. 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: ?17. At this stage, we also deem it proper to observe that in exercise of power underArticle 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 the case of 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. 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: ?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. 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. 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. 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 the case of 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: ?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. 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: ?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.? 32. Their lordships of the Hon'ble Supreme Court in the case of Rishipal vrs. State of Uttarakhand, reported in (2013) 12 SCC 551 , have held that motive does not have a major role to play in cases based on eye witnesses account of incident but it assumes importance in cases that rest entirely on circumstantial evidence. Their lordships have further held that circumstances sought to be proved against accused be established beyond reasonable doubt, but also that such circumstances form so complete a chain, as leaves no option for court, except to hold that accused is guilty of offences with which he is charged. Their lordships have further held that circumstances sought to be proved against accused be established beyond reasonable doubt, but also that such circumstances form so complete a chain, as leaves no option for court, except to hold that accused is guilty of offences with which he is charged. It has been held as follows: ?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 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. 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 (Dr.) v. State of Punjab (2012) 8 SCALE 670 , Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152 ]. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside. 19. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between =may have' and =must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered.? 33. 33. The fourth circumstance relied upon by the learned trial Court is the subsequent conduct of the accused. According to the learned trial Court the accused did not pick up the mobile phone of PW-4 Aparna Sharma. According to her, the deceased was called by the accused around 3:15 PM. He told her that he would come back within 10-15 minutes. Thereafter, her husband never turned up. She tried to contact her husband on telephone and the ring was going up to 6:30 PM and then it went switched off. At about 12 midnight, she tried to contact accused Harbans Lal on his phone but he did not attend her call. It is unusual conduct of PW-4 Aparna Sharma. She should have immediately contacted her husband's brother PW-1 Ram Pal or PW-2 Pankaj Bhardwaj. She has contacted them only in the morning of 30.10.2012. The prosecution has not linked the telephone number of Aparna Sharma (wife of the deceased) to that of accused Harbans Lal. The police has taken into possession only the call details of telephone numbers of Harbans Lal, Onkar Singh, Rohit, Shashi Pal, Vijay Kumar and Ajeet Singh. Thus, it cannot be said that Harbans Lal intentionally did not pick up the phone of Aparna Sharma. 34. The fifth and sixth circumstance (s) relied upon by the learned trial Court is recovery of scooter of deceased from the courtyard of the accused and recovery of pair of shoes of the accused. PW-8 Onkar Singh deposed that at about 9:00 AM, accused made a telephone call and told him to hide the scooter somewhere which was parked outside his quarter. He refused to do so. PW-11 Ajeet Singh deposed that the scooter of Shashi Pal was parked on the road and that he was requesting Harbans Lal to park his scooter in the courtyard of his house. In the meantime, he went away to his house. In his crossexamination, he admitted that he did not see Onkar Singh in the room of accused when Shashi Pal was requesting accused to park his scooter in his residence. According to him also, no quarrel or arguments took place between the accused and deceased in his presence. PW-13 Milkhi Ram was declared hostile and cross-examined by the learned Public Prosecutor. According to him also, no quarrel or arguments took place between the accused and deceased in his presence. PW-13 Milkhi Ram was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that at about 9:00 PM, he received a call from Harbans Lal asking him to conceal the scooter of Shashi Pal deceased. PW-9 Ashok Kumar deposed that a call was made by Harbans accused on his mobile at about 10:00 AM. The accused asked him as to where he was. The accused again made a call to see whether any scooter was parked there or not. He went to the quarter of Harbans and found a scooter parked there. He did not remember the number of the scooter. In case he visited the house of accused and found the scooter parked there, he would have definitely remembered the registration number of the scooter. Moreover, the presence of scooter in the house of accused is of no consequence because as per the prosecution case, the deceased had gone to the house of deceased to consume liquor on scooter. 35. According to PW-5 HC Tarsem Singh, accused handed over his shoes to the I.O. on 16.11.2012 which were allegedly used for beating deceased Shashi Pal by the accused. These were taken into possession vide memo Ext. PW-5/A. The body of the deceased was recovered in the morning of 30.10.2012. The shoes were recovered only on 16.11.2012. PW-5 HC Tarsem Singh has admitted that no witnesses were associated at the time when confession statement of the accused was recorded. He also admitted that the accused was in police custody on 16.11.2012. Independent witnesses ought to have been associated at the time of recording of the disclosure statement by the accused on 16.11.2012 qua the recovery of shoes. 36. The chain of events is incomplete. The prosecution has not attributed any motive as to why the accused would have killed the deceased. The theory of =last seen together' has not been proved by the prosecution. The recovery of shoes in absence of associating independent witnesses at the time of recording of disclosure statement of the accused is also doubtful. The electronic evidence has not been proved as per Section 65-B of the Indian Evidence Act. The quantity of ethyl alcohol in the blood of the deceased was 172.50 mg%. The recovery of shoes in absence of associating independent witnesses at the time of recording of disclosure statement of the accused is also doubtful. The electronic evidence has not been proved as per Section 65-B of the Indian Evidence Act. The quantity of ethyl alcohol in the blood of the deceased was 172.50 mg%. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt. 37. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment and order of conviction and sentence dated 17.10.2015, rendered by the learned Addl. Sessions Judge, Kangra at Dharamshala, H.P., in Sessions case No. 1-N/VII/2013, is set aside. Accused is acquitted of the charges framed against him. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 38. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.