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Friday, January 23, 2015

CRIMINAL APPEAL NO. 142 OF 2015 (Arising out of S.L.P.(Crl.) No. 1156/2013) TOMASO BRUNO & ANR. ..Appellants Versus STATE OF U.P. ..Respondent

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 142 OF 2015
                 (Arising out of S.L.P.(Crl.) No. 1156/2013)


TOMASO BRUNO & ANR.                                     ..Appellants

                                   Versus

STATE OF U.P.                                              ..Respondent


                               J U D G M E N T


R. BANUMATHI, J.


            Leave granted.
2.          This appeal is directed against  the  judgment  dated  4.10.2012
passed by Allahabad High Court in Criminal Appeal No.5043 of 2011  in  which
the High Court confirmed the conviction of the appellants under Section  302
read with Section 34 IPC and the sentence of life imprisonment and  fine  of
Rs. 25,000/- imposed on each of them.
3.          Briefly stated, case of the prosecution is  that  three  Italian
nationals namely Tomaso Bruno  (Accused  No.1),  Elisa  Betta  Bon  Compagni
(Accused No. 2) and Francesco Montis (Deceased) came as  tourists  to  India
from London and  reached  Mumbai  on  28.12.2009.   After  visiting  several
places of interest together, these persons arrived at Varanasi on  31.1.2010
and they checked in  at  Hotel  Buddha,  Ram  Katora,  Varanasi.  The  hotel
management, after checking all the relevant identity proofs,  allotted  Room
No. 459 in the hotel to them at about 5.00 p.m.  For two  days  the  accused
and deceased went around the city.  On 3.2.2010, the deceased complained  of
a mild headache on account of which, they went out late and  returned  early
and thereafter, stayed in the room  for  the  entire  evening  as  they  had
planned to see the 'Subahe Banaras' the next morning.  On 4.2.2010 at  about
8.00 a.m. A-2 informed Ram  Singh  (PW-1),  the  Manager  of  hotel  Buddha,
Varanasi, that the condition of the deceased was not fine, after  which  the
accused, PW-1 and others took the deceased to  S.S.P.G.  Hospital,  Varanasi
for treatment, where the doctors declared the  ailing  tourist  as  'brought
dead'.
4.          Ram Singh (PW-1) filed a complaint regarding death  of  deceased
Francesco Montis  in  the  police  station.   Additionally,  Awadhesh  Kumar
Choubey, Home Guard also submitted  a  memo  informing  death  of  Francesco
Montis which was transmitted to P.S. Chetganj,  Varanasi.   An  inquest  was
conducted by Sagir Ahmad-SI (PW-12) regarding death  of  deceased  Francesco
Montis and Ex. P12 is the  inquest  report.  After  inquest,  the  body  was
handed over for conducting post mortem.  Dr. R.K.  Singh  (PW-10)  conducted
autopsy and issued Ex. Ka-10, opining that the cause of death  was  asphyxia
due to strangulation. In pursuance of order of District  Magistrate,  by  an
order of Chief Medical Officer,  a  second  post  mortem  was  conducted  on
6.02.2010 by the panel of doctors headed by Dr. A.K. Pradhan  (PW-11)  which
is marked as Ex. Ka-11 wherein the doctors reaffirmed the cause of death  of
deceased Francesco Montis.

5.          On the basis of  the  postmortem  report  and  other  materials,
First Information Report in Case No. 34 of 2010 was registered on  5.2.2010.
 PW-12-Sagir Ahmad (SI) had taken up the investigation and proceeded to  the
place of occurrence i.e. hotel Buddha.  During the  spot-investigation,  PW-
12 collected bed-sheet, pillow, a towel and  other  material  objects.   The
bed-sheet contained marks of urine and stools and a  black  brown  stain  of
the size of lip was found on the pillow cover.  PW-12 also  collected  other
articles from the room and also prepared Ex. P18-site plan at the  place  of
occurrence.   On 5.2.2010, further investigation  was  taken  over  by  Shri
Dharambir   Singh (PW-13) who recorded the statement of the waiters  in  the
hotel and also recorded the statement of the accused  persons.  The  accused
stated that on 4.2.2010 morning they went  out  at  4.00  a.m.  for  'Subhae
Banaras', but deceased was not well, so he was left  sleeping  in  the  room
and when they came back they found Francesco in  a  serious  condition.   On
the basis of material collected during  investigation,  PW-13  arrested  the
accused persons after appraising them with  the  grounds  of  arrest.  After
completion  of  investigation,  chargesheet  under  Section  302  read  with
Section 34 IPC was filed by the police in the court against accused  Nos.  1
and 2.

6.          To substantiate the charges  against  the  accused,  prosecution
has  examined  thirteen  witnesses  and  exhibited  material  documents  and
objects. The accused were questioned under Section  313  Cr.P.C.  about  the
incriminating evidence and the accused denied  all  of  them.   The  accused
reiterated whatever was earlier stated before  I.O.,  that  on  the  fateful
night of 3.2.2010, they ordered two plates of fried rice and  all  three  of
them dined together.  Next day morning  they  went  out  at  4.00  a.m.  for
'Subhae Banaras', but deceased was not well and so he was left  sleeping  in
the room.  When they returned to the hotel at 8.00  a.m.,  Francesco  Montis
was lying on the bed  in  an  unconscious  condition.   The  second  accused
stated that she had informed the hotel manager  that  Francesco  Montis  was
very serious and all the  staff,  PW-1  manager  and  accused  persons  took
Montis to the hospital where he was declared  'brought  dead'.   The  second
accused clarified that the marks of lip on the cover were not hers.

7.            Upon consideration of  evidence,  trial  court  convicted  the
accused persons under Section 302 read with Section  34  IPC  and  sentenced
them to undergo life imprisonment, imposed a fine of Rs.25,000/-  each  with
a default clause.  Aggrieved by the same, the  appellants  preferred  appeal
before the  High  Court  wherein  by  the  impugned  judgment,   High  Court
confirmed the  conviction  and  the  sentence.   Assailing  the  verdict  of
conviction and sentence of life imprisonment, the appellants have  preferred
this appeal by way of special leave.
8.          Mr. Harin P. Raval, learned senior  counsel  appearing  for  the
appellants  contended  that  all  the  circumstances  relied  upon  by   the
prosecution  ought  to  be  firmly   established   by   evidence   and   the
circumstances must be of such nature as to form a  complete  chain  pointing
to the guilt of the accused and the  courts  below  ignored  the  conditions
that are required  to  be  satisfied  in  a  case  based  on  circumstantial
evidence.  Learned counsel contended that  non-production  of  CCTV  footage
being  an  important  piece  of  evidence  casts  a  serious  doubt  in  the
prosecution case and non-production of such best possible evidence is  fatal
to the prosecution case.  It was further submitted  that  the  courts  below
ought to have noticed the faulty investigation and  non-collection  of  CCTV
footage, sim details and lapses in the investigation.   It  was  urged  that
the opinion of the doctors that the cause  of  death  was  asphyxia  due  to
strangulation is not supported by materials and this vital aspect  has  been
ignored by the courts below.
9.          Mr. Irshad Ahmad, learned Additional Advocate General  appearing
for  the  respondent-State  submitted  that  without   evidence   of   their
complicity in the crime, there is no reason as to why PW-1  Ram  Singh,  the
hotel manager or the police personnel would implicate two foreign  nationals
who came to India as tourists.  It was further  contended  that  inside  the
hotel room, the  appellants  were  admittedly  with  the  deceased  and  the
appellants failed to account for  the  manner  and  time  of  death  of  the
deceased inside the room.  It was held  that  the  defence  set  up  by  the
accused persons that they had gone on sight seeing and 'Subahe  Banaras'  at
the wee hours on 4.2.2010 and returned to hotel  room  at  about  8.00  A.M.
cannot be  subscribed  or  relied  upon.   The  learned  counsel  vehemently
contended that the medical evidence, inquest  report  and  the  presence  of
stool, urine stain on the bed sheet  and  black  brown  discharge  from  the
mouth narrated in the inquest  and brown black  lip  mark  on  pillow  cover
clearly lead to the inference of  the guilt  of   the  accused  persons  and
upon  appreciation  of  circumstances  and  the  evidence  adduced  by   the
prosecution,  courts  below  rightly  convicted   the  appellants  and   the
concurrent findings recorded by the courts below cannot be interfered with.
10.         We have carefully considered the evidence, materials  on  record
and the rival contentions and gone  through  the  judgments  of  the  courts
below.
11.         Admittedly, there is no eye-witness and the prosecution case  is
based on circumstantial evidence.  The circumstances as can  be  culled  out
from the judgment of the courts below relied upon  by  the  prosecution  and
accepted by the courts below to convict the appellants are:-

(i)  from the fateful night of 3.2.2010 till the morning of  4.2.2010,  when
the incident is alleged to have taken place inside the privacy of the  hotel
room and in such circumstances  the  accused  had  all  the  opportunity  to
commit the offence;

(ii) the accused had no plausible explanation to offer as  to  the  injuries
on the deceased and the death of  the deceased;

(iii) the accused failed to prove the defence plea of alibi that in the  wee
hours of 4.2.2010, they had gone outside  the hotel  for  sight  seeing  and
after returning to the hotel room, they saw the deceased unconscious;

(iv) the intimacy developed between  the accused  alienated  them  from  the
deceased and as a love triangle  was formed  and prompted  by  this  motive,
the accused eliminated Francesco Montis on the fateful  day; and

(v) medical  evidence  supports  prosecution  version  that  the  death  was
homicidal and deceased was strangulated to death.

12.         Upon consideration of evidence adduced  by  the  prosecution  on
the above  circumstances  and  after  referring   to  various  judgments  on
circumstantial evidence, the trial court as  affirmed  by  the  High  Court,
found that all the circumstances suggested by the  prosecution  against  the
appellants are proved beyond reasonable doubt  and  form  a  complete  chain
pointing to the guilt of the accused beyond  any  reasonable  doubt  and  on
those findings, convicted the appellants for the charge  under  Section  302
IPC read with Section 34 IPC.
13.         In every case based upon circumstantial evidence, in  this  case
as  well,  the  question  that  needs  to  be  determined  is  whether   the
circumstances relied upon by the prosecution  are  proved  by  reliable  and
cogent evidence and whether all the links in the chain of  circumstance  are
complete so as to rule out the possibility of innocence of the accused.
14.         There is no doubt that conviction can be  based  solely  on  the
circumstantial evidence.  But it should be tested on the touchstone  of  the
law  relating  to  circumstantial  evidence.       This    Court    in    C.
Chenga   Reddy   &  Ors.  vs.  State  of  A.P.,  (1996)  10  SCC  193,  para
(21) 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  [pic]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."

15.         After referring to a catena of  cases  based  on  circumstantial
evidence in Shivu and Anr. vs. Registrar General,  High Court  of  Karnataka
& Anr., (2007)  4 SCC 713, this Court held as under:-

"12. It has been consistently laid down by this  Court  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. {See Hukam Singh v. State  of  Rajasthan,  (1977)  2  SCC  99;
Eradu v. State of Hyderabad (AIR 1956 SC 316),  Earabhadrappa  v.  State  of
Karnataka (1983) 2  SCC 330, State of U.P. v.  Sukhbasi  (1985  (Supp.)  SCC
79), Balwinder Singh v. State of Punjab (1987) 1  SCC  16  and  Ashok  Kumar
Chatterjee  [pic]v.  State  of  M.P  (1989  Supp.    (1)    SCC   560)   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. In Bhagat Ram v. State of Punjab, AIR 1954  SC  621,  it  was
laid down that where  the  case  depends  upon  the  conclusion  drawn  from
circumstances, the cumulative effect of the circumstances must  be  such  as
to negative the innocence of the accused and bring home the offences  beyond
any reasonable doubt."

16.         In Padala Veera Reddy v. State of A.P. and Ors., 1989 Supp.  (2)
SCC 706, it was laid down that in a case  of  circumstantial  evidence  such
evidence must satisfy the following test:-
"(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)."


17.         Adverting to the case in hand,  it  emerges  from  the  evidence
that the accused and deceased reached Varanasi on 31.1.2010 and  checked  in
at hotel Buddha.  On 1.2.2010 and 2.2.2010,  the  tourists  went  around  to
explore the city and visited  important  places.   On  3.2.2010,  since  the
deceased complained of mild headache, the accused and the deceased went  out
late at 11.00 A.M.  and returned back to the hotel  at  2.30  P.M.  as  they
planned to see famous 'Subahe Bararas'  the next morning.  In his  evidence,
PW-2 Ajit Kumar stated that on the night of  3.2.2010,  on  order  from  the
tourists, PW-2 served two plates of vegetable fried rice in the room.   PW-2
further stated that after serving two plates of vegetable fried rice,  while
he was getting out of the room, second appellant Elisa Betta Bon  asked  him
'not to disturb till next  morning'  and  thereafter  the  second  appellant
bolted the door from inside and thereafter  no  person  ever  visited  their
room.  The trial court and the High Court have taken  this  as  one  of  the
important links of evidence to conclude that from  the  night  of  3.2.2010,
till next day morning 8.00 A.M., the accused-appellants remained inside  the
hotel room.  Be it noted, this vital  evidence  that  the  second  appellant
asked PW-2 Ajit Kumar-Waiter, 'not to disturb them till  next  day  morning'
was  not  stated  by  PW-2  before  the  Investigating  Officer,  when   the
Investigating Officer recorded PW-2's statement under Section  161  Cr.P.C.,
which in our view, seriously affects the credibility of  PW-2.   The  courts
below ignored this vital aspect observing that it is only an explanation  or
introduction to the testimony of PW-2.
18.         Be that as it may, an important circumstance relied upon by  the
prosecution and accepted by the courts below is that the offence  had  taken
place  inside the privacy of the hotel room in which  the  accused  and  the
deceased were staying together and only the accused had the  opportunity  to
commit the offence.  Prosecution mainly relied upon Section  106  of  Indian
Evidence Act which  says  that  when  any  fact  is  especially  within  the
knowledge of any person, the burden  of  proving  that  fact  is  upon  him.
Prosecution mainly relied upon the  circumstance  that  the  occurrence  was
inside the hotel room and that death had occurred  in  the  privacy  of  the
hotel room and that the appellants have no  plausible  explanation  for  the
death  of  Francesco  Montis  and  the  absence  of  explanation  or  untrue
explanation offered by the accused point to their guilt.
19.         The principle underlying Section 106  of  the  Evidence  Act  is
that the burden to establish those facts,  which  are  within  his  personal
knowledge is cast on the person concerned, and if he fails to  establish  or
explain those  facts,  an  adverse  inference  may  be  drawn  against  him.
Explaining the death of  deceased  Francesco  Montis,  the  appellants  have
stated that in the wee hours of 4.2.2010 at 4.00 A.M., they had gone to  see
the famous 'Subahe Banaras' and returned back to  the  hotel  room  at  8.00
A.M.  and  found  the  condition  of  Francesco  Montis  very  serious   and
immediately informed   PW-1 about the condition of  their  friend  and  then
with the assistance of the hotel staff, Francesco Montis was  taken  to  the
hospital.
20.         Learned counsel for the  respondent-State  contended  that  when
the appellants have pleaded that they had gone out of the hotel room in  the
wee hours of 4.2.2010 and having taken plea of alibi,  the  burden  is  cast
upon the accused to prove the defence plea of alibi and the accused had  not
adduced any evidence to show that they had  gone  out  and  visited  'Subahe
Banaras' in the early hours of 4.2.2010.   Learned  counsel  submitted  that
the plea of alibi was rejected by the  concurrent  findings  of  the  courts
below and the same    cannot lightly be interfered with by this  Court.   In
support of his contention, learned counsel for the  respondent-State  relied
upon the judgment of this Court in Gosu Jayarami Reddy and  Anr.  vs.  State
of Andhra Pradesh, (2011) 11 SCC 766 wherein it was  observed as under:-
"52. We may at the  threshold  say  that  a  finding  of  fact  concurrently
recorded on the question of alibi is not  disturbed  by  this  Court  in  an
appeal by special leave. The legal position in this  regard  is  settled  by
the decision of this Court in Thakur Prasad v. State of M.P.  (AIR  1954  SC
30 at p. 31, para 2)
[pic]
"2. The plea of alibi involves a question of fact and both the courts  below
have concurrently found that fact against the appellant Thakur Prasad.  This
Court, therefore, cannot, on an appeal by  special  leave,  go  behind  that
concurrent finding of fact."

For    the    same    proposition,    reliance  was  also  placed  upon  the
judgment of this Court in Munshi Prasad  &  Ors.  vs.   State  of     Bihar,
(2002) 1 SCC 351.
21.         The defence plea offered by the appellants was that in  the  wee
hours of 4.2.2010, they had gone out and returned to the hotel only to  find
out the  serious  condition  of  Francesco  Montis.   The  appellants  being
foreign nationals who visited India as tourists,  it  would  not  have  been
possible for them to examine any witness either from the hotel or  from  the
place which they are said to have visited as they were  tourists  in  India.
In the facts and  circumstances  of  the  case  and  in  the  light  of  the
statement-explanation offered by the  accused  that  in  the  wee  hours  of
4.2.2010 they had gone out to see 'Subahe Banaras', in our considered  view,
the burden was for the prosecution to establish that  they  remained  inside
the hotel room from 3.2.2010 till the next day  morning  8.00  A.M.  in  the
hotel.
22.         To invoke Section 106 of the Evidence Act, the main point to  be
established by the prosecution is that the accused persons were  present  in
the hotel room at the relevant time.  PW-1 Ram  Singh-Hotel  Manager  stated
that CCTV cameras are installed in the boundaries, near  the  reception,  in
the kitchen, in the restaurant and all three  floors.   Since  CCTV  cameras
were installed in the prominent places, CCTV footage would  have  been  best
evidence to prove whether the accused remained inside the room  and  whether
or not they have gone out.  CCTV footage  is  a  strong  piece  of  evidence
which would have indicated whether the accused  remained  inside  the  hotel
and whether they were responsible for the commission of a crime.   It  would
have also shown whether or not the accused had gone out of the hotel.   CCTV
footage being a crucial piece of evidence, it  is  for  the  prosecution  to
have produced the best evidence which is missing.  Omission to produce  CCTV
footage, in our view, which is the  best  evidence,  raises  serious  doubts
about the prosecution case.
23.         In his evidence, PW-1 has stated that he  monitors  the  affairs
of the hotel on CCTV while sitting in reception.   PW-1 further stated  that
he saw the CCTV footage at the   relevant time and on the fateful  night  no
person was having ingress  or  egress  to  the  said  room.  PW-13-Dharambir
Singh, investigating officer,  also  stated  that  he  saw  the  full  video
recording of the fateful night on CCTV but he has not recorded the  same  in
his case diary as nothing substantial emerged from the same.
24.         The trial court as well as the High Court ignored  this  crucial
aspect of non-production of CCTV footage.  The trial court as  well  as  the
High Court relied on the oral testimony of PW-1-Ram  Singh,  hotel  manager,
that no one entered  Room  No.  459  between  the  relevant  period  on  the
intervening night of 3.2.2010 and  4.2.2010  which  is  based  on  the  CCTV
footage.   Courts below accepted the version of PW-1 and PW-13 to hold  that
there was no relevant material in the CCTV footage to suggest that  a  third
person entered the hotel room.   The trial court and the High Court, in  our
view, erred in relying upon the oral evidence of PW-1 and  PW-13  who  claim
to have seen the CCTV footage and they did not find anything  which  may  be
of relevance in the case.
25.           With the advancement  of  information  technology,  scientific
temper in the individual and at the institutional level is  to  pervade  the
methods of investigation.  With  the  increasing  impact  of  technology  in
everyday life and as a result, the  production  of  electronic  evidence  in
cases has become relevant to establish the  guilt  of  the  accused  or  the
liability  of  the  defendant.    Electronic  documents  strictu  sensu  are
admitted as material evidence.  With the amendment to  the  Indian  Evidence
Act in 2000, Sections 65A and 65B were introduced into  Chapter  V  relating
to documentary evidence.  Section 65A provides that contents  of  electronic
records may be admitted as evidence if the criteria provided in Section  65B
is complied with.  The computer generated  electronic  records  in  evidence
are admissible at a trial if proved in the manner specified by  Section  65B
of the Evidence Act.  Sub-section (1) of Section 65B makes admissible  as  a
document, paper print  out  of  electronic  records  stored  in  optical  or
magnetic media produced by a computer, subject  to  the  fulfilment  of  the
conditions specified in sub-section (2) of Section 65B.  Secondary  evidence
of contents of document can also be led under Section  65  of  the  Evidence
Act.   PW-13 stated that he saw the full  video  recording  of  the  fateful
night in the CCTV camera, but he has not  recorded  the  same  in  the  case
diary as nothing substantial to be adduced as evidence was present in it.
26.         Production of scientific and electronic  evidence  in  court  as
contemplated under Section 65B of the Evidence Act is of great help  to  the
investigating  agency  and  also  to  the  prosecution.   The  relevance  of
electronic evidence is also evident in the light  of  Mohd.  Ajmal  Mohammad
Amir Kasab vs. State of Maharashtra, (2012) 9 SCC 1, wherein  production  of
transcripts of internet transactions helped the  prosecution  case  a  great
deal in proving the guilt of the accused.  Similarly, in the case  of  State
(NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600, the  links
between the  slain  terrorists  and  the  masterminds  of  the  attack  were
established only through phone call transcripts  obtained  from  the  mobile
service providers.
27.         The trial court in its  judgment  held  that  non-collection  of
CCTV footage, incomplete site plan, non-inclusion of  all  records  and  sim
details of mobile phones seized from the accused  are  instances  of  faulty
investigation and the same would  not  affect  the  prosecution  case.  Non-
production of CCTV footage, non-collection of  call  records  (details)  and
sim details of mobile phones seized from the accused cannot be  said  to  be
mere instances of faulty investigation but amount  to  withholding  of  best
evidence.  It is not the case of the prosecution  that  CCTV  footage  could
not be lifted or a CD copy could not be made.
28.         As per Section 114 (g) of the  Evidence  Act,  if  a   party  in
possession  of   best  evidence  which  will  throw  light   in  controversy
withholds  it,  the  court  can  draw  an  adverse   inference  against  him
notwithstanding that  the  onus  of  proving  does  not  lie  on  him.   The
presumption under Section 114 (g) of the Evidence Act is only a  permissible
inference and not a necessary inference.  Unlike presumption  under  Section
139 of Negotiable Instruments Act, where the court  has  no  option  but  to
draw statutory presumption under Section 114 of  the  Evidence  Act.   Under
Section 114 of the Evidence Act, the Court has the option; the court may  or
may not raise  presumption  on  the  proof  of  certain  facts.  Drawing  of
presumption under Section 114 (g) of Evidence Act depends  upon  the  nature
of fact required to be proved and its importance  in  the  controversy,  the
usual mode of proving it; the nature, quality and cogency  of  the  evidence
which has not been produced and its accessibility to  the  party  concerned,
all of which have to be taken into account.   It  is  only  when  all  these
matters are duly considered that an adverse inference can be  drawn  against
the party.
29.         The High Court held that  even  though  the  appellants  alleged
that the footage of CCTV is being  concealed  by  the  prosecution  for  the
reasons best known to the prosecution, the accused did  not  invoke  Section
233 Cr.P.C. and they did not make any application  for  production  of  CCTV
camera footage.  The High Court further observed that the accused  were  not
able to discredit the testimony of  PW-1,      PW-12  and  PW-13  qua  there
being no relevant material in the CCTV camera footage.  Notwithstanding  the
fact that the burden lies upon the accused to establish the defence plea  of
alibi  in the facts and circumstances of the case, in our view,  prosecution
in possession of the best evidence-CCTV footage   ought  to  have   produced
the same.  In our considered view, it is  a fit  case  to  draw  an  adverse
inference against the  prosecution under Section 114  (g)  of  the  Evidence
Act that the prosecution withheld the same as it would  be  unfavourable  to
them had it been  produced.
30.          Yet  another  important  piece  of  evidence  which   was   not
produced by the prosecution is relevant to be noted.   On  4.2.2010,  second
appellant-Elisa Betta Bon informed PW-1 Ram Singh, hotel  Manager  that  the
condition of Francesco Montis  is  very  serious.   On  hearing  this,  PW-1
immediately went to room No. 459 where he saw the  appellants  were  sitting
and the deceased was lying unconscious.   Thereafter,  he  immediately  came
down to the reception and along with hotel staff went back to the  room  and
then they lifted Francesco Montis by wrapping him in a blanket and took  him
to the hospital.  PW-6-Uma Shankar had driven the car and  Francesco  Montis
was taken to the emergency ward.  PW-1 and other witnesses have stated  that
on examination of Francesco Montis, doctor declared him 'dead'.  Prosecution
has neither examined the doctor nor produced the report  that  was  prepared
in the emergency ward of the hospital.  Likewise, the death intimation  sent
to the police was also not produced.  The report prepared by the doctor  who
examined Francesco Montis and declared him dead would have been yet  another
important piece of evidence which would have contained earliest  version  of
the accused and other relevant details.
31.         Motive for the  crime  suggested  by  the  prosecution  is  that
physical intimacy and expression of love between the appellants  had  caused
depression in the mind of Francesco Montis which led to the animosity  which
prompted the appellants to commit the murder of deceased  Francesco  Montis.
In this regard, reliance is placed upon statement of  PW-3  Sunder  (Waiter)
who stated that on 3.2.2010, tourists of Room No. 459 ordered  two  cups  of
tea in the restaurant.  He served two cups of tea to the occupants  of  Room
No. 459 at the hotel restaurant and he noticed A-1 and A-2 were  sitting  on
one side of the table hugging, kissing and cuddling each other  whereas  the
deceased who was sitting on the other side of the table  looked  gloomy  and
depressed.  Reliance is also placed on evidence of PW-2 Ajit Kumar  (Waiter)
who stated that on the night of 3.2.2010, when PW-2 served  vegetable  fried
rice, A-2 told him 'not to disturb them till tomorrow morning'.
32.         On behalf of the appellants, it was  submitted  that  there  was
nothing like a love triangle between them and  the  deceased  and  they  are
foreigners and their social values  are  substantially  different  from  the
Indians.  It  was  submitted  that  merely  because  Francesco  Montis   and
Tomaso Bruno (first appellant) were accompanied by Elisa Betta  Bon  (second
appellant)  and all three were staying  in the room, it cannot be   inferred
that intimacy developed   between   appellants   to  the  annoyance  of  the
deceased which created a motive in  the  long  run  for  commission  of  the
alleged crime by the appellants.  It  was  submitted  that  prosecution  has
failed to establish the motive propounded against the accused persons  which
is an important circumstance in a  criminal  case  based  on  circumstantial
evidence.
33.         There is, in our view,  merit in the submission of  the  learned
senior counsel for the appellants.  Prosecution tried to establish the  case
against the accused by making improvements at various stages.   The  version
of PW-3 that he saw A-1 and A-2 hugging, kissing  and  cuddling  each  other
and that Francesco Montis was  sitting  on  the  other  side  of  the  table
appearing depressed was not stated to the investigating officer  PW-13  when
he recorded PW-3's statement under Section 161  Cr.P.C.   Likewise,  version
of PW-2-Ajit Kumar that on the night of 3.2.2010, the second  accused  asked
him 'not to disturb till tomorrow morning' was also  not  mentioned  in  his
statement recorded by the investigating officer under Section 161 Cr.P.C.
34.         Where the case is based on  circumstantial  evidence,  proof  of
motive will be an important corroborative piece of evidence.  If  motive  is
indicated and proved, it strengthens the probability of  the  commission  of
the offence.  In the case at  hand,  evidence  adduced  by  the  prosecution
suggesting motive is only by way  of  improvement  at  the  stage  of  trial
which, in our view, does not inspire confidence of the court.
35.         Yet another circumstance relied upon by the prosecution is  that
the death is homicidal i.e.  death  is  due  to  asphyxia  as  a  result  of
strangulation as stated in Exs. Ka-10 and Ka-11  post-mortem  reports.   The
first post-mortem on the body of Francesco Montis was done  on  5.2.2010  by
PW-10-Dr. R.K. Singh.  Then in pursuance to  the  direction  issued  by  the
District Magistrate as per the order of Chief Medical Officer, second  post-
mortem was performed on 6.2.2010 by a panel of doctors and the second  post-
mortem report is Ext.  Ka-11.  The first post-mortem  report  discloses  the
following injuries:-
"Ante-Mortem  Injury:
On opening  scalp, contusions 2 cm x 2 cm on the mid of forehead 3 cm  above
root of nose.

On opening scalp, contusion 4 cm x 3 cm on left side head 2  cm  above  left
ear.

Abraded contusion (multiple) in area of 5 cm x 3 cm on right side neck 5  cm
outer of mid line 8 cm below right ear.

Multiple abraded contusion an area of 5 cm x 4 cm on left  side  neck  6  cm
outer to mid line & 7 cm below left ear.

Lacerated wound 2 cm x 1 cm x muscle deep on front  of  mid  line  of  lower
lip.

Abraded contusion 2 cm x 2 cm on outer aspect of left knee joint.

Internal Examination:
Membranes of head congested. Sub arachnoid Haematoma  present,  Spinal  cord
not opened, Pleura  congested, Trachea contused, no abnormality detected  in
larynx, both the lungs congested, Pericardium congested.
Chambers of heart full, peritoneum congested,  100  Gms  digested  food  was
found in stomach, small intestine contained digested food and gas and  large
intestine  contained  faecal  matter  and  gas,  pancreas,  spleen,  kidneys
congested, bladder was empty.  In the opinion of the doctor, cause of  death
was asphyxia as  result of strangulation.  However,  viscera  preserved  for
chemical analysis to exclude poisoning."

In the second post-mortem Ext. Ka-11, substantially there  were  no  changes
except signs of decomposition.  Second post-mortem  reiterates   that  cause
of death is "asphyxia as a result  of  strangulation".    According  to  the
medical opinion, a hard blunt substance appears to have been used  to  cause
strangulation leading to the death on account of asphyxia. However, no  such
hard or blunt substance was found or seized from  the  room.   Doctors  have
not found any physical signs of internal injuries viz. any extravasation  of
blood  in  the  tissue  or  any  laceration  in  the   underlying   muscles.
Considering postmortem reports Exts Ka-10 and   Ka-11 and  the  evidence  of
PWs 10 and 11, in our view, reasonable doubts  arise  as  to  the  cause  of
death due to asphyxia as a result of strangulation.
36.         Let us consider the injuries  found  on  the  body  of  deceased
Francesco  Montis  vis--vis  symptoms  of  strangulation.   As  per  Modi's
Medical Jurisprudence And Toxicology 24th Edition.  2011,  page  No.453  the
symptoms of strangulation are stated as under:-
"(b) Appearances due to Asphyxia.-The  face  is  puffy   and  cyanosed,  and
marked with petechiae.  The eyes are prominent  and open.   In  some  cases,
they may be closed.  The conjunctivae  are  congested  and  the  pupils  are
dilated. Petechiae are seen  in the eyelids and the conjunctivae.  The  lips
are blue.  Bloody foam escapes from the mouth and nostrils,  and  sometimes,
pure blood issues from  the  mouth,  nose  and  ears,  especially  if  great
violence   has  been  used.   The  tongue   is  often    swollen,   bruised,
protruding  and  dark  in  colour,  showing  patches  of  extravasation  and
occasionally bitten by the teeth.  There may be   evidence  of  bruising  at
the back  of the neck.  The hands are usually clenched.  The genital  organs
may be congested and there may be discharge of  urine,  faeces  and  seminal
fluid.

(ii) Internal Appearance.- The neck and its structures should   be  examined
 after removing  the brain and the chest organs,  thus  allowing   blood  to
drain from the neck to the blood vessels.  There is extravasation  of  blood
into the sub-cuataneous tissues under the ligature mark or finger marks,  as
well as  in the adjacent muscles of the neck, which are  usually  lacerated.
Sometimes, there is laceration of the sheath of the  carotid  arteries,   as
also their internal  coats with effusion of blood  into  their  walls.   The
cornua of the hyoid bone may  be  fractured  also  the  superior  cornua  of
thyroid cartilage but fracture of  the    cervical  vertebrae  is  extremely
rare.  These should be carefully dissected in situ as they are difficult  to
distinguish from dissection artefacts in the neck....."

37.         PW-10 Dr. R.K. Singh was subjected to lengthy  cross-examination
in the trial court which appears to have  spread  over  a  number  of  days.
When PW-10 was confronted with the injuries found on the body of  Francesco,
he has stated that there was no injury  found  in  the  Superior  Cornua  of
Thyroid bone and no frothy mucous was found in the larynx and  trachea.   By
going through the evidence of PW-10, it is seen that it  was  elicited  from
PW-10 that  the  prominent  symptoms  of  strangulation  were  conspicuously
absent.  It is apposite to refer to two questions and answers elicited  from
PW-10 which are extracted hereunder:-
QUESTION: Is it correct that in the present case that none of  the  external
appearances in cases of death by strangulation viz. the  petechiae  in   the
eye, the puffiness and swollen  face  and  protruding  out  of  tongue   and
petechiae in tongue  and bloody foam from  the  mouth  and  bulging  out  of
eyes, swelling in tongue, bruising  and the base  of  the  neck,  nails  and
finger marks on the  neck  and hands  are  clenched  were  present  in  this
case?

ANSWER: As I said earlier all these signs depend on mode  of  death  and  it
varies from person to person and time of the post mortem, time of death  and
how death was caused.  I agree that all the above signs  mentioned  in  this
question were not present in present case.  It may be present  in  death  by
asphyxia due to strangulation.  But it is not  necessary  that  all    these
signs must be present in every case of asphyxial death by strangulation.

QUESTION: Is it correct that all  the  internal   appearances  in  death  by
strangulation were not present in this case viz.  (i)  subcutaneous  tissues
and----------muscles  are  lacerated,  (ii)  extravasation  of  blood   into
subcutaneous tissues, (iii) fracture of  cornia  of  hyoid  bone,  (iv)  non
fracture of superior cornia of hyoid bone, (v)  non  fracture   or   rupture
in cartilage rings (vi) non rupture or fracture of trachea  (vii)  edema  in
the brain, (viii) petechial haemorrhage, (ix) petechiae in  the  lungs,  (x)
laceration in sheath of carotid arteries (xi) compression  in  the  arteries
and bones (xii) larynx and trachea  containing  frothy  mucous  were  absent
in present case?

ANSWER As per ecchymosis around injury 3-4, it was present at  the  time  of
Post-Mortem, hence I have  written  injury  No.  3  and  4  as  ante  mortem
injuries.  Rest of findings depend on mode of   death  and  timing  of  Post
Mortem since death and manner of causing injuries.  The  aforesaid  symptoms
suggested in the   question were  not  present  in  this  case.  It  is  not
necessary that these symptoms must be present in  every  case  of  death  by
strangulation."

38.         Of course PW-10 has  explained  that  by  and  large  the  above
symptoms of strangulation as put  up  to  him  in  the  questions  would  be
present in  cases  of  strangulation.    PW-10  further  stated  that  those
symptoms need not necessarily be so in all cases of strangulation.   In  our
considered view,  the  conspicuous  absence  of  symptoms  of  strangulation
coupled  with  other  circumstances  militates  against  the  case  of   the
prosecution.
39.         It is a settled proposition of law recently  reiterated  in  the
following cases viz. Dayal Singh And Ors. vs. State of Uttaranchal (2012)  7
SCALE 165, Radhakrishna Nagesh vs. State of Andhra Pradesh,  (2013)  11  SCC
688, Umesh Singh vs. State  of   Bihar  (2013)  4  SCC  360  that  there  is
possibility of some variations in the exhibits, medical and ocular  evidence
and it cannot be ruled out.  But it is not that  every  minor  variation  or
inconsistency would tilt the balance of justice in favour  of  the  accused.
Where  contradictions  and  variations  are  of  a  serious  nature,   which
apparently or impliedly are destructive of the substantive  case  sought  to
be proved by the prosecution, they may provide an advantage to the accused.
40.         The courts, normally  would  look  at  expert  evidence  with  a
greater sense of acceptability, but it is equally true that the  courts  are
not absolutely guided by the report  of  the  experts,  especially  if  such
reports are perfunctory and unsustainable.  We agree that the purpose of  an
expert opinion  is primarily  to assist the court  in arriving  at  a  final
conclusion but such  report   is  not  a  conclusive  one.   This  Court  is
expected to analyse the report,  read  it  in  conjunction  with  the  other
evidence on record and then form  its  final  opinion  as  to  whether  such
report is worthy of reliance or not.  As discussed earlier,  serious  doubts
arise about the cause of death stated in the post-mortem reports.
41.          Even  if  we  were  to  accept  that  the  death  was  due   to
strangulation which was caused by an object,  the  non-recovery  of  alleged
object weakens the prosecution case.  Furthermore, it has to be pointed  out
that it has come in evidence that the deceased was a strongly built man  and
in the circumstances, it is rather  strange  that  no  external  marks  were
found on the body which could demonstrate that there had  been  a  struggle.
The absence of struggle and  the  corresponding  external  injuries  is  yet
another vital aspect which had gone unnoticed by the courts below.
42.         By and large, this Court will not interfere with the  concurrent
findings recorded by the courts below.   But  where  the  evidence  has  not
been properly appreciated,  material  aspects  have  been  ignored  and  the
findings are perverse under Article 136  of  the  Constitution,  this  Court
would certainly interfere with the  findings  of  the  courts  below  though
concurrent.  In a case based on circumstantial evidence, circumstances  from
which inference of guilt is sought to be drawn should be  fully  proved  and
such circumstances must be of conclusive nature pointing  to  the  guilt  of
accused.  There shall be no gap in such chain  of  circumstances.    In  the
present case, the courts below have not properly  appreciated  the  evidence
and the gap in the chain of circumstances sought to be  established  by  the
prosecution.    The  courts  below  have  ignored  the  importance  of  best
evidence i.e. CCTV camera in the instant case and also have not noticed  the
absence  of  symptoms  of  strangulation  in  the  medical   reports.   Upon
consideration of the facts and circumstances of the  case,  we  are  of  the
view that the circumstances and the evidence adduced by the  prosecution  do
not form a complete chain pointing to the  guilt  of  the  accused  and  the
benefit of doubt is to be given to the accused and  the  conviction  of  the
appellants is liable to be set aside.
43.         In the  result,  conviction  of  the  appellants  under  Section
302/34 IPC is set aside and the appeal is allowed.   Appellants be  released
forthwith.
                                              ............................J.
                                                              (Anil R. Dave)

                                              ............................J.
                                                             (Kurian Joseph)

                                              ............................J.
                                                              (R. Banumathi)
New Delhi;
January 20, 2015

ITEM NO.1C-For Judgment       COURT NO.12           SECTION II

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Crl. A.No......../2015 arising from SLP (Crl.)  No(s).  1156/2013

TOMASO BRUNO & ANR.                                Petitioner(s)

                                VERSUS

STATE OF U.P.                                      Respondent(s)

Date : 20/01/2015 This petition was called on for pronouncement of JUDGMENT
today.

For Petitioner(s)   Ms. Ranjeeta Rohtagi,Adv.

For Respondent(s)
                     Mr. M. R. Shamshad,Adv.


            Hon'ble Mrs. Justice R. Banumathi  pronounced  the  judgment  of
the Bench comprising Hon'ble Mr. Justice Anil R. Dave, Hon'ble  Mr.  Justice
Kurian Joseph and Hon'ble Mrs. Justice R. Banumathi.
            Leave granted.
            The  appeal  is  allowed  in  terms  of  the  signed  Reportable
Judgment.

    (VINOD KR. JHA)                             (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable Judgment is placed on the file)

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