JUDGMENT : Goutam Bhaduri, J 1) The present appeal is against the judgment dated 19.11.2019 passed by the learned II Addl. Judge to the Court of 1st Additional Sessions Judge, Raipur in Sessions Trial No.163/2018 whereby the appellant was convicted and sentenced as under : Conviction Sentence Fine Default stipulation in case of non- payment of fine u/s 302 of IPC R.I., for life Rs.20,000/- Further R.I., for 1 year u/s 201 R.I., for 5 years Rs. 5,000/- Further R.I. for 3 months 2) The brief facts of the case are that on 11.05.2018 at about 8.10 a.m., a boy and girl namely Vipin Dubey (accused) and Apurva Tiwari (deceased) have taken a room No.105 in Yatrik Hotel, Raipur and while booking the room, all the necessary documents of ID proof were obtained at the reception counter of the Hotel. Subsequently the room was found to be locked and on 12.05.2018 when bad odor started coming, they saw inside the room through a ladder and found the dead body of a female lying on the bed. The same was informed to the police. Therefore, the merg intimation was recorded vide Ex.P-3 and subsequently the FIR was registered u/s 302 of IPC. After investigation of the case, necessary incriminating articles were seized from the appellant accused and after recording the statement, charge sheet was filed u/s 302 of IPC. 3) The prosecution examined as many as 13 witnesses and exhibited 41 documents apart from articles of driving licence (A-1), voter ID of deceased (A-2), CD Cassette (A-3) and a Pen-Drive (A-4) which were placed and proved. On behalf of the appellant accused, statement of Vikas Tiwari was recorded and in addition, certain documents were exhibited in defence. 4) The learned trial Court after evaluating the facts and circumstances of the case and evidence on record convicted and sentenced the accused appellant as aforesaid. Hence, the present appeal. 5) Learned counsel for the appellant would submit that though the applicant has been inculpated, but the fact remains that there is no substantial evidence to show that the death was homicidal in nature as is stated by P.W.9 Dr. Snigdha Jain Bansal, who conducted the postmortem. He would submit that when the death is not homicidal or culpable homicide, section 302 IPC could not have been attracted merely on presumption. Snigdha Jain Bansal, who conducted the postmortem. He would submit that when the death is not homicidal or culpable homicide, section 302 IPC could not have been attracted merely on presumption. He would further submit that as per the postmortem report (Ex.P-24), certain ligature mark and injuries were said to have been found on the dead body , however, neither the description of injury has shown that whether it is simple or grievous in nature nor any definite opinion was given to show the substantial cause of death. He further submits that the entire case is based on circumstance evidence and even if the suspicion is very strong, it cannot be replaced by proof beyond reasonable doubt. He placed reliance on a decision of the Supreme Court in Ram Pratap Versus State of Haryana (2023) 2 SCC 345 and submits that the chain of circumstances have not been established, therefore, the conviction is bad in law and it needs to be interfered. 6) Per contra, learned State Counsel would submit that as per the statements of witnesses Vivek Tiwari (P.W.2) and Sanjay Kumar Bharti (P.W.5), the deceased along-with the appellant went to the hotel for which the CCTV footage has also been proved. Subsequently, the deceased was found dead. The girl was found dead inside the room and the door was locked from outside the room. In the circumstances, the last seen theory was required to be dispelled which has not been established by the appellant. He would further submit that the details of frequent phone calls is also placed on record to show that the appellant and deceased were in close proximity and even from the hotel room certain pills were recovered and the Whats-App chat would show that they were in relation with each other, due to which, the deceased became pregnant and consequently the appellant had committed murder of deceased. He would submit that the Mobile Phone belonging to the deceased was found in possession of the appellant, therefore, that part of conduct has not been explained by the appellant. In the result, the only circumstance would point out about the commission of offence by the appellant and no one else. He would therefore submit that since the accused has failed to explain his part of conduct, the judgment and conviction by the learned Sessions Court is well merited and it does not call for interference. In the result, the only circumstance would point out about the commission of offence by the appellant and no one else. He would therefore submit that since the accused has failed to explain his part of conduct, the judgment and conviction by the learned Sessions Court is well merited and it does not call for interference. 7) We have heard learned counsel for the parties. The postmortem report in this case is filed as Ex.P-24 wherein the following external injuries were found : “1 Upper lip is contused on both sides to mid-line with laceration on left side. 2. Neck – Abrasion marks are present from end A to end B. End A is present on supra sternal notch, from here obliquely on mid of neck over the left lateral part 4 linear marks, 0.5 cm present from angle of mandible to lower part of neck & in between 0.5cm., healthy area is present. On lower part1 mark is diverted to downwards from mid part of neck on the back. On the back of neck, the mark becomes discontinuous.” 8) According to the report of Doctor, the manner and mode of death cannot not be opined due to purification and all the findings are to be further co-related with circumstantial evidence. P.W.9, the Doctor in his evidence has stated that the manner and mode of death could not be made clear though the injuries were ante-mortem in nature. In the postmortem report (Ex.P-24), the doctor gave the following opinion : 1. Evidence of genital injury present. 2. Evidence of ligature mark present on neck. 3. Evidence of injury present over head. 4. Evidence of mouth injury present. 5. Circumstantial evidence of empty wrapper unwanted 72 tablet as per police inquest, drug consumption is under investigation. 6. Viscera preserved to rule out poisoning and handed over to P.C. concerned. 6(B) Duration of death is within 02-04 days prior to postmortem examination. (C) Manner and mode of death cannot be opined due to putrefaction. (D) Whether the injuries are antemortem of postmortem in nature cannot be determined due to putrefaction. (E) Vaginal slide & clothing are preserved, sealed, labeled & handed over to P.C. concerned. (F) All the findings are to be correlated with the circumstantial evidence. Apart from this, there is no other evidence on record to show the cause of death. (D) Whether the injuries are antemortem of postmortem in nature cannot be determined due to putrefaction. (E) Vaginal slide & clothing are preserved, sealed, labeled & handed over to P.C. concerned. (F) All the findings are to be correlated with the circumstantial evidence. Apart from this, there is no other evidence on record to show the cause of death. 9) The second question which falls for consideration is whether the appellant was the author of crime and can be convicted on the basis of the evidence on record. As per the prosecution, the deceased and the appellant accused were in relation and the deceased became pregnant. They came to Raipur and went to the Hotel Yatrik wherein they stayed. P.W.2 Vivek Tiwari who is Manager of the Hotel has deposed that on 11.05.2018 at 8 a.m., accused Vipin Dubey and Apurva Tiwari came to the hotel and asked for a room and on such demand, Room No.105 was given. The entry in hotel was entered in the register wherein the accused mentioned his name as Vipin Dubey and the name of the girl accompanying him as Apoorva. The Identification Documents (IDs) including the driving license and the voters IDs were taken by him and they went to the room. Thereafter, both of them went out at about 1.00 p.m., and came back to the hotel at 2.00 to 3.00 p.m. He states that thereafter, he did not know when both of them went out of the hotel. He went out at 11.00 p.m., and at that time, one Sanjay Bharti had already come to perform his duty. 10) Sanjay Bharti is examined as P.W.5. According to his statement, on 11.05.2018 he came to the hotel at 09.30 a.m. When he came to the Hotel, the accused Vipin Dubey and deceased Apurva were already in Room No.105 of the Hotel and on 11.5.2018 in the after-noon both of them namely Vipin Dubey, accused and deceased Apoorva went out of the room. Thereafter, he went for his lunch and came back at about 3.30 p.m. After that, Vivek Tiwari P.W.2, the Manager went for his lunch and came back at about 4.30 p.m. When the evidence of two witnesses P.W.2 and P.W.5 is read together, there is no evidence to the fact that brought by the prosecution that after some time, when the accused left the hotel alone. The police has seized the pen-drive containing the CCTV footage of Hotel Yatrik recorded in between 7.50 am to 7.50 p.m., of 11.05.2018 vide Ex.P-12. The Pen-Drive is duly supported by the Certificate (Ex.P-32) issued u/s 65-B of the Indian Evidence Act. The seizure memo of Ex.P-12 is supported by Vivek Tiwari (P.W.2) and Sanjay Kumar Bharti (P.W.5). The said Pen-Drive which contains CCTV footage was seen by the Court which was marked as Article A-4. In such recording, it was found that the deceased along with accused came to hotel on 11.05.2018 at 8:01:21 and remained present at reception counter till 8.10 a.m. It also reflects that the ID proof was also given. 11) As per statement of P.W.11, who is a mechanic of the CCTV states that in hotel Yatrik, 3 cameras are installed which are at reception, outer lobby and in the lane. However, no camera was fitted in gallery where the rooms are situated. According to him, no tampering was made in CCTV footage and it was obtained from the hard-disk. Apart from this fact, the accused appellant along with deceased came to the hotel at 8 a.m., and remained there for 10 minutes in reception. The CCTV footage of those two cameras is not produced by the prosecution. There is no evidence on record to prove the fact as to whether the accused remained in the Company of deceased and after the incident left the hotel alone. The accused on the contrary raised certain allegations of illegal activity of running sexual rocket in the said hotel. What was the reason to hold back this CCTV footage which could explain the situation more effectively is not on record. The map Ex.P-2 of the hotel would show that in order to leave the hotel, one has to pass through in front of reception office. Apart from a camera installed at the reception office, 2 other CCTVs were installed in the hotel premises which could have thrown the light on the movement of accused. Since those two CCTV footage was not produced, the fact is not established as to whether the appellant left alone leaving the deceased in the hotel which creates a doubt. The Manager of Hotel states that in respect of Room No. 105, no second key was available. Since those two CCTV footage was not produced, the fact is not established as to whether the appellant left alone leaving the deceased in the hotel which creates a doubt. The Manager of Hotel states that in respect of Room No. 105, no second key was available. Such statement of non-availability of duplicate key also raises a doubt when serious allegations are made by accused against the Hotel in his defence. 12) The prosecution has further relied on certain call details of deceased and accused. P.W.8 the Nodal Officer of the Mobile Company on the basis of requisition made by the Police vide Ex.P-19 had issued the Certificate u/s 65-B(4)(C) of the Indian Evidence Act and vide Ex.P-18 the call details and ID proof of Phone Nos.74406-05889 & 98265-60052 for the period from 10.05.2018 to 18.05.2018 was already received by Police. According to the prosecution, Cellular (mobile) No. 98265 60052 belonged to the accused as it was in the name of accused Vipin Dubey and Mobile No.74406 05889 was in the name of deceased Apurva Tiwari which are proved by P.W.8 vide Ex.P-22 and P-23 respectively. The call details of the said phone numbers 98265 60052 and 74406 05889 are marked as Ex.P20 and P-21 respectively, which have been duly supported by the Certificate u/s 65B of the Indian Evidence Act. Likewise Phone Nos.91311-21746 and Phone No.93991-26886 were in the name of deceased Apurva Tiwari and the Certificate u/s 65B was given by the Nodal Officer vide Ex.P-30 as also the call details in respect of these two mobile numbers for the period from 10.05.2018 to 18.05.2018 was supplied by him. 13) According to the prosecution, the alleged incident was said to have taken place on 10.05.2018. Ex.P-31, the call details shows that from Mobile No. 91311-21746 which belongs to the deceased a call was made to the appellant’s mobile no.9826560052 at 2.22 p.m., and after a few minutes, in-coming call was made to the Phone of deceased at 2.50 p.m., from Mobile No. 9399500407. The location was in Ganjpara ward, Raipur. If the deceased and appellant were sharing one room of the hotel, then the fact that how the call was made by deceased to accused at 2.22 p.m., has not been made clear. 14) Likewise, the call details (Ex.P-31) shows that another phone no. The location was in Ganjpara ward, Raipur. If the deceased and appellant were sharing one room of the hotel, then the fact that how the call was made by deceased to accused at 2.22 p.m., has not been made clear. 14) Likewise, the call details (Ex.P-31) shows that another phone no. 93991-26886 was in the name of deceased from which different calls were made to Mobile of deceased after 5 p.m., the location of which is shown as Chandra Complex, Gudiyari. The said Mobile No. 93991-26886 was seized from the accused by Ex.P-8. Except this incriminating circumstances, there is no other substantial evidence on record. 15) Since there is no eye-witness account to the incident, the case is completely based on circumstantial evidence. In such a case, the chain of circumstances is required to be established. The Supreme Court in Sattatiya alias Satish Rajanna Kartala Vs. State of Maharashtra (2008) 3v SCC 210 has reiterated the law laid down at paras 12, which is reproduced hereunder : “12. In Padala Veera Reddy v. State of A.P. 1989 Supp (2) SCC 706, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied : (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 as to 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.” 16) In Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 , it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are : (SCC p. 185, para 153) - “(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; (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.” 17) In State of U.P. v. Ashok Kumar Srivastava (1992) 2 SCC 86 , it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.” 18) Further in respect of circumstantial evidence, the Supreme Court has laid down in Jagroop Singh Versus State of Punjab (2012) 11 SCC 768 at paras 12, 14 & 15 which reads thus : 12. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 (SCC p.185, Para 153) a three-Judge Bench has laid down five golden principles which constitute the “Panchsheel” in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 (SCC p. 807, para 19) it was opined that 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. Thereafter, the Bench proceeded to lay down that 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; that the circumstances should be of a conclusive nature and tendency ; that they should exclude every possible hypothesis except the one to be proved; and that 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. 14. In Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259, : (SCC p. 262, Para 4) it has been laid down that “4…. the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.” 15. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.” 15. In Harishchandra Ladaku Thange v. State of Maharashtra (2007) 11 SCC 436 while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasized that where a case 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 other person and further 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.” 19) Recently, in Ram Pratap Versus State of Haryana (2023) 2 SCC 345 the Supreme Court reiterated the observations made in catena of cases including Sharad Birdhichand Sarda v. State of Maharashtra (supra) and held that the suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt. The court emphasised that there is not only a grammatical but also a legal distinction between “may” and “must”. For proving a case based on circumstantial evidence, it is necessary for the prosecution to establish each and every circumstance beyond reasonable doubt, and further, that the circumstances so proved must form a complete chain of evidence so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show, in all human probability, that the act has been done by the accused. Further, it has been held that the facts so established must exclude every hypothesis except the guilt of the accused. 20) Analyzing the aforesaid principles in the light of the evidence brought by the prosecution in the instant case, the prosecution though established that on 10.08.2018 at about 8 a.m., the deceased and the appellant entered into the hotel and after some time, they went out and again came back but no evidence is on record to show that when the accused alone went out. The prosecution has only produced one CCTV footage of reception-counter whereas the evidence of P.W.11 would show that there are also other CCTVs installed in the hotel. In between time of changing over the duty or relieving P.W.2 the Manager by P.W.5, there is no evidence as to whether they have seen the appellant leaving the hotel alone either by P.W.2 or by P.W.5 or any witness or any employee or servant of the hotel. Therefore, the prosecution appears to have missed to collect the cogent evidence which could have been done in more effective manner. According to the prosecution, the room was locked from outside. There is no memorandum or seizure of lock & key at the instance of accused and it appears that no effort has been made and the version of Hotel Manager that second key of Room No.105 is lost was accepted by Police. Had there been a case of seizure of lock and key of the hotel room at the instance of the accused, the incriminating circumstances could have been established against the accused. Simply on the basis of fact that one mobile which was in the name of deceased was seized from the accused, the entire guilt cannot be shifted on him for the reason that the Mobile was in the name of deceased and frequent calls were made. 21) In view of the foregoing discussion, we are of the opinion that the prosecution has failed to complete the chain of circumstances to prove the guilt beyond the reasonable doubt. Consequently, the appellant is acquitted of the charges. In the result, we allow the appeal and set aside the judgment of conviction and order of sentence passed by the Court below. If the appellant is in jail, he be released forthwith if not required in any other crime on furnishing a personal bond in sum of Rs.25,000/- to the satisfaction of the trial Court. The bond shall remain operative for a period of six months as required under the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed.