Supreme Court of India
TOMASO BRUNO & ANR.versusSTATE OF U.P.
- Citation
- 2015 INSC 52
- Decided
- 20 January 2015
- Disposal
- Appeal(s) allowed
- Bench
- ANIL R DAVE
Holding
The conviction under Sections 302/34 IPC was set aside because the prosecution’s evidence, notably the missing CCTV footage and lack of forensic signs of strangulation, failed to form a complete chain of circumstances, giving the appellants the benefit of doubt.
Summary
Three Italian tourists were accused of murdering their fellow tourist in a hotel room in Varanasi. The trial and appellate courts convicted them under Sections 302 and 34 of the IPC based on circumstantial evidence, including alleged motive, post‑mortem findings of strangulation, and the claim that they remained in the room overnight. The appellants argued that the prosecution failed to produce the CCTV footage, which was the best evidence to prove their presence or absence in the room, and that the medical evidence did not show typical signs of strangulation. The Supreme Court held that the non‑production of the CCTV footage and the absence of corroborative forensic signs created a material gap in the chain of circumstances, warranting a benefit of doubt. Consequently, the Court set aside the conviction and ordered the appellants’ release.
Issues considered
- The prosecution must prove beyond reasonable doubt that the accused were present in the hotel room at the relevant time.
- Whether the failure to produce CCTV footage, the best evidence, warrants an adverse inference under Section 114(g) of the Evidence Act.
- Whether the post‑mortem findings sufficiently establish death by strangulation in the absence of typical symptoms.
- Whether the circumstantial evidence forms a complete, unbroken chain pointing to the guilt of the accused.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 313
- Indian Evidence Act, 1872s. 106, s. 114(g)
- Indian Evidence Act (Amended 2000)s. 658, s. 65A
- Indian Penal Code, 1860s. 302, s. 34
Subjects
murdercircumstantial evidenceelectronic evidenceCCTV footageburden of proofalibiSection 302 IPCSection 34 IPCSection 106 Evidence ActSection 114(g) Evidence ActSection 65A Evidence ActSection 658 Evidence Actforeign nationalshotel roompost‑mortemstrangulation
Judgment
[2015] 1 S.C.R. 721
TOMASO BRUNO & ANR. A
v.
STATE OF U.P.
(Criminal Appeal No.142 of 2015)
JANUARY 20, 2015
B
[ANIL R. DAVE, KURIAN JOSEPH AND
R. BANUMATHI, JJ.]
Penal Code, 1860 - s. 302134 - Murder - Prosecution
case that two foreign nationals committed murder of another C
foreign national on their trip to India as tourists - Offence took
place inside the privacy of the hotel room in which the
appellant and the deceased were staying together and only
the appellants had the opportunity to commit the offence -
Appellants' case is that at the relevant time they had gone out D
and on returning back to the hotel room found the condition
of their friend very serious and immediately informed the hotel
manager about the same and with the assistance of the hotel
staff, took him to the hospital - On basis of the evidence,
conviction and sentence uls. 302134 by courts below - On E
appeal, held: On facts, CCTV footage being a crucial piece
of evidence, it is for the prosecution to have produced the best
evidence which is missing - Non-production of CCTV footage
being best evidence casts doubt on the prosecution case -
Courts below did not notice the faulty investigation as also the F
absence of symptoms of strangulation in the medical reports
- Circumstances and the evidence adduced by the
prosecution do not form a complete chain pointing to the guilt
of the accused - Appellants given benefit of doubt and the
order of conviction set aside - Evidence.
G
Evidence Act, 1872 - s. 658 - Admissibility of electronic
records - Murder case - CCTV cameras installed in the
prominent places - CCTV footage - Effect of non-production
- Held: CCTV footage is a strong piece of evidence to prove
721 H
722 SUPREME COURT REPORTS [2015] 1 S.C.R.
A whether the accused remained inside the room and whether
they were responsible for the commission of a crime -
Omission to produce CCTV footage by the prosecution, which
is the best evidence, raises serious doubts about the
prosecution case.
B
Allowing the appeal, the Court
HELD: 1.1. In the instant case, the courts below did
not properly appreciate the evidence and the gap in the
chain of circumstances sought to be established by the
C prosecution. The courts below ignored the importance of
best evidence i.e. CCTV camera and also did not notice
the absence of symptoms of strangulation in the medical
reports. Upon consideration of the facts and
circumstances of the case, the circumstances and the
D evidence adduced by the prosecution do not form a
complete chain pointing to the guilt of the appellants-
foreign national and the benefit of doubt is to be given
to the appellants. Thus, the conviction of the appellants
u/s.302/34 IPC is set aside. [Para 42] [747-C-E]
E
1.2. 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
F material evidence. With the amendment to the Evidence
Act in 2000, Sections 65A and 658 were introduced into
Chapter V relating to documentary evidence. [Para 25]
[737-E-F]
G 1.3. 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. On facts of the case, to invoke
H Section 106 of the Evidence Act, the burden was for the
TOMASO BRUNO & ANR. v. STATE OF U.P. 723
prosecution to establish that the appellants remained A
inside the hotel room at the relevant time. PW-1-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 B
have been best evidence to prove whether the accused
remained inside the room and whether or not they have
gone out and whether they were responsible for the
commission of a crime. CCTV footage being a crucial
piece of evidence, it is for the prosecution to have c
produced the best evidence which is missing. Omission
to produce CCTV footage which is the best evidence,
raises serious doubts about the prosecution case. [Para
21, 22] [736-B-G]
1.4. PW 1-hotel manager stated that he saw the CCTV D
footage at the relevant time and on the fateful night no
person was having ingress or egress to the said room.
PW-13-investigating officer stated that he saw the full
video recording of the fateful night in the CCTV camera,
but he did not record the same in the case diary as E
nothing substantial to be adduced as evidence was
present in it. Non-production of CCTV footage, non-
collection of call records (details) and sim details of
mobile phones seized from the accused ca1mot be said
to be mere instances of faulty investigation but amount F
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. [Para 25, 27] 736-G-H; 737-
A; 738-E-F]
G
1.5. 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. Notwithstanding the
fact that the burden lies upon the accused to establish H
724 SUPREME COURT REPORTS [2015] 1 S C R.
A the defence plea of alibi in the facts and circumstances
of the case, prosecution in possession of the best
evidence-CCTV footage ought to have produced the
same. It is a fit case to draw an adverse inference against
the prosecution under Section 114 (g) that the
B prosecution withheld the same as it would be
unfavourable to them had it been produced. [Para 28]
[738-G-H; 739-E-F]
1.6. The submission that there was nothing like a
love triangle between them and the deceased and they
C are foreigners and their social values are substantially
different from the Indians; and that the prosecution failed
to establish the motive propounded against the accused
persons is accepted. The evidence adduced by the
prosecution suggesting motive is only by way of
D improvement at the stage of trial which does not inspire
confidence of the court. 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
E 'FM' was ~itting 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 u/s. 161 Cr.P.C.
as also the version of PW-2 that on the night of 3.2.2010,
the second accused asked him 'not to disturb till
F tomorrow morning'. [Para 32, 33, 34] [740-H; 741-A-B-F-
G; 741-C-E]
1.7. Prosecution neither examined the doctor nor
produced the report that was prepared in the emergency
G ward of the hospital. Likewise, the death intimation sent
to the police was also not produced. The prosecution
relied upon another circumstance that the death is
homicidal i.e. death is due to asphyxia as a result of
strangulation as stated in the post-mortem reports.
H Considering postmortem reports. and the evidence of
TOMASO BRUNO & ANR. v. STATE OF U.P. 725
PWs 1O and 11, reasonable doubts arise as to the cause A
of death due to asphyxia as a result of strangulation. The
conspicuous absence of symptoms of strangulation
coupled with other circumstances militates against the
case of the prosecution. Even if it is accepted that the
death was due to strangulation which was caused by an B
object, the non-recovery of alleged object weakens the
prosecution case. The deceased being a strongly built
man, the absence of struggle and the corresponding
external injuries is yet another vital aspect which went
unnoticed by the courts below. [Paras 30, 35, 37, 38, 41] c
[740-C; 741-H; 743-D; 745-H; 746-A, F-H]
C. Chenga Reddy & Ors. vs. State of A.P. 1996 (3)
Suppl. SCR 479: (1996) 10 SCC 193; Shivu and Anr. vs.
Registrar General, High Court of Karnataka & Anr. 2007 (2)
SCR 555: (2007) 4 SCC 713; Padala Veera Reddy v. State D
of A.P. and Ors. 1989 Supp. (2) SCC 706; Gosu Jayarami
Reddy and Anr. vs. State of Andhra Pradesh 2011 (9)
SCR 503 : (2011) 11 SCC 766; Munshi Prasad & Ors. vs.
State of Bihar 2001 (4) Suppl. SCR 25: (2002) 1 SCC 351;
Mohd. Ajmal Mohammad Amir Kasab vs. State of E
Maharashtra 2012 (8) SCR 295: (2012) 9 SCC 1; State (NCT
of Delhi) vs. Navjot Sandhu @ Afsan Guru 2005 (2) Suppl.
SCR 79: (2005) 11 SCC 600; Dayal Singh And Ors. vs. State
of Uttaranchal (2012) 7 SCALE 165, Radhakrishna Nagesh
vs. State of Andhra Pradesh 2012 (11) SCR 1114 : (2013) F
11 SCC 688, Umesh Singh vs. State of Bihar 2013 (4)
SCR 797: (2013) 4 SCC 360 - referred to.
Modi's Medical Junsprudence And Tox1cology 24th Edn.
2011, p 453 - referred to. ··
G
Case Law Reference :
1996 (3) Suppl. SCR 479 Referred to Para 14
2007 (2) SCR 555 Referred to Para 15
H
1989 Supp. (2) SCC 706 Referred to Para 16
726 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 2011 (9) SCR 503 Referred to Para 20
2001 (4) Suppl. SCR 25 Referred to Para 20
2012 (8) SCR 295 Referred to Para 26
2005 (2) Suppl. SCR 79 Referred to Para 26
B
(2012) 7 SCALE 165 Referred to Para 39
2012 (11) SCR 1114 Referred to Para 39
2013 (4) SCR 797 Referred to Para 39
c CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 142 of 2015.
From the Judgment and Order dated 04.10.2012 of the
High Court of Judicature at Allahabad in Criminal Appeal No.
5043 of 2011.
D
Harin P. Raval, Ranjeeta Rohatgi, Nikhil Rohatgi, Anando
Mukherjee, Anirush Sharma, Divya Anand, Nipun Saxena, Jaya
khanna for the Appellants.
E lrshad Ahmad, AAG, M. R. Shamshad, Shashank Singh,
Aditya Samaddar, Anurag Rawat for the Respondent.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted.
F
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
G 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
H (Deceased) came as tourists to India from'London and reached
TOMASO BRUNO & ANR. v. STATE OF U.P. 727
[R. BANUMATHI, J.]
Mumbai on 28.12.2009. After visiting several places of interest A
together, the"se 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 B
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 c
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'. D
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 E
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 F
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 G
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
H
the investigation and proceeded to the place of occurrence i.e.
728 SUPREME COURT REPORTS (2015] 1 S.C.R.
A 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
B 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
c 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
0
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
E 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 1.0., that on the fateful night
of 3.2.2010, they ordered two plates of fried rice and all three
F 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
G 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.
H
TOMASO BRUNO & ANR. v. STATE OF U.P. 729
[R. BANUMATHI, J.]
7. Upon consideration of evidence, trial court convicted the A
accused pe(sons 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 B
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
c
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 D
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 E
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. F
9. Mr. lrshad Ahmad, learned Additional Advocate General
appearing for the respondent-State submitted that without
evidence of their complicity in the crime, there 1s no reason as
to why PW-1 Ram Singh, the hotel manager or the police G
persorinel 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
H
730 SUPREME COURT REPORTS [2015) 1 S.C.R.
A 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
B 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,
c 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.
D
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
E 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
F 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;
G
(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;
H
TOMASO BRUNO & ANR. v. STATE OF U.P. 731
[R. BANUMATHI, J.]
(iv) the intimacy developed between the accused A
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
B
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 C
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 D
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
E
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 F
touchstone of the law relating to circumstantial evidence. This
Court in C. Chenga Reddy & Ors. vs. State of A.P., (1996)
10 sec 193, para (21) held as under :-
"21. In a case based on circumstantial evidence, the G
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
H
732 SUPREME COURT REPORTS [2015] 1 S.C.R.
,A 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
s 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:-
c
"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
D 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 UP. v. Sukhbasi
E (1985 (Supp.) SCC 79), Ba/winder 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 to be closely
F
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
G
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) sec
706, it was laid down that in a case of
H
TOMASO BRUNO & ANR. v. STATE OF U.P. 733
[R. BANUMATHI, J.]
circumstantial evidence such evidence must satisfy the following A
test:-
"(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established; B
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively, should form c
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
D
(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 E
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 F
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 G
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
H
734 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 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
B 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
c 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.
D 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
E 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
F 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.
G 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
H
TOMASO BRUNO & ANR. v. STATE OF U.P. 735
[R. BANUMATHI, J.]
in the wee hours of 4.2.2010 at 4.00 A.M., they had gone to A
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, Prancesco Montis was taken to the hospital. B
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 C
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 D
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:-
E
"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. (Al R 1954 F
SC 30 at p. 31, para 2)
"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 G
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. H
736 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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 sfated that he saw the CCTV footage at the relevant time
ancfon the fateful night no person was havingdngress or egress
H to the said room. PW-13-Dharambir Singh, investigating officer,
TOMASO BRUNO & ANR. v. STATE OF U.P. 737
[R. BANUMATHI, J.]
also stated that he saw the full video recording of the fateful night A
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 B
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 3.2.201 O and 4.2.2010 which is based on the CCTV footage.
Courts below accepted the version of PW-1 and PW-13 to hold C
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. D
25. With the advancement o~ 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 E
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 658 were introduced into F
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 658 is complied
with. The computer generated electronic records in evidence
are admissible at a trial if proved in the manner specified by G
Section 658 of the Evidence Act. Sub-section (1) of Section
658 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 658. Secondary
H
738 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 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.
B
26. Production of scientific and electronic evidence in court
as contemplated under Section 658 of the Evidence Act is of
great help to the investigating agency and also to the
prosecution. The relevance of electronic evidence is also
C evidi::!nt 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
D 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
E 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
F 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.
G 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
H the Evidence Act is only a permissible inference and not a
TOMASO BRUNO & ANR. v. STATE OF U.P. 739
[R. BANUMATHI, J.]
necessary inference. Unlike presumption under Section 139 of A
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 8
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 C
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 D
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 E
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 F
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. G
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
H
740 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 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
8 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
C 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
D 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
E Montis which led to the animesity 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
F 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
G 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
H and they are foreigners and their social values are substantially
TOMASO BRUNO & ANR. v. STATE OF U.P. 741
[R. BANUMATHI, J.]
different from the Indians. It was submitted that merely because A
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
decea~ed which .created a motive in the long run for B
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. c
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 D
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 E
tomorrow morning' was also not mentioned in his statement
recsrded by the investigating officer under Section 16 1 Cr.P .C.
34. Where the case is based on circumstantial evidence,
proof of motive will be an important corroborative piece of F
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.
G
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-1 O
and Ka-11 post-mortem reports. The first post-mortem on the
H
742 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 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.
B 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.
c
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
D 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.
E
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.
F
Internal Examination:
Membranes of head congested. Sub arachnoid
Haematoma present, Spinal cord not opened, Pleura
congested, Trachea contused, no abnormality detected in
G
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
H contained faecal matter and gas, pancreas, spleen,
TOMASO BRUNO & ANR. v. STATE OF U.P. 743
[R. BANUMATHI, J.]
kidneys congested, bladder was empty. In the opinion of A
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
B
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. c
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 D
asphyxia as a result of strangulation.
36. Let us consider the injuries found on the body of
deceased Francesco Montis vis-a-vis symptoms of
strangulation. As per Modi's Medical Jurisprudence And E
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 pete6hiae. The eyes are
prominent and open. In some cases, they may be closed. F
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. G
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 H
744 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 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-
B 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
c 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 ..... "
D
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-1 O was confronted with the injuries
found on the body of Francesco, he has stated that there was
E 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
F a.id 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
G 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?
H
TOMASO BRUNO & ANR. v. STATE OF U.P. 745
[R. BANUMATHI, J.]
ANSWER: As I said earlier all these signs depend on A
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 B
not necessary that all these signs must be present in every
case of asphyxia! death by strangulation.
QUESTION: Is it correct that all the internal appearances
in death by strangulation were not present in this case viz. C
(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) D
petechiae in the lungs, (x) laceration in sheath cit carotid
arteries (xi) compression in the arteries and bones (xii)
larynx and trachea containing frothy mucous were absent
in present case?
E
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 F
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 G
questions would be pr~sent 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
H
746 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 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
Uttarancha/ (2012) 7 SCALE 165, ~adhakrishna Nagesh vs.
8
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
arid it·cannot be ruled out. BUfit is not that every minor variation
C 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.
D 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
E 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
F 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
G 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
H courts below.
TOMASO BRUNO & ANR. v. STATE OF U.P. 747
[R. BANUMAT~l, J.]
42. By and large, this Court will not interfere with the A
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 B
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 conclusiv~ 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 c
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
0
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
E
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.
Nidhi Jain Appeal allowed.
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