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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

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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

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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

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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

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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

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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

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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;

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(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.

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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  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 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

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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

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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.

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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

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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)

“2. The plea of alibi involves a question of fact  and both the courts below have concurrently

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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-

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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.

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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

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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

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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, the Court

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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

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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

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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

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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

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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: 1. On opening  scalp, contusions 2 cm x 2 cm on the  

mid of forehead 3 cm above root of nose.

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

3. 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.

4. 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.

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

6. 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

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as a result of strangulation.

36. Let  us  consider  the  injuries  found  on  the  body  of  

deceased Francesco Montis vis-à-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

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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

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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

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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

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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)

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……………………….J. (R. Banumathi)

New Delhi; January 20, 2015

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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)