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)
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)
