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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

Page 25 25

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 24

th

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

Page 26 26

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

Page 27 27

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

Page 28 28

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

Page 29 29

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)

Page 30 30

……………………… .J.

(R. Banumathi)

New Delhi;

January 20, 2015

Page 31 31

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)